JUDGMENT
Mahmood, J.
1. In this case the two prisoners, Maru and Fatten, were tried together and both have been convicted. The prisoner Maru has been convicted under Section 363 of the Indian Penal Code and sentenced to two years’ rigorous imprisonment, and the other prisoner, Fatteh, has been convicted under Section 368 read with Section 363 of the Indian Penal Code, and sentenced to one year’s rigorous imprisonment.
2. Both prisoners have appealed. So far as Maru is concerned I have arrived at the same conclusions on the evidence as the assessors and the learned Sessions Judge. The substantive offence charged against Maru was that of kidnapping within the meaning of Section 363 of the Penal Code, and the person kidnapped was a girl, Musammat Thakuri, whose father has stated her age to be about nine years. She was examined as a witness for the prosecution, but without any oath or solemn affirmation, and this circumstance has furnished one of the difficulties in the case. Speaking of her the learned Judge remarks: ” She is of tender years and does not understand the obligations of an oath, but was cautioned to speak the truth, and is a competent witness as far as intelligence is concerned.”
3. Again with reference to the prisoner-appellant Fatteh the learned Judge goes on to say:
As regards Fatteh two of the assessors think the charge proved, the third does not. The case depends entirely and solely on the evidence of the little girl. Two of the assessors believe it; think it impossible she can have been tutored: third does not believe it.
4. Again the learned Judge goes on to say:
Why Fatteh should assist Maru in the concealment is not clear and has formed the chief stumbling-block to the third assessor; but Maru is an old Raipur man and has dealings admittedly with Fatteh. Moreover, if I have not been much mistaken in my observation, Fatteh has from behind his clasped hands held in front of his face been whispering advice to Maru all through the case as to what answer he should give and what questions [to] put. I agree, therefore, with the assessors in convicting Fatteh.
5. The conclusions at which the learned Judge arrived are stated in the following paragraph of his judgment:
Maru’s intent in kidnapping is not shown or Fatteh’s in concealment. At the best I am willing to credit it to Maru that he only wished to annoy and distress Ami Chand and perhaps merely extort some advantage from him–such as cattle-lifters in these parts steal cattle–and that Fatteh was abetting him in this. Without exacting anything, the child was restored in a few days, under the influence of fear of prosecution, in so great harm done.
6. So far as the case of Maru is concerned the evidence of the girl Thakuri is of no great consequence, as the rest of the evidence is in itself sufficient to warrant his conviction. But the case against the prisoner appellant Fatteh rests entirely upon the testimony of the girl Thakuri; and it thus becomes important to consider whether her statement is to be accepted as evidence in this case, and if so, whether it is sufficiently trustworthy to warrant the conviction.
7. The former of these questions depends entirely upon the law relating to the competency of witnesses and to the obligation of oaths or solemn affirmations to be made by them in judicial proceedings.
8. First, then, as to the competency of Musammat Thakuri to be a witness, It is important to observe that upon the findings of the learned Sessions Judge, her age must be taken to be eight or nine years, and she must be held to have not attained such maturity of mind as would enable her to realize the solemnity or obligation of an oath or affirmation.
9. So far as the simple question of age is concerned I have no doubt that Musammat Thakuri could be called as a witness. Whatever the rule of law or the practice of the Courts may have been antecedent to the year 1855, the Legislature in passing the Evidence Act (II of 1855) of that year laid down a definite rule in Section 14 (clause 1) of that enactment, the effect of which is to declare the incompetency to testify of “children under seven years of age who appear incapable of receiving just impressions of the facts respecting which they are examined or of relating them truly.” The law, however, as it now stands contains a more comprehensive rule in Section 118 of the Indian Evidence Act (I of 1872) for which we are indebted to the labours of an eminent jurist, Sir James Stephen, now one of Her Majesty’s Judges in England. The section lays down the rule that “all persons shall be competent to testify, unless the Court considers that they are prevented from understanding the questions put to them, or from giving natural answers to those questions by tender years, extreme old age, disease whether of body or mind, or any other cause of the same kind.”
