JUDGMENT

Mookerjee, J. - The appellant, Nafar Sheik, has been convicted of an offence u/s 376, read with Section 511 of the Indian Penal Code, and sentenced to rigorous imprisonment for five years. The jury unanimously found him guilty, but recommended a light sentence on the ground that he is a young man and has got a young wife. The Sessions Judge accepted the verdict of the jury, but did not give effect to their recommendation for a light sentence. The appeal to this Court was in the first instance admitted by Harington and Coxe JJ., for consideration of the sentence only, in view of the representation of the jury. The appeal thus admitted came to be heard by the Chief Justice and Sharfuddin J., who held that, in view of the provisions of Section 422 of the Criminal Procedure Code, 1898, the appeal could not be admitted on a limited ground, and directed the scope of the order of admission to be enlarged. As the direction thus given was not formally recorded, it is desirable to draw attention to the terms of Sections 421 and 422 of the Criminal Procedure Code. Sub-section (2) of Section 421 lays down that on receiving the petition of appeal, accompanied by a copy of the judgment or order appealed against or a copy of the heads of the charge in cases tried by a jury, u/s 419 or Section 420, the Appellate Court shall peruse the same and, if it considers that there is no sufficient ground for interfering, it may dismiss the appeal summarily. Section 422 then provides that if the Appellate Court does not dismiss the appeal summarily, it shall cause notice to be given to the appellant or his pleader and to such officer as the Local Government may appoint in this behalf, of the time and place at which such appeal will be heard, and shall, on the application of such officer, furnish him with a copy of the ground of appeal. It is plain that the appeal which has thus to be heard is the whole appeal; consequently, all the grounds taken in the petition of appeal are open for consideration at the final hearing, and the appellant cannot be restricted to any selected ground out of those specified in his petition. A restrictive order for admission is clearly not contemplated by Section 422 and must be deemed ultra vires. This view is strengthened by a consideration of the terms of Section 423. It is worthy of note that a similar view has been taken by this Court with regard to appeals under the Civil Procedure Code: Lukhi Narain Serowji v. Sri Ram Chandra 15 C.W.N. 921. Fresh notice of the appeal has been given to the Crown, and the appeal has been argued before us on behalf of the accused and the Crown.

2. The verdict of the jury has been assailed on behalf of the appellant as erroneous by reason of three circumstances, namely, first, that the Sessions Judge has allowed to be placed before the jury the evidence of three persons who had not made an affirmation as required by Section 6 of the Indian Oaths Act, 1873; secondly, that the Sessions Judge has not considered; whether these three persons were, by reason of their tender years, prevented from understanding the questions put to them or from giving rational answers to those questions, within the meaning of Section 118 of the Indian Evidence Act, 1872; and, thirdly, that the Sessions Judge has failed to call the attention of the jury to material portions of the evidence.

3. In support of the first ground, reliance has been placed upon Sections 5 and 6 of the Indian Oaths Act. Section 5 provides that oaths or affirmations shall be made by all witnesses, that is to say, all persons who may lawfully be examined or give or be required to give evidence by or before any Court, or by person having by law or consent of parties authority to examine such persons or to receive evidence. Section 6 provides that where the witness is a Hindu or Mahomedan, he shall, instead of making an oath, make an affirmation. In the case before us, the complainant Jobeda, a girl six years old, and two other girls, Ha