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PETITIONER: MUSHTAK HUSSEIN

       Vs.

RESPONDENT: THE STATE OF BOMBAY.

DATE OF JUDGMENT: 30/03/1953

BENCH: MAHAJAN, MEHR CHAND BENCH: MAHAJAN, MEHR CHAND BOSE, VIVIAN JAGANNADHADAS, B.

CITATION:  1953 AIR  282            1953 SCR  809  CITATOR INFO :  R          1955 SC 104  (32A,34)  RF         1955 SC 287  (2)  F          1960 SC 706  (14)  R          1962 SC 605  (16)  E          1963 SC1696  (10,11)  RF         1968 SC 609  (10)  RF         1970 SC 977  (5)  RF         1970 SC1033  (3)  R          1971 SC1606  (19)  F          1973 SC  43  (10)  RF         1973 SC 243  (4)  R          1973 SC 278  (3)  F          1973 SC1180  (3)  RF         1973 SC1222  (10,11)  R          1973 SC2187  (8)  R          1973 SC2288  (6)  F          1976 SC1151  (1)  RF         1976 SC1992  (3)  F          1983 SC1014  (2)  R          1986 SC1070  (2)

ACT: Criminal  trial-Charge  to  jury--Mis-direction--Powers   of appellate  Court--Power  of appellate Court to go  into  the whole  case to determine whether there has been  failure  of justice-Practice   Appellate  Court-Summary   rejection   of appeal-Duty to state reasons in arguable cases.

HEADNOTE:    In  his charge to the jury the Judge told them  that  the case  before  them was a jig saw puzzle  with  some  missing links and directed them to use their ingenuity to piece them together by finding out the probabilities and seeing whether they  could successfully solve the puzzle.  Held,  this  was misdirection  in  that it invited the jury to  exercise  its ingenuity  by  having resort, if necessary,  to  speculative reasoning.   Where  a  jury  has been misdirected  and  has  based  its verdict on assumptions and conjectures the Supreme Court may order  a retrial or remit the case to the High Court with  a direction that it should consider the merits of the case  in

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the  light  of  the decision of the Supreme  Court  and  say whether there has been 810 failure of justice as a result of the mis-direotions, or  it may  examine  the merits of the case and decide  for  itself whether there  has been a failure of justice in the case.   In  deciding whether there has in fact been a  failure  of justice  in  consequence of a mis-direction,  the  Court  is entitled to take the whole case into consideration. Abdul Rahman v. Emperor (A.I.R. 1946 Lah. 82) referred to.    Though in cases which prima facie raise no arguable issue the  High  Court  may dismiss an  appeal  summarily  without giving  any reasons, it is desirable that in arguable  cases the  High Court should in its summary rejection  order  give some indication of the views of the High Court on the points raised.

JUDGMENT:  CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.96  of 1952.  Appeal by special leave granted by the Supreme  Court on  the 14th February, 1952) from the Order dated  the  17th September,  1951 of the High Court of Judicature  at  Bombay (Bavdekar  and Chainani JJ.) in Criminal Appeal No. 1026  of 1951 arising out of Judgment and Order dated the 28th  July, 1951, of the Court of the Third Additional Sessions Judge of Poona in Sessions Case No. 78 of 1951. A.   S. B. Chari and J. B.  Dadachanji for the appellant. C.   K.  Daphtary, Solicitor- General for India,  (Porus  A. Mehta, with him) for the respondent. 1953.  March 30.  The Judgment of the Court was delivered by MAHAJAN  J.-The appellant on 28th July, 1951, was  convicted on a charge under section 366, Indian Penal Code, for having kidnapped at Poona a minor girl Shilavati in order that  she may  be  forced or seduced to illicit  intercourse  and  was sentenced  to  undergo rigorous imprisonment for  two  years after a trial before the third additional Sessions Judge  of that place sitting with a jury of live.  The jury returned a verdict  of  guilty  by a majority of  three  to  two.   The Sessions  Judge came to the conclusion that the verdict  was not  perverse.   He  therefore accepted  it.  The  appellant preferred an appeal to the High Court 811 but this was summarily dismissed.  This appeal is before  us by special leave.  The prosecution case was that on the 12th December,  1949, the appellant who was a. music teacher went to the house  of Shilavati  and on the pretext that there was a girl  waiting in  his  house and that he’ wanted to compare the  voice  of Shilavati with the voice of the girl took her to his  house, and  with the assistance of one Iqbal Putlabai  (accused  2) kidnapped  her.  Shilavati was traced in Bombay  after  four months  in the house of one Babu Konde.  Thereafter she  was medically examined and it was found that she was pregnant.  To  prove the case against the appellant  the  prosecution examined  in all sixteen witnesses.  Out of these four  were eye-witnesses,   viz.,   Prahlad,  Jamunabai,   Namdeo   and Shilavati.  Yamunabai, the mother of Shilavati, stated  that on  12th December when she returned home in the evening  she learnt from her sister-in-law Jamunabai and others that  the appellant had taken Shilavati on the pretext that he  wanted to compare her voice with that of one Prabha who was waiting in  his  house and thereafter Shilavati had not  come  back, that on getting this information she along with her brothers