10. The tender age of Musammat Thakuri would not therefore, ipso facto, render her incompetent to appear as a witness to give testimony. Indeed, the effect of our law seems to me to be the same as the rule of the English law of evidence on this particular point, and that rule is nowhere stated better than in Section 1377 of Taylor’s work on Evidence (Vol. II, p. 1170, 8th ed)., where it is stated: “With respect to children no precise age is fixed by law, within which they are absolutely excluded from giving evidence on the presumption that they have not sufficient understanding. Neither can any precise rule be laid down respecting the degree of intelligence and knowledge which will render a child a competent witness. In all questions of this kind much must ever depend upon the good sense and discretion of the Judge; who Will do well in remembering the wise rule promulgated by the Indian Evidence Act of 1855, that children under seven years of age, who appear incapable of receiving just impressions of the facts to be deposed to ‘or of relating them truly,’ ought not to be examined. In practice it is not unusual to receive the testimony of children of eight or nine years of age when they appear to possess sufficient understanding; and in Brasier’s case, 1 Lea., 199: 1 East P. C., 443, which was an indictment for assaulting with intent to rape an infant who was certainly under seven years of age, and perhaps only five, all the Judges held that she might have been examined upon oath if on strict examination by the Court she had been found to comprehend the danger and impiety of falsehood. But in Pike’s case, 3 C. and P., 598, Mr. Justice Park, with the concurrence of Mr. Justice Jambs Parke, promptly rejected the dying declarations of a child of four years of age, observing that however precocious her mind might have been, it was quite impossible that she could have had sufficient understanding to render her declarations admissible.”
11. I must, however, at the risk of prolixity read another passage from another celebrated work of English law–Roscoe’s Criminal Evidence (p. 115-16, 10th ed.)–as much that is contained in that passage will conveniently bring me to the next point as to the legal admissibility of Musammat Thakuri’s evidence in this case. The passage runs as follows:
It is said by gilbert, C, B., that infants under the age of fourteen are not regularly admissible as witnesses, though there is no time fixed wherein they are to be excluded from evidence, but that the reason and sense of their evidence are to appear from the questions propounded to them and their answers. Gilb. Ev., 144. At one time their age was considered as the criterion of their competency, and it was a general rule that none could be admitted under the age of nine years, very few under ten: R. v. Traver, 2 Str., 700: 1 Hale P. C. 302: 2 Hale P. C. 278: 1 Phill. Ev., lOth ed., 8. But of late years no particular age is required in practice to render the evidence of a child admissible. A more reasonable rule has been adopted and the competency of children is now regulated not by their age, but by the degree of understanding which they appear to posse Sections 1 Phill. Ev., 4, 10th ed., 8. In R. v. Brazier, 1 East P. C., 443: 1 Leach 199, S.C., Blackstone, Nares, Eyre, and Buller, JJ., were of opinion that the evidence of a child five years of age would have been admissible if she had appeared on examination to be capable of distinguishing between good and evil. But others of the Judges particularly GOULD and Wllles, JJ., held that the presumption of law of want of discretion under seven was conclusive. Subsequently all the Judges agreed that a child of any age, if capable of distinguishing between good and evil, might be examined upon oath, and that a child of whatever age could not be examined unless sworn. This is now the established rule in all cases, civil as well as criminal, and whether the prisoner is tried for a capital offence or one of an inferior nature. According to this rule the admissibility of children depends not merely upon their possessing a competent degree of understanding, but also in part upon their having received a certain share of religious instruction. A child whose intellect appears to be in other respects sufficient to enable it to give useful evidence, may from defect of religious instruction be wholly unable to give any account of the nature of an oath or of the consequences of falsehood (l Phill. Ev., 9,10th ed.) In a recent case of trial for murder, where it appeared that a girl eight years old up to the time of the deceased’s death was totally ignorant of religion, but subsequently she had received some instruction as to the nature and obligation of an oath, but at the trial seemed to have no real understanding on the subject of religion or a future state, Patterson, J., would not allow her to be sworn, observing: ‘I must be satisfied that this child feels the binding obligation of an oath from the general course of her religious education. The effect of the oath upon the conscience of the child should arise from religious feelings of a permanent nature, and not merely from instructions confined to the nature of an oath recently communicated to her for the purposes of this trial; and as it appears that previous to the happening of the circumstances to which this witness comes to speak she had had no religious education whatever and had never heard of a future state, and now has no real understanding on the subject, I think that I must reject her testimony. Ev., Williams, Ev., 1077, 2nd ed. Mr. Pitt Taylor observes upon this case–Ev., 1077, 2nd ed.