minal Appeal No 165 of 1960
Appeal from the judgment and order dated July 22 1960 of the Calcutta High Court in Criminal Appeal No 448 of 1960
ASR Chari NS Bindra and DN Mukherjee for the appellant
B Sen section C Mazumdar and P K Bose for respondent
April 22
The judgment of the Court was delivered by GAJENDRAGADKAR J
The appellant Chittaranjan Das was charged with having commited an offence punishable under section 376 IPC
This charge was framed against him on three counts
It 240 was alleged that between November 18 1958 and November 21 1958 at 29A and B Kailash Bose Street Calcutta lie committed rape on Sandhyarani Das Gupta alias Nirmala
The second count was that he committed the same offence at the same place and in respect of the same girl between December 1 1958 and December 6 1958  and the third count related to the commission of the said offence between December 9 1958 and December 15 1958 at the same place and in respect of the same girl
Along with the appellant Ganesh De was charged with having abetted the appellant in the commission of the said offence the charge framed against Ganesh De being under section 376 read with section 109 of the Indian Penal Code
The learned Presidency Magistrate 8th Court Calcutta held the commitment proceedings and was satisfied that the evidence adduced by the prosecution before him made out a prima facie case against both the accused persons
Since the offence in question was triable exclusively by the Court of Sessions the learned Magistrate committed them to the Sessions on May 4 1960
The case of the appellant and his co accused was then tried by the City Sessions Court at Calcutta with the aid of jury
The jury returned a verdict of guilty against the appellant in respect of all the three counts
A similiar verdict was brought by the jury in respect of the co accused Ganesh De
The learned Sessions judge took the view that the verdict of the jury was not perverse and so he decided to accept the said verdict and accordingly convicted the appellant under section 376 and sentenced him to suffer rigorous imprisonment for four years on the first charge
No separate sentence was awarded in respect of the other charges
Ganesh De was also sentenced to a similiar period of imprisonment
This order was passed on July 9 1960
241 The appellant challenged the correctness of the order of conviction and sentence passed against him by the learned Sessions judge by preferring an appeal before the Calcutta High Court
A Division Bench of the said High Court did not feel impressed by the points made on appellant s behalf and so his appeal was summarily dismissed on July 22 1960
The appellant then applied for a certificate under Article 134 1 c of theConstitution
This application was allowed by Labiri CJ and Bose J on the ground that some of the points which the appellant wanted to raise before this Court by his appeal were substantial points of law and so  _they granted him a certificate under the said Article
It is with this certificate that the appellant has come to this Court
Before dealing with the points which fall to be considered in the present appeal it is necessary to state briefly the material facts leading to the prosecution of the appellant
Sandhyarani Das Gupta was a minor girl who was staying with her mother Soudamini in the Refugee Colony at Ghola
It appears that one Maniprova alias Manibala Majumdar induced this young girl to go to her house at Ashutosh Mukherjee Road Bhowanipur some time in the first week of November 1958
Manibala induced Sandhya to go to her place with a promise that she would secure a nurse s job for her
The appellant was the Zonal Officer of the Refugee Rehabilitation Office at Tollygunge at that time and according to the prosecution the co accused Ganesh De was a Peon in the said office
The prosecution alleged that in course of time Sandhya was taken to the appellant in his house in about the middle of November 1958 on the representation that the appellant wanted to give her employment
When Sandhya met the appellant the appellant held out the hope of a job for her and he managed to ravish her
Similarly Sandhya was taken to the house of the appellant on two or three occasions within a 242 period of one month and each time the appellant had sexual intercourse with her
Every time this happened the appellant promised that he would provide Sandhya with a job
The prosecution case is that as a result of this sexual intercourse Sandhya conceived and the appellant was anxious to cause her abortion
In accordance with the plan Mani bala attempted to cause her abortion but did not succeed and so the girl was taken to the Chittaranjan Sevasadan on February 11 1959 where the abortion was completed
Some time thereafter she was sent back to her own house on her insistance
It appears from the evidence that Sandhya was again taken to the house of the appellant and was ravished by him
This happened on two or three occasions again
At one of these meetings with the appellant Sandhya was introduced to a young man named Himangsu Ganguli
This young man had approached the appellant for a job
The appellant exploited the helpless position of both Himangsu and Sandhya and asked them to go through a show of marriage
Thereafter the appellant wanted a photograph in proof of their marriage and a group photo was accordingly taken with Ganesh De Manibala Himangsu and Sandhya the last two having posed as husband and wife
Himangsu and Sandhya then went to the house of the appellant and gave him a copy of the photograph
This time again Sandhya was ravished by the appellant
That in broad outlines is the prosecution case against the appellant
On June 6 1959 Sandhya s mother filed a complaint that her daughter had disappeared
This complaint was investigated by the Enforcement Branch Calcutta and in consequence Sandhya was recovered from the house of Ganesh De on June 10 1959
