# RAMASWAMY NADAR v. THE STATE OF MADRAS

- **Citation:** [1958] 1 S.C.R. 739
- **Court:** Supreme Court of India
- **Decided:** 1957-04-03
- **Case number:** Crimfual Appeal No. 153 of 1957
- **Bench:** B. P. Sinha, P. GoVINDA MENON, J. L. KAPu:R
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ramaswamy-nadar-v-the-state-of-madras-1421
- **Pages:** 11

## Headnote

739
Criminal law-Misappropriation-Prize CompetitionEntry fees-No rule th0;t amount ?f fees should ?e re~erved
for payment to prize winners-Failure to pay prize winners
-Whether dishvnest misappropriation-Reversal of order
of Acquittal-Conviction for a different offence-LegalityIndian Penal Code (Act XLV of 1860), ss. 403, 420-Code of
Criminal Procedure (Act V of 1898), s. 423 (1) (a) (b).
The appellant, who used to carry on the business of conducting prize competitions, was prosecuted on a charge
under s. 420 of the Indian Penal Code. The case against him
wu that though he found that his competitions did not
attract a sufficiently large number of competitors to yield
the guaranteed prize money, he advertised the competition
in question and collected a large a,!!}OUnt by way of entry
fees with a dishonest intention, and did not utilize any part
of the collected amount towards payment of the prizes
offered. The Magistrate found that there was no evidence
that the accused had used any part of the entry fees collected in any of the competitions for his own use but that,
on the other hand, in order to meet the heavy-demands of
the prize winners in respect of the previous competitions,
the accused had spent not only the amounts collected by
him but also a large amount of money of his own capital.
He accordingly came to the conclusion that though the
accused had been utterly reckless and irresponsible in his
conduct of the competitions and thereby caused loss to certain persons, he had not been guilty of any fraudulent or
dishonest conduct and so could not impute any criminal
liability to him. The High Court agreed with the Magistrate in acquitting the appellant of the charge under s. 420
of the Indian Penal Code but held that, though the appellant did not have any dishonest intention in the initial
stages, there was no justification for not having disbursed
the amount of money collected·in respect of the competition
in question pro rata amongst the declared priz~ winners,
and convicted him of misappropriation under s. 403, Indian
Penal Code. On appeal to the Supreme Court it was contended for the appellant that (1) the High Court was not
authorized by s. 423(1) (a) of the Code of Criminal Procedure to convert an order of acqμittal into an order of conviction in respect of an offence other than that for which
the accused was tried by the trial Court, and (2) on the
facts and circumstances of the case no offence under s. 403,
Indian Penal Code, had been made out.
1957
October 11/21.
740
SUPREME COURT REPORTS
[1958]
1957
He!d: (1) that under ,s. 423 (1) (a) of the Code of CrimiR
-
N. a.
nal Procedure the High Court has, in an appeal from an
amaswa;:y a ar order of acquittal, the power to reverse the order and find
The Stare of
the accused guilty of the offence disclosed by the evidenoe.
Madras
Sinha J.
(2) that in view. of the fact that there was no express
provision in the rules and conditions of the competition In
question that the money collected by way of entry fees
should be reserved for payment to the prize winners in that
very competition, the appellant could not be held guilty
of misappropriation under s. 403 of the Indian Penal
Code.
CRIMINAL
APPELLATE
JURISDICTION:
Crimfual
Appeal No. 153 of 1957.
Appeal by special leave from the judgment and
order dated the 3rd April, 1957, of the Madras High
Court in Criminal Appeal No. 393 of 1956 arising out
of the judgment and order dated the 10th February,
1956, of the Court of the Fourth Presidency Magistrate, G. T. Madras in C. C. No. 10027 of 1955.
H. J. Umrigar, R. Ganapathy Iyer and G. Gopa!akrishnan, for the appellant.
P. Rama Reddy and T. M. Sen, for the respondent.
1957. October 11/21. The following Judgment of
the Court was delivered by
SINHA J.-This appeal by special leave is directed
against the judgment and order of a Single Judge of
the Madras High Court, dated April 3, 1957, setting
aside the order of acquittal passed by the fourth
Presidency Magistrate at Madras, dated F

## Text

S.C.R.
SUPREME COURT REPORTS
RAMASWAMY NADAR
v.
