KALA NATH BARMAN Vs. EMPEROR

JUDGEMENT

(1.) The facts of this case are as follows:--A man named Niasha Bairagi informed the Police on April 28th that he and his mother and his sister Rangamoyi had been living in the house of Kala Nath Burman, the first petitioner, but on that day were leaving it to go to the house of a man of their own caste, when Kala Nath and the other petitioners carried off Rangamoyi by force. He asserted that Rangamoyi was less than sixteen years old. The girl could not be found but the petitioners were placed on their trial, and during the trial the girl was recovered. Four of the petitioners were charged with kidnapping a minor girl under Section 363, Indian Penal Code, and also with rioting under Section 147, Indian Penal Code, the common object being set out as to kidnap Rangamoyi. The fifth man, Padma Nath, was charged only under Section 147, Indian Penal Code.

(2.) The learned Magistrate found that Rangamoyi was not proved to be under sixteen years, and he, therefore, held that the charge of kidnapping could not be sustained, and that in consequence the charge of rioting with the common object of kidnapping also failed, and he acquitted the petitioners of both charges. He held, however, that the story as told by the prosecution witnesses was true, and he convicted the petitioners, under Section 143, Indian Penal Code, of being members of an unlawful assembly, the common object of which was to commit criminal assault and wrongful restraint, and he sentenced four of them to undergo three months rigorous imprisonment each, and Padma Nath to undergo two months rigorous imprisonment. In discussing the intention of the petitioners he remarked that it was not to seduce the girl, and that in fact she had not been injured, but he thought she had been confined, and he seems to think that she was carried off in order to be confined.

(3.) The petitioners preferred an appeal, and the learned Judge accepted the argument put forward on their behalf that the conviction was bad in law, meaning that as the petitioners had been acquitted of the charge of rioting in order to kidnap Rangamoyi, they could not be convicted of being members of an unlawful assembly with a different common object. He set aside the convictions and sentences, but at the game time he ordered the petitioners to be tried afresh on charges of abducting Rangamoyi in order to confine her secretly and of rioting with that common object.