She was then taken to the Tollygunge Police Station where her statement was recorded
It however appeared that the offence which on 243 Sandhya s statement seemed to have been committed by the appellant was within the jurisdiction of the Amherst Street Police Station and so the case papers were transferred to the said Police Station
Sandhya s statement was again recorded at this Police Station on June 12 1959
As a result of the statement Challan was forwarded which specified November 14 1958 May 30 1959 and June 6 1959 as the dates on which the appellant had raped Sadhya
Subsequently the appellant was arrested and he along with the co accused was charged before the Court of the Presidency Magistrate as we have already mentioned
In granting certificate to the appellant the High Court has held that the point which the appellant sought to raise in regard to the invalidity and illegality of the charge was a point of substance
In fact it has observed that the scheme of section 222 of the Criminal Procedure Code seems to suggest that the charge framed in the present case con travened the requirement of section 222 1 and was therefore invalid
The High Court also appears to have thought that this contention received support from a decision of the Calcutta High Court in Ali Hyder vs Emperor 1
It is therefore necessary to examine this argument at the outset
We have already set out the 3 counts of the charge framed against the appellant and we have noticed that in the three counts periods were mentioned within which the appellant was alleged to have committed rape on Sandhya
The first period was between 18111958 to 21111958 second was 1121958 to 6121958 and the third was 9121958 to 15121958
The argument is that section 222 1 Cr
PC requires that the charge must specify inter alia the particulars as to the time when the offence was committed and this means that the precise date on which and the time at which the offence was committed must be stated 1 244 in the charge
Before dealing with this argument it is necessary to read section 22  1 The charge shall contain such particulars as to the time and place of the alleged offence and the person if any against whom or the thing if any in respect of which it was committed as are reasonably sufficient to give the accused notice of the matter with which he is charged
2 When the accused is charged with criminal breach of trust or dishonest misappropriation of money it shall be sufficient to specify the gross sum in respect of which the offence is alleged to have been committed and the dates between which the offence is alleged to have been committed without specifying particular items or exact dates and the charge so framed shall be deemed to be a charge of one offence within the meaning of section 234  Provided that the time included between the first and last of such dates shall not exceed one year
 The appellant s contention is that it is only in cases under section 222 2 where the prosecution is not required to specify the precise date and time at which the offence is committed  and that means that it is only in respect of the offences of criminal breach of trust or dishonest misappropriation of money to which the said sub section applies that liberty may be claimed by the prosecution not to mention the date and time of the offence
In all other cases to which section 222 1 applies particulars as to the time and place of the alleged offence must be specifically mentioned
In our opinion this contention is not well founded
In fact Mr Chari who appeared for the appellant himself fairly conceded that in almost every charge 245 to which section 222 1 applies it is usual to state that the particular offence was committed on or about a certain date
In other words it is not suggested by Mr Chari that the specific date and the specific time must necessarily be stated in the charge in every case
If it is permissible to say in a charge that a particular offence was committed on or about a specified date without specifying the particular time it is difficult to hold that because a period of four or five or six days is indicated in the charge within which the offence is alleged to have been committed section 222 1 has been contravened
It is true that sub section 2 specifically deals with two kinds of offences and makes a provision in respect of them but that is not to say that in every other case the time must be so specifically mentioned as to indicate precisely the date and the time at which the offence was committed
It is quite clear that of the charge mentions unduly long period during which an offence is alleged to have been committed it would be open to the criticism that it is too vague and general because there can be no dispute that the requirement of section 222 1 is that the accused person must have a reasonably sufficient notice as to the case against him
The basic requirement in every criminal trial therefore is that the charge must be so framed as to give the accused person a fairly reasonable idea as to the case which he is to face and that validity of the charge must in each case be determined  by the application of the test viz had the accused a reasonably sufficient notice of the matter with which he was charged  It is quite conceivable that in some cases by making the charge too vague in the matter of the time of the commission of the offence an accused person may substantially be deprived of an opportunity to make a defence of alibi and so the criminal courts naturally take the precaution of framing charges with sufficient precision and particularity 246 in order to ensure a fair trial  but we do not think it would be right to hold that a charge is invalid solely for the reason that it does not specify The particular date and time at which any offence is alleged to have been committed
