Macpherson, J.:— Six persons were tried together before the Assistant Sessions Judge of Monghyr and were convicted of various offences. The appeals before us have been preferred by five of them, the exception being Mt. Tilia.

2. The appellant, Wilayat, was charged under S. 476 with actual rape of Mt. Lakhpatia and the other accused Ismail, Sobhani and Phenku of whom the last two are brothers with the same offence under S. 114 as being abettors present when the rape was committed. The trial for that offence was with the aid of a jury whose verdict was that Wilayat was guilty of attempt to rape and the other accused were guilty as charged. With the remark “I do not like to express disagreement with the unanimous verdict of the jurors” the Judge passed sentence of rigorous imprisonment of four years on Wilayat, two years on each of the other male accused and six months on each of the two female accused. Charges against the accused under Ss. 354 and 342 were tried with the aid of assessors, and the learned Assistant Sessions Judge found the male accused guilty both under S. 354 and under S. 342. He passed the maximum sentences of two years and one year for those offences respectively in the case of the four male accused though in the case of Wilayat he directed the sentence of two years under S. 354 to be concurrent with the sentence under Ss. 376 and 511. He convicted Champa under S. 342 and sentenced her to a further six months rigorous imprisonment. He acquitted Tilia of both charges and Champa of the charge under S. 354. Thus the male accused received sentences aggregating five years and Champa sentences aggregating one year. One assessor wished to acquit, three thought all six accused and one that the four male accused were guilty under S. 342, four that all the male accused, except Wilayat were guilty under S. 354 and two of those that charge was established against Wilayat also.

3. The case has been affected by the prevailing bitterness between Hindus and Mahomedans, and it is regrettable that it was transferred for trial to an inexperienced Judge.

4. The story which the prosecution put forward is briefly as follows: About 5-30 p.m on 20th June last one Kuldip Raut, a dismissed daftry of the Monghyr Collectorate on Rs. 8 a month, who was Captain of the Hindu Sabha with apparently two hundred volunteers under him, was sitting in the office of the Sabha in Bara Bazar of Monghyr when somebody, came and reported that in the pasikhana or grogshop at Lalupokhar a Hindu girl was confined and was in a bad condition. Four persons including Narsingh Mandal the Secretary of the Sabha, proceeded to the grogshop and found three Pasins including apparently Champa and Tilia sitting there. Champa eventually stated that a tumtumwala had brought and kept a woman in a room of the grogshop. Kuldip and the others went into the room and saw a woman, the complainant Lakhpatia, lying there unconscious on the wet ground with her doth soiled with mud. After she had been given some water to drink she revived and in spite of the protests of Champa who urged that the woman should not be taken away against her will, she was taken away in a carriage and given a new cloth. Kuldip and others took her to the thana at 8 p.m and during the following two hours her statement was recorded there by Sub-Inspector Janki Saran Missir, a Brahmin of 549 years of age. In his testimony before the Magistrate this officer deposed that though she talked to him all right she appeared to be a little drowsy and was smelling of toddy from mouth, but at the trial he like many other prosecution witnesses went back on these admissions.

5. In her statement she gave her name as Lakhpatia, a Brahmin woman of Kusa in Jaunpur District whose husband's house was in the district of Banda. She stated that about fifteen days previously she came from her father's house to Jamalpur where she stayed tea days in the house of Bajrangi Babaji. On the previous night she left his house by the midnight train and got down at Purabsarai, the station immediately before Monghyr.

6. Having remained there till daybreak she came on foot to the clock-tower at the gate of the Monghyr Fort, where after 15 or 20 minutes she asked a tumtumwala to take her to the Arya Samaj and he agreed to do so, but instead took her to a toddy-shop where she arrived some time before 7 a.m Two or three Mahomedans were drinking there and they forcibly made her drink toddy. Thera were also three women in that shop of whom two were old. When the men were fully intoxicated they began to molest her. The tumtumwala asked the other two men to take his vehicle to his master's house and being thus alone with the deponent, bolted the door from inside about 9 a.m, and throwing her on the bare ground had sexual intercourse with her, preventing her from raising an alarm by gagging her mouth and beating her when she resisted him, so that she had injuries on her neck, temple, and left hand. The two men who had gone out returned and desired to have sexual intercourse with her and when she raised an alarm they kicked and fitted her in consequence of which she fell down unconscious. That was about 10 a.m She remained unconscious throughout the day, but slightly recovered consciousness when Kuldip Raut and Santosh Kumar Sharma gave her water. That was about 6 p.m

