NARAIN SINGH Vs. STATE OF BIHAR
LAWS(PAT)-1960-9-14
HIGH COURT OF PATNA
Decided on September 02,1960

NARAIN SINGH Appellant
VERSUS
STATE OF BIHAR Respondents


Referred Judgements :-

REGINA V. LILLYMAN [REFERRED TO]
EMPEROR V. PHAGUNIA BHUIAN [REFERRED TO]



Cited Judgements :-

JOGINDER VS. STATE [LAWS(DLH)-2012-1-587] [REFERRED TO]
SAJAL SURESHKUMAR JAIN VS. STATE OF GUJARAT [LAWS(GJH)-2009-4-83] [REFERRED TO]


JUDGEMENT

S.N.P. Singh, J. - (1.)THE appellant, Narain Singh, has been convicted under Section 376 of the Indian Penal Code, and has been sentenced to undergo rigorous imprisonment for seven years thereunder.
(2.)THE facts of the case, which lie within a narrow compass, are these : It is said that, on the 21st of March, 1958, at about 4 a. m. appellant Narain Singh came to the house of Keshri Kaharin P. W. 1 and asked her and her daughter, Kari Kaharin, to harvest rabbi crops from his fields. As P. W. 1 Keshri Kaharin was not well at that time, she asked her daughter, Kari, to accompany the appellant for the purpose of harvesting the rabbi crops. THEreupon, Kari took one hasua and went with the appellant. After about one hour, Kari returned weeping to her house. It is said that, on inquiry by Keshri P. W. 1 and Sabitwa Kaharin P. W. 3, Kari told them that, while, she was harvesting the rabbi crops, the appellant threw her on the ground and forcibly raped her, According to the prosecution, the other witnesses, namely, P. W. 2 Basdeo Ram, P. W. 5 Moti Ram, P. W. 6 Somar Kumhar and P. W. 7 Sarjoo Singh, were also present at the time when Kari made the above statement to her mother, P. W. 1, and her aunt, P. W. 3. On inquiry by some of the witnesses about the spot where Kari was raped, the latter went to a field called Pacheari Bandh and pointed out a place-where she was alleged to have been raped. It is said that Kashi Singh, the father of the appellant, along with his wife, came to the house of Kari and made some indecent proposals asking Kari to remain in their house as a concubine. THE proposal put forward by the parents of the appellant was strongly resented by P. W. 1 the mother of Kari, and others. Kari was very such upset, and it is said that she openly stated that, since her chastity was gone she would not show her face to anybody and would end her life. People tried to console her and told her that steps would be taken to settle the matter. Sabitwa Kaharin P. W. 3 went to the Mukhiya of the village for the purpose of settling the matter, but she could not meet him. At about 12 noon that day, it is said that Kari, after putting kerosene oil on her clothes, set fire to her body. After some time she ran out of her house and fell down in the lane in front of her house. On alarm being raised, the neighbours came. THE girl was then removed to Hisua hospital at about 4 p. m. where the medical officer tried to save the girl, but he failed in his attempt. THE Sub-Inspector of Police of Hisua police station was informed by the medical officer for recording the dying declaration of the girl, but, before her statement could be recorded, the girl died on the night of the 21st of March, 1958. THE far3beyan Exhibit 2 of Keshri Kaharin was recorded, on the basis of which the first information report Exhibit 3 was drawn up by the Assistant Sub-Inspector of Police P. W. 10. After completing investigation, charge-sheet was submitted by the Sub-Inspector of Police P. W. 1.1 on the 30th of April, 1958. An inquiry under Chapter XVIII of the Code of Criminal Procedure followed, and the appellant was committed to the Court of Session to stand his trial under Section 376 of the Indian Penal Code.
The appellant pleaded not guilty to the charge, and took defence that he had been falsely implicated in the case at the instance of Sarjoo Singh P. W. 7. It was alleged by the appellant in his statement under Section 342 of the Code of Criminal Procedure that Kari Kaharin and her sister were mistresses of Sarjoo Singh and, as the appellant dissuaded Sarjoo Singh from keeping the two girls as concubines, he has set up this false case against the appellant.

