SAMUEL JOHN Vs. EMPEROR

JUDGEMENT

(1.) This is a criminal appeal on behalf of two persons and their cases have been argued separately. The trial was by a jury; so although learned Counsel have each, entered in their grounds of appeal that the conviction was against the weight of evidence on, the record that is not a ground which can be considered by this Court. In addition to this argument it has been alleged that there was misdirection of the jury. In this file Laltu Singh has been convicted under Section 376, Penal Code, of rape of a young girl called Victoria Lazarus and Samuel John has been convicted of abetment of that rape. There was a third accused Daniel David who has been acquitted. The first argument in regard to misdirection is based on a portion of the charge to the jury on p. 88 as follows: If you do not believe Victoria's statement, made in Court, that the accused Samuel John and Daniel David also had raped her, but, if you believe her statement, made to the police, Ex. R referred to above, you are entitled to find these accused or any of them, guilty of abetment of the offence of rape.

(2.) The argument of learned Counsel is that it was a misdirection of the Court to tell the jury that they could convict on her statement to the police because a statement to the police of a prosecution witness is not evidence. If that were the meaning of the passage in question the argument would undoubtedly be correct, but I must examine the circumstances of the case to understand what the Judge meant by this passage and what the jury would understand the passage to mean. The first report set out three statements as follows : (1) Laltu raped the girl while Samuel John and Daniel David held her. (2) Samuel John raped the girl while the other two accused held her. (3) Daniel David raped the girl while the other two accused held her.

(3.) This report was made on 16 October 1934. On the same date the Sub- Inspector came to the house of the girl and took her statement at considerable length. In her statement she details the rape by Laltu with the help of Samuel John and Daniel David. She then proceeded to say "After Laltu accused did the act the accused turned me out of the house" arid the statement proceeds with further details. It will be noticed that she omits to mention the rape by Samuel John and the rape by Daniel David. Her statement to the police therefore had these two omissions. Now, on p. 78 of the charge the Court had pointed out these omissions and other omissions and stated: It is for you to decide as to whether the discrepancies or the omissions are material or not and these would affect the prosecution case or not, or, as to whether she is worthy of being relied upon or not, and to what extent she is worthy of reliance.