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and  sister-in-law  went to the house of the  appellant  and questioned  him  as  to why Shilavati  was  not  sent  back, whereupon the appellant replied that he had sent her by bus. As Shilavati did not return home, she went to the police and lodged  a complaint.  Ananda, uncle of the girl, deposed  to the  same effect.  Prahlad, brother of Shilavati, a  boy  of school-going  age, deposed that he saw Shilavati going  with the  appellant  while  he was playing  outside  the  school. Namdeo,  who  is  a  bricklayer, stated  that  on  the  12th December while he was returning after completing his work at about 3-30 p. m. he saw Shilavati going with the  appellant. On  medical  examination it was found that Shilavati  was  a girl  of 15 or 16 years of age and that ’she  was  pregnant. Shilavati was examined as P, W, 10 and she deposed 105 812 that  the accused came to her house at about 3-30  p.m.  and told  her that there was a singing party at Kirkee and  that she  should accompany him there, that she went with  him  on the  promise that the appellant would send her  back  before her  mother  returned home, that while  at  the  appellant’s house  she  was asked to smell certain scents and  she  felt giddy and could not speak and when she came to senses in the morning  she found herself in Bombay in a hut at Sion.   She further  said that on enquiry from one Kassam she  was  told that the appellant had left her there. On  the 12th December at about 11-40 p.m. Yamunabai went  to Padamji  Gate police station and lodged a  complaint  there. In the complaint it was stated that Shilavati had quarrelled with one Shantabai and had left the house and since then she had  not  returned.  The police were asked to find  out  her whereabouts.  On the 13th she sent a complaint to the Police Inspector,   A  Division,  Poona.   Therein  she  made   the allegation that the appellant used to come to her house  for coaching Shilavati in harmonium, that she learnt that he had sent  a chit to her daughter in her absence and  had  called her  to  his house and that on enquiries  about  Shilavati’s whereabouts he had given evasive answers.  The police  head- constable  who  was  on duty on receipt  of  this  complaint examined Yamunabai.  He read out the application to her  and recorded her statement which reads thus:- " My daughter Shilavati age about 13/14 has left my house at 4  p.m.  I made search for my daughter at the  house  of  my paternal aunt, but I could not find her there.  M. H.  Gyani (appellant)  used  to come to my house for  coaching  up  my daughter  in  singing.  I do not know whether he  has  taken away  my  daughter nor have I seen him taking her  away.   I have  mentioned his name in my application through  mistake. My daughter has gone out of my house to some other place.  A search should therefore be made for her....... I again state that my daughter left the house                            813 after quarrelling with my mother Harnabai.  This is given in writing."   In  July,  1950,  Yamunabai sent an  application  to  the Collector  of Poona.  In this application she said that  she had  appointed  the  appellant as a. music  master  for  her daughter, that on Monday the 12th December, 1949, at about 6 p.  m. the appellant and his friend Badsha had  induced  and kidnapped  her  to an unknown place.  She  asserted  therein that  she  was  sure that nobody but both M.  H.  Gyani  and Badsha  had  kidnapped  her daughter.  In  the  witness  box Yamuna  Bai, as already stated, gave a different  story  and Shilavati  herself did not fully support the version of  her mother.  On  the 14th March, 1950, a  letter,  Exhibit  4-G,

