NAGESHWAR JHA Vs. STATE OF BIHAR

JUDGEMENT

(1.) The appellant has been convicted on a charge of kidnapping his sister's daughter, a minor girl aged about seventeen years, and also for abducting her with intent that she may be compelled, or knowing it to be likely that she will be compelled to marry a person against her will. The learned Judge convicted him under Sections 363 and 366 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for one year under the latter section. No separate sentence was awarded under Section 363. The girl, Jaimukhi by name, is the daughter of one Babuji Jha village Balian. According to the prosecution Babuji Jha-and his brother's son Markandey Jha (P. W- 1) were members of a joint family. Babuji Jha died a little over a year before the occurrence leaving two daughters Jaimukhi aged about seventeen years and, Panchmukhi aged about eleven or twelve years. Even after the death of their father the two sisters continued to live jointly with Markancley Jha (P. W. 1). It is said that on 4-6-59 Jaimukhi (P. W. 7) had gone to watch a mango tree in the orchard of Markandey Jha when the appellant, her maternal uncle, along with some other persons 'including Damodar Jha and Biseshwar Jha, who ate the first cousins of the appellant, came there and asked her to accompany him to his house in village Dahila, which was at a distance of two miles from Balain, The girl refused to go whereupon the appellant caught her hand and dragged her to-wards his village, the other persons following him. The party was seen just outside the orchard by Jainarainlal Das, (P. W. 3), a girhast sadhu at about-10 a. m. The latter found the appellant holding the hands of the girl. The girl was weeping. The-witness asked the appellant as to why they were taking her away. The appellant is alleged to have replied that the girl was not being looked after properly by Markendey Jha (P. W. 1), and hence the appellant was taking her away to his place. The same party was seen by two other witnesses Ramhit Chaudhary (P. W. 2) and his ploughman Ramji Yadav (P. W. 6) in the adjoining village of Ektara where they were working in their field, Ramhit asked Nageshwar as to why the girl was weeping. Nageshwar rudely retorted that that was no concern of his. Eventually the girl was taken to the house of the appellant and kept there Seven or eight days after the appellant brought one Lachhmikant to his house, who put vermilion on her forehead at the instance of the appellant. In the meantime, Markandey Jha was making a search for the missing girl. Two or three days later he went to the appellant's house but was told that the girl had not gone there. The fact of the disappearance of the girl was reported at Benipatti thana on 7-6-59. About a month later, Markandey Jha came to know from Jainarain that it was the appellant who had taken away the girl to his house. The appellant (sic) (Markandey Jha?) then filed a regular complaint in court on 1-7-59.

(2.) The defence is that the charges were wholly unfounded. According to the appellant, the two girls were living with him since the death of their father.

(3.) The learned Judge, on a consideration of the evidence and the circumstances held that Markandey Jha was the lawful guardian of the girl within the meaning of Section 361 of the Indian Penal Code. He further held that it was the appellant who had taken away the girl from the lawful guardianship of Markandey Jha (P. W. 1), with intent that she may be compelled to marry another person against her will. On these findings he convicted the appellant both under Sections 363 and 366 of the Indian Penal Code. (After discussing the evidence in para 4, His Lordship found that the prosecution Case as laid in Court was substantially correct and continued).