NAFAR SHEIKH Vs. EMPEROR

JUDGEMENT

(1.) The appellant, Nafar Sheik, has been convicted of an offence under Section 376, read with Section 511 of the Indian Penal Code, and sentenced to rigorous imprisonment for five years. The jury unanimously found him guilty, but recommended a light sentence on the ground that he is a young man and has got a young wife. The Sessions Judge accepted the verdict of the jury, but did not give effect to their recommendation for a light sentence. The appeal to this Court was in the first instance admitted by Harington and Coxe JJ., for consideration of the sentence only, in view of the representation of the jury. The appeal thus admitted came to be heard by the Chief Justice and Sharfuddin J., who held that, in view of the provisions of Section 422 of the Criminal Procedure Code, 1898, the appeal could not be admitted on a limited ground, and directed the scope of the order of admission to be enlarged. As the direction thus given was not formally recorded, it is desirable to draw attention to the terms of Sections 421 and 422 of the Criminal Procedure Code. Sub-section (2) of Section 421 lays down that on receiving the petition of appeal, accompanied by a copy of the judgment or order appealed against or a copy of the heads of the charge in cases tried by a jury, under Section 419 or Section 420, the Appellate Court shall peruse the same and, if it considers that there is no sufficient ground for interfering, it may dismiss the appeal summarily. Section 422 then provides that if the Appellate Court does not dismiss the appeal summarily, it shall cause notice to be given to the appellant or his pleader and to such officer as the Local Government may appoint in this behalf, of the time and place at which such appeal will be heard, and shall, on the application of such officer, furnish him with a copy of the ground of appeal. It is plain that the appeal which has thus to be heard is the whole appeal; consequently, all the grounds taken in the petition of appeal are open for consideration at the final hearing, and the appellant cannot be restricted to any selected ground out of those specified in his petition. A restrictive order for admission is clearly not contemplated by Section 422 and must be deemed ultra vires. This view is strengthened by a consideration of the terms of Section 423. It is worthy of note that a similar view has been taken by this Court with regard to appeals under the Civil Procedure Code: Lukhi Narain Serowji v. Sri Ram Chandra (1911) 15 C.W.N. 921. Fresh notice of the appeal has been given to the Crown, and the appeal has been argued before us on behalf of the accused and the Crown.

(2.) The verdict of the jury has been assailed on behalf of the appellant as erroneous by reason of three circumstances, namely, first, that the Sessions Judge has allowed to be placed before the jury the evidence of three persons who had not made an affirmation as required by Section 6 of the Indian Oaths Act, 1873; secondly, that the Sessions Judge has not considered; whether these three persons were, by reason of their tender years, prevented from understanding the questions put to them or from giving rational answers to those questions, within the meaning of Section 118 of the Indian Evidence Act, 1872; and, thirdly, that the Sessions Judge has failed to call the attention of the jury to material portions of the evidence.

(3.) In support of the first ground, reliance has been placed upon Sections 5 and 6 of the Indian Oaths Act. Section 5 provides that oaths or affirmations shall be made by all witnesses, that is to say, all persons who may lawfully be examined or give or be required to give evidence by or before any Court, or by person having by law or consent of parties authority to examine such persons or to receive evidence. Section 6 provides that where the witness is a Hindu or Mahomedan, he shall, instead of making an oath, make an affirmation. In the case before us, the complainant Jobeda, a girl six years old, and two other girls, Haliman and Moula, each four years old, were examined, though they did not make an affirmation. In fact, the Sessions Judge deliberately did not give them an opportunity to make an affirmation. The Judge appears to have assumed, without investigation, that the children were of so tender an age that they could not appreciate the value and significance of an affirmation. It is plain that the Judge should not have adopted this course. As was laid down in the case of King v. Brasier (1779) 1 Leach 237 an infant, even though under the age of seven years, may be sworn, in a criminal prosecution, provided such infant appears, on strict examination by the Court, to possess a sufficient knowledge of the nature and consequences of an oath; in other words, a Court has to ascertain from the answers to questions propounded to such a witness, whether he appreciates the danger and impiety of falsehood. The course pursued by the Sessions Judge has led to the result that these witnesses were examined in contravention of the provisions of Section 6 of the Indian Oaths Act. On behalf of the Grown, however, it was suggested that the irregularity in the proceeding, if any, may be shown, if necessary, to have been cured by the provisions of Section 13 of the Indian Oaths Act. Section 13 lays down that no omission to make any affirmation shall invalidate any proceeding or render inadmissible any evidence whatever in or in respect of which such omission took place. In support of this view, reliance has been placed upon the decision of a majority of the Fall Bench in Queen v. Sewa Bhogta (1874) B.L.R. 294; 23 W.R. Cr. 12. On behalf of the appellant, this position has been controverted, and it has been argued that, where there is an omission by a witness to take an oath or to make any affirmation by reason of the deliberate act of the Court, Section 13 is of no assistance. The question raised is by no means free from difficulty, as is amply indicated by the divergence of judicial opinion on the subject. In this Court, judicial opinion has not been uniform, as appears from an examination of the decisions in Queen v. Mussumat Itwarya (1874) 14 B.L.R. 54; 22 W.R. Cr. 14. Queen v. Anunto Chuckerbutty (1874) 14 B.L.R. 295 Note; 22 W.R. Cr. 1 and Queen v. Sewa Bhogta (1874) B.L.R. 294; 23 W.R. Cr. 12. It is further worthy of note that in the case of Nundo Lal Bose v. Nistarini Dassi (1900) I.L.R. 27 Calc. 428, 440 when it was argued on the authority of some of the decisions just mentioned that Section 13 of the Indian Oaths Act applied to cases where the omission to take the oath or affirmation was the result of the deliberate act of the Court or of the witness, Sir Francis Maclean, C.J., with the concurrence of Mr. Justice Macpherson and Mr. Justice Hill, described the contention as at once novel and startling. There has been a similar divergence of judicial opinion in the other High Courts as is indicated by the cases of Queen-Empress v. Maru (1888) I.L.R. 10 All. 207 Queen-Empress v. Lal Sahai (1888) I.L.R. 11 All. 183 Queen-Empress v. Shava (1891) I.L.R. 16 Bom. 359 and Queen-Empress v. Viraperumal (1892) I.L.R. 16 Mad. 105. In view of this divergence of judicial opinion and of the course we propose to take with regard to the second ground urged by the appellant, I reserve my opinion upon the difficult question of the true scope and effect of Section 13 of the Indian Oaths Act.