John Beaumont, Kt., C.J. - (1.)IN this case the Court has to consider a certificate given by the learned Advocate General under Clause 26 of the Letters Patent. Under that clause, if the Advocate General certifies that there is a point of law involved in the case which requires further consideration, this Court has to determine the point of law, and, if it thinks that there has been an error in law, can review the whole case and pass the requisite judgment and sentence.
(2.)THERE is no doubt in this case that there was an error of law in relation to the use which the learned Judge made of statements of witnesses made before the police. We will deal with that more in detail in a moment. But the existence of that error, which is admitted by Mr. Velinker for the Crown, requires us to review the whole case. It is not essential, whenever there has been some error of law, to set aside the conviction, but undoubtedly we must) set aside the conviction, if we think; that the error of law has prejudiced the accused. If we think that the error of law has not prejudiced the accused, then the conviction can stand. In order to determine the question of prejudice we have gone very carefully through the whole of the evidence on record.
The accused was convicted, under Section 366 of the Indian Penal Code, of abduction, which involves, so far as this case is concerned, removing a woman by deceitful means with the intention that she may be seduced to illicit intercourse. That is the charge on which the accused was convicted. The facts on which the charge was based are stated clearly and succinctly in the reference made by the learned Advocate General in paragraph 2, Clauses (a) to (1), which we accept as correct, and which are as follows: (a) The complainant Sarwarbai was at the date of the alleged offence about thirteen or fourteen years old. She was married to one Gulamhussein when she was six years old. (b) Gulamhussein came with the complainant to Bombay about the beginning of the month of June, 1940, with a view to find out a job for himself in Bombay. As Gulamhussein did not succeed in getting a job for himself, he and the complainant tried to get a job for the complainant in a film company. (c) About June 30, they commenced to live with a woman named Mumtaz. Sirdar, one of the daughters of Mumtaz, and her son were working in film companies. Sirdar and her brother promised to make endeavours to obtain a job for the complainant in the film companies in which they were working. (d) On Friday July 5 accused No.1 came to the house of Mumtaz. Mumtaz told the complainant and Gulamhussein that accused No.1 was the proprietor of a film company. Sirdar who was present at the time stated that accused No, 1 had a film company at Andheri. Accused No.1 told the complainant that he could offer her a job. (e) On Saturday July 6, Sirdar took the complainant, telling her that she was being taken to a film company, to a room in a hotel. Sirdar then left the complainant alone in the room saying that she was going to buy cigarettes. A person then came into the room and the complainant got frightened. The person who had entered the room thereupon left the room. (f) On the night of Saturday July 6, the complainant was taken by Sirdar's brother to Circo Film Company and the complainant worked there as an extra hand. (g) On the morning of Sunday July 7, the complainant reported to her husband how Sirdar had taken her to the hotel on Saturday and stated that Sirdar was not their well-wisher. The complainant and her husband thereupon decided to leave the house of Mumtaz. (h) The complainant and her husband then started to go to Andheri in order to see accused No.1 who had promised the complainant a job in his film company at Andheri. When they had gone up to Hind Mata Cinema they saw a car standing near the cinema in which were seated accused Nos. 1 and 2, a boy, one Nazir and the driver. The complainant and her husband went up to the car and told accused No.1 that they were going to him at Andheri for the job which he had mentioned. Accused No.1 thereupon stated that it was good that they had happened to meet him at that place. He asked them, to get into the car and promised to take them to the film company at Andheri after he had taken his meals. Thereupon the complainant and her husband got into the car. The car then proceeded to the house of accused No.1 at Parel. (i) Accused No.1 then arranged for the luggage of the complainant and her husband being brought from the house of Mumtaz and thereafter told the complainant and her husband to rent a room for themselves and put their luggage in the room. The complainant's husband, accused No.2 and Nazir thereupon went to look for a room. As no room was available nearby, accused No, 1 stated that the luggage should be taken to Nazir's room and kept there. After the luggage had been left in Nazir's room, accused No.1 took the complainant and her husband in the car to an eating house where they were given food. (j) The complainant and her husband then got into the car. When the car came near the J.J. Hospital, the driver and the boy were asked to go out of the car and they did so. Accused No.1 then began to drive the car. When the car came near the place where Nazir's room was situated accused No.1 told the husband to go and fetch a match box. When the husband returned with the match box, accused No.1 asked the husband to go with Nazir to his room and stop there. Accused No.1 stated that, in the meanwhile, he would take the complainant to the film company and get her name registered there for a job. The husband desired to accompany the complainant. Accused No.1 however stated that he would return in a short time and that the husband should in the meantime rest in the room of Nazir. The car then drove away with the complainant and accused Nos. 1 and 2 in the car. Accused No.1 was driving the car. (k) Accused No.1 drove the car towards a jungle stating that the company was situated there. The complainant was taken to a hut in Juhu. Accused No.1 told her to sit down and have her tea and said that he would then take her to the company. Accused No.1 thereupon brought an open bottle of lemonade from outside. The complainant drank the liquid and began to feel giddy. Accused No.1 then lifted her up, and put her on a cot and tied her. Accused No.2 took out a knife and stood with the open knife near the bed. When the complainant began to cry, accused No.2 stated that he would kill her with the knife. Accused No.1 then ravished the complainant. Accused No.2 thereafter came near her. The complainant then became unconscious. (l) This was the complainant's first experience of sexual intercourse.

Accused No.2 was acquitted, so that in this judgment references to the accused are to accused No.1.

(3.)THE defence of the accused was somewhat singular. In the Committing Magistrate's Court he stated that he had not taken the complainant to Juhu or anywhere else, that the case was a false one, and that the day of the alleged offence, Sunday, July 7, he had spent in part in his house and in part at a wedding ceremony. In the Sessions Court his counsel, a man of wide experience in criminal cases, cross-examined the complainant and her husband with a view to showing that the accused had taken the complainant to Juhu, as alleged, had had sexual intercourse with her there, but had taken her with her consent, and in consideration of Rs. 20 which he had paid to her husband. THE cross-examination seems to have been based on the story of a man named Nazir who gave evidence in the Sessions Court. It is, of course, apparent that the defence set up in the Committing Magistrate's Court, and the defence outlined in the Sessions Court, are wholly inconsistent; but when the accused was asked under Section 342 of the Criminal. Procedure Code what he wished to say with regard to the evidence led against him, he said that he wished to say nothing. Presumably in so doing he was acting on the advice of his counsel. THE result was that the jury had before them two defences relied on by the accused, which were wholly inconsistent with each other, and the accused was unable or unwilling to suggest which of the two defences they might properly regard as true. In the circumstances it is not to be wondered at that they rejected both the defences as untrue.
On the application to the learned Advocate General for a certificate the accused elected to stand on the defence of consent, because the learned Advocate General in his certificate says: Whereas it was represented to me that it was the case for accused No.1 as indicated in cross-examination and by the arguments of his counsel that the story of the complainant and her husband was false. The complainant and her husband had on the day of the alleged offence met accused No.1 near Hind Mata Cinema by appointment and the complainant had accompanied accused No.1 to Juhu willingly and with the consent of her husband who well knew the purpose for which she was being taken to Juhu. Accused No.1 had sexual intercourse with her at Juhu with her consent. Accused No.1 had paid the husband Rs. 20 on the Friday preceding the day of the alleged offence in the room of Nazir where they were living on that day. The complainant and her husband had made a false charge against accused No.1 because the husband had on the day following the day of the alleged offence asked accused No.1 to pay him Rs. 20 which he had declined to do.