7. These persons took her to the thana where she made over her sari smelling of toddy and her kurta. She gave a description of the tumtumwala as fair and 21 or 22 years of age, though earlier she had, it appears, described him as dark, and then “of the two men who were in the toddy shop.” When the alarm was raised in the toddy-shop, the pock-marked woman closed from outside the door of the room in which the complainant was. (This she must have stated on information). She explicitly charged the tumtumwala with confining her in the toddy-shop and having sexual intercourse with her and the other two Musalmans with forcibly catching hold of her arms and assaulting her and the Pasin mentioned, that is to say, Champa with having confined her in that room. It will be observed that nobody is charged at this stage with abetment of rape and that there is no charge against a fourth male accused or against Tilia.

8. On the 21st Lakhpatia was sent for medical examination by the lady doctor who found slight abrasions on the back of the thigh, an abrasion on the right thigh above the waist, scratches on the thigh and back; a swelling on the right leg and abrasions on the middle of the chest. She could not find any indication from which she could infer that Lakhpatia had been raped.

9. Several of the witnesses who were examined by the Sub-Inspector during his investigation indicated that the occurrence took place about 3 p.m

10. A test identification was held by a Magistrate whereat Lakhpatia identified seven people including three persons who were not at all accused and stated, apparently for the first time, that she had been raped by a second man whom she identified as Sadiq, one of the three “outsiders.” With regard to the accused Phenku she stated that he had merely assaulted her. Before the committing Magistrate there was further development. There, too, Bajrangi was examined and stated that on the 21st Jeth he found her weeping on the road in front of Manib Saheb's bungalow in Jamalpur surrounded by many people and declaring that she had left her home and was willing to be kept as a mistress by any man, that she agreed to work under him and stayed with him for a month and left him because he would not take food cooked by her.

11. At the trial there was a concerted development on the statements made at earlier stages. Lakhpatia deposed that she had left home by reason of differences with her relatives desiring to proceed to the Anathalaya at Monghyr and had arrived by train at Jamalpur station on the third morning. A babaji at Jamalpur asked her to go to his house on a promise of marriage and she stayed there for ten or fifteen days (here obscuring her definite statement in the first information) but as he did not marry her she started to go to the Anathalaya. She left Jamalpur at midnight on Sunday and descended at Parahsarai an hour later. She walked to the pipal tree near the clock-tower of Monghyr and arranged with the accused Wilayat that he should take her for two annas, all she possessed, to her destination. He, however, took her to a house where she saw two or three men were drinking from jars within the compound. She made efforts to recede but Wilayat pushed her in and the two or three men who were drinking there caught hold of her and took her inside. The drinkers gave her toddy to drink and on her refusal they pressed her mouth and poured toddy into her mouth, some of which went down her throat. Wilayat told two of those men to take his tum tum to his master's house and they went away. He then forcibly had sexual intercourse with her in spite of her resistance. To overcome it he called out and another man came and caught her hands; her screams were stopped by a cloth being pressed into her mouth. When the two men who had gone away came back she slipped out through the open door into the verandah but “they,” that is, the two or the four, again caught hold of her and took her inside and began to press her breasts violently and to scratch her body (whatever that may mean). The Pasins are said to have been in the verandah and Champa to have chained up the door of the room into which the men dragged the deponent. The latter, apparently three excluding Wilayat or the two who had gone out—nothing is clear—now wished to have intercourse with her, forcibly threw her down on the floor from a height and beat her and she became senseless. This incident is placed about 10 a.m She came to her senses at 6-30 p.m, and having been taken to the thana made a statement there which she admits is correctly recorded. She identified Phenku as the man who had been called by Wilayat to assist him, but though in cross-examination she declares that he also raped her, in examination-in-chief there is no such assertion and she does not anywhere detail the circumstances of rape by him. She identified Sobhani and Ismail as the other two men who desired to have sexual intercourse with her and who scratched her body.