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was  sent by Shilavati to her mother. The relevant  part  of this letter is in these terms:- " Since last so many days, I have left the house and I have not sent any letter to you and you must also be worrying  as to  where I have gone.  I am at Bombay and quite  well  too. Do not worry about me, I had gone to the river at  Bamburda, and there some one forced me and brought me to Bombay and he was  prepared to marry with me.  He was an ordinary and  old fellow.  J did not like it and he was going to convert me  ’ to Mahomedanism.  I felt very sorry for this and I was  very much  sad.   He beat me twice or thrice.  To  whom  shall  I express my sorrow ? But there was a boy staying, there  whom I  told  all the facts and told him to save me  anyhow.   He promised  to save me.  There were two days remaining for  my marriage.   Till then, he arranged for my stay and also  for dinner,  and one day before the marriage, previous night  he took  me  out  from  that place.   There  were  many  police complaints  against  him, and he, at the cost of  his  life, saved me.  I married him in order to return his obligations. Now  I am very happy, I am not in need of anything now.   He is  an  ordinary  boy.  He works in a press,  and  he  is  a worker.   He  is from us and his name is Baburao  Konde  and next 814 time we will send a photograph of both of us.  Do not  worry about  me.   I  am very happy.   Namaskar  to  all,  elderly persons   and   ashirwadas  to  youngsters.    Namaskar   to grandmother  Harnabai.   Convey  namaskars  to  Anand  mama, Vithal  mama, Ram mama, Shankar, Prahlad,  Laxman,  Hirabai, Jamnabai, Yamunabai, Jaibai, and to master."  Shilavati  is admittedly a talented Harijan girl who  used to take part in dramatic peformances and used to give public peformances in music and dancing on some remuneration.   The letter  written by her from Bombay speaks for itself and  it was on receipt of this letter and further correspondence  to which it is not necessary to refer that the police got  clue of  her  where abouts and were able to restore  her  to  her mother Yamunabai.  The statute law in India in certain circumstances  permits an  appeal  against  a jury’s  verdict  and  authorizes  the appellate  court  to substitute its own verdict on  its  own consideration  of  the evidence.  It has  conferred  on  the appellate court extensive powers of overruling or  modifying the verdict of a jury in the interests of due administration of justice confident that the appellate judges who have  not themselves  seen and heard the witnesses, will not  exercise lightly  the responsible power entrusted to  them.   Section 423  in sub-section (2), Criminal Procedure Code, states  as follows:-  "  Nothing herein contained shall authorize the  court  to alter  or  reverse  the verdict of a jury unless  it  is  of opinion   that  such  verdict  is  erroneous  owing   to   a misdirection  by the judge or to a misunderstanding  on  the part of the jury of the law as laid down by him.  "  Section  537 in sub-clause (d) provides that  no  finding, sentence   or   order  passed  by  a  court   of   competent jurisdiction   shall  be reversed or altered  on  appeal  on account of any misdirection in any charge to the jury 816 unless  such error, omission, irregularity  or  misdirection has  in  fact  occasioned  a  failure  of  justice.   Unless therefore it is established in a case that there has been  a serious  misdirection  by the judge in  charging.  the  jury which has occasioned a failure of justice and has misled the jury in giving its verdict the verdict of the jury cannot be

