STATE OF MAHARASHTRA Vs. HARBANSING KISANSING

JUDGEMENT

(1.) This is an appeal against the order passed by the learned Additional Sessions Judge, Greater Bombay, acquitting the respondent of the offence under Section 366, Penal Code. The charge against the respondent was that on or about 26th April 1952, at Bandra he kidnapped Sharifa Mahomed in order that she may be forced or seduced to illicit intercourse and thereby committed an offence under Section 366, Penal Code. Another charge had been framed against the respondent and that was under Section 376. But it appeared clear that this latter offence was alleged to have been committed outside the jurisdiction of the learned Additional Sessions Judge and so the accused was not tiled in respect of this offence.

(2.) In support of the charge under Section 376 the prosecution examined the gin, Abbas, whom the mother of the girl has remarried, and the doctor. They have also led the evidence of other witnesses; but it is unnecessary to refer to that evidence. After the evidence was recorded and the plea of the accused was taken, the learned Judge directed the jury on 8th January 1953, to return a verdict of not guilty in favour of the accused on the charge in question. Pursuant to this direction the jury unanimously brought in a verdict of not guilty, and acting on that verdict the learned Judge acquitted the accused. It is the order of acquittal thus passed by the learned Judge that is challenged before us by Mr. Chandrachud on behalf of the State of Bombay.

(3.) In giving his direction to the jury to bring in a verdict of not guilty, the learned Judge told them that under Section 361 it was necessary for the prosecution to satisfy the jury that at the material date the girl kidnapped was below 18 years of age, that she was within the lawful guardianship of her parents, that she was taken away or enticed away by the accused and that the accused had done this act without the consent of the lawful guardian. He then referred the jury to the Explanation to Section 361 and added that the girl herself had admitted that her mother Jaibunissa was alive, her father was dead and her mother had remarried Abbas who has given evidence in the case and who in fact is the complainant. The view that the learned Judge took was that it was the natural mother Jaibunissa who was the lawful guardian of Sharifa and that it was not competent to Abbas to file the complaint merely because he may have been maintaining the girl after he married Jaibunissa. The learned Judge thought that, since Jaibunissa had not been examined by the prosecution, it cannot be said to have been proved that the girl had been removed from her custody without her consent; that is why he directed the jury to hold that one essential ingredient under Section 361 had not been proved. In other words, the learned Judge told the jury that, even if the prosecution had established the fact that the girl was below 18 years of age and that she had been kidnapped by the accused without the consent of Abbas, that would not bring the accused within the mischief of Section 366. The correct ness of this view is disputed before us in the present appeal.