12. The evidence adduced to support her story consists first of testimony of witnesses (some of them open to much suspicion) that Wilayat took her from the clock-tower to the pasikhana; secondly, of five boys from 9 to 11 years of age two of whom were tendered for cross-examination who speak to the woman being dragged inside by the male accused and thirdly, of four neighbours, euphemistically called shopkeepers by the trial Judge, of whom Palat speaks of 8 a.m or of half an hour between 7 to 8 a.m, and seeing the accused men except Sobhani in the room with Lakhpatia and drinking with them, and Gobind and Banarasi and Barham speak of the same incidents as the boys while Kalut speaks of 10 a.m, of peeping in and seeing Wilayat and Lakhpatia together and of her escaping and being dragged inside from the verandah by Wilayat. Some of the boys mention that Champa chained the door from outside and they and Gobind, Banarasi and Barham state that owing to the row in the pasikhana the witnesses and others thought of forcing their way in but the two women Champa and Tilia mixed water with toddy (this was done for reasons of economy) and sprinkled it in the direction, of the intruders, either the boys or the adults or both, Champa calling out that they should not interfere as good and bad, rich and poor came to the grogshop and it was none of their business.

13. A description of the grogshop may here be given. It faces east on to a public road. Adjoining the road is the verandah, a small portion of the north of which is a separate room occupied by the father-in-law of the witness Barham Chamar but then shut up. To the west of the verandah are two rooms each of which opens on to it. The southern room is apparently the living room, while the northern room with which we are mainly concerned was used for the purposes of the grogshop. From that room a door opens westward on to what is called in the map the maidan bari, but is in the evidence variously described as angan, or court-yard or dalan. It has a wall round it, but no roof. Before the Magistrate Lakhpatia stated that Wilayat had intercourse with her in court-yard. There is a lane to the north of the house.

14. The accused denied the charge and Wilayat stated that he knew Lakhpatia since she had been living at (the prostitute) Manki's house and that the Arya Samaj people brought the case. The full defence of the male accused was contained in a single written statement. It set out that Lakhpatia was a woman of loose character who was leading an immoral life at Machli Sahar in Jaunpur whence she had been brought to Monghyr by Ramprasad, father of the dancing-girl Manki, that after living in Monghyr for several months she went to Jamalpur and remained there until she was brought by the accused Wilayat to Monghyr on the day in question when she drank toddy a the Lalupokbar toddy shop until 3 p.m, and as she expressed her desire to be converted to Mahomedanism, Narsingh Mandar and other local Arya Samajists having learnt of this forcibly took her away and got a false case instituted against the accused. Wilayat, it is asserted was a servant of a certain Mt. Mundri who had been converted from Hinduism to Islam and in connexion with whose conversion a false criminal case had been instituted of a communal colour, and the other accused are the relations of Wilayat who had been helping him to look after that case on behalf of Mundri. It is urged that the witnesses in this case are the creatures of Narsingh Mandal and that he and others have given a communal colour to the proceedings.

15. The two women filed separate written statements. Champa set out that Lakhpatia who was a woman of loose character addicted to drink came to the toddy-shop of her own accord and drank and danced late in the afternoon after which she was taken away in a drunken condition by Narsingh Mandal and others who got this false case instituted. She states that the case is absurd and improbable and that not a single witness of the neighbourhood has been examined in the case. She herself has been implicated because though a Hindu she refused to support the case for the prosecution. The written statement of Tilia is to the same effect.

16. It may be indicated at this stage that the fact has been brought out in cross-examination that Wilayat is in fact a servant of Mt. Mundri.

17. The considerations governing the appeal from the trial held with the aid of assessors differ greatly from those governing an appeal from the trial by a jury. In the latter case the appeal is restricted by the provisions of Sections 423(2) and 537 of the Cr PC, whereas in the former case the whole case is before the appellate Court. It is desirable to determine first what facts are established by the prosecution and to take up the question of misdirection at a later stage.

18. What first strikes one with regard to this story of the prosecution is its improbability both as a whole and in its details. For that reason it requires careful scrutiny. The importance of the character of Lakhpatia on whose credibility nearly everything depends is manifest and accordingly, assuming that more than a nominal inquiry was made by the police, they must have carefully verified her antecedents. If they were satisfactory the Crown could not have failed to place before the Court the results of this police investigation. If she is a woman of good moral character the testimony of her people and others of Jaunpur, of her husband's people in Banda or of Mirzapur, where her sister is married would be readily forthcoming to that effect. So far from that, the investigating Sub-Inspector in his deposition which is otherwise also false, placed every obstacle in the way of the Court in this regard. The prosecution would naturally adduce such evidence in a case of alleged rape on a woman who had been drinking in a pasikhana early in the day with strangers of a different religion, even if the evidence were straightforward, but in this case it has not done so even where it is full of contradictions, improbabilities and developments. It is a fair inference that such evidence does not exist and that Lakhpatia is at best a person of very dubious chastity.