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set aside.  The learned counsel for the appellant  contended that  the judge in his charge to the jury misdirected it  in several  important  particulars and violated  the  rules  of criminal jurisprudence and of evidence in a number of  ways. It was said that he failed to warn the jury that it would be unsafe  for it to act on the statement of Shilavati  without her  statement  being  corroborated  by  other   evidence,in material  particulars.  The judge, according to the  learned counsel, should have told the jury that though in law it was open  to  them  if in the circumstances of  this  case  they thought fit to do, to act on the uncorroborated testimony of Shilavati  but  that  ordinarily it was not safe  to  do  so without  that  statement  being  corroborated  in   material particulars.   This omission on the part. of the  judge,  it was  urged, amounted in law to a grave misdirection and  the jury in all likelihood without such a warning arrived at its verdict  on the basis of the uncorroborated evidence of  the girl.   That part of the charge in which reference was  made by  the judge to Shilavati’s evidence wherein she  had  said that she was told by Kassam Khan that the appellant had left her  there  was criticized on the ground that the  jury  bad been directed to act on inadmissible evidence.  Then it  was contendad  that it was a serious misdirection to direct  the jury that it had to solve the jigsaw puzzle that had  arisen in  the  case by using their own ingenuity  and  by  piecing together  the  various  pieces  of  the  puzzle.   The  last misdirection relied upon concerned the following part of the charge:-  "After  weighing  the  probabilities  of  the  case,   the evidence  on  record,  as prudent men if  you  come  to  the conclusion that the story given by the prosecution does  not appear to be probable and that the 816 accused  must not have committed the offence, then  in  that case you have to return a verdict of not guilty."  In  our judgment, it is not necessary to pronounce on  all the  points urged by the learned counsel, because we are  of the opinion that the judge clearly misdirected the jury when he  asked  it  to  solve the  problem  that  had  arisen  by exercising its ingenuity and by resorting, if necessary,  to speculative  reasoning.  In other words, the judge gave  the jury a carte blanche to, come to its conclusion on the basis of  its own conjectures, if necessary.  Not only  that.   He told  the  jury to hold the accused not guilty  in  case  it found  it  improbable that he must not  have  committed  the offence.   These  propositions placed before  the  jury  are repugnant to all notions of criminal jurisprudence and  they must  necessarily have affected its mind in arriving at  the conclusion.  This is how the charge on this point reads:- "  So you will find, gentlemen, that there are as  many  as six  versions  before this court and therefore you  have  to consider  all these versions and probabilities of the  case, to  find  out whether the improved version  now  before  the court is a correct one.  I would like also to bring to  your notice the letter written at the instance of Shilavati  from Bombay.   That  letter  is Exhibit 4-G.   Shilavati  in  her examination before the court does not admit that this letter was  written  at her instance.  However,  she  has  admitted before  the  police  that this letter  was  written  at  her instance, and this was brought out in her cross-examination. In this letter she had stated that she had gone on that  day to  Bamburda river and there she was forcibly  kidnapped  by some  man who was about to marry her.  That man was  an  old man  and  she did not approve that  marriage.   Fortunately, this  Konde  came to her rescue and took her to  Bombay  and

