Meredith, J.These are two appeals-from the judgment of the Assistant Sessions Judge of Shahabad, Mr. Ananta Nath Banarji. That of the appellant Hafiz Mian is a regular appeal; that of Sachinder Rai is a jail appeal. Both have been taken together for convenience. Both appellants, have. been convicted by a 4 to 1 majority verdict of the jury under Sections 366 and 366-A, I.P.C., and accepting this verdict the learned Judge has sentenced each of them to undergo rigorous imprisonment for five years. The sentences are u/s 366, no separate sentence being passed u/s 366-A. The appellants were on trial with two other accused, Salim Mian and Munshi Mian. Besides the charges mentioned, there was a charge of rape u/s 376, I.P.C., against the appellants and one other man, and there was a charge u/s 379, I. P.C., against the appellant Sachinder. These charges have ended in acquittal by a unanimous verdict of the jury.

2. Briefly, Section 366 is the offence of kidnapping or abducting any woman with intent that she may be compelled or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may he forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse. The definition of kidnapping is to be found in Section 361 and it amounts to this, taking or enticing away any female under sixteen years of age. With the rest of the definition we are not concerned. Abduction is defined in Section 362 as follows:

Whoever by force compels, or by any deceitful means induces any person to go from any place, is said to abduct that person.

3. As will appear presently, there is no question of kidnapping in this case as there is no evidence, and it is not contended, that the girl is under sixteen. The charge there, fore rests on abduction: hence it is essential that either force or deceit shall be established as an ingredient of the offence. Section 366-A is as follows:

Whoever, by any means whatsoever, induces any minor girl under the age of eighteen years to go from any place or to do any act with intent that such girl may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable, etc.

4. This is a special Section, and before a conviction under it can be sustained, there must be strict proof that the girl in question is below the age of eighteen. The facts of the case under appeal are as fallows. The complainant in the case, Ekram Singh (P.W.1), with his wife Kishori (P.W.4) lived with their uncle Sukhdeo Singh (P.W.8) in quarter No. 6 of the Cement Department at Dalmianagar. On 17th December 1938, Ekram Singh discovered in the evening that his wife was missing. He failed to find her that night and the following day, and on the evening of the 18th he went to Benares to his father-in-laws place to search for her. There also she was not found and the complainant returned to Dehri on the evening of the 19th. At 8 P.M. that day he lodged a sanha at the Dehri thana. This sanha is Ex. 4 and is to the effect that on the afternoon of the 17th there was an altercation between the complainant and his wife and she being enraged fled from his house. Subsequently, the complainant received certain information leading him to suspect that his wife might have been kept in the gola of one Ramzan Mian in Dehri and subsequently removed.

5. He made some further inquiries and then at midday on 20th December he lodged a formal information at the thana (P.I.R. Ex.2). In this first information it is stated that he had learnt from Mulukraj Sharma (P.W.7) that a woman, who might be his wife, had been kept by Sachitanand (perhaps a mistake for Sachinder), Hafiz, Saleem, Alim and Munshi in the gola of Ramzan. He had learnt that these persons had kidnapped his wife from his quarter and after keeping her for some days in the gola had removed her to some place of which he had no trace. It should be mentioned that all the persons named were residing in the gola of Ramzan.

6. On this information the police arrested the appellant Hafiz and started an inquiry. On certain information received, a requisition was sent to the Sub-Inspector of Buxar who received it on 25th December. He sent a constable to the house of Sachinders uncle in village Nuaon. From there they went to Buxar railway station where the girl was eventually found with Sachinder. Sachinder was then arrested and the girl was made over to her uncle Sukhdeo Singh (P.W.8) and taken back to her husbands quarter. After completing investigation charge-sheet was submitted against the appellants and two other accused as already mentioned. It may be noticed here that at various stages of the case the woman made wholly inconsistent statements. There were serious discrepancies in her story as to the circumstances in which she had left her husbands quarter. It may be also noticed, as already indicated, that her husband in. the sanha had said that she had left of her own accord as the result of a quarrel, where, as his case in the first information was that she had been abducted from his quarter by the accused.

