Judgement Appeal (No. 91 of 1947), by special leave, from an order of the Chief Court of Sind made in the exercise of its appellate criminal jurisdiction (Tyabji C. J. and 0Sullivan J.) (May 3, 1946) 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 seven to two the jury found both the accused guilty of the offences charged against them. The learned judge (Constantine J.) (December 6, 1945) accepted the verdict and sentenced the appellant to two years rigorous imprisonment under s. 366 of the Indian Penal Code on the charge of kidnapping and to eight years rigorous imprisonment under s. 376 on the charge of rape, the sentences to run concurrently. He sentenced Fatehsing to two years rigorous imprisonment under s. 366 on the; charge of kidnapping and to four years rigorous imprisonment under s. 109 read with s. 376 on the charge of abetment of the rape, those 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. The questions for determination in this appeal related to the admission and use in evidence of a statement made by Fatehsing under s. 164 of the Code of Criminal Procedure, the admission and use in evidence under s. 162 of that Code of statements made by Jasoda to the police, and the treatment by the trial judge of the evidence of one of the prosecution witnesses. The facts appear from the judgment of the Judicial Committee. 1949. Nov. 28, 29, 30. Pritt K. C. and Handoo for the appellant. The appellants conviction was based on insufficient, unreliable and inadmissible evidence. The admission and use in evidence of the statement made by Fatehsing under s. 164 of the Criminal Procedure Code was, in the circumstances of this case, contrary to law and practice—it ought never to have been put in evidence in any shape or form. The appellants conviction was based on insufficient, unreliable and inadmissible evidence. The admission and use in evidence of the statement made by Fatehsing under s. 164 of the Criminal Procedure Code was, in the circumstances of this case, contrary to law and practice—it ought never to have been put in evidence in any shape or form. Section 164 really has a sort of dual purpose, partly for the purpose of recording a statement and partly for recording confessions which can be used in certain circumstances. What Fatehsing made was a statement, and it contained very serious allegations against the appellant. Not being a confession, it could not be used under s. 30 of the Indian Evidence Act. Being a statement under s. 164, but not a confession, and made by a person who was accused, it could not be used as substantive evidence at all, but only for certain subsidiary purposes; Brij Bhushan Singh v. King Emperor (( 1945) L.R. 73 I.A. 1, 8.); Bhuboni Sahu v. The King (( 1949) L. R. 76 I. A. 147, 153); In re Meddela Ramaniyamma (( 1917) A.I.R. (Mad.) 316.); and Nazir Ahmad v. King-Emperor (( 1936) L. R. 63 I. A. 372, 382.). This statement was wrongly used as substantive evidence, with the result that the case proceeded with this terribly damning statement read to the jury, who admittedly were warned to take no notice of it as against the appellant, but that was impossible for anyone-but a highly-trained lawyer. Next, s. 162 of the Criminal Procedure Code enacts that no statement made by any person to a police-officer in the course of an investigation shall "be "used for any purpose....at any ....trial in respect " of any offence under investigation at the time when such "statement was made." When Jasoda was taken by the police to the house of the appellant that was "in the course of an " investigation," and anything that Jasoda said to the police in the course of that investigation, particularly on that day, ought not to have been given in evidence. The principal point that arises here is as to how far it is right to say that a girl is making a statement to the police when the form it take is, "I pointed out the man." There are a few cases which show that gestures and similar steps amount to a statement made to the police. It is the general practice in India to apply s. 162 to oral statements as well as to written ones-, and the actual wording of the section shows that the word " statement" is used in respect of something which may or may not be reduced into writing; among such oral statements gestures are included; Emperor v. Hari (( 1935) A.I.R. (Sind) 145, 173.); Emperor v. Nga Kyaing (( 1926) A.I.R. (Rang.) 112.); Krishna Chandra Dhenki v. Emperor (( 1935) A.I.R. (Cal.) 311.); Krishna Kahar v. Emperor (( 1940) A.I.R. (cal.) 182.); Bhola Nath Dome V. Emperor (( 1939) 43 Cal. W.N. 1180.); Mor Mahomud v. Emperor (( 1940) A.I.R. (Sind) 168.); Chandrasekara alias Alisandiri v. The King ([ 1937] A.C. 220.); and Pulukuri Kotayya v. King-Emperor (( 1947) L. R. 74 I.A. 65, 72.). If the girl says, "the police officer asked " me who had committed rape on me, and I pointed him out," that is inadmissible. This Board has to decide how much, if anything, was admitted which should not have been, and what the effect of it is. This is a case in which, looked at as a whole, the prosecution material is sufficiently slender to make it difficult to believe that anything substantial can be subtracted from it without leaving insufficient to sustain a conviction. The third point is the importance of the evidence of Dr. Ansari and the way in which it was treated. His evidence, to the effect that Jasoda told him that she had been raped in Singhoo Lane, some three miles from the appellants house, brings an unassailable element of doubt into this case. The jury should have been entrusted properly with the task of making up their minds whether he had told the truth, instead