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married her.  That is her statement. Now, gentlemen, this is a  jigsaw puzzle kept before you. In jigsaw puzzles all  the pieces  are kept before us and we have to use our  ingenuity and piece them together.  Some 817 links  are missing in this case.  However, as  rightly  sub- mitted  by the learned Assistant Public Prosecutor, in  such cases  you have to weigh the probabilities of the  case  and therefore  you have to find out from the material before  us whether you can solve this jigsaw puzzle.  Now these  points are before you that there was a quarrel with Shantabai.  The chit  was  alleged to have been sent by accused No.  1,  and then  the  girl  went to Bamburda river and  there  she  was kidnapped by somebody.  Now, gentlemen, you have to consider whether it is or it is not possible that the girl  Shilavati might have received soma chit probably from the accused  No. 1.  This chit was seen by Shantabai who exposed to  Harnabai the grandmother of the girl.  The witness Harnabai is an old woman and probably she was put out and ;he might have  taken her  to task, and she might have even gone to the length  of stating  that  she should go out of the house.   Here  is  a young girl having hot blood, and it is or is it not probable that  the girl in desperation had gone to Bamburda, and  she mentions  the river, and gentlemen, you can find that  there is a confluence of the rivers Mula and Mutha; why did she go to  the  river ? Whether it is probable that she  wanted  to commit  suicide.  You will find, gentlemen, that  near  that confluence there is a mosque and in the evidence it has come out  that the girl was found at the hut at Sion with an  old Mahommedan  named  Kassam Khan and his keep.   You  have  to consider  whether it is probable that this Kassam  Khan  and his  keep  induced the girl to go with them  to  Bombay  and whether Kassam Khan wanted to marry her there.  You have  to find  out  whether it is probable that this  chivalrous  man Konde rescued her from the old man Kassam Khan who was about to  marry her and got himself married to the girl. The  fact remains that the girl was found with Konde   in       Bombay ultimately.  It is in evidence of the girl herself that  she found herself in a hut at Sion and Kassam Khan and his  keep were  keeping a watch over  her........................  So, gentlemen,  you Will have to find out all the  probabilities of the case and 818 before us by the prosecution.."    Had  the charge to the jury stopped with  the  sentence, "So you will find, gentlemen, that there are as many as  six versions  before  this  court  and  therefore  you  have  to consider  all these versions and probabilities of the  case, to  find  out whether the improved version  now  before  the court  is a correct one", no exception could  possibly  have been taken to it.  When the learned judge however, proceeded to  direct the jury to piece together the various pieces  of the  jigsaw  puzzle  by use of their  ingenuity  he  clearly misdirected  them inasmuch as he told them that  they  could in’ solving the problem draw upon their own imagination  and exercise their ingenuity in the matter without reference  to the evidence that had been placed by the prosecution on  the record.   Not only that, the learned judge himself  indulged in speculation and placed a number of conjectures before the jury for its consideration.  The learned judge surmised that the  girl might well have gone to the river  for  committing suicide and asked the jury to consider this surmise as well. It  was  further surmised that a chit from the  accused  was received by Shilavati and that Shantabai saw that chit,  and disclosed  it  to  Harnabai, the  grandmother,  who  in  all

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likelihood  took her to task and told her to get out of  the house  and thereupon the hot-blooded Shilavati went  to  the river to commit suicide.  There is no evidence whatsoever on the  record  about  the  actual receipt  of  that  chit,  of Shantabai  seeing it and exposing this fact to Harnabai  and of Harnabai threatening Shilavati.  All these considerations mentioned  to  the  jury were the  results  of  the  judge’s fertile  imagination and were bound to mislead it  into  the belief  that  they  could indulge in  like  conjectures  and surmises in their effort to solve the puzzle.  The direction to the jury that it was to solve the jigsaw puzzle by use of its ingenuity does not find place in an isolated passage  of the  charge,  but  runs through it.  While  winding  up  the learned judge again reiterated it and Said;- 819 "As I have already told you, you have to piece together  all the  pieces of the jigsaw puzzle and try to., find out  what story  appears to you to be probable; whether the  girl  was drugged  at all, or whether as stated by her in  her  letter she  went  to  a river at Bamburda and there  she  met  this Kassam  Khan  and his keep and along with them she  went  to Bombay of her own accord." In  the  concluding  part of the charge  the  learned  judge said:- "After  weighing the probabilities of the case, evidence  on record,  as prudent men if you come to the  conclusion  that the  story  given by the prosecution does not appear  to  be probable  and that the accused must not have  committed  the offence,  then in that case you have to return a verdict  of not guilty." It is not possible say that these words were likely to  give a correct lead to the jury in reaching its conclusion.   All that the jury should have been told was that after  weighing the  probabilities  of  the case and  the  evidence  on  the record,  as  prudent  men they should  answer  "whether  the prosecution had made out the charge against the accused." We are  satisfied that as a result of These  misdirections  the jury  in all likelihood gave a divided verdict of guilty  by three to two not on evidence but on the basis of assumptions and conjectures. In  this situation, the question for consideration  is  what procedure  should be followed by this court for undoing  the mischief that has happened and which would be most conducive to  the ends of justice.  The simplest course open to us  is to order a retrial of the appellant.  It is also open to  us to remit the case to the High Court with a direction that it should  consider the merits of the case in the light of  our decision and say whether there has been a failure of justice as a result of these misdirections.  Lastly it is open to us to examine the merits of the case and 106 820 decide  for  ourselves whether there has been a  failure  of justice in the case and an innocent man has been  convicted.  It is now well settled that in deciding whether there  has been  in  fact  a failure of justice  in  consequence  of  a misdirection  the court is entitled to take the  whole  case into consideration. [Vide Abdul Rahim   v. Emperor(1)].  The words "in fact" in section 637 (d), Criminal Procedure Code, emphasize the view that the court is entitled to go into the evidence itself in order to determine whether there has been a failure of justice.  In the peculiar circumstances of this case  we have chosen to adopt the third course,  because  at this  moment  of time it is most conducive to  the  ends  of justice.  It seems plain to us that on the material on  this