The learned Assistant Sessions Judge came to the finding that the girl was raped by the appellant, as alleged by the prosecution.

Mr. J. N, Verma, learned Counsel appearing for the appellant, raised only one contention. He submitted that the conviction of the appellant should be set aside as it is based on no legal evidence. It is the admitted case that no one else except the girl herself had seen the actual commission of the rape. The girl, having died on the same day in the night, could not be examined as a witness in the case. The conviction of the appellant is based solely on the evidence of the prosecution witnesses 1, 2, 3, 5, 6 and 7 to the effect that, immediately after the alleged occurrence, Kari came and complained to them that she had been raped by the appellant. The points for consideration are, whether the alleged statements made by Kari to her mother and the other witnesses are admissible in evidence, and, if admissible, whether the conviction of the appellant can be based solely on those statements. Before considering the points, I would refer to the evidence of Keshri Kaharin P. W. 1 on this point. According to her evidence, the appellant, Narain Singh, came to her house on a Friday to engage her for harvesting boot and wheat from his fields. As she herself was ill for the last four days, she asked her daughter, Kari, to go with the appellant. Thereupon, Kari took a hasua and accompanied the appellant. She returned weeping within an hour. The witness P. W. 1 and her gotni P. W. 3 asked her as to why she was weeping. Thereupon, Kari said that she was thrown down by the appellant, who caught hold of her breasts, and, after a struggle with her, he raped her. According to F. W. 1, Basdeo P. W. 2, Moti P. W. 5, Sarjoo Singh P. W. 7 and others also came to her house, and to them also Kari narrated the incident. P. W. 1 has further stated that Kari gave out that she would finish her life when such a thing had been done to her. She has also deposed to the effect that Kashi Singh, father of the appellant, and his wife came to her house and made an indecent proposal of taking the girl to their house as a mistress of the appellant. When Kari became upset, P. W. I consoled her and promised that she would go to the Mukhia, and her gotni went to the Mukhia. In the meantime, however, the girl set fire to her body by sprinkling kerosene oil. According to the evidence of P. W. 1, the girl had put the kerosene oil on her body in the angan and set fire to her body there. At that time, P. W. 1 was in her room. On her arrival of the witnesses, namely, Moti P. W. 5, Sarjoo Singh P. W. 7 and others, Kari was taken to Hisua Hospital where the Assistant Sub-Inspector of Police came, but he could not examine Kari as she was unconscious. It is not necessary to refer in detail to the evidence of the other witnesses, namely, P. W's 2, 3, 5, 6 and 7. All of them have supported the informant P. W. 1 on the point that Kari immediately after the occurrence made statement before them to the effect that the appellant ravished her in the field where harvesting was being done.

