EMPEROR Vs. KASAMALLI MIRZALLI

JUDGEMENT

(1.) IN this case the Court has to consider a certificate given by the learned Advocate General under Clause 26 of the Letters Patent. Under that clause, if the Advocate General certifies that there is a point of law involved in the case which requires further consideration, this Court has to determine the point of law, and, if it thinks that there has been an error in law, can review the whole case and pass the requisite judgment and sentence.

(2.) THERE is no doubt in this case that there was an error of law in relation to the use which the learned Judge made of statements of witnesses made before the police. We will deal with that more in detail in a moment. But the existence of that error, which is admitted by Mr. Velinker for the Crown, requires us to review the whole case. It is not essential, whenever there has been some error of law, to set aside the conviction, but undoubtedly we must) set aside the conviction, if we think; that the error of law has prejudiced the accused. If we think that the error of law has not prejudiced the accused, then the conviction can stand. In order to determine the question of prejudice we have gone very carefully through the whole of the evidence on record.

(3.) THE defence of the accused was somewhat singular. In the Committing Magistrate's Court he stated that he had not taken the complainant to Juhu or anywhere else, that the case was a false one, and that the day of the alleged offence, Sunday, July 7, he had spent in part in his house and in part at a wedding ceremony. In the Sessions Court his counsel, a man of wide experience in criminal cases, cross-examined the complainant and her husband with a view to showing that the accused had taken the complainant to Juhu, as alleged, had had sexual intercourse with her there, but had taken her with her consent, and in consideration of Rs. 20 which he had paid to her husband. THE cross-examination seems to have been based on the story of a man named Nazir who gave evidence in the Sessions Court. It is, of course, apparent that the defence set up in the Committing Magistrate's Court, and the defence outlined in the Sessions Court, are wholly inconsistent; but when the accused was asked under Section 342 of the Criminal. Procedure Code what he wished to say with regard to the evidence led against him, he said that he wished to say nothing. Presumably in so doing he was acting on the advice of his counsel. THE result was that the jury had before them two defences relied on by the accused, which were wholly inconsistent with each other, and the accused was unable or unwilling to suggest which of the two defences they might properly regard as true. In the circumstances it is not to be wondered at that they rejected both the defences as untrue.