19. But apart from this consideration there is to my mind more than enough on the record to show that her character is such that no reliance whatsoever can be placed upon her uncorroborated testimony which the Crown admits is practically all that we have in respect at least; of the offence of rape. Lakhpatia poses as a modest Hindu widow who owing to disputes with members of her family left home with the object of contracting a marriage under the auspices of the Anathalaya of Monghyr. It is significant, however, that she is found to wear churis, a nose-ring and a colored garment and that the marks of betel appear on her teeth. As to the latter she states that the mark persists from the period anterior to her widowhood. But though the enamel of teeth may deteriorate from persistent use of betel it seems exceedingly improbable that the teeth of a woman who became a widow at the age of 16 some four or five years ago should still retain that marking. There are distinct elements of suspicion with regard to her journey to Jamalpur and her stay with Bajrangi Tiwari. She stated in the first information that she had stayed ten days with Bajrangi, but had arrived at Jamalpur about five days before. The question arises: What happened to her in the interval which as already observed, she endeavours in her deposition to obscure. Then even if she arrived on the date on which she was picked up by Bajrangi there is nothing to account for the period between the early morning and the late evening when she was found surrounded by a large number of Mahomedans proclaiming, as Bajrangi said in the Magistrate's Court, that she was willing to become the mistress of anyone. At the trial the story told both by her and Bajrangi is that Bajrangi took her to his house on a promise to marry her. It has transpired however, that he took her in the first instance not to his dwelling house but to the bungalow of Mr. Manik in which he works as a sort of milkman. Be himself states that he had no intention of marrying her but that he made the promise to save her from the Musalmans to whom she was offering herself. Bajrangi is a bachelor musician of middle age, very unlikely to be altruistic, and having a natural affinity towards a woman of light virtue. It is impossible to accept the story that Lakhpatia lived innocently at the house of Bajrangi and left merely because he would not take food touched by her. There are also distinct elements of suspicion in her story as to her arrival at Monghyr. She admittedly had only two annas left and she states that she paid no fare from Jamalpur to Purabsarai and hung about from 1 a.m till dawn. The assertion of Wilayat that he brought her from Jamalpur is much more probable.

20. As to her mentality generally it appears that during her deposition in Court the pleader for the defence asked her not to look towards him and received from her the reply that she was not looking at his beauty. Such pertness is more distinctive of the streets than of a respectable woman who had just left her home. Again during her stay at the Anathalaya the master there had occasion to reprimand and even to chastise her for brawling whereupon she proceeded to lay a sanaha at the thana. A further point in the same connexion is that she boldly denied the fact in Court as indeed she boldly denied numerous statements which she made in her deposition in the Magistrate's Court in so much that it is obvious that she has not the faintest respect for truth.

21. Then her story as to the manner in which she came to the Anathalaya is difficult to swallow. It is incredible that a quick-witted woman of twenty would, if she wanted to go to an Anathalaya, be so easily persuaded to stay at the grogshop, especially with males exclusively Mahomedans and sit in their midst. The conclusion is unavoidable that she went there and stayed there of her own accord and was neither brought nor detained there by any inducements still less by force. Nor can it be doubted that she received a welcome from the men who were already drinking there, was “treated” by them to her great gratification and all gradually became more or less intoxicated. Wilayat was still drunk when arrested about midnight. Her own story that the liquor was forced down her throat and she swallowed & little, of it is indisputably false: no marks of force were found in the neighbourhood of her mouth. Then again she states with regard to the alleged rape by Wilayat “He pushed sleeping over me. This continued for half an hour.” The medical evidence shows that there were no marks from which the lady doctor could infer that the woman had been raped at all. Her own story was that her gauna took place at the age of 15 or 16, four or five years ago and that she has been living as a Hindu widow ever since. Having regard to the posture in which she said the act took place it is incredible that a woman who had no sexual intercourse within a period of four or five years and who was forcibly raped for half an hour would not withim twenty four hours bear any marks of violence on the private parts and also had, as she states, no discharge in the coitus. The absence of marks other than, such as are consistent with a voluntary act of sexual intercourse on the hard ground is specially significant in view of her subsequent story of having also been raped by Phenku. Then again she stated in the Magistrate's Court that the alleged rape took place in the open dalan though in her testimony as revised and enlarged for the Sessions Court she placed the incident of rape by Wilayat in the northern room. It should be noted that the Magistrate did not belong to either of the contending communities and the correctness of his record of the deposition is beyond suspicion. Where the deposition of a witness before the Magistrate differs from the deposition at the Sessions the former is to be invariably preferred. It is clear that no reliance can be placed on the story told at the trial by Palat who alone deposes to facts which can have been antecedent to the sexual intercourse with Wilayat at or before 9 a.m

