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 16th 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.
4. The Court therefore had put very fairly before the jury the fact that her statement to the police had certain omissions and as a result of those omissions the jury could come to a decision as to whether her evidence before the Court should be relied on or not and if it were relied on to what extent they could act on it. The passage coming at the end of the charge which was a very long one was merely a brief reference to what had been said previously in detail. I do not consider that the Court meant to say or that the jury understood the Court to say that the jury could convict certain of the accused for abetment of rape on a statement made out of Court. What I think the Court meant and what I think the jury would understand was that it was open to the jury to convict on the first statement in the evidence in Court that Laltu raped the girl while Samuel John and Daniel David held her. That statement was briefly referred to by the Judge as her statement made to the Police. What the Judge meant was her statement in evidence which was also made to the police. The statement being made in Court was of course the one on which the jury would act. I think therefore the objection is merely a verbal one and that the jury could not misunderstand what was meant.
5. A further objection was taken that in the circumstances only two courses were open to the jury : (1) to disregard the omission and accept her evidence in full, and (2) to treat Victoria as a witness unworthy of credit. Counsel argues that this is the intention of Section 162, Criminal P.C. That section says that the statement to the police may be used to contradict such witness in the manner provided by Section 145, Evidence Act. It does not lay-down that the effect of the contradiction is to entirely discredit the witness. Nor is such a result stated in. Section 145, Evidence Act. In my opinions not only would it be open to the jury to treat the omission as entirely discrediting the witness but it would also be open to the jury to treat the omission as discrediting only the portion of the evidence which was omitted in the statement. I do not think therefore that it can be said that there was any misdirection in this passage. There is however another defect in the argument of learned counsel. Section 145, Evidence Act, states as follows:
A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved, but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.
6. Now in the present case learned Counsel admits that there was compliance by defence only with the first part of this section. On p. 38 the girl stated in cross-examination:
The darogha examined me on 16th October at my house.... I told him that John Samuel and Daniel David also had ravished me.
7. This shows that the first portion of Section 145 would apply and the witness was cross-examined as to the previous, statement made by her and reduced to writing. But the second portion of Section 145 would not apply and her attention was not called to those parts, of the writing which were to be used for the purpose of contradicting her. Learned Counsel omitted to put Ex. R. to Victoria Lazarus. Her statement was, taken on 20th February 1935. On 23rd February 1935 on p. 54 of the record the Court allowed counsel for the defence to ask the Sub-Inspector Maqbul Husain in cross-examination whether the statement, Ex. R, had been made to him by witness, Victoria Lazarus, and he said 'Yes.' Now under Section 145, Evidence Act, the Court should not have allowed the counsel for defence to ask that question. The defence should not be allowed to prove the writing before the attention of Victoria Lazarus had been drawn to those parts of the writing which were to be used for the purpose of contradicting her. In this case as defence rely on the omission of statements by her, defence should have read out the whole of Ex. R to her and pointed out to her that the statements in question were not contained in it. The intention is that the witness should be given an opportunity of explaining how it was that those portions were omitted. No such opportunity was given to the witness and therefore under Section 145 defence should not be allowed to use Ex. R for the purpose of contradicting the witness. The learned Sessions Judge has acted with leniency towards the defence in allowing the defence to use Ex. R and defence cannot have any valid complaint in regard to the mention of Ex. R in the charge to the jury on p. 88.
8. The next point which was argued was in regard to the charge. All three accused were charged with rape. One accused has been convicted of rape and one accused has been convicted of abetment and the other has been discharged. The argument is that there should not be a conviction for abetment without the charge being amended under Section 227, Criminal P.C. Learned Counsel failed to note that when a charge is amended under Section 227 then under Section 231 there is the right of recalling witnesses. In general that procedure exists and where it is necessary that a charge should be amended then such a right is allowed. There are however certain cases in which it is not necessary to amend the charge and a conviction can be made without a charge for the offence of which there is a conviction. Those matters are dealt with in Sections 237 and 238. In my opinion the present case comes under Section 238(2), when a person is charged with an offence and the facts are proved which reduce it to a minor offence he may be convicted of the minor offence though he is not charged with it. In the present case the charge was of rape and the conviction was of the minor offence of abetment of rape. The sub-section, clearly states that a charge is not necessary. Learned Counsel referred to) two rulings reported in Dhum Singh v. Emperor 1925 All. 448 and Raghunath Kandu v. Emperor 1926 All. 227. In each of these cases there was a charge under Section 34, Police Act, and a conviction under certain sections of the Indian Penal Code, Section 279 in one case and Section 290 in the other. But it appears to me that the view of the learned Judge of this Court was that these were not cases which would fall' under Section 237 or Section 238, Criminal P.C., and therefore an amendment of the charge sheet was necessary. The present case however is different as the charge was of a rape and the conviction was of abetment of rape and I consider that no amendment of the charge sheet was necessary.
9. The next point argued is on behalf of Laltu Singh. This was that the Court should have mentioned in its charge that the Imperial Serologist found that on the duster, item No. 22, was the blood of a ruminant animal. Learned Counsel argues that this showed that item 22 could not be stained with human blood. The evidence of the girl on the other hand was that the duster had been used to wipe away the stains, and if her story was correct it would have human blood on it. The chemical examiner stated that there were blood stains on this duster and that portions of the duster were sent to the Imperial Serologist. The fact that the portions sent to the Imperial Serologist contained stains of the blood of a ruminant animal does not prove that the stains on the portion not sent were all of them of the blood of a ruminant animal. No conclusion can be drawn on that point and therefore it appears to me that the Court cannot be said to have omitted to put any important point to the jury from which they could have drawn a conclusion in regard to this duster.
10. The next argument which was made on behalf of Laltu was in regard to the age of the girl and it was stated that the charge to the jury should have mentioned that no baptismal certificate was produced. In the first place this was not a case in which the defence pleaded consent. It was only in case consent was pleaded that the question would arise as to whether the girl was of age to give consent, in law, that is of the age of 14 or over, or not. The age therefore was in my opinion not important. The next point is that it is the duty of a Court to mention in a charge a summary of the case as laid before it in Court. It is not shown by learned Counsel that the defence addressed any argument to the Court that no baptismal certificate had been produced. The only point he can show is that Lazarus, the father of the girl, was asked a question in cross-examination as to whether he was in possession of the baptismal certificate of the girl and he stated that it had been lost. I do not think that it can be said that the Court omitted an important point in not mentioning this fact.
11. As regards the amount of sentence it is argued that Samuel John is aged 17 years. This is not correct as the age given by him to the Sessions Court was 18 years. In any case I consider that two years' imprisonment which he has received is a lenient sentence. The sentence of three years' rigorous imprisonment on Laltu is also a lenient sentence. I dismiss these appeals and direct that the accused should surrender to their bail to undergo the remainder of their sentences.