of being told that he was not to be believed. The way in which the trial judge in his summing-up dealt with Dr. Ansaris evidence discredited it in the mind of the jury. He was never cross-examined about Jasodas statement to him. The way in which the trial judge in his summing-up dealt with Dr. Ansaris evidence discredited it in the mind of the jury. He was never cross-examined about Jasodas statement to him. In any case, her story is in some elements strangely improbable—that the incident should have occurred in a populated district, with people in the house, and that afterwards she was left in the street outside. If Fatehsings statement is inadmissible, and also the evidence as to the pointing out of the appellant, there is really nothing left in the circumstances except to quash the conviction. Pringle, K.C. and D. A. Grant for the respondent. This Board does not sit as a court of criminal appeal and will not interfere unless something has gone so far wrong in the courts in India that the appellant has been deprived of the substance of a fair trial. The first submission is that granting that every one of the contentions on behalf of the appellant is good, that will not bring this case within the range of the Boards action. The second point is that none of those contentions is good. In essence the case is a simple one; it is n case of a girl who has been raped in broad daylight in circumstances in which she must have known the identity of the person who raped her, and who said, consistently, that it was the appellant. This was not a case, as so often arises On India, of pre-existing enmity; no motive has been shown why this girl should falsely accuse the appellant. That is the heart of the case. There is no rule in India in a case of a sexual and that corroboration is necessary s. 134 of the Evidence Act. With regard, first, to Dr. Ansari questions as to the exact terms in which the judge directed the juy and so on ought not to concern the Board sitting on a criminal appeal. The Chief Court having decided the matter summarily on appeal, this Board would not interfere. No Exception can be taken to the summing-up in this respect or any other; in his reference to Dr. Ansari the judge was in fact scrupulously fair. On ss. The Chief Court having decided the matter summarily on appeal, this Board would not interfere. No Exception can be taken to the summing-up in this respect or any other; in his reference to Dr. Ansari the judge was in fact scrupulously fair. On ss. 164 and 162 of the Criminal Procedure Code taken together the first submission is that both the statements are admissible in evidence, and secondly, that even if they are inadmissible their wrong admission would not in the circumstances of this case create a situation calling for the exercise by the Board of its right of interference. As regards the statement under s. 164 taken separately, it was admissible as an admission against the second accused, Fatehsing, only. The authorities cited for t1 3 appellant to the effect that statements under s. 164 can never be substantive evidence were all cases of statements made by witnesses. Statements made by accused come within a completely different category. There is a uniform line of authority in India that such statements, though exculpatory, can qua admissions be used against the persons making them Golam Mohammad Khan v. King-Emperor (( 1924) I. L. R. 4 Pat. 327,); Abdul Rahim v. Emperor (( 1925) A.I.R. (cal.) 926.), which takes it for granted that the statements, although exculpatory,, were duly recorded and rightly admitted in evidence; Azimuddy v. Emperor (( 1926) I. L. R. 54 C. 237, 246.), which shows that statements made by an accused under s. 164 can go in as admissions unless they were made to a police officer in the course of an inquiry; Nga Ba Kyaing v. Emperor (( 1936) A.I.R. (Rang) 131.), which simply follow the Patna case (( 1924) I. L. R. 4, Pat.327, 330 et seq.); and Muhammad Bakhsh v. Emperor (( 1941) A.I.R. (Sind) 129.), the latest case and one which perhaps gives the fullest consideration of the matter. There are two cases before the Board which bear on this point, not expressly with reference to s. 164, but with regard to statements made by an accused person being uesd against him Dal Singh v. King-Emperor (( 1917) L.R. 44 I.A. 137.), and Pakala Narayana Swami v. King-Emperor (( 1939) L.R. 66 I.A. 66, 72-80.). There are two cases before the Board which bear on this point, not expressly with reference to s. 164, but with regard to statements made by an accused person being uesd against him Dal Singh v. King-Emperor (( 1917) L.R. 44 I.A. 137.), and Pakala Narayana Swami v. King-Emperor (( 1939) L.R. 66 I.A. 66, 72-80.). The statement of Fatehsing was admissible against him, and the judge quite properly read it to the jury and left to them the weight to be attached to it as against Fatehsing. He told them three times that it was not evidence against the appellant. As regards the question under s. 162 of the Criminal Procedure Code, it is a remarkable feature of this case that the point that some answers of the girl were hit by that section was never raised in India. I adopt the distinction drawn by Rankin J. in Azimuddy v. Emperor (1) between conduct and speech. In any case, we ought to be on the peaks of natural justice, and on this point we are dealing with mere trivialities, for this question of her behaviour during the investigation, whether it is admitted or not, is not vital. [Reference was also made to Ramadhin Brahmin v. Emperor (( 1929) A.I.R. (Nag.) 36, 38.) and Lela Lalung v. Emperor (( 1938) 42 Cal. W.N. 620.).] The statement of