(1.) The petitioner who has been committed to the Court of Session for trial on a charge under Section 376, Penal Code, has applied for the commitment being quashed on he ground that there is no legally admissible evidence against him to justify. In accordance with the existing practice of this Court, the petition was posted before a Division Bench. As the Bench was of divided opinion whether the petition is to be allowed or dismissed it has been referred to the Full Bench.
(2.) The case against the petitioner is that he raped a girl of 7 years on the afternoon of 16th February 1949 in his house at Madhugiri. The Magistrate has in the order of commitment referred to the opinion of P.W.8, the lady doctor who examined the girl that she might have been raped, the evidence of P.W.5 that the girl identified the accused as the person who raped her after inducing her by holding out some eatables to go with him to his house, to Ex. P-2 the mahazar recording this and attested by P.Ws. 5, 6 and 7 and expressed that there is no reason to disbelieve the prosecution version and that the evidence may justify a conviction.
(3.) It is contended on behalf of the petitioner that this view of the evidence is erroneous and that the commitment is liable to be quashed for want of evidence to connect the accused with the offence. Objection is raised to the evidence of P.W.5 as being inadmissible by virtue of the bar placed by Section 162, Criminal P.C., on the statement made during investigation before the Police.
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