22. So far as the persons accused of abetment of the rape are concerned her own story is that Wilayat sent the other men out of the room and in fact two of thorn had gone away to take his tumtum to his master. These two could have had nothing to do with the sexual intercourse of Wilayat with Lakhpatia nor is there anything to connect the Pasins with it. The assistance afforded by Phenku to Wilayat and the rape by Phenku is a subsequent invention. Of course, a rape can be committed upon a woman of loose morals, but in the present instance the circumstances make it manifest that Wilayat had sexual intercourse with Lakhpatia in the grogshop with her full consent, and she may well have accompanied him there with a view to it. No inference of attempted rape or of abetment of rape can be drawn from the subsequent conduct of the accused to which the bulk of the evidence is directed. Accordingly to convict Wilayat of attempted rape and the others of abetment of rape Would undoubtedly be a miscarriage of justice.

23. With regard to the offence under S. 354 it is only committed when a person assaults or uses criminal force to a woman intending to outrage or knowing it to be likely that he will thereby outrage her modesty. To my mind the incidents and the conduct of Lakhpatia are clear indications that she either had no modesty to mention or that it was not such as would be outraged by any of the acts which are attributed to Wilayat and the other male accused after the alleged sexual intercourse in the open wits Wilayat Even if she had some remnants of modesty, the credible evidence in this case, which is meagre, does not show that it was in any way outraged by the overtures to her. Of the witnesses other than the public servants who have been examined by the prosecution none are of what in this country is sometimes called respectable class. All except Bajrangi who has been already described are either boys or are persons of inferior caste who used to frequent the grogshop. Of course that would not be a sound reason for disbelieving them if their evidence is otherwise credible. But their evidence is replete with discrepancies and contradictions. They alter the hour when the occurrence to which they testify took place as suits the changed case of the prosecution.

24. Before the police Banarsi and Kalut placed the occurrence to which they deposed at 3 p.m It is now placed for the most part, at 10 a.m though Palat who formerly placed it at that hour now antedates it by two to three hours. Palat previously stated that when he went there at 10 a.m he found Wilayat and Sobhani playing and jesting with Lakhpatia and pressing her to drink while now he states that much earlier he went in when Sobhani came out and he found Lakhpatia being molested by the other three male accused. Kalut now speaks of the woman being with Wilayat alone at 10 a.m That would mean that the incidents spoken to by the other witnesses occurred much later. The evidence of the boys in particular has been altered out of all recognition, and whatever they saw and heard (and it cannot have been much beyond a drunken row at or after 10 a.m) they are now so confused by intensive tutoring that no reliance whatever can be placed upon their testimony so far as it would tell against the appellants. One of them speaks of Lakhpatia eating meat and loaf and smoking cigarettes in the verandah before being dragged indoors. The utmost that can be argued in favour of the prosecution is that after the woman had run out of the room making a noise she was dragged in again by the four male accused and that a considerable time later, that is after the neighbours attracted by the row came to see what was happening inside the room, Champa told them to go away since good and bad come to the grogshop and it was none of their business, placed the chain outside and she and Tilia drove off the persons approaching by throwing mixed toddy and water in their direction. But it is impossible, in my judgment, even if this evidence can be relied upon (as it cannot, for Gobind Chamar is the enemy of Phenku, and four of the other witnesses are his caste-fellows while the Dhanukhs are unreliable) to hold that an offence under S. 342 was committed. The five persons were drinking together and shouting and were obviously very merry and in their way friendly. If the men or some of them dragged her inside from the veranda, it was for her own good as she was drunk and noisy. The story told by Lakhpatia that at 10 o'clock, when she refused the overtures of accused Ismail and Sobhani, she was lifted by them and thrown down so that she was unconscious from 10 to 6-30 p.m, is a preposterous tale utterly unworthy of credence. It is not supported, but the reverse, by the testimony of the doctor and is entirely contrary to experience especially when there was no injury to her head. There is every reason to hold that the merry-making in the grogshop went on till late in the afternoon and that the men left leaving Lakhpatia there dead drunk. The Sub-Inspector perceived the odour of toddy coming from bar mouth at the thana as late as 10 p.m