Fatehsing under s. 164 and that of Jasoda during the investigation were admissible, but even if they were not, this is not a case where the Board will exercise the prerogative in interfering Dal Singh v. King-Emperor (( 1917) L.R. 44 I.A. 137.); Pakala Narayana Swami v. King-Emperor (L.R. 66 I.A. 66, 82.); Ibrahim v. The King ([ 1914] A.C. 599.); Abdul Rahim v. King-Emperor (( 1946) L.R. 73 I.A. 77.). Pritt K.C. replied. If the Board is satisfied that the admissible evidence against the appellant was such that either it would have been very unsafe to convict, or the jury would probably not have convicted, on that evidence, the conclusion should be reached that grave and substantial injustice has been done Ibrahim v. The King ([ 1914] A.C. 599.); K. R. Easwaramurthi Goundan v. King-Emperor (( 1944) L.R. 71 I. A. 83, 92.); Pakala Narayana Swami v. King-Emperor (L.R. 66 I.A. 66, 82.). The question is whether the prosecution has proved its ease. The question is whether the prosecution has proved its ease. It was said for the respondent that the statements in the cases cited for the appellant were all statements by witnesses and not by accused, but the Board in Brij Bhushan Singhs case (L.R. 73 I.A. 1, 9.) made no limitation to witnesses see also Bhuboni Sahus case (L.R. 76 I.A. 147, 152.), where the confession was made by a co-accused there the Board said that the statement under s. 164 can never be used as substantive evidence of the facts stated, and that is exactly the way in which it was used in the present case. That is the answer to the whole of the argument for the respondent under s. 164. The core of the case is Jasodas evidence, and it ought not to be accepted unless corroborated. There is no reliable corroboration. Nov. 30. LORD GREENE announced that their Lordships would humbly advise His Majesty that the appeal should be dismissed, and that they would give their reasons later. 1950. Jan. 30. The reasons for the report of their Lordships were delivered by SIR LIONEL LEACH. 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 s. 164 of the Code of Criminal Procedure, (2.) by the admission and use in evidence of statements made to the police, contrary to s. 162 of the Code of Criminal Procedure, and (3.) by unwarranted comments in the learned judges 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. 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. Jasodas 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 appellants 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 steps 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 ravished by the> appellant. As the result, she bled profusely. The two men then carried her downstairs and placed her on 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. It is beyond dispute that she had been raped and that she was bleeding profusely when she arrived at her mothers house. She did not then tell her mother what had 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. 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 5s 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 officer 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 appellants 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 officer 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 evid6ncei 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 childrens toys were generally kept in this room. The appellant and Fatehsing were arrested on September 7, 1945, and the appellant was medically examined. It was found that there were injuries on his person which were consistent with the committal by him of the outrage on Jasoda. A witness named Ladho stated that he had seen Jasoda coming out of a building in Moosa Lane about 3 or 3.30 p.m. on September 6, 1945. It was found that there were injuries on his person which were consistent with the committal by him of the outrage on Jasoda. A witness named Ladho stated that he had seen Jasoda coming out of a building in Moosa Lane about 3 or 3.30 p.m. on September 6, 1945. She looked perplexed and apparently had been weeping. When he heard that a girl had been raped he informed the police of what he had seen. His evidence may not agree with Jasodas statement thalt she was carried out of the house by the accused and placed on the footpath. She was not, however, in a fit state to remember what really happened to her after the rape as she had received very severe injury. In fact, she was an in-patient at the hospital for over three weeks, and when she gave evidence1 on November 26, 1945, she was still under treatment. Their Lordships do not attach any importance to the fact that her evidence does not agree in detail with that of Ladho. What is important is that Ladho saw her coming out of the appellants house that afternoon in a state of distress. When awaiting trial Fatehsing intimated that he wished to-make a confession. Consequently he was taken before a magistrate and after the formalities required by s. 164 of the-Code of Criminal Procedure had been carried out he made a statement, but it was not a confession. Although incriminating, it was intended to be exculpatory of himself. Its importance was that it constituted an admission by Fatehsing that on the day of the rape Jasoda came to the house and while she was upstairs with the appellant he acted as watchman at the gate. The statement could not be used in evidence against the appellant, but if admissible it could be used against Fatehsing. It was admitted as against him, but on no less than threes occasions in the course of his summing-up the learned judge warned the jury that the statement was not to be taken as being evidence against the appellant. Even if the statement were inadmissible against Fatehsing it would not in the circumstances be reasonable to accept the argument that the-reading of the statement to the jury had deprived the appellant of a fair trial. Even if the statement were inadmissible against Fatehsing it would not in the circumstances be reasonable to accept the argument that the-reading of the statement to the jury had deprived the appellant of a fair trial. But no more need be said on this point because their Lordships consider that the statement was rightly admitted as against Fatehsing and, being rightly admitted, it was the duty of the learned judge to read it to the jury in connexion with the charges against Fatehsing. It was suggested that the judgments of the Board in Brij Bhushan Singh v. King-Emperor (( 1945) L.R . 