The learned Assistant Sessions Judge has placed reliance on the evidence of P. W. 1 and others to the effect that the girl made the aforesaid statements to them. According to the trial Judge, the statements made by deceased Kari to her mother and other prosecution witnesses were in the nature of a complaint, and, as such, they were admissible in evidence under Section 8 of the Evidence Act. Mr. J. N. Verma contended, in the first place, that the statements made by the girl were not a complaint and, secondly, that, even if they be taken as a complaint, the conviction of the appellant cannot be based on the alleged statements made by the girl. In paragraph 21 of his judgment, the learned Assistant Sessions Judge, has considered this question, and has taken the view that the alleged statements made by Kari are admissible in evidence under illustration (J) of Section 8 of the Evidence Act, From the evidence of P. W. 1 it appears that the girl did. not make the statements of her own accord. While she wag weeping, P. W. 1 and others asked her as to why she was weeping on which the girl made the alleged statements to the effect that she had been ravished by the appellant. In the case of Emperor v. Phagunia Bhuian AIR 1926 Pat 58 it was observed: If the girl went to her relatives straight after the occurrence and complained on her own initiative, there is no doubt that her conduct would have a direct bearing upon and connection with the occurrence itself; but if she only answered questions, her statement would be mere hearsay." The learned Assistant Sessions Judge has taken the view that a complaint does not cease to be voluntary merely because it is made in, answer to question. I find it difficult to agree with the view taken by the learned trial Judge and to hold, on the facts of the present case, that Kari made the alleged statements of her own. volition. In my opinion, the statements attributed to her cannot be said to be a complaint evidencing conduct. The conduct of a woman who has been raped is relevant only if she lodges a complaint. If she does not make a statement with a view to make a com plaint, then that statement will not be admissible in evidence, As the statements made by Kari were not in the nature of complaint, they are not admissible in evidence under Section 8 of the Evidence Act. Even if it be held that those statements were in the nature of a complaint and are thus relevant and admissible under Section 8 of the Evidence Act, the point for consideration will be as to what would be the value of those statements: could they be used as the basis for conviction of the appellant? In this connection I would refer to the observation of their Lordships of the Privy Council in Richard Gillie v. Posho Ltd. AIR 1939 PC 146, There, it was observed: In certain cases as e.g., in the cases of sexual offences against women, statements made to third parties are in some circumstances admissible. But the careful limits placed upon the admissiblity of such statements is evidence of the jealousy with which their admission is regarded. They must be complaints, made voluntarily and at the earliest convenient moment, and even then they are received not as evidence or corroboration of the facts complained of, but as evidence of the credibility of the complainant's testimony to the fact alleged, and where1 consent is a defence, to negative consent. They are inadmissible in any other class of case. In the case of Kappinaiah v. Emperor AIR 1931 Mad 233 (2) a Division Bench of the Madras High Court took the same view. It was held in that case that If the conduct of a woman who has been ravished is such that she lodges a complaint, then that conduct is relevant and the terms in which the complaint was made are relevant as conduct but they are not relevant as direct proof of the act. Their Lordships relied on the decision in Regina v. Lillyman (1896) 2 QB 167). In the Madras case also, the girl who had been ravished was not examined as a witness in the case as she was found drowned in a Canal about four days after the occurrence. She also was alleged to have made some statement to her mother-in-law shortly after the occurrence, and the point for consideration before their. Lordships was whether that statement was admissible in evidence. Their Lordships ultimately held that, as the girl did not go into the witness-box, there was nothing to confirm or corroborate and the statement or complaint could not be proved, and that Section 8 of the Evidence Act did not render the statement admissible. It is unnecessary to refer to other decisions on this point. There is no doubt in my mind that a statement even if in; the nature of a complaint made by a ravished girl cannot be received as substantive evidence of the facts alleged in the case. That statement can be used only as evidence of the credibility of the testimony of the complainant, namely, the girl, about the facts alleged. In my opinion, in the present case the appellant cannot be convicted] oh the statements alleged to have been made by Kari Kaharin to P. W. 1 and others.

(3.)THE Learned Assistant Sessions Judge has also taken the view that the statement of Kari Kaharin was admissible in evidence under Section 32(1) of the Evidence Act. Mr. K. P. Verma, learned Standing Counsel appearing for the State, frankly conceded that the statements of Kari Kaharin could not be admissible under Section 32(1) of the Evidence Act. That section refers to the actual cause of death or to the transaction resulting in death. In the instant case the rape on Kari cannot be said to be the cause of her death or transaction resulting in her death. It might have been the motive which led the unfortunate girl to set fire to her body ultimately resulting in her death. THE learned Assistant Sessions Judge has wrongly taken the view that the statements alleged to have been made by Kari to P.W. 1 and others are admissible under Section 32(1) of the Evidence Act. In my opinion, the case is not] covered by illustration (a) of Section 32 for the simple reason that Kari did not receive the bum injuries resulting in her death in the transaction in the course of which she was ravished.
For the reasons stated above, it is not possible for me to maintain the conviction of the appellant solely on the alleged statements made by Kari Kaharin to P. W. I and other witnesses. There is no other evidence on the record -- direct or circumstantial to prove the facts that the girl was ravished and that the appellant participated in the crime. In that view of the matter, there is no alternative but to allow the appeal and acquit the appellant.

In the result, the appeal is allowed, the conviction and sentence passed on the appellant are set aside and he is acquitted. The appellant will now be discharged from his bail bond.



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