In this connection it may be relevant to bear in mind that the  requirements of procedure are generally intended to subserve the ends of justice and so undue emphasis on mere technicalities in respect of matters which are not of vital or important significance in a criminal trial may sometimes frustrate the ends of justice
Where the provisions prescribed by the law of procedure are intended to be mandatory the legislature indicates its intention in that behalf clearly and contravention of such mandatory provisions may introduce a serious infirmity in the proceedings themselves  but where the provisions made by the law of procedure are not of vital importance but are nevertheless intended to be observed their breach may not necessarily vitiate the trial unless it is shown that the contravention in question has caused prejudice to the accused
This position is made clear by sections 535 and 537 Cr
P C Take for instance the case of murder where the prosecution seeks to prove its case against an accused person mainly on circumstantial evidence
In such a case investigation would generally begin with and certainly gather momentum after the discovery of the dead body
In cases of circumstantial evidence of this character it would be idle to expect the prosecution to frame a charge specifying the date on which the offence of murder was committed
All that the prosecution can do in such cases is to indicate broadly the period during which the murder must have been committed
That means the precision of the charge in respect of the date on which the offence is alleged to have been committed will depend upon the nature of the information available to the prosecution in a given case
Where 247 it is possible to specify precisely the necessary particulars required by section 222 1 the prosecution ought to mention the said particulars in the charge but where the said particulars cannot be precisely specified in the charge having regard to the nature of the information available to the prosecution failure to mention such particulars may not invalidate the charge
In this connection it may be useful to refer to the facts in the present case
The evidence of Sandhya shows that she and the members of her family had to face the terrible problems posed before the refugees in that part of the country and in her anxiety to help her destitute family in its hour of need Sandhya was very easily persuaded by Manibala to adopt the course of earning money by selling her body
In such a case if the minor girl has been exposed to the risk of having sexual intercourse with several people from time to time it is unreasonable to expect that she would be able to specify the precise dates on which particular individuals had intercourse with her
If it is insisted that in a case of this kind the charge of rape framed against the appellant must specify the date on which the offence was committed by him it would really mean that the appellant cannot be charged with the offence because the unfortunate victim would in the ordinary course of things not be able to state precisely the dates on which she was made to submit to the appellant
Therefore in dealing with the question as to whether the charge framed in a criminal trial has contravened section 222 1 the Court will have to examine all the relevant facts and if it appears to the Court that having regard to them the charge could and ought to have been framed more precisely the Court may reach that conclusion and then enquire whether the defective charge has led to the prejudice of the accused
That in our opinion is the reasonable course to adopt in dealing 248 with contentions like the one raised by the appellant before us
The question of prejudice did not impress the High Court because it has summarily dismissed the appeal
It is not a matter on which the appellant can be permitted successfully to challenge the view taken by the High Court
In this connection we ought to add that the decision in the case of Ali Hyder 1 to which the High Court has referred in granting a certificate on this point does not support the contention in question
The next ground on which the High Court has granted certificate to the appellant is that the Division Bench should not have summarily dismissed his appeal and in coming to the conclusion that this argument amounted to a substantial point of law the High Court has referred to two decisions of this Court in Mushtak Hussein vs The State of Bombay 2  and Shreekantiah Ramayya Municipalli vs State of Bombay 3
In Mushtak Hussein s case this Court has no doubt observed that it is riot right for the High Court to dismiss an appeal preferred by the accused to that Court summarily where it raises some arguable points which require consideration
It was also added that in cafes which prima facie raise no arguable issue that course is of course justified
It is in the light of this conclusion that this Court stated that it would appreciate it if in arguable cases the summary rejection orders give some indications of the views of the High Court on the points raised
In the case of Shreekantiah Ramayya it appeared that out of the two appeals filed separately by two different accused persons against the same judgment one was summarily dismissed by one Bench of the High Court and the other was admitted by another Bench
It is in the light of this somewhat anomalous position that this Court repeated its observation made in the case of Mushtak Hussein 2 that summary rejections of appeals 1 1939 40 Cr
L T 280
2 A IR 1953 C 282
3 A I R  249 which raise issues of substance and importance are to be disapproved
With respect there can be no9 doubt whatever that in dealing with criminal appeals brought before them the High Courts should not summarily reject them if they raise arguable and substantial points and it would be stating the obvious if we were to add that no High Court summarily dismisses a criminal appeal if it is satisfied that it raises an arguable or substantial question either of fact or of law
