GHULAM HUSSAIN Vs. KING

JUDGEMENT

(1.) This is an appeal, by special leave, from an order of the Chief Court of Sind, made in the exercise of its appellate criminal jurisdiction, summarily dismissing an appeal by the appellant from his conviction on charges of kidnapping a girl named Jasoda, aged eleven years, with intent to force her to illicit intercourse, and of raping her. The appellant was tried at the Chief Court Sessions jointly with his servant, Fatehsing, who was accused of having taken part in the kidnapping and of abetment of the rape. By a majority of 7 to 2 the jury found both the accused guilty of the offences charged against them. The learned Judge (Constantine J.) accepted the verdict and sentenced the appellant to two years rigorous imprisonment under Section 366 of the Indian Penal Code on the charge of kidnapping and to eight years rigorous imprisonment under Section 376 on the charge of rape, the sentences to run concurrently. He sentenced Fatehsing to two years rigorous imprisonment under Section 366 on the charge of kidnapping and to four years rigorous imprisonment under Section 109 read with Section 376 on the charge of abetment of the rape, these sentences likewise to run concurrently. An appeal by Fatehsing to the appellate side of the Chief Court was also summarily dismissed, but he did not apply for leave to appeal to His Majesty in Council.

(2.) The hearing of the arguments advanced on behalf of the appellant was concluded on November 30, 1949, when their Lordships announced that they would humbly advise His Majesty that the appeal should be dismissed and that they would state their reasons later. They now proceed to do so.

(3.) It was contended that the trial was vitiated by (1) the admission and use in evidence of a statement made by Fatehsing and recorded under Section 164 of the Code of Criminal Procedure, (2) by the admission and use in evidence of statements made to the police, contrary to Section 162 of the Criminal P. C. and (3) by unwarranted comments in the learned Judge's summing up to the jury on the evidence of a Dr. Ansari, a member of the staff of the Civil Hospital, Karachi. Their Lordships will deal with each of these allegations in turn and will then indicate what they regard as the decisive factors in the case, but before doing so it is necessary to outline the facts.