THE STATE OF MADRAS
( B. P. SINHA, P. GoVINDA MENON and
J. L. KAPu:R, JJ.)
739
Criminal law-Misappropriation-Prize CompetitionEntry fees-No rule th0;t amount ?f fees should ?e re~erved
for payment to prize winners-Failure to pay prize winners
-Whether dishvnest misappropriation-Reversal of order
of Acquittal-Conviction for a different offence-LegalityIndian Penal Code (Act XLV of 1860), ss. 403, 420-Code of
Criminal Procedure (Act V of 1898), s. 423 (1) (a) (b).
The appellant, who used to carry on the business of conducting prize competitions, was prosecuted on a charge
under s. 420 of the Indian Penal Code. The case against him
wu that though he found that his competitions did not
attract a sufficiently large number of competitors to yield
the guaranteed prize money, he advertised the competition
in question and collected a large a,!!}OUnt by way of entry
fees with a dishonest intention, and did not utilize any part
of the collected amount towards payment of the prizes
offered. The Magistrate found that there was no evidence
that the accused had used any part of the entry fees collected in any of the competitions for his own use but that,
on the other hand, in order to meet the heavy-demands of
the prize winners in respect of the previous competitions,
the accused had spent not only the amounts collected by
him but also a large amount of money of his own capital.
He accordingly came to the conclusion that though the
accused had been utterly reckless and irresponsible in his
conduct of the competitions and thereby caused loss to certain persons, he had not been guilty of any fraudulent or
dishonest conduct and so could not impute any criminal
liability to him. The High Court agreed with the Magistrate in acquitting the appellant of the charge under s. 420
of the Indian Penal Code but held that, though the appellant did not have any dishonest intention in the initial
stages, there was no justification for not having disbursed
the amount of money collected·in respect of the competition
in question pro rata amongst the declared priz~ winners,
and convicted him of misappropriation under s. 403, Indian
Penal Code. On appeal to the Supreme Court it was contended for the appellant that (1) the High Court was not
authorized by s. 423(1) (a) of the Code of Criminal Procedure to convert an order of acqμittal into an order of conviction in respect of an offence other than that for which
the accused was tried by the trial Court, and (2) on the
facts and circumstances of the case no offence under s. 403,
Indian Penal Code, had been made out.
1957
October 11/21.
740
SUPREME COURT REPORTS
[1958]
1957
He!d: (1) that under ,s. 423 (1) (a) of the Code of CrimiR
-
N. a.
nal Procedure the High Court has, in an appeal from an
amaswa;:y a ar order of acquittal, the power to reverse the order and find
The Stare of
the accused guilty of the offence disclosed by the evidenoe.
Madras
Sinha J.
(2) that in view. of the fact that there was no express
provision in the rules and conditions of the competition In
question that the money collected by way of entry fees
should be reserved for payment to the prize winners in that
very competition, the appellant could not be held guilty
of misappropriation under s. 403 of the Indian Penal
Code.
CRIMINAL
APPELLATE
JURISDICTION:
Crimfual
Appeal No. 153 of 1957.
Appeal by special leave from the judgment and
order dated the 3rd April, 1957, of the Madras High
Court in Criminal Appeal No. 393 of 1956 arising out
of the judgment and order dated the 10th February,
1956, of the Court of the Fourth Presidency Magistrate, G. T. Madras in C. C. No. 10027 of 1955.
H. J. Umrigar, R. Ganapathy Iyer and G. Gopa!akrishnan, for the appellant.
P. Rama Reddy and T. M. Sen, for the respondent.
1957. October 11/21. The following Judgment of
the Court was delivered by
SINHA J.-This appeal by special leave is directed
against the judgment and order of a Single Judge of
the Madras High Court, dated April 3, 1957, setting
aside the order of acquittal passed by the fourth
Presidency Magistrate at Madras, dated February 10,
1956, on a charge under s. 420, Indian Penal Code.
The Government of Madras appealed against the order
of acquittal and the appeal was heard by a Single
Judge of that Court The learned Judge allowed the
appeal, but did not convict the appellant under s. 420,
Indian Penal Code, which was the original charge
against him in the trial court, but under s. 403, Indian
Penal Code, for misappropriation, and sentenced him
to .the maximum period of two years' rigorous imprisonment. Hence, this appeal.
The appellant used to carry on prize-competitions
as the proprietor of the 'Lotus Cross Words'.
Certain persons who had paid moneys in connection with
S.C.R.