In this connection it is however necessary to bear in mind that it is for the High Court which deals with the criminal appeal preferred before it to consider whether it raises any arguable or substantial question of fact or law or not
Section 421 1 of the Code provides that on receiving the petition and copy 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
The proviso to this section requires that no appeal presented under section 419 shall be dismissed unless the appellant or his pleader has had a reasonable opportunity of being heard in support of the same
Sub section 2 empowers the appellate court to call for the record of the case before dismissing the appeal under sub section 1 but it does not make it obligatory on the court to do so
Therefore the position under section 421 is clear and unambiguous
When a criminal appeal is brought before the High Court the High Court has to be satisfied that it raises an arguable or substantial question if it is so satisfied the appeal should be admitted if on the other hand the High Court is satisfied that there is no substance in the appeal and that the view taken by the Trial Court is substantially correct it can summarily dismiss the appeal
It is necessary to emphasis that the summary dismissal of the appeal does not mean that before summarily dismissing the appeal the High Court has not applied 250 its mind to all the points raised by the appellant
Summary dismissal only means that having considered the merits of the appeal the High Court does not think it advisable to admit the appeal because in its opinion the decision appealed against is right
Therefore we do not think the High Court was right in granting certificate to the appellant on the ground that his appeal should not have been summarily dismissed by another Division Bench of the said High Court
If the High Court in dealing with criminal appeals takes the view that there is no substance in the appeal it is not necessary that it should record reasons for its conclusion in summarily dismissing it
The third ground on which the certificate has been granted by the High Court is in regard to an alleged misdirection in the charge delivered by the learned Sessions judge to the jury
It appears that in dealing with the argument of the defence that the charge was vague and that the dates specified in the charge did not correspond to the dates given by Sandhya in her evidence the learned Judge told the jury that if the statement of the girl in her cross examination is taken as the basis the dates on which the girl was ravished by the appellant would not be covered by the three sets of dates mentioned in the charge and then he added that in case you hold that the charges are in order in that case you shall proceed to consider the evidence
 It was urged by the appellant before the Division Bench of the High Court which granted the certificate that the last statement constituted a misdirection
The argument was that whether or not a charge is valid is a question of law which the learned judge should have decided himself and given a direction to the jury in accordance with his decision inasmuch as he left that question to the jury he failed to exercise his jurisdiction and to discharge his duty and as such the 251 charge must be held to suffer from a serious misdirection
This argument appears to have appealed to the Division Bench which granted the certificate and has been pressed before us by Mr Chari
In our opinion there is no substance in this argument
We should have stated earlier that after the committal order was passed by the presidency Magistrate the appellant moved the High Court in its revisional jurisdiction and urged that the charge framed against him was defective and invalid and should be quashed
The High Court rejected this contention and held that the charge was valid within the meaning of section 222 and section 234 of the Cole
Therefore the true position is that at the time when the learned Sessions judge delivered his charge to the jury the question about the validity of the charge had been considered by the High Court and so far as the learned Sessions Judge was concerned the finding of the High Court was binding on him so that when the learned Sessions judge told the jury that they may consider whether the charges were in order he was really leaving it open to the jury to consider the matter which had been decided against the appellant and in favour of the prosecution
If there can be any grievance against this part of the charge it would be in the side of the prosecution and not on the side of the appellant
That leaves to be considered certain other alleged misdirections to which Mr Chari has referred
Mr Char contends that in explaining the true legal position with regard to the evidence of a prosecutrix in cases of rape the learned judge did not cell the jury that in view of the contradictions brought out in the evidence of Sandhya and in view of her past career and record her evidence should not be believed
Mr Chari argues that when criminal courts require corroboration to the evidence of the prosecutrix in such cases as a matter of prudence it necessarily means that in the first instance the 252 prosecutrix must appear to the court to be a reliable witness
If the prosecutrix does not appear to be a reliable witness or if her evidence suffers from serious infirmities corroborations in some particulars would not help the prosecution and according to Mr Chari this aspect of the matter was not properly brought to the notice of the jury by the learned Sessions judge
We do not think there is any substance in this contention
We have carefully read the charge and we are satisfied that on the whole the charge has not only been fair but has
been more in favour of the appellant than in favour of the prosecution