–Perhaps the language which the learned Judge is reported to have used was somewhat stronger than the law warranted, and it certainly went further than the facts required, as the child even when offered as a witness had no real knowledge of the nature of an oath. Had not this been the case, it seems difficult to understand upon what valid ground her testimony could have been rejected; for whether she was instructed in religious knowledge previously or subsequently to the commission of the crime in question, or whether the instruction was intended to excite permanent feelings or merely to secure the temporary purpose of enabling her to swear to the facts she had witnessed, can signify nothing, provided that at the time when she was called upon to give her evidence she was really aware of the solemn responsibility which devolved upon her of speaking the truth. Accordingly in Ireland it has been held that, even on an indictment for murder, an infant might be examined though her religious knowledge had been communicated to her after the perpetration of the offence, and with the sole object of rendering her a competent witness.” R. v. Milton, Ir. Cr. Rep., 61 (Ir. Cr. Rep., 61) per Doherty, C. J. In R. v. Nicholas, 2 C. and K., 246, (2 C. and K., 246) Polliock, C. B., refused to put off the trial in order that a child of six years old might receive instruction, but said that he thought there were cases in which such an application might be entertained; and that the Judge should act according to bis discretion.
12. Such, then, being the rules of English law, I have to consider how far our law renders an oath or solemn affirmation a condition precedent to the admissibility of the testimony of a witness. And in order to consider the question I intend to go into the history of legislation in British India on the subject. But before doing so it is somewhat important to bear clearly in mind what an oath or solemn affirmation really means or implies. In Taylor’s work (Section 1382, p. 1175, 8th ed.) “oath” is denned on the authority of R. v. White, 1 Lea., 403, and the Queen’s Case, 2 B. and B., 285, to be “a religious asseveration by which a person renounces the mercy and imprecates the vengeance of Heaven if he does not speak the truth.” And the learned author, with reference to this definition, goes on to say that it ” may be open to comment, since the design of the oath is not to call the attention of God to man, but the attention of man to God; not to call upon Him to punish the wrong-doer, but on the witness to remember that He will assuredly do so; still, it must be admitted that by thus laying hold of the conscience of the witness the law best insures the utterance of truth.”
13. But a much more complete definition of oath is given by Bentham (who has been rightly denominated as the father of English jurisprudence), at p. 191 of vol. 5 of his works. He says:
By the term oath, taken in its largest sense, is universally understood a ceremony composed of words and gestures, by which the Almighty is engaged eventually to inflict on the taker of the oath, or swearer, as he is called, punishment in quantity and quality, liquidated, or more commonly unliquidated, in the event of his doing something which he, the swearer, at the same time and thereby engages not to do or omitting to do something which he in like manner engages to do. Correlative to the term oath is the term perjury, and it conjugates to perjure oneself, perjured, perjurious; among which perjury is understood as designation of the conduct, whether positive or negative, which stands in opposition to the conduct engaged for, as above.” And the same thinker in considering the efficiency of an oath goes on to say (p. 195):
When the question has been concerning a Muhammadan, a Hindu, a Chinese, or even a Christian, if a Catholic, great doubts have been entertained by pious and learned Church of England men–lawyers and non-lawyers– concerning the degree of binding force, which in any such heterodox bosom ought to be ascribed to the ceremony of an oath.” The doubts to which this passage refers have, however, been set at rest by the leading case of Omichund v. Barker, 1 Sm. L. C., 381, where the Lord Chancellor and three other Judges concurred in laying down the rule that the depositions of witnesses professing the Gentoo (Hindu) religion who were sworn according to the ceremonies of their religion, taken under a commission out of Chancery, could be admitted and read as evidence.
