Jangli Mian vs Emperor

Saunders, J.—The appellant has been convicted by the Assistant Sessions Judge of Muzaffarpur and a jury u/s 366, Penal Code, and sentenced to rigorous imprisonment for five years. The verdict of the jury was unanimous. The charge against the appellant was that he had either taken a girl named Nawazan under 16 years of age out of the keeing of her father, or abducted her, with the intention of seducing her to illicit intercourse. The prosecution case is that Nawazan was married four years ago to a youth Rasul Mian, a resident of a village 14 miles from her home, whose present age is about 16. The marriage bad not been consummated and she continued to live with her father Aklu Mian in a mohalla of the town of Sitamarhi. On 12th March 1933, in the absence of her father who had gone to the bazar, Nawazan went to the house of her uncle next door but one to her own.

Her uncle was also away from home. It is alleged that at about 5 p.m., the appellant and his brother-in-law took her away from that house to the appellant''s house in another part of the town. When Aklu returned from the bazar and learnt what had happened he went to the appellant''s house and demanded the girl, but the appellant refused to surrender her. Aklu then lodged an information at the police station. The girl was found by the police in the appellant''s house that night.

The appellant''s defence was that he had married Nawazan in the previous October and that he had been falsely accused by Aklu because he owed Rs. 30 to Aklu since the date of the marriage which he had not been able to pay. A man who claimed to have performed the marriage ceremony gave evidence for the appellant and stated that Nawazan had been in the appellant''s house for four months before the marriage.

The girl herself appears to have told the Sub-Inspector who investigated the case that she had lived with the appellant for five months, and another witness stated during the investigation of the case that she was absent from her home for about the same period. The main contention in the appeal is that the charge against the appellant was not lawful. The charge runs as follows:

That you on or about 12th March 1938 at Rajapatti, P.S. Sitamarhi, kidnapped out of the keeping of her lawful guardian Aklu Mian or abducted a woman to wit Mt. Nawazan, who is a minor female under 16 years of age in order that the said woman Mt. Nawazan may be forced or seduced to illicit intercourse or knowing it to be likely that she will be forced or seduced to illicit intercourse and thereby committed an offence punishable u/s 366, I.P.C.

These are two distinct offences though they are punishable under the same section. The result of there being only one charge framed in the alternative in respect of both offences is that it cannot be ascertained for which offence the appellant has been convicted if indeed the jury applied their minds at all to the consideration of this question and did not take the view that in either event he was guilty u/s 366, and it need not be decided which of the two different offences he bad committed. It has been held by the Calcutta High Court in the case of Mafizaddi Vs. King-Emperor, that such offences being different the accused is entitled to know which of the charges he is asked to meet and that separate charges should be framed if it is desired to charge the accused with both the offences.

This view was taken also in the case of Mahomed Ali and Others Vs. Emperor, , in which it was observed:

It is perfectly true that the prosecution may be in some doubt in certain cases whether the offence disclosed is that of kidnapping or that of abduction. If this is so, nothing is easier than to frame two charges and take the verdict of the jury upon them both. What has happened in this case is a good example of the mischief that can arise if that rule is not observed. Evidence was called and presumably reliance was sought to be placed by the prosecution on that evidence as to the age of the girl. The jury have brought in a verdict of guilty u/s 366, but whether they have brought in that verdict because they considered the accused guilty of the offence of kidnapping or of the offence of abduction no one is able to say. As I have pointed out in the course of the argument it might well be that the importance of an alleged misdirection in the charge would depend entirely upon which view of the facts the jury had taken.

The same considerations apply with equal force to the present case. One of the principal points for decision was the age of the girl, but it is not known whether she has been found by the jury to have been less than 16 years of age or older. The Assistant Government Advocate referred to the case of Prafulla Kumar Bose Vs. Emperor, . The case is authority for the proposition that where the question of age is in dispute a charge u/s 366 of kidnapping and abduction in the alternative is not illegal, but there was no doubt in that case as to the offence for which the accused person had been convicted, for the jury had been asked to decide whether they found that the girl bad been kidnapped or abducted or kidnapped and abducted.

For the reasons given in the decision of the second of the cases to which I have referred the conviction must, in my opinion, be set aside.

It is contended on behalf of the appellant that there should not be a retrial for the reason that the evidence does not establish either of the offences; that the appellant is not guilty of kidnapping because the girl''s father, from whose custody he is said to have taken her, was not her lawful guardian and that be cannot be said to have taken her with the intention of seducing her to illicit intercourse in view of the admission made by the girl that she had been living with him before. It is argued, on the assumption that the girl had not attained puberty, that whoever may have been her guardian, and there is no evidence on this point, neither her father nor her husband could have been her guardian according to Mahomedan law.

The words "lawful guardian" in Section 361 are however used in a wider sense. They are made by the explanation to that section to include any person lawfully entrusted with the care or custody of a minor. It was held by a Full Bench of this Court in the case of Mt. Kesar v. Emperor AIR 1919 Pat 27 that the explanation contemplates a declaration of trust, by a person competent to make such a declaration, handing over a minor to the care and custody of another in whom the trust is imposed, and that the trust can be inferred by necessary implication from a course of conduct of the parties concerned consistent only with its existence.

The question whether Nawazan was entrusted to the custody of her father by the person who was her lawful guardian according to Mahomedan law is a question of fact for a jury to decide. So also is the question whether there was an intention on the part of the appellant to seduce her to illicit intercourse. It cannot be ascertained what view the jury took of her statement, if they believed it, that she had lived with the appellant for five months, for the learned Judge seems to have regarded the evidence on this point only as a reflection on her character which was not, to quote his own words,

material except in so far as regards the testing of the evidence adduced on behalf of the prosecution.

The expression "seduced to illicit intercourse" in Section 366 has been held in the case of Krishna Maharana v. Emperor AIR 1929 Pat 651 not to be intended to be restricted to an inducement to a woman to surrender her chastity for the first time, but it cannot, in my opinion, be deemed to include a case where a man takes back a woman with whom he had been living until very recently for a period of several months during which he had been indulging in illicit intercourse with her. Whether that happened or not in the present case remains to be determined.

I would therefore allow the appeal, set aside the conviction and sentence and direct a retrial of the appellant. If he is to be charged again in the alternative a separate charge must be framed in respect of each offence, that is to say one charge for the offence of kidnapping a minor girl with the intention of seducing her to illicit intercourse and another charge for the offence of abducting the girl with the same intention. Pending the retrial the appellant will be released on bail to the satisfaction of the District Magistrate.

Agarwala, J.

I agree.