In fact the whole tone of the charge indicates that the learned Sessions judge was not satisfied that the prosecution had really made out a case against the appellant beyond a reasonable doubt
But in delivering charge to the jury the learned Sessions judge can never usurp the function of the jury
He cannot pronounce on the reliability or otherwise of any witness
The requirement as to corroboration in regard to the evidence of a prosecutrix like Sandhya has been elaborately explained by the Sessions judge to the jury
He told them that the most important witness in the case was Sandhya and that there was hardly any corroborative evidence to her story
He also warned them that though it was not illegal to act upon the evidence of a prosecutrix it was unsafe to adopt that course and he said that before convicting the appellant on the uncorroborated testimony of Sandhya the members of the jury should ask themselves whether they were so much convinced about the truthfulness of the girl as to accept her evidence in its entirety
He referred to the broad and material contradictions brought out in her evidence and asked them to bear that fact in mind in deciding whether they should accept her testimony or not
Having regard to the several statements made by the learned judge in his charge on this topic we find it difficult to accept Mr Chari s grievance that the charge was materially defective in this matter
253 The next misdirection or which Mr Chari has relied is in regard to the prosecution evidence about the age of the girl
The prosecution alleged that the girl was below If years of age whereas the defence contended that she was above 16 and was a consenting party
As usual evidence was given by the prosecution in support of its case as to the girl s age
This evidence consisted of the testimony of the girl s mother Saudamini and of Dr Nag as well as Dr Saha
Having summarised the material evidence fairly and accurately the learned judge told the jury that the said evidence was no doubt somewhat conflicting and he warned them that they had to decide as a question of fact whether the age of the girl at the relevant time was above or below 16
Mr Chari contends that at this stage the learned judge should have told the jury that the onus to prove the fact that the girl was below 16 was on the prosecution and that if there was any doubt about her age the benefit of the doubt must go to the appellant
We do not think there is any substance in this argument
In the first part of his charge the learned judge explained to the jury the essential requirements which had to be proved by the prosecution in support of its charge under section 376 and there the learned judge had made it clear to the jury that the prosecution had to show that the girl was below 16 That being so we do not think that his failure to mention the point about onus once again when he dealt with the actual relevant evidence can be said to constitute a misdirection much less a material misdirection which may have led to the prejudice or the appellant
The last misdirection on which Mr Chari has relied is the statement of the learned judge that the previous statements made by the girls which had been brought on the record do not constitute substantive evidence but are intended only to contradict the actual evidence given by her in court
It appears that on behalf of the appellant the evidence given 254 by the girl on a previous occasion had been brought out under s145 of the Indian Evidence Act
In that statement the girl had sworn that Anil Chatterjee had sexual relations with her day after day and that she had sexual relations with others also
The girl admitted in her cross examination that her statement had been recorded on a previous occasion by the Magistrate Alipore but when the contents of the statement were put to her she said she did not remember whether she had made those statements or not
Now it is clear that when a previous statement is put to a witness in cross examination under s145 of the Indian Evidence Act its primary purpose is to contradict the witness by reference to the evidence he gives at the trial and so it cannot be said that the learned judge was wrong in law in telling the jury that the previous statement on which the defence relied may help the defence to contend that the girl was not a straightforward witness and was changing her story from time to time but the said previous statement cannot be treated as substantive evidence at the trial
That is the true legal position and no grievance can be made against the charge for stating the said position in the terms adopted by the learned Sessions judge
Therefore we do not think that the grievance made by Mr Chari that the charge suffered from serious misdirections is well founded
There is one more point which we may mention before we part with this appeal
After the verdict was returned by the jury the learned Sessions Judge considered the question as to whether he should accept the said verdict or should make a reference
In that connection he observed that the verdict that the jury had returned against the appellant was practically based on the uncorroborated testimony of the prosecutrix but he thought that the said course adopted by the jury cannot be said to be illegal and he was not prepared to take the view that the verdict of the jury was in any way perverse
255 Mr Chari contends that having regard to the general tone of the charge delivered by the learned judge to the jury the learned judge should have treated the verdict as perverse and not acted upon it
We do not think that this contention can be accepted
In his charge the learned judge no doubt indicated that the evidence of the girl was not satisfactory that it was not corroborated and that there were other circumstances which showed that the prosecution case might be improbable but having done his duty the learned judge had to leave it to the jury to consider whether the prosecution had established its charge against the appellant beyond reasonable doubt or not