73 I.A. 1.), and Bhuboni Sahu v. The King (( 1949) L.R. 76 I.A. 147.), stand in the way of the admission of the statement in evidence, but this is not so. In those cases the Board was considering whether a statement made by a witness under s. 164 of the Code of Criminal Procedure could be used against the accused as substantive evidence of the facts stated, and it was held that such a statement could not be used in this way. The question here is quite different. It is whether a statement made under s. 164, which does not amount to a confession, can be used against the maker as an admission within the purview of ss. 18 to 21 of the Indian Evidence Act. This question has been raised in courts in India and it has been answered in the affirmative see Golam Mohammad Khan v. The King-Emperor (( 1924) I.L.R. 4 Pat. 327.); Abdul Rahim v. The King-Emperor (( 1925) A. I. R. (Cal.) 926.); and Muhamad Bakhsh v. King-Emperor (( 1941) A. I. R. (Sind) 129.). Their Lordships consider that the affirmative answer is right. The fact that an admission is made to a magistrate while he is functioning under s. 164 of the! Code of Criminal Procedure cannot take it outside the scope of the Evidence Act. Fatehsings statement under s. 164 of the Code of Criminal Procedure contained admissions provable under the Evidence Act and therefore the learned judge was right in reading it to the jury as evidence in support of the charge against Fatehsing himself, having made it quite clear that the jury were not to take it into consideration against the appellant. Subject to the provisions of ss. Subject to the provisions of ss. 27 and 32, sub-s.1, of the1 Indian Evidence Act, s. 162 of the Code of Criminal Procedure prohibits the use of a statement made to a police officer in the course of an investigation under Chapter XIV of that Code at any inquiry or trial in respect of the offence which was under investigation. The argument advanced her waft that statements made by Jasoda to the police officer who accompanied her to the house of the appellant on the day after the1 crime fell within the prohibition. Consequently it was said that it was not open to Jasoda to state in evidence that she had pointed out to the investigating officer the appellant as the person who had raped her or his house as the place] in which the offence had been committed. Likewise it was not open to the police officer to say that Jasoda had pointed out to him the appellant as the person who had outraged her or his house as the scene of the crime. Section 162 is widely drawn, but how far the legislature intended it to have operation may be open to argument. For instance, there is a conflict of judicial opinion in India on the question whether the section excludes evidence of identification which has taken place at an identification parade held in the presence of a police officer. In a suitable case it may be necessary to (decide the exact scope of s. 162, but a decision of this nature is not called for here, because if all the statements now questioned by reason of s. 162 are excluded there is still ample evidence to which no objection can be taken. The complaint that the evidence of Dr. Ansari was unfairly criticized in the summing-up to the jury must also be rejected. It is not necessary for their Lordships to enter on a detailed discussion of the arguments advanced in support of the complaint. It is sufficient for them to say that they have been taken through the whole of the evidence and the summing-up and they can find no justification for the suggestion that the summing-up was in this respect unfair. In fact they consider that it was fair throughout. Their Lordships are here judges of fact as well as of law and it. In fact they consider that it was fair throughout. Their Lordships are here judges of fact as well as of law and it. is their duty, as was indicated in Mohur Sing v. Churiba (( 1870) 6 Beng. L. R. 495, 498.), to consider whether, after throwing aside evidence to which reasonable objection can be taken, there remains sufficient to support the conviction of the appellant. This principle now finds statutory expression in s. 167 of the Indian Evidence Act. Their Lordships have already indicated that in their opinion there is ample evidence left, after setting aside statements objected to by reason of s. 162 of the Cod& of Criminal Procedure, to support the verdict of the jury, and it only remains for them to add that there is more than sufficient corroboration of Jasodas account of the outrage; committed on her by the appellant in the testimony of Ladho, the fact that childrens toys were kept in the room pointed out by Jasoda, the stains on the mattress and the injuries which the appellant himself bore. For these reasons their Lordships have humbly advised His Majesty that this appeal should be dismissed.