SUPREME COURT REPORTS
741
the prize-competition No. 92, complained that they
1957
had not received their prize money though it had Ramasw-;;;;;;, Nadar
been announced that they had competed for the prizes
Th ;; /
if
offered. The police, after investigation, submitted a
Madr:'.r
0
charge-sheet against the accused to the effect that he
Sinha J.
had, between May 20, 1955, and June 10, ·1955, in his
capacity as the proprietor of the 'Lotus Cross Words',
dishonestly induced P.Ws. 1 to 3 to compete in his
"bumper competition" No. 92, by paying entry fees
to the tune of Rs. 2,640 on the representation that the
prize winners will get a sum of Rs. 3,10,000, and that
on that representation, he had collected one lac and
fifteen thousand odd rupees from the public, out of
which he had spent about nineteen thousand rupees
towards expenses of advertising and holding the competition. Though P.Ws. 1 to 3 and others had been
declared as the first prize winners, the accused had
not distributed even the amount actually collected
minus the expenses aforesaid, that is to say Rs. 96,000
odd, the amount of the net collections. The prosecution examined a number of witnesses to prove that the
appellant had been holding crossword competitions
and a large .number of persons had paid moneys by·
way of entry fees; that the competition in question,
namely, competition No. 92, had been advertised with
a guaranteed sum of Rs. 3,10,000 by way of prizes;
that as a matter of fact a much smaller sum had been
collected by way of entry fees; that the three prosecu·
tion witnesses aforesaid and others had been, in due
course, declared to be the first prize winners, but
that none of them had been paid any money. It is
also in evidence that a large number of other 'bumper
competitions', namely, Nos. 80, 84 and 88, had similarly been held and large sums were advertised to
have been guaranteed as prize moneys. None of those
'bumper competitions' yielded the sums so guaranteed.
The gravamen of the charge against the accused was
that in spite of his recent experience that none of
those 'bumper competitions' attracted a sufficiently
large number of competitors to yield the guaranteed
prize money, the accused had advertised the competition No. 92 with a guaranteed prize money of
742
SUPREME COURT REPORTS
[1958]
1957
Rs. 3,10,000 and that in spite of his having collected
Ramaswamy Nadar about one lac and fifteen thousand odd rupees by way
Th ;·
f
of entry fees, none of the prizes declared to have been
'k.'t':,
0
won by prosecution witnesses· 1 to 3 and others, had
Sinha J.
actually been paid. It was, therefore, suggested by
the prosecution that the recent history of the prize
competitions conducted by the appellant, would show
that he was actuated by a dishonest intention when
he collected one lac and fifteen thousand odd rupees
by way of entry fees, and did not utilize any part of
the collected amount towards payment of the prizes
offered. A large volume of documentary evidence
furnished by the appellant's registers and account
~ books, was adduced in support of the prosecution case.
m his defence, the appellant stated in his written
statement that he started the 'Lotus Cross Words' in
August, 1953, with a capital of twenty thousand
rupees, and conducted 93 competitions, but due to
insufficient collections in the recent competitions, he
was not able to respect all his obligations, so much so
that he was forced to close down the business owing
to loss, on June 22, 1955. And to show his bona fides,
he had disbursed over a lac of rupees even after the
closure of the business and had settled the claims
of six thousand out of seven thousand prize winners.
He, thus, claimed that less than one thousand persons' claims had remained unsatisfied in spite of his
borrowing money to carry out his obligations.
The learned magistrate, on an elaborate examination of the evidence led before him by the parties,
observed in his judgment that the accused had not
denied the truth of the allegations of fact made by
the prosecution, but had only challenged the insinuations against him that he was actuated by a dishonest
intention in carrying on the competitions, particularly, No. 92. He found that none of the statements
made in the advertisements had been shown to be
untrue; that it was a fact that at the time, the competition No. 92 had been announced in the papers,
the accused owed a total debt of prize moneys amounting to about four lacs of rupees in respect of the previous competitions; that the accused had other debts
to the tune of a lac and fifty seven thousand odd
J <
S.C.R.
SUPREME COURT REPORTS
743
rupees and that recent competitions had not even
~
yielded sufficient amounts, collected by way of entry Ramaswamy Nanar
fees, to cover the guaranteed prize moneys. But he
v.