25. In my judgment the story of the defence is approximately the correct version of what occurred. Lakhpatia was admittedly consorting with Mahomedans at Jamalpur when Bajrangi picked her up. She accompanied Wilayat to the grogshop and had sexual intercourse with him, drank with Mahomedans there and may well have agreed to become a Mahomedan at the instance of Wilayat. The report would spread quickly and it was naturally well-known at the office of the Hindu Sabha that Wilayat is the servant of Mt. Mundri whose recent conversion to Islam was notorious. The irresponsible hotheads there at once took action, were net in the least deterred by the request of Champa, herself a Hindu, that they should not take away Lakhpatia against her wish, helped the latter to concoct her false story and bolstered it up with false evidence with the fervour and unscrupulousness that only the odium the clogicum can inspire. Not only has no charge been established against any of the accused, but the case ought never on the materials before us to have been sent up by the police and the learned Judge acted with a total lack of judicial acumen in accepting any part of the prosecution story and in advancing fantastic arguments in favour of it. The convictions under Ss. 354 and 342 must unhestitaingly be set aside. Furthermore: it is admitted by the Crown that the learned Assistant Sessions Judge erred in imposing separate sentences where the acts constituting the offences under Ss. 354 and 342 form part of the same transaction as constituted the abetment of rape; alleged against the same accused.

26. As regards the convictions at the jury trial: Mr. Manohar Lal, on behalf of the Crown, very rightly admits that the convictions of the appellants, Ismail and Sobhani, cannot be supported and still lass that of Tilia. So far as Champa is concerned, nothing is alleged against her which would constitute abetment of the alleged rape by Wilayat. The only points against her are the chaining of the door and the throwing of the mixed toddy and water. But these incidents occurred at least an hour and a half subsequent to the alleged rape. The subsequent conduct alleged against this and other accused at or after 10 a.m could not possibly afford evidence of abetment of rape at 8-30 or 9 a.m We cannot fail to hold that it was the failure of the learned Judge to sat out separately to the jury the case against each individual accused with the evidence supporting it that has led the jury to return a verdict which no reasonable men could return except under misapprehension due to misdirection.

27. On the other hand learned counsel does support the conviction of Wilayat and Phenku. He has rightly pointed out that misdirection alone can entitle this Court to set aside the verdict of the jury. It has been already held above that the conviction of these persons would be a miscarriage of justice, but even that is not a sufficient ground for interfering with the verdict of a jury. The appellants must establish also that such failure of justice was the result of misdirection of the Judge in his charge to the Jury. It is necessary, therefore, to examine the charge. To my mind the charge, so far from being a proper one, is but a travesty of a charge so that it must have been quite impossible for a jury to grasp the points for their decision. The learned Assistant Sessions Judge failed in the first place to draw a clear distinction between the evidence which want to support the charges of rape and abetment of rape from the evidence which supported only the charges triable with assessors. The natural result was confusion in the minds of the jury. It is to my mind certain that if the jury had been warned that only the evidence bearing on incidents which occurred up to 8-30 or 9 a.m bore closely upon the charge of rape reasonable men would not have contemplated for a moment conviction under S. 376/511 or S. 376/114. There are many specific instances of misdirection of which a few only need be dealt with as the charge as a whole is so defective as to vitiate the trial. There are many instances also of non-direction. A non-direction is not a misdirection unless the jury has been misled or unless the non-direction is of primary importance. But there are several instances of the latter class. The learned Assistant Sessions Judge failed to point out important inconsistencies in the deposition of Lakhpatia, e.g, as to the date of the death of her husband and other matters. As to her journey from Jaunpur which the defence contends was made by the Bengal and North Western Railway, he first told the jury as a Specific fact that the Bengal and North-Western Railway had no station at Jaunpur which is contrary to the map in the East Indian Railway Time-Table filed in the case and actually told them, as he should not have done even if his facts were correct, that “the defence version, could not hold good before them.” He altogether failed to point out to them that Wilayat was a servant of Mt. Mundri. He also failed to point out that the witness Gobind Chamar was the enemy of Phenku and had brought against him an unsuccessful case of knifing. In other matters which should have been Left to the jury to form their own opinion he told them that they must accept the story of complainant; for instance, with regard to the early life of Lakhpatia he said:

Thera is no evidence to the contrary and her statements (as set out by him) stand unrebutted and uncontradicted.