7. In Court the womans case was that she had gone to the railway station to start for her parents home in Benares. There she had been met by the accused who deceit, fully decoyed her away, more or less forcibly detained her in the gola, and next morning she was forcibly ravished by the appellant Hafiz and two others. After that the appellant Sachinder compelled her to go to his uncles place at Buxar and on the way he not only raped her in the railway waiting room, but he also robbed her of her ornaments. Her story to the Sub-Inspector of Buxar, when first found, was entirely different. Then she said that she had not been raped or even molested by anyone. She was in love with the appellant Sachinder and had gone away with him of her own accord. This first story of the girl was almost in complete accord with the defence of Sachinder, a defence which he put forward at once and stuck to right through up to the Court of Session. It is also his case in his petition of appeal filed from jail. It is to the effect that he and Kishori Devi, the girl, had been known to each other for some months and that the girl told him she had been badly treated at the quarters of her husband and was being pratically made to live the life of a prostitute. She requested him to take her away somewhere, and she left the quarter and went with him of her own accord. He stated that the other three accused were in no way concerned in the affair. As for the appellant Hafiz, his case was, and is, that he had nothing to do with the affair and had been falsely implicated by Mulukarj Sharma (P.W.7) as he had declined to join in a labour strike. In this appeal we are not, of course, directly concerned with questions of fact. The charge to the jury has, however, been strongly attacked both on the ground of non-direction and of misdirection. I consider that both these grounds have been established.

8. With regard to non-direction, the point made is that the jury were never warned about the danger of convicting in such cases as this upon the evidence of the woman alone. The charge does contain no warning of this sort. Two rulings have been cited in which it has been held that such a warning is absolutely necessary, and must be emphatic, and in its absence the conviction is vitiated. The first is Emperor Vs. Nur Ahmed, . There it was laid down that it is extremely dangerous and permissible only in exceptional cases to convict a man of a sexual offence on the uncorroborated testimony of the complainant. The corroboration must be by independent evidence, that is to say, by some additional evidence coming from another person altogether, and the rule must be properly emphasized in the charge to the jury. In Chamuddin Sardar and Another Vs. Emperor, , the learned Judge went even further. He held that in a trial for an offence u/s 366, I.P.C., the Judge should point out to the jury that they are entitled, if they please, to convict the accused upon the uncorroborated testimony of the girl but that it is dangerous to do so in cases dealing with sexual offences, such as rape, abduction and similar cases, and that only in exceptional cases they should convict the accused upon the uncorroborated testimony of the girl. Failure to warn the jury of the danger of convicting the accused on the girls evidence alone amounts to a non-direction, which vitiates the trial.

9. The present was a case where there was no real corroboration of the girls statement. The only suggested corroboration is first a statement of P.W.3 that he had noticed the appellant Hafiz with others seeing the girl off at the railway station. He was not able to explain how he was sure that the appellant had gone to the station for that purpose, worse still he had not made this statement at all before the police or in the lower Court. It was a statement which deserved no credence whatever. Even however could it have been accepted, it did not amount to corroboration, because it was equally consistent both with the version of the prosecution and with that of the defence.

10. The same remark applies to the only other suggested corroboration--a statement of P.W.7 that he had seen the appellant Hafiz entering Ramzans gola. Many other persons had been seen entering the gola, and some of them admittedly had gone there only to make inquiries about the presence of a strange woman. The statement, therefore, amounted to no corroboration what ever. In Sachinders case there was really no corroboration at all. Thus the case was certainly one where there was no real evidence except the girls statement and the rulings cited were strictly applicable. But the learned Judge did not utter a single word of warning. I consider that his failure to do so was in itself sufficient to vitiate the conviction. In the present case a warning was all the more necessary in view of the hopelessly inconsistent statements made by the woman, and the fact that she had shown herself to be an unscrupulous liar. Her story of rape was evidently disbelieved even by the jury themselves.