14. In stating the history of the law in British India relating to oaths and solemn affirmations I do not think it is necessary to go behind Act V of 1840, beyond saying that probably in consequence of the practice adopted by Muhammadan Judges before the advent of the British rule, certain old Regulations passed by the Government of the East India Company required that Muhammadans were to be sworn on the Koran and the Hindus on the Ganges water. So stood the law when Act V of 1840 was passed, and the only provisions of the Act which I wish to refer to are contained in the first section of that enactment. That section runs as follows:
Whereas obstruction to justice and other inconveniences have arisen in consequence of persons of the Hindu or Muhammadan persuasion being compelled to swear by the water of the Ganges, or upon the Koran, or according to other forms which are repugnant to their consciences or feelings:
It is hereby enacted, that except as hereinafter provided, instead of any oath or declaration now authorized or required by law, every individual of the classes aforesaid within the territories of the East India Company shall make an affirmation to the following effect:
I solemnly affirm, in the presence of Almighty God, that what I shall state shall be the truth, the whole truth, and nothing but the truth.
15. The effect of this alteration of the law was of a very significant character, with reference to the means and guarantees which Courts of justice had for ascertaining the truth from the evidence of native witnesses. It is not for me, sitting here as a Judge, to consider Questions of political import; but think that it is within my province to say that, so far as the administration of oaths furnishes a guarantee for truth, the provisions of Act V of 1840 were of such a sweeping character as, in the case of most witnesses, rendered that guarantee totally ineffective. For either there is a use in an oath or a solemn affirmation, or there is no such use; and what is the use of an oath or affirmation which is not binding upon the conscience of native witnesses whether Hindu or Muhammadan? My own past experience both as a member of the Bar and as a Judge of the Courts of First Instance warrants my saying that in the vast majority of cases the solemn affirmation introduced by Act V of 1840 in lieu of the older form of oath is not treated or felt by native witnesses as binding upon their conscience. And in view of this circumstance it is a question of great importance how far our law of perjury in the apportionment of punishment should be applied to cases in which a native witness, to whom no such oath as is binding upon his conscience has been administered, has not spoken the truth after the solemn affirmation provided by the law, and which affirmation he feels not binding upon his conscience. I am aware of the reasons which induced a philosophical jurist of the eminence of Jeremy Bantham to object to the whole theory of administering oaths, but with ail the veneration and respect which I entertain for him, I, whilst not prepared to dissent from his views in the abstract, cannot help feeling that the sweeping alteration of the law by Act V of 1840 went too far with reference to the religious and social conditions of India, and that the desired results could have been probably achieved without abolishing the old forms of oaths altogether in the case of Hindus and Muhammadans. And it is with due respect for the wisdom of the Legislature that I say that the Act V of 1840 seems to proceed upon the theory of taking exceptional cases as the basis of that legislative measure, and that it does not seem to have taken into account the effect of the change on the vast majority of native witnesses.
16. It is, however, now perhaps too late to re-open the question; and because judicis eat jus dicere non dare, I must proceed with the history of legislation in British India upon this subject. We find then, the provisions of Act V of 1840 were extended by Section 9 of Act XVIII of 1863 to the High Courts also and the law stood so in 1872 when Act VI of 1872 was passed. The effect of that Act can best be represented in the words of Lord hobhouse, who was then the Legal Member of the Viceroy’s Legislative Council and is now one of the Lords of the Judicial Committee of Her Majesty’s Privy Council. Referring to Act VI of 1872, he went on to say:
That Act introduced two very important alterations. One was this, that every witness who objected to take an oath might, instead, make a simple affirmation; and the other was that, notwithstanding any irregularity in the administration of any oath, or any irregularity in the making of an affirmation, or, in fact, any irregularity in the former method of taking evidence, the proceedings should be valid. Another alteration was introduced, probably of less importance, because Mr. Hobhouse imagined it applied only to a few cases. Act V of 1840, which was the Act that prohibited the administration of oaths to Hindus and Muhammadans, was modified in this way: it was provided that, if a witness was willing to take an oath in a form peculiarly binding upon his own conscience, it should be competent to the Court to administer such an oath. That was the present state of the law. The general rule, if anything could be called general which excepted Hindus and Muhammadans, remained the same as before. With regard to Hindus and Muhammadans, it was forbidden to administer oaths to them, except in those special cases in which witness himself was willing to taKe an oath; and it was provided that irregularity should not affect the validity of the proceeding.