The State o}
also found that the accused had applied his own funds
Madras
amounting to about a lac and a half rupees to the
. Sinha J.
payment of prize moneys. He found that the prosecution had failed to substantiate its allegations that
ninety six thousand odd rupees, out of the entry fees
collected for the competition No. 92, had been utilized by him for his own purposes and not for carrying
on the competitfons. He observed that there was no
evidence that the accused had used any part of the
entry fees collected in any of the competitions, for
his own use, or that he took any financial benefit out
of the moneys collected in the recent competitions
including No. 92.
In other words, the court found
that in order to meet the heavy demand of the prize
winners in respect of ·the previous· competitions, the
accused had spent not only the amounts collected by
him but also about one and a half lacs of rupees of his
own capital. Thus, instead of making any gain for
himself, the accused had incurred a total loss of about
a lac and a half of rupees, and still he had to meet
other prize winners' demands, including those of the
three prosecution witnesses aforesaid. On those considerations, his finding was that the accused may have
been "absolutely foolish and reckless and far too optimistic" in expecting large sums of money by way of
1:!ollections of entry fees, but that he had not been
guilty of any fraudulent or dishonest conduct. Ultimately, he came to the following conclusion:
. "'The mere fact that the accused had been utterly
reckless and irresponsible in his conduct of the Lotus
Cross Words and thereby caused loss to certain
persons cannot however impute a criminal liability to
him. Hence I find that the prosecution has not proved beyond reasonable doubts the guilt of the accused."
On ap:peal by the State · to the High Court of
Madras, the learned Single Judge (Somasundaram J.)
agreed with the trial court in acquitting the appellant
of the charge under s. 420, Indian Perial Code, hut he
convicted him of misappr~priation, under s. 40:1,
744
SUPREME COURT REPORTS
[1958}
1957
Indian Penal Code. He held that dishonesty at the
Ramarwa-;;;y Nadar initial stages may not have been there, but according
Th•;,~,. •I to him, there was no justification for the accused not
Madras
having disbursed the ninety six thousand odd rupees,
Sinha J.
the net amount of collection in competition No. 92
pro rata amongst the declared prize winners. As
large amounts were involved in the transaction which
was the subject-matter of the charge against the
accused, he imposed the maximum punishment of two
years' rigorous imprisonment.
Substantially two points were raised on behalf of
the appellant in support of the appeal, namely, (1)
that the High Court is not authorized bys. 423(1) (a),
Criminal Procedure Code, to convert an order of
acquittal into an order of conviction in respect of an
offence other than that for which the accused was
tried by the trial court and acquitted by it, that is to
say, the High Court could not confirm the order of the
trial court acquitting the accused of an offence under
s. 420, Indian Penal Code, and, at the same time,.
convict him of an offence under s. 403, Indian Penal
Code, and (2) that on the facts and circumstances
of this case, no offence under s. 403. Indian Penal
Code, has been made out. Before dealing with the
appeal on the inerits covered by the second contention
it is convenient to dispose of the first point.
The
powers of the High Court, while disposing of an
appeal against an order of acquittal, are contained
ins. 423( 1) (a), Criminal Procedure Code. which is in
these terms :
423(1) (a) : "in an appeal from an order of acquit-·
tal, reverse such order and direct that further inquiry
be made, or that the accused be re-tried or committed.
for trial, as the case may be, or find him guilty and.
pass sentence on him according to law;"
It was argued that the appellate court is authorized
(a) to reverse an order of acquittal, and (b) to direct
further inquiry, or ( c) to direct that the accused be
re-tried or committed for trial, or ( d) to find him
guilty and to sentence him according to law. It is
pointed out that there is no power in the High Court
to alter the finding or the charge or the nature of the
S.C.R.
SUPREME COURT REPORTS
745
offence, as is specifically conferred on the High Court
1957
under clause(b) of s. 423(1). This argument is basedRamas;;;;; Nada
on ~he absence fr_om clause. (a) aforesaid, of the folThe ;iate 91
lowing words which occur m clause (b) :
Madras
" .......... or (2) alter the finding, maintaining
the sentence, or with or without altering the finding,
reduce the sentence, or (3) with or without such reduction and with or without altering the finding alter
the nature of the sentence ......... '."
.