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record  no  reasonable body of persons could  possibly  have arrived  at  the  conclusion that  the  appellant  kidnapped Shilavati as alleged by the prosecution.  We have taken upon ourselves  the responsibility of deciding this case  without the  valuable  opinion  of the High Court  because  we  feel satisfied  that  any other course  would  cause  unnecessary harassment  to  the appellant.  With great respect  we  are, however constrained to observe that it was not right for the High  Court  to have dismissed the appeal preferred  by  the appellant  to that court summarily, as it  certainly  raised some arguable points which required consideration though  we have not thought it fit to deal with all of them.  In  cases which prima facie raise no arguable issue that course is, of course, justified, but this court would appreciate it if  in arguable  cases  the  summary  rejection  order  gives  some indication  of  the views of the High Court  on  the  points raised.   Without  the  opinion of the High  Court  on  such points  in special leave petitions under article 136 of  the Constitution  this Court sometimes feels embarrassed  if  it has  to deal with those matters without the benefit of  that opinion. (1)  A.I.R. 1946 P.C. 821 The, learned Solicitor-General contended that this was not a fit  case where the court was justified in going behind  the verdict  of the jury and in deciding the case in  accordance with  its own view of the evidence.  It was argued that  the charge  to the jury had to be taken as a whole, that  though some slight exception might be taken to certain passages  in the  charge  the learned judge had placed the case  of  both sides  fairly  before  the jury and that not  only  did  the learned judge place fairly the case of both sides before the jury,  he  indicated his opinion on  the  evidence  strongly against the prosecution and that being so, the accused could not be allowed to say that the charge which was strongly  in his favour and against the prosecution was defective in law. It  was  said  that it was open to the jury  to  accept  the statement of the mother of the girl as well as the statement of  the girl in spite of the different conflicting  versions mentioned  in the charge and that the jury having  done  so, the matter stood concluded.  As already observed, charge to the jury cannot be said  to be  a  fair  charge if it tells the  jury  to  approach  the decision of the matter from a wrong angle, and directs it to reach  its decision by exercise of its own ingenuity and  by having  recourse to conjectures and  speculative  reasoning. This  convention of the learned Solicitor-General  therefore cannot be seriously considered.   That  the  verdict of the jury was erroneous in  that  it could  not be the verdict of any body of reasonable  men  in the  circumstances of this case is fully established by  the facts  and  circumstances  on the  record.   What  Yamunabai deposed  in  court has been set out in the earlier  part  of this judgment.  Her case now is that when she returned  home on  the 12th December, 1949, at about 6-30 p.m.,  she  found that Shilavati was not in the house, she made enquiries from Jamna  and Hira, she was told that accused 1 came  and  told them that there was a girl in his house and her voice was to be compared with Shilavati’s voice and took her 822 away  on that pretext.  Prahlad, P.W. 4, deposed  that  when his  mother  returned  home  at 6  p.m.  he  told  her  that Shilavati had been seen by him in the company of accused  1. Jamnabai, P.W. 5, stated that the accused came to the  house at  3 p.m. and on the pretext that one girl had come to  his