17. Then came the present Indian Oaths Act (X of 1873) with which I am immediately concerned in this case. That Act by Section 6 maintained the solemn affirmation which had been substituted for oath by its predecessors, Act V of 1840 and Act VI of 1872, so far as Hindu and Muhammadan witnesses were concerned. The section provides that “where the witness, interpreter, or juror is a Hindu or Muhammadan, or has an objection to making an oath, he shall, instead of making an oath, make an affirmation;” and that “in every other case the witness, interpreter, or juror shall make an oath.” Section 13 of the enactment in reproducing the provisions of Section 5 of Act VI of 1872 enunciates the following rule:
No omission to take any oath or make any affirmation, no substitution of any one for any other of them, and no irregularity whatever in the form in which any one of them is administered, shall invalidate any proceeding or render inadmissible any evidence whatever, in or in respect of which such omission, substitution or irregularity took place, or shall affect the obligation of a witness to state the truth.
18. The law stood thus, as indeed it stands now, when the case of The Queen v. Anunto Chuckerbutty, 14 B.L.R., 295, note, came before a Division Bench of the Calcutta High Court, and in that case the learned Judges (Kemp and Birch) held that Section 13 of Act X of 1873 does not render the evidence of a child of nine years of age inadmissible, if the evidence has been advisedly, and not by an omission, recorded without any oath or affirmation. A similar question arose in the case of The Queen v. Sewa Bhogta, 14 B. L. R., 294, in which a Full Bench of the same Court, consisting of Couch, C.J., and Kemp, Jackson, Phear and markby, JJ., were concerned, and in which the Bench, with the exception of Jackson, J., laid down the rule that the word ” omission ” in Section 13 of Act X of 1873 includes any omission and is not limited to accidental or negligent omissions. Both these cases have been relied upon before me by the learned Public Prosecutor on behalf of the Crown, and I have no doubt that they support the case for the prosecution so far as the admissibility of the evidence of the girl Musammat Thakuri is concerned.
19. But these rulings have been to me the main reason for having considered this question at such length. The broad question is whether in the ease of a witness who by reason of tender age and by want of previous instruction has no conception of the obligations of an oath or solemn affirmation, whether with respect to the future life or as to the punishment for perjury, can give legal testimony in a judicial proceeding for purposes of adjudication. This question I shall consider now, because it is on the determination of this question that the case for the prosecution against the prisoner-appellant Fatten almost entirely depends.
20. The practice of the English Courts is well stated in Roscoe’s Criminal Evidence (p. 116):
Where a case depends on the testimony of an infant, it is usual for the Court to examine him as to his competency to take an oath previously to his going before the grand jury, and if found incompetent for want of proper instruction, the Court will, in its discretion, put off the trial in order that the party may, in the meantime, receive such instruction as may qualify him to take an oath. (Stark. Ev., 94, 2nd ed.) This was done by Rooke, J., in the case of an indictment for a rape, and approved of by all the Judges: 1 Leach, 430 (n): 2nd Bac. Ab. by Gwill, 577 (n). An application to postpone the trial upon this ground ought properly to be made before the child is examined by the grand jury, at all events before the trial has commenced, for if the jury are sworn, and the prisoner is put upon his trial before the incompetency of the witness is discovered, the Judge ought not to discharge the jury upon this ground: I Phill. Ev., 19, 10th ed., citing R. v. Wade, post, tit, Practice. There the witness was an adult, but the principle seems to apply equally to the case of a child. If a child is from want of understanding incapable of giving evidence upon oath, proof of its declaration is inadmissible: R. v. Tucker, 1808, M.S.; I Phill. Ev., (10), 10th ed., Anon, Lord raym cited 1 Atk., 29.
21. So far as the Indian Courts are concerned, the earliest trace of the practice appears from a circular order of the late Nizamat Adalat, No, 1, dated 1st February 1828, which has been published at p. 28 of Shipwith’s Magistrate’s Guide. The circular runs as follows:
Any children who may not appear to have a sufficient sense of the nature and obligation of an oath shall not be examined at all in any criminal trial; their depositions may, however, be taken in preliminary enquiries and be placed among the records of the office in which they may be taken, not as evidence in themselves, but to be used as a clue to evidence.