11. With regard to misdirection, attention has been drawn to a statement in the charge to the effect that about the girl being of loose morals, the Judge considered that he should tell them that as far as charges under Sections 366, 366-A and 379, I.P.C., were concerned, her general moral character was of no consequence. In this connexion a ruling has been cited: Shahebali and Another Vs. Emperor, were it was laid down that it must be shown that the girl was leading a pure life at the time of the alleged kidnapping or abduction. It is not perhaps necessary to go quite so far as that, but at least the Judge should have told the jury that if the girl was immoral it made her story of abduction and deceit less probable and that of Sachinder that she had a love affair with him more probable. That was an aspect of the case which the jury should have carefully considered; but it was never put to them at all. On the contrary, the Judges unfortunate statement, if technically a correct statement of the law, was highly likely to mislead them. The charge therefore was vitiated both on grounds of non-direction and of misdirection. The necessity cannot be too strongly emphasised for charging the jury in cases of this nature with extreme care, for experience has shown that juries in this country are most liable to misunderstand the law on the subject and to misapply it.

12. With regard to Section 366-A, there is yet another defect in the charge. Here, as I said in the beginning, the question of age is the crucial one and strict and exact evidence of age is essential. There was however no exact evidence of age. The parents were not examined. Two witnesses made vague statements that she was aged fifteen or sixteen, and the doctor, who thought she was about sixteen, was also vague and admitted that it was only a matter of opinion, and that he could not say definitely that she was not over sixteen. The judge should have strongly emphasised this feature of the case and clearly directed the jury that if they were not completely satisfied that it had been established that the girl was under eighteen they were bound to acquit upon that charge.

13. There is yet another aspect in which this charge is defective. I stated at the beginning that as there is no question of kidnapping, there being no evidence that the girl was under sixteen, the charge u/s 366 depended entirely on the proof of force or deceit. There is nothing in the charge to show that the Judge ever explained this to the jury and asked them to consider carefully whether any deceit had really been shown to have been practised upon the girl. All that the charge contains on this subject is a general statement that the Sections in question had been read over and explained to the jury. This will not do. Where, as in cases of this nature, the law is somewhat complicated and liable to be misunderstood by jury it is essential for the Judge to say exactly how he has explained it to the jury, so that the Appellate Court may be in a position to judge whether he has done so correctly and fully. I consider the charge in this case so defective that a verdict based upon it, and only a majority verdict as that, could not safely be sustained. Nor having regard to all the circumstances of the case, do I consider it one where a retrial should be ordered. I would allow the appeals, set aside the convictions and acquit both appellants.

Harries C.J.

14. I agree. This case belongs to that class of oases commonly referred to as sexual cases. In such oases it is, in my view, essential that the learned Judge should specially warn the jury of the danger of convicting upon the uncorroborated testimony of the woman concerned. It is true that there is no rule of law in this country requiring corroboration; but experience has shown both in England and in India that it is extremely dangerous in this class of case to act solely upon the womans evidence. The rule is a rule of practice, but it has been followed for such a length of time that it has virtually become a rule of law. In the present case, the learned Judge did not warn the jury of the danger of acting upon the uncorroborated testimony of the girl. As pointed out by my learned brother in his judgment, the girls evidence was a mass of contradictions, and this was eminently a case in which the jury should have been warned most emphatically. In my view, in cases of this kind the learned Judge must point out in the clearest language that it is extremely dangerous to base a conviction upon the girls evidence and he should stress the fact that before the jury can properly return a verdict of guilty they must be satisfied that the girls evidence is corroborated by other independent testimony. Having given such a warning, the learned Judge should explain to the jury what amounts to corroboration.

15. He should then point out to the jury what evidence can legally amount to corroboration and he should ask the jury to consider whether or not they accept such evidence. Finally, he should tell the jury that they should only convict if they are satisfied that the evidence tendered as corroboration is true and worthy of credence.

16. In the present case the learned Judge gave no warning of any kind and has not dealt at all with the question of corroboration. He never asked the jury to consider whether the pieces of evidence which might amount to corroboration could possibly be accepted. As pointed out by my learned brother, one piece of evidence suggested as corroboration of the girls story against Hafiz could not possibly be accepted by any responsible jury.

17. In my view, the charge in this case was deficient and the convictions based on it cannot possibly be sustained. I entirely agree that this is not a case in which a retrial should be ordered.