MUSHLAK HUSSIN Vs. STATE OF BOMBAY

JUDGEMENT

(1.) The appellant on 28-7-1951 was convicted on a charge under S. 366, 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 five. 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 but this was summarily dismissed. This appeal is before us by special leave.

(2.) The prosecution case was that on 12-12-1949 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.

(3.) To prove the case against the appellant the prosecution examined in all sixteen witnesses. Out of these four were eye-witnesses, viz., Prahled, Jamunabai, Narrdeo 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 and sister-in-law went to the house of the appellant and questioned him as to why Shilavati was not sent back, where upon 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 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 froth one Kassam she was told that the appellant had left her there.