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house for singing he took Shilavati and that when  Yamunabai returned  she  informed her of what had  happened.   Ananda, P.W.  6,  repeated  the  same  story.   This  story   stands completely  demolished  by  the  different  complaints  that Yamunabai  made  to the police.  There  is  no  satisfactory explanation whatsoever why when she made her first report to the  police at 11-40 p.m. she did not tell the  police  that she  had been told by her son, by Jamuna and by Namdev  that the  girl had been taken away by the appellant and  that  he had  told  them that she had been sent back in a  bus.   Not only  this,  after she had sent a written complaint  on  the 13th December to the Police Inspector, Poona, suspecting the appellant  of  having  kidnapped her daughter,  she  made  a statement to the head-constable, withdrawing that allegation in most unambiguous terms and stated that the girl had  left the  house  after quarrelling with Harnabai.  In  the  first report  to  the police she had said that the girl  had  left after quarrelling with one Shantabai.  These statements made by  her could not be said to be the result of mere  figments of her brain.  She must have made them on some basis.   They give  the lie direct to her present version.  When later  on she  sent  an  application to  the  Collector  accusing  the appellant  and Badsha of having kidnapped her daughter  she. asserted that they had taken her away to an unknown.place at 6  p. m., though the occurrence in then  earlier  complaints was  alleged  to have taken place at about 3-30  p.  m.  The letter  of  14th  March, 1960, written at  the  instance  of Shilavati  to Yamunabai falsifies all the versions given  by her and clearly suggests that the girl left the house of her own  accord.   In this letter she sent her  regards  to  the appellant.   If  he had kidnapped, her, that  expression  of respect would 823 not  have found place in that letter at all Another  version was mentioned in the evidence as to how the occurrence  took place.  It was stated that the girl received a chit from the appellant  and. on the basis of this chit a  quarrel  ensued and the girl left the house.  On this state of the record it is quite evident that the version now given by Yamunabai  to court or by Shilavati after she had come under the influence of  her  mother  cannot  be accepted.   It  seems  that  the appellant because he was a music master and had been  giving lessons  to the girl a few months before  her  disappearance has  been  convicted on a charge under section  366,  Indian Penal  Code,’ not on the basis of evidence but on the  basis of surmises and, conjectures.  The learned Solicitor-General referred  us to the statement of the bricklayer and  of  the boy Prahlad.  A mere reading of their statements shows  that these are not true and have been procured to fill in gaps in the  prosecution  case.   Harnabai was  not  produced  as  a witness  in the case and the learned judge in his charge  to the  jury was right when he observed that a number of  links were missing in the prosecution case and they could only  be filled  in on the basis of conjectures.  Both Yamunabai  and Prahlad  studiously avoided stating that the girl took  part in  dramas or that she danced in public places.  They  tried to  make  out  that Shilavati was  an  unsophisticated  girl having  no knowledge of the world and that she never  danced in public places or she never acted in public dramas.  There is ample material on the record consisting of her photos  in the advertisements as well as in the statements made to  the police  which establishes that she acted in  various  dramas for which she was paid at the rate of Rs. 5 for each perfor- mance  and  that she gave, dance performances  and  she  was intending to make singing and dancing as her profession. The

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very  fact that the brother and the mother were at pains  to create  a false impression on the court by deposing  falsely was  itself  sufficient to show that no  reliance  could  be placed on their                            824 testimony.   We  are therefore firmly of  the  opinion  that there has been a grave failure of justice in this *case  and the  appellant,  an innocent man, has been  convicted  of  a serious  offence on a verdict of the jury arrived at in  all likelihood on the basis of conjectures and that that verdict was  the. consequence of the misdirection given to the  jury by the judge.  For  the  reasons given above we allow  this  appeal,  set aside  the verdict of the jury, and acquit the appellant  of the offence with which he was charged.                                          Appeal allowed. Agent for the appellant: V. P. K. Nambiyar. Agent for the respondent: G. H. Rajadhyaksha. 825