28. As to her previous conviction: instead of leaving the question to the jury he directed them:

This has been denied by her altogether and she challenged evidence to be produced to prove that allegation. Therefore, you have to accept her story.

29. With regard to the Bajrangi incident he mentions the fact that Bajrangi had stated before the Magistrate that she had agreed to live with him as his mistress and then proceeds to make the unintelligible remark:

If she was to live there as mistress, she could not claim Bajrangi to eat food cooked by her or water touched by her.

30. Further down he states that Bajrangi's cross-examination did “not bring anything out to discredit him,” a distinct error on a point of fact. In fact the learned Judge sought to impose his own opinion on the jury. As regards the fact that no evidence was adduced for the defence he did not impress upon the jury that the defence was not bound to give evidence and could rely upon the prosecution witnesses to establish their case. One boy distinctly stated in cross-examination that the four Mahomedans made complainant eat, drink and smoke cigarettes in the verandah, but this though a fact of primary importance elicited in cross-examination, was not put to the jury at all. At p. 26 of the record he begins by saying that the shopkeepers were attracted to the place by the cries of the woman and they peeped through the hole in the wall of the room or in the door. He then states what the witnesses Palat and Kalut did and proceeds:

They prove that the chain of the door was put up by Champa, You have to rely on this evidence.

31. Whom he means by “they” it is not possible to say. It certainly does not apply to Palat and Kalut nor to the shopkeepers generally. Moreover, it was altogether wrong to tell the jury that they had to rely upon this evidence. He also told the jury that in the cross-examination of all these witnesses there was little to show why they should not be credited, whereas in fact the cross-examination disclosed wild discrepancies and contradictions. He does indeed state that he has drawn their attention to the statements of the other witnesses for the prosecution which appear contradictory or varying before the committing Magistrate, but here he is under a misapprehension, because only in a few cases has attention been so drawn. He failed to leave to the jury to say whether the scratches and other injuries could be caused by the alleged prolonged act of sexual intercourse on the hard ground of the room or the courtyard without the application of force or violence. As to the duration of the alleged senseless condition of Lakhpatia the learned Assistant Sessions Judge, as in several other instances, suggests very far-fetched explanations on points adverse to the prosecution. His charge in this regard is fantastic. A remark, such as:

A man may bear the effects of toddy or wine greater if he is addicted to those intoxicants, but a person not so used to them will become soon intoxicated, so far as intelligible at all, does not seem to bear any relation to a drunken sleep of about 8½ hours. He does not sufficiently draw the attention of the jury to the discrepancies in the evidence of the Sub-Inspector which were of high importance. It is unnecessary to enumerate further instances. The numerous misdirections in the charge to the jury, it can be confidently asserted, certainly occasioned a verdict of guilty which was in itself a failure of justice.

32. I have mentioned that the case against each of the accused except Wilayat was not set out separately as it ought to have been. That in itself had an exceedingly serious effect on the charge and obviously resulted in the present instance in the conviction of four persons at least against whom the Grown is unable to support any conviction at all. The same observation applies to the case of the appellant Phenku.

33. The jury trial being vitiated by the misdirections in the charge the convictions on the verdict of the jury so obtained must be set aside. The whole case of the prosecution being found to be false there is, of course, no occasion for directing a re-trial. The result is that the convictions and sentences of the five appellants in both branches of the Sessions trial are unwarranted. I would set them aside and direct that the appellants be forthwith released from custody. As regards Tilia, who has not appealed, I am of opinion that we are not precluded by sub-S. (5), Section 439 of the Cr PC from interfering with her conviction. Her case has not come before this Court at her instance. I would, therefore, also set aside the conviction and sentence of Tilia and direct that she also be released forthwith.

Adami, J.:— I entirely agree.

34. Convictions set aside.