22. It does not appear how this provision could have had the force of law, but we find that the Legislature in passing Act II of 1855 made the following provision in Section 15 of that enactment:
Any person who, by reason of immature age or want of religious belief, or who, by reason or defect or religious belief, ought not, in the opinion of such Courts or persons, to be admitted to give evidence on oath or solemn affirmation, shall be admitted to give evidence on a simple affirmation, declaring that he will speak the truth, the whole truth, and nothing but the truth.
23. No provisions to this particular effect as to the immature age of the witness with reference to the conception of the obligation of an oath or solemn affirmation appear to have been reproduced either in the Oaths Act (VI of 1872) or in the present Oaths Act (X of 1873), and if there exists any definite legislative provision on the subject, it must be evolved out of Section 118 of the Evidence Act (I of 1872) or Section 13 of the Oaths Act (X of 1873).
24. The question, then, is what is the effect of these provisions of the law? In other words, does the law dispense with oath or solemn affirmation in the ease of witnesses who, by reason of tender age and want of instruction, are totally incompetent either to comprehend the spiritual obligations of an oath or the temporal punishment awarded by the law in the cases of perjury?
25. To this question, as I have already said, the answer of the Calcutta Court is that omission to administer an oath or solemn affirmation does not vitiate the evidence of the witness even though such oath or solemn affirmation was deliberately omitted, and omitted not by accident or negligence, but because of the immature understanding of the witness for comprehending the solemnity of the oath or solemn affirmation.
26. It seems to me, with profound deference to the majority of the Calcutta Full Bench in the Queen v. Sewa Bhogta, 14 B. L. R., 294, that the rule therein laid down has the effect of virtually abolishing the. whole of the principle of oaths and solemn affirmations as guarantees for securing true statement by witnesses. Indeed, such was the view taken in that case by an eminent Judge, Sir L. Jackson, who, in dissenting from the opinion of the majority of the Court, went on to say:
It seems to me that, in framing the 13tb section of the Oaths Act, it was intended to obviate the effect of any evasion on the part of witnesses or mistake on the part of officers of the Court, and not to give a power to Judges or Magistrates to render the whole Act as it were ineffectual by perversely or erroneously ordering that witnesses should not take an oath or affirmation.
27. This is exactly the view which I hold in this case with reference to the statement made in the witness-box by the girl Musammat Thakuri, to whom neither an oath nor a solemn affirmation was administered, and deliberately not administered because the learned Judge found that she had not attained sufficient maturity to comprehend either the spiritual or temporal consequences or obligations of making a true statement in the witness-box. The question, then, is whether the girl’s evidence is admissible in law for the purposes of this case. To use the words of Sir L. JACKSON, ” it seems to me, therefore, that the Judge in this case having been directed by law to examine the witness in question upon affirmation, and having determined that he would not administer such affirmation, the witness has been examined contrary to law, and the evidence is inadmissible.” Whether oaths or solemn affirmations have any intrinsic utility is a question which it would be out of place to discuss here. All I need say is that the lndian Legislature has never yet accepted the entire theories of Jeremy Bentham on this point, and that to this day oaths and solemn affirmations are regarded by our law as guarantees against perjury: in other words as a moans of securing ascertainment of truth. Nor is the case different in England, because even there encroachments upon the maxim in judicio non creditur nisi juratis have not gone so far as to dispense with the sanction of an oath or solemn affirmation. To illustrate this I will only read a passage from Taylor on Evidence, Section 1380 (8th ed.): “Again, though a Peer is privileged, while sitting in judgment, to give his verdict upon his honour and was also permitted, under the old law, to answer a bill in Chancery upon his protestation of honour, and not upon his oath, he cannot be examined as a witness in any cause, whether civil or criminal, or in any Court of justice, whether it be an inferior Court or the House of Lords, or in any manner, whether viva voce, or by interrogatories, or by affidavit, unless he be first sworn; for the respect which the law shows to the honor of a Peer does not extend so far as to overturn the settled maxim, that in judicio non creditur nisi juratis. If, therefore, he refuses to take the necessary oath or affirmation, he will, notwithstanding the privileges of peerage or of Parliament, be guilty of a contempt for which he may be committed and fined.