In our opinion, the words just quoted out of cal use (b)
which deals with an appeal from a conviction, were
not necessary for the .purpose of clause (a) which
deals with an appeal from an order of acguittal. Under
both the clauses (a) and (b), the specific power to
reverse the order appealed from, is there, but because
there has been a conviction by the trial court or the
court immediately below the High Court, the latter
Court is authorized specifically to alter the finding or
the nature of the sentence in clause (b). In clause
(a), after the High Court has decided to reverse the
order of acquittal, it has been given the power to find
the accused guilty, besides other powers enumerated
above. The question naturally arises 'find the accused person guilty of what?' The answer sought to be
given by the counsel for the appellant is that the High
Court may find him guilty of the offence with which
he stood charged in the court below and of which he
was acquitted; but not of the offence c\isclosed by the
evidence as that would be adding to the words of
clause (a) the words "of the offence disclosed" or
words to that effect which would be contrary to the
intention of the Code as is shown by the words of
clause (b). But this argument is wholly ineffective
because in either view of the matter the court has to
supply some words in answer to the question 'find him
guilty of what?' According to the appellant, those
additional words should be "of such offence as has
been charged and of which he had been acquitted",
and according to the other view, "of the offence disclosed". If, in construing the section, the court has
to supply some words in order to make the meaning
of the statute clear, it will naturally prefer the latter
Sinha J.
746
SUPREME COURT REPORTS
[1958]
i 957
construction which is more in consonance with reason
.Ramasw-;;;;;, Nadar and justice. It was also argued on behalf of the appelThe ;,~,. of lant that this being a penal statute, the words of the
Madras
statute should be very strictly construed, but even so,
Sinha J.
the necessity for supplying certain additional words
is there in either view of the matter. It has not been
contended that the trial court could not have exercised
the powers contained in ss. 236, 237 and 238 of the
Criminal Procedure Code. What was contended was
that though those powers may be exercised by a trial
court or even by a Court of Appeal exercising its
powers under cl. (b) of s. 423(1), the High Court
could not exercise those powers acting under cl. (a)
of that section. But we do not see any sufficient
ground for so restricting the powers of the High Court
hearing an appeal under s. 423(1) (a). No rulings
have been placed before us in support of the contention thats. 423(1) (a) does not authorize a High Court
to find the accused person guilty of any offence other
than that with which he has been charged. On the
other hand, there is a ruling of a Division Bench of
the Bombay High Court in Emperor v. Ismail
Khadirsab(')
In that case, the accused person had
been acquitted of the charge of murder and on
appeal against the acquittal, the Bombay High Court
maintained the acquittal in respect of the charge of
murder, but held the accused guilty of the offence of
~abricating false evidence.
We are not concerned
with the correctness of the actual decision of the High
Court, but only with the fact that the High Court
recognized and acted upon the principle that it is open
to the High Court, while deciding an appeal from an
order of acquittal, to convict the accused person of an
offence other than that with which he had been
eharged. It was sought to be argued on behalf of the
appellant that the High Court purported to follow the
decision of their Lordships of the Judicial Committee
-0f the Privy Council in Begu v. Emperor(') but it is
contended that this was a case of an appeal from a
conviction and not an appeal from an order of acquittal. But it would appear that the decision of their
(I) (1928) I.L.R. 52 Bom. 385.
('I (1925) L.R. 52 I.A. 191.
I
1
S.C.R.
SUPREME COURT REPORTS
747
Lordships of the Judicial Committee, was not based
1957
on a consideration of the language of s. 423, but OfRamaswamy Naaar
the provisions of ss. 236 and 2~7 of ~he C::od~. In our
The ;,~te 01
opinion, there is no warrant either m prmc1ple or on
Madras
authority, for the first contention raised on behalf of
Sinha J.
the appellant. This contention is, therefore, overruled.
It remains to consider the merits of the decision
of the High Court. The conclusions of the High Court
may be stated in its own words in the last paragraph
of its judgment :
"Before parting with this judgment I am constrained to observe that the order of acquittal passed
by the Magistrate is a perverse one. He is aware and .
finds also that a sum of Rs. 96,548-2-3 remained with
the accused without being paid to the prize winners.
The learned Magistrate seems to think that the prosecution must let in further evidence of misappropriation. I am unable to understand the reasoning of the
Magistrate when he says that there is no evidence of
misappropriation. Having found that a sum of
Rs. 96,548-2-3 has not been distributed to the prize
winners in the competition No. 92 and that he utilized the same towards the debt incurred in the previous
competitions, one would have thought that misappropriation is clearly established."
In our opinion, these observations are very much
wide of the ml:!rk. The High Court has not- reversed
any of the findings of fact recorded by the learned
magistrate. It has differed only on the inference to
be derived from those findings.
