Emperor vs Asadali @ Tunu

Ross, J.—This is a reference u/s 307 of the Criminal Procedure Code by the learned Sessions Judge of Cuttack. Asadali alias Tunu was charged with having on the night of the 2nd of June, 1927, committed rape on a girl Kanika aged 10 years near the compound of the Cuttack Railway Station. The trial was by Jury and the Jury by a majority 4 to 1 were in favour of giving the accused the benefit of the doubt.

The first question is whether Kanika was ravished. On that point there is her own evidence and the medical evidence as to the state of her body when she was examined and the further medical evidence that spermatozoa were found on a smear taken from the vagina. As the girl is 10 years of age no question of consent arises. The rape is proved conclusively.

The next question is as to the identity of her assailant. On this point there is the evidence of the girl herself, and she says that she had seen the accused at the Station before the occurrence also. The accused is a tout of a Motor Car Company and he frequents the Station to procure passengers for his Company''s cars. The ravished girl is a beggar child who also frequents the Railway Station and there is, therefore, no improbability in her knowing the accused. She was found by the water-carrier of the Station (P.W. No. 5) about 11 o''clock the following morning lying at the Station with blood on her cloth. The water-carrier informed the Ticket Collector who with the Assistant Station Master asked the girl what had happened and questioned her as to who her assailant was. She said he was one of the Motor Car touts and she was taken to the Motor Park outside the Station to identify him and pointed out the accused. The evidence on this point is that of the Ticket Collector and the Assistant Station Master. As the latter witness was ill at the time of the trial, his statement before the Committing Magistrate on which he was not cross examined was taken in evidence. Corroborative evidence was also given by Jalil, a bearer in the Waiting Room of the Railway Station (P.W. No. 3) and Dusasan Das a Telegraph Peon of the Railway Station (P.W. No. 4) as well as by a sweetmeat seller Dwarka Nath Das (P. W, No. 9) whose shop is situated near the Station, where a crowd had gathered over this matter. Evidence was also given by two motor car touts, but the learned Assistant Government Advocate did not lay much stress on their evidence because of the defence of the accused which is that he has been charged falsely out of enmity, because there have been constant quarrels between the servants of two rival Motor Car Companies for one of which he is tout, while these two witnesses and another man called Shaikh Rakha are touts of the competing Company. There is some evidence that Shaikh Rakha was seen with the girl that morning, but there is nothing to show that he had tutored her to identify the accused and it seems to me most unlikely that a false charge of this nature would have been got up because of this rivalry. Nothing is said by the defence against the Railway Official witnesses and there is nothing in their evidence to suggest that the identification by the girl was anything but genuine.

The case, however, does not rest there. The accused was medically examined, and he was found to have two scratches on his wrist which were probably caused by a finger nail and scratches on the front of the left knee and on the front of the right knee caused by friction against a hard and rough surface. He had also an abrasion at the orifice of the urethra most probably caused by knocking at and making friction against an intact hymen and tight vaginal canal and a healing abrasion on the frenum most probably caused in the same way. Moreover, he was found to be suffering from gonorrhoea, A point was made by the defence that if he had been the assailant, then girl ought to have been infected with this disease. She was under treatment in the hospital for about a month and did not develop the disease. The Assistant Surgeon in his evidence says that as a rule gonococci would have been found in the vagina of the girl as there was sexual intercourse by the accused with the girl. But as the girl was bleeding profusely, the gonococci were probably washed out. He refers with approval to the opinion of Lyon that in the case of young children there is greater likelihood of inoculation with gonorrhoea on the freshly torn surface. But he points out that while there must be spermatozoa there only may be gonococci. The other medical witness, the Sub-Assistant Surgeon attached to the Medical College at Cuttack says that in chronic cases of gonorrhoea (such as this) generally gonococci will not come out with the seminal fluid. The text-writers say that there is no certain test in this matter. Taylor in his Principles and Practice of Medical Jurisprudence, 7th Edition Vol. II, page 128, says that the probabilities of communication of a venereal disease by one person to another are certainly very high, but the facts would seem conclusively to prove that they are not. 100 per cent., and if they are not 100 which is to prove that the case in dispute may not be an exception? Lyon in his Medical Jurisprudence, 6th edition, page 302, says that infected individuals do not necessarily by intercourse communicate gonorrhoea. The fact that the injured girl was not infected with the disease is, therefore by no means conclusive of the innocence of the accused. It is consistent either with his innocence or with his guilt. On the other hand, the marks found on his person clearly indicate the probability of his guilt and this combined with the direct evidence of the girl and with the evidence of identification which was promptly given leaves no room for doubt on the matter.

Evidence was gone into by the defence. Two witnesses were examined to prove that no identification took place at the Railway Station. The first of there witnesses was a Police Sub-Inspector on leave, but as he admits that he remained at the Cuttack Railway Station for 4 or 5 minutes only his evidence is of little value. The second witness was a Canal Sectional Officer who professes to have been at the Railway Station from 1-30 or 2 p.M. till 3 o''clock, that is, during the period when the identification took place. The learned Judge has discussed the evidence of this-witness and, in my opinion, the witness is not telling the truth. He has not given a credible explanation of his presence at the Railway Station and his'' evidence cannot stand against that of the disinterested witnesses on the Railway Staff. Further evidence was given to establish an alibi by proof of a fracas having occurred between the touts of the two rival Companies that evening at which the accused was present. This occurrence seems to be admitted by the prosecution witnesses, but it does not establish any alibi because it refers to an occurrence at 6 or 7 in the evening, while the girl says that the assault upon her was made late at night. And in fact one of the defence witnesses Khairat Hussain (D.W. No. 4) admits that on the night of the 2nd June the accused was at the Station.

In consideration of all the evidence and particularly in view of the facts disclosed by the medical witnesses there can be no reasonable doubt of the guilt of the accused. I would, therefore, accept this reference and convict Asadali alias Tunu and sentence him to two years'' rigorous imprisonment u/s 346 of the Indian Penal Code.

Jwala Prasad, J.

I agree.