28. The history of the Indian legislation, as already stated by me, does not warrant the conclusion that the Legislature intended to make a radical departure in this respect. Indeed, the broad conclusions which I draw from the various changes which the Indian statute law has undergone on the subject are:
First–that whilst the limit of age as to the competency of witnesses was removed, the general principle that they should be competent to give ” rational answers” to questions was affirmed, as shown by Section 118 of the present Evidence Act (I of 1872);
Secondly–that the necessity of oaths or solemn affirmations was maintained and imperatively required, as shown by Section 6 of the Indian Oaths Act (X of 1873);
Thirdly–that omissions or irregularities in the administration of oaths or solemn affirmations were to be overlooked in certain cases contemplated by Section 13 of the Indian Oaths Act (X of 1873).
29. Adopting the opinion, as I have done, of Sir L. Jackson, I cannot but hold that the statements made by Musammat Thakuri in the witness-box were not admissible as evidence. The words of Section 6 of the Oaths Act (X of 1873) seem to me to be not merely directory but imperative, and I hold this view because the object of the statute naturally aims at security of justice and guarantees as to the liberty of the subject. I believe that this is the manner in which statutes of this description are interpreted by Courts of Justice in England. To say, then, that the object of Section 13 of the Oaths Act (X of 1873) was to practically nullify the whole of the enactment itself is a proposition which, with profound respect for the majority of the Pull Bench of the Calcutta High Court, I find myself unable to accept. And my difficulty in endeavouring to accept that proposition is in no small degree enhanced by the fact that the very next clause of that same statute, viz., Section 14, provides that “every person giving evidence on any subject before any Court or person hereby authorised to administer oaths and affirmations shall be bound to state the truth on such subject;” and whilst Section 191 of the Indian Penal Code provides that “whoever being legally bound on an oath or by any express provision of law to state the truth, or being bound by law to make a declaration upon any subject, makes any statement which is false, and which he either knows or believes to be false, or does not believe to be true, is said to give false evidence,” Section 193 of the same enactment provides a punishment of seven years’ imprisonment. How a person who, by reason of tender years is unable to comprehend either the spiritual or the legal obligations of an oath or solemn affirmation can be regarded as competent to give evidence legally admissible, and to be understood to be liable to such penalties under the law, is a matter the reasons where for I find myself unable to conceive. Yet such is the practical effect of the ruling of the majority of the Court in the Calcutta Full Bench case; and with all the respect which I feel is due to such an authority, I cannot help feeling that if the principles of oaths and solemn affirmations were intended to be repudiated by the Legislature, the simplest course would have been, not to have passed a statute such as the Indian Oaths Act (X of 1873), but to have simply repealed the earlier enactments which required oaths or affirmations as a condition precedent to admissibility of the evidence of witnesses in judicial proceedings.
30. In the case now before me the case against the prisoner-appellant fatteh depends entirely, as the learned Sessions Judge points out, upon the evidence of the girl Musammat Thakuri, to whom neither an oath nor a solemn affirmation was administered, for the simple reason that she had not attained sufficiently mature intelligence to comprehend the spiritual sanctity or legal obligations of an oath or solemn affirmation.
31. Holding this view of the law as to the inadmissibility of Musammat Thakuri’s evidence, it is not necessary for me to say what degree of credit I would attach to her statement as a matter of weighing the evidence in the circumstances of this case. I need only repeat what has been said by Black-stone in his Commentaries on the English Law that ” where the evidence of children is admitted, it is much to be wished, in order to render it credible, that there should be some concurrent testimony of time, place, and circumstances, in order to make out the fact, and that the conviction should not be grounded solely on the unsupported testimony of an infant under years of discretion.” And because in this case the evidence against the prisoner-appellant Fatten is inadmissible in law, I hold that the prosecution has failed to make out the case against him. I therefore decree his appeal and setting aside the conviction and sentence passed upon him, direct that he be released.
32. As to the prisoner-appellant Maru I have already said enough to indicate that there is sufficient evidence, irrespective of the statements of the girl Musammat Thakuri, to warrant his conviction. The provisions of Section 167 of the Evidence Act (I of 1872) therefore apply to his case, and I dismiss his appeal and confirm the conviction and sentence passed upon him.