The learned trial
magistrate refused to draw an inference of dishonesty
from those facts. The High Court has come to the
contrary conclusion. The question is : was the High
Court justified in coming to t.he conclusion that "misappropriation is clearly established?" In our opinion,
the High Court has erred in coming to that conclusion. In order to prove an offence under s. 403, Indian
Penal Code, the prosecution has to prove that the property, in this case, the net amount of ninety six
thousand odd rupees, was the property of the prosecution witnesses 1 to 3 and others, and (2) that the
accused misappropriated that sum or cor"'!rted it to
748
SUPREME COURT REPORTS
[1958]
~
his own use, and (3) ·that he did so dishonestly. In
Ra11aswam1 Nadar our opinion, none of these constituent elements of the
The ;;01, of offence can be categorically asserted to have qeen
Madras
made out. The entry fees
rightly came into the
Sinha 1•
coffers of the accused. No doubt, he had promised to
award prizes of the total value of Rs. 3,10,000, but
there was no further obligation that the prize money
had to come either wholly or in part, from out of the
sum collected by him by way of entry fees. He was
carrying on the business and was found by the court&
below to have disbursed lacs of rupees to winners of
pr:izes in the previous competitions, and it was conceded on behalf of the prosecution that there is no
express provision in the rules and 'Conditions of the
"Lotus Cross Words" exhibited in this case that there
was any obligation on the part of the appellant to
set apart specific sums collected by way of entry fees
for disbursement amongst the prize winners.
As a
matter of contract, the legal liability of the appellant
to pay the prize winners was there irrespective of the
consideration whether or not he made enough money
to provide for the payment of the prizes declared as
a result of the competition. But it was sought to be
argued that though there was no specific provision in
any statute or other law that the money collected by
way of entry fees, should be reserved for payment to
the prize winners in that very competition, the appellant was some sort of a trustee or bailee and should
have seen to it that the collected amount was disbursed amongst the prize winners. There was no such
entrustment nor was there any rule laid down for
appropriation of the sum collected in a particular way.
There being no duty to make appropriation in a particular way, the appellant could not be held guilty of
having misappropriated the ninety six thousand odd
rupees which was the total net collection in competition No. 92. As already pointed out, the learned trial
magistrate had come to the finding that there is no
evidence that any amount out of this collection had
been appropriated by the appellant to his own personal use. Whatever amount he had been collecting,
he had been applying to running his business. It is
true that the later competitions were a losing concern,
-
S.C.R.
SUPREME COURT REPORTS
749
but as rightly pointed out by the learned trial magisJ9S7
trate,
the appellant cannot be criminally liable Ra""'~ Nadar
for being reckless or unwise in carrying on his busiThe ;iare of
ness. In our opinion, therefore, the le~rned Judge
Madras
below was in error in characterizing the order of
Sinha J.
acquittal as a perverse one. The learned Judge's decision is based on an erroneous assumption that the
appellant was bound by law to disburse the amounts
collected in a particular competition amongst the
prize winners of that competition. But it has not been
pointed out by what proce~s that conclusion was
reached. Nor has the learned counsel for the respondent brought any statutory or other rule to our notice
casting an obligation on the appellant to appropriate
the entry fees in a particular manner. That being so,
it must be held that misappropriation has not been
made out either on evidence or as a matter of law.
In the result, the appeal is allowed and the order
passed by the High Court set aside and the order of
acquittal passed by the trial c?urt is restored.
Appeal allowed.
SIDHESWAR GANGULY
v.
THE STATE OF WEST BENGAL
(B. P. SINHA and J. L. KAPUR, JJ.)
Jury trial-Written statement filed by acCU!Jed-If
admissible-Rape-Evidence of prosecutrix-Corroboration
of-Misdirection to jury-Age of prosecutrix-Certificate
of fitness, Grant of-Principles-Constitution of India, Art.
134(1) (c).
Appellant was tried by the Sessions Judge and a jury
on the charge of committing rape. On the question of the
age of the girl expert medical evidence was produced but
no birth certificate was available. The father of the girl
could not be examined as he was dead. According to the
Police evidence the whereabouts of the mother were not
traceable but the Police Officer who himself made the
inquiry was not produced. As regards the commission of
the rape the girl herself was examined and there was the
evidence of another girl and some circumstantial evidence.
The accused filed.a written statement but the Judge refused
J9S7
October 24