The jury apparently considered the matter for an hour and half and returned the unanimous verdict of guilty
In the circumstances of this case we cannot accede to Mr Chari s argument that the Session Judge was required by law to treat the said verdict as perverse
In a jury trial where questions of fact are left to the verdict of the jury sometimes the verdicts returned by the jury may cause a disagreeable surprise to the judge but that itself can be no justification for characterising the verdict as perverse
In the result the appeal fails and is dismissed the appellant to surrender to his bail bond
Appeal dismissed


Summary:
The appellant was the Zonal officer of the Refugee Rehabilitation office and the co accused Ganesh De was a peon in the said office
One Sandhyarani a minor girl was staying with her mother in the Refugee colony
She was induced by one Manibala to go to her place with a promise for a nurse s job
In course of time she was taken to the appellant s house in about the middle of November 1958 on the representation that he wanted to give her employment
The appellant held out the hope of a job for her and managed to ravish her
Similarly she was taken to the house of the appellant on two or three occasions within a period of one month and each time he bad sexual intercourse with her
Sandhya s mother filed a complaint which was investigated and she was recovered from the house of Ganesh De
Sandhya s statement was recorded and challan was forwarded which specified the dates on which the appellant had raped Sandhya
The charge was framed against the appellant on three counts and in the three counts periods were mentioned within which the appellant was alleged to have committed rape on Sandhya
The first period was between 18111958 to 21111958 second was 1
121958 to 6121958 and the third was 9121958 to 1512
Ganesh De was charged under s 376 read with section 109 of the Indian Penal Code
They were tried by the City Sessions Court with the aid of jury
The jury returned a verdict of guilty against the appellant in respect of all the three counts which was accepted by the Sessions Judge and the appellant was convicted and sentenced under section 376 to undergo rigorous imprisonment for four years on the first charge
No separate sentence was 238 awarded in respect of the other charges
Ganesh De was also sentenced to a similar period of imprisonment
The appellant preferred an appeal which was summarily dismissed by a vision Bench of the High Court
The appellant then obtained a certificate under article 1341 c of the Constitution hence this appeal
Held that where it is possible to specify precisely the necessary particulars required by section 2221 the prosecution ought to mention the said particulars in the charge but where the said particulars cannot be precisely specified in the charge having regard to the nature of the information available to the prosecution failure to mention such particulars may not invalidate the charge
In dealing with the question as to whether the charge framed in a criminal trial has contravened section 2221 the court will have to examine all the relevant facts and if it appears to the Court that having regard to them the charge could and ought to have been framed more precisely the court may reach that conclusion and then enquire whether the defective charge has led to the prejudice of the accused
The charge framed in the present case did not contravene the requirement of section 2212 and was therefore valid
Ali Hyder vs Emperor  held in applicable
Held further that the position under section 421 is clear and unambiguous
If the High Court in dealing with criminal appeals takes the view that there is no substance in the appeal it is not necessary that it should record reasons for its conclusion in summarily dismissing it
Therefore the High Court was not right in granting certificate to the appellant on the ground that his appeal should not have been summarily dismissed by another Division Bench of the High Court
Mushtak Husain vs State of Bombay AIR 1953 SC282 and Shreekantiah Ramayya Municipally vs State of Bombay AIR  distinguished
Held further that the requirement as to corroboration in regard to the evidence of a prosecutrix had been elaborately explained by the Sessions Judge to the Jury and having regard to the several statements made by the learned Judge in his charge on this topic it is difficult to accept that the charge was materially defective in this matter
239 The failure of the learned judge to mention the point about onus to prove the age of the girl once again when he dealt with the actual relevant evidence cannot be said to constitute a misdirection much less a material misdirection which may have led to the prejudice of the appellant
When a previous statement is put to a witness in cross examination under a 145 of the Indian Evidence Act its primary purpose is to contradict the witness by reference to the evidence given at the trial and so it cannot be said that the learned judge was wrong in law in telling the jury that the previous statement on which the defence relied may help the defence to contend that the girl was not a straightforward witness and was changing her story from time to time but the said previous statement cannot be treated as substantive evidence at the trial
That being the true legal position the charge did not suffer from serious misdirection
In a jury trial where questions of fact are left to the ver dict of the jury sometimes the verdicts returned by the jury may cause a disagreeable surprise to the Judge but that itself can be no justification for characterising the verdict as perverse
The appeal therefore must be dismissed