JUDGMENT 1. The Appellants have been convicted by the Court of Session at Hughly on a charge under sec. 336, I.P.C. and sentenced to rigorous imprisonment for five years and a fine of Rs. 206 each. They were committed to the Court of Session on a charge under sec. 376: the charge under sec. 366 was added in that Court. The jury unanimously found them not guilty on the charge under sec. 376, but found them guilty under sec 366. The grounds urged against the conviction relate (a) to erroneous admission of hearsay evidence, (b) admission of the statement of a child incompetent to give evidence and (c) misdirection as to (a) and (b). It has also been urged that the attention of the jury was not drawn to the conduct of the girl Kariman when she and the Appellants were seen by Golam Rahman together going at night. 2. That the jury have not fully believed the girl Kariman, whose testimony is the most material in the case is clear from the fact that they have given a verdict of not guilty as regards the charge under sec. 376. She is not at all corroborated as regards the charge of rape and her evidence is conflicting. The two charges abduction and rape are in this case very intimately connected and disbelief as to one reflects on the credibility of evidence as regards the other. The jury were evidently under the impression that the charge of rape had no corroborative evidence to support it, whereas the charge of abduction was sufficiently corroborated. 3. The corroboration of the charge of abduction lies in, amongst others, what the child Roushan said or is supposed to have said in Court, in the report of Roushan's statement said to have been made to Hanif and the statement of Golam Rahman. The question of admissibility arises with respect to the first two. 4. Roushan is a child four or five years old. His intelligence was not at all developed. It has been shown that he had little memory. The learned Sessions Judge placed no value on his testimony. But he did not tell the jury, as he ought to have done, that the statements made by the child should be wholly eliminated and that they should not place any the slightest reliance on them. It has been shown that he had little memory. The learned Sessions Judge placed no value on his testimony. But he did not tell the jury, as he ought to have done, that the statements made by the child should be wholly eliminated and that they should not place any the slightest reliance on them. He left the matter to the jury without the necessary comments and directions. The evidence being already in, the attention of the jury should have been distinctly drawn to the conditions which render the evidence of a child of tender years admissible. Competency to testify depends on the capacity to understand and give rational answers (sec. 118, Indian Evidence Act). The learned Judge should not have in his charge dealt with the matter in the way he has done, but should have gone further. 5. But the more important question as regards the testimony of Roushan has reference to the mode in which it was taken. Before a child of tender years is asked any questions bearing on the res gestoe, the Court should test his capacity to understand and give rational answers and his capacity to understand the difference between truth and falsehood. The Judge must form his opinion as to the competency of the witness before his actual examination commences. In the present case, nothing of the sort was done. The Counsel for the Crown was allowed to enter into the middle of the thing all at once. When, however, the Counsel for the Crown found out from certain answers that the child was really incompetent as a witness, he was allowed to put a leading question-a question of vital importance, "Did they carry off your aunt? "If the testimony of a child of tender years is to be received, it ought to be received from the child himself and not through a statement helped out by somebody else. The leading question was put and the answer is recorded thus-" Nods, yes." This record of evidence was very objectionable. The entire evidence of Roushan ought to have been rejected as inadmissible and the jury ought to have been warned from being influenced in the least by it. Such a leading question is highly objectionable and inadmissible whoever is the witness. 6. Some of the statements recorded in the deposition of Hanif are also inadmissible as hearsay. Hanif says he asked Roushan. Such a leading question is highly objectionable and inadmissible whoever is the witness. 6. Some of the statements recorded in the deposition of Hanif are also inadmissible as hearsay. Hanif says he asked Roushan. "Where his Khala was" Roushan's answer, which from the mouth of Hanif would be hearsay, ought not to have been admitted. Hanif says he then asked "How" Roushan'a answer was admitted and recorded. The answers are clearly inadmissible. The learned Sessions Judge has said to the jury speaking of this piece of evidence. "So the information given by Hanif becomes something like hearsay," why "something like hearsay?" The learned Judge ought not to have allowed the statements to go in evidence and if by inadvertence they were recorded the jury ought have been distinctly told that they should not place any reliance on them. 7. Lastly, the conduct of Kariman when she and the three accused were founded together by Golam Rahman has not been brought forward in the charge to the jury, Kariman said nothing at the time to Golam Rahman. She went along with the three accused. As we are sending this case back for retrial we shall not add any further remarks with reference to this matter. For these reasons we set aside the conviction and as there is evidence on the record against the Appellants the sufficiency of which must be considered by the jury, we direct a retrial before a fresh jury.