Lionel Leach, J. - (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.
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 Code of Criminal Procedure 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.

In 1945 Jasoda lived with her mother and other female relations in a house in Bombay Bazaar, Karachi. About five or six years previously she had lived with her mother in Moosa Lane, Karachi. The appellant lived in Moosa Lane, and the prosecution case was that he raped Jasoda in his house in that lane on September 6, 1945. Jasoda's account of what happened on September 6, 1945, is this: It was school holiday and she went to see her father, Kotumal by name, who had separated from his family and lived in another part of the town. As she found that her father was not at home she went to a temple, where she was given a free meal. After leaving the temple she met a band which was playing in the street and she followed it for some time. Eventually she arrived at the gate of the appellant's house in Moosa Lane. There she saw Fatehsing and the appellant. Fatehsing was standing by the gate to the compound, and the appellant was standing on the step to the house. She was thirsty and she asked Fatehsing for a drink of water. Fatehsing told her to come inside and he would give her water, whereupon she saw the appellant give his servant "a sign with his eye. " They dragged her into the house and carried her into a room on the first floor where there was a bed. She was then raped by the appellant. As the result, she bled profusely. The two men then carried her downstairs and placed her upon the footpath just outside the house. She lay there unconscious for about fifteen minutes, after which she got up and slowly made her way home.

(3.)IT is beyond dispute that she had been raped and that she was bleeding profusely when she arrived at her mother's house. She did not then tell her mother what happened, but it was obvious that her condition was such that she required immediate medical attention. An ambulance was sent for and she was removed to the Civil Hospital, Karachi. She was first seen by Dr. Sobhraj, the First Assistant Surgeon at the hospital, who after a superficial examination told her mother that her daughter had been raped. Jasoda was then examined by Dr. Ansari, the medical officer on duty at the time. In his evidence Dr. Ansari stated that Jasoda had told him that she had been taken in a carriage to Singhoo Lane (which is some considerable distance from Moosa Lane) and there raped. This statement is entirely contrary to the evidence given by Jasoda, who denied ever having made such a statement.
The same evening Jasoda made a statement to the police. At about noon the next day she was taken by a police officer in a gharry to Moosa Lane. On the way the police officers asked two local hotel keepers to accompany them as Mashirs, which they did. Jasoda directed the driver of the gharry where to go. When they arrived at the appellant's house in Moosa Lane, Jasoda told the driver to stop the gharry. Fatehsing was found standing at the gate in front of the house and Jasoda pointed him out to the police officer. Shortly afterwards the appellant appeared and she pointed him out as the person who had raped her. She then took the police officers and the two Mashirs to the room where she alleged the rape had taken place. The room was upstairs and it was used as a storeroom. The door was locked, but Fatehsing had the key and he unlocked it. There was a bed in the room and on it was a mattress. On the mattress were found blood and semen stains. Jasoda stated in her evidence that when she was taken into the room by the appellant and his servant on the day of the rape she noticed that there was in it a toy horse. In his statement at the trial the appellant said that his children's toys were generally kept in this room.