MAHAMMAD JALALUDDIN MANDAL Vs. EMPEROR

JUDGEMENT

(1.) The appellants in this case have been convicted under Secs.366 and 368, I.P.C., in manner following, that is, appellant 1 Md. Jalaluddin Mandal has been convicted under Section 366 and sentenced to rigorous imprisonment for five years and to pay a fine of Rs. 200 or, in default, rigorous imprisonment for six months and appellant 2, Kazi Md. Anwarul Huq, has been convicted under Section 368 and sentenced to rigorous imprisonment for five years and to pay a fine of Rs. 200 or, in default rigorous imprisonment for six months. The point taken on behalf of the appellant is a short one and in order to understand Mr. Chatterji's contention, it is necessary to set out at some little length the facts.

(2.) It appears that one Tarapada had a widowed daughter, the age of whom, according to the medical evidence, is under 16. Her name is Lilabati. She was married when she was only nine years old but became a widow within a year of her marriage. Since then she had been living at the house of her father under his care and guardianship. The accused Jalaluddin and another person named Badaruddin who was acquitted by the jury were of the same village. It appears that Lilabati complained to her parents of Jalaluddin having cut jokes with her. This was brought to the notice of the village gomasta, as the result of which Jalaluddin was remonstrated with and he kept quiet for some time. But he commenced after an interval cutting jokes at the girl. On the night of the occurrence at about 8 or 9 p.m. Lilabati came out of her father's house to case herself in a lane between that house and the house of her uncles. The girl's story is that as soon as she had eased herself, the accused Jalaluddin suddenly fell upon her and gagged her mouth with one hand and caught hold of her arms with the other and began to drag her along the lane towards the other end of it which opened into the garden of a doctor named Rasik Sheikh. When she had been dragged by Jalaluddin along the lane a few cubits, the accused Badaruddin joined and both the accused then dragged her to Jalaluddin's house.

(3.) There she was pushed into a room and ravished by Jalaluddin on threat of death if she cried. Later on, she was taken by Jalaluddin and Badaruddin to a village called Bamanpara where she was made over to the accused Anwar at about midnight. Anwar was asked to keep the girl in his house. It is further alleged that on the way to Bamanpara the girl was asked by Jalaluddin to say to the police if they would enquire into the matter that she had become a convert to Mahomedanism and would marry Jalaluddin of her own accord in nika form. It appears that the girl was kept in Anwar's house during the night and the following day. On Tuesday night following she was taken outside Anwar's house where she met Jalaluddin and Badaruddin. Jalaluddin told her that the nika marriage had to be postponed and ha reminded her again what she was to tell the police if they should arrive at the scene. On Thursday the police recovered the girl from Anwar's housa and she wont home. On these facts, the accused, namely, the two appellants before us and the said Badaruddin were sent us for trial before the Sessions Court under Secs.363, 366 and 368,I.P.C. Now, the learned Judge, after explaining the ingrediants which had to be proved under Section 363, reminded the jury that the case could only be proceeded with if the jury found affirmatively that the girl was below 16. If, on the contrary, upon the evidence before them they came to the conclusion that the girl was above 16, then there was no case under Section 363 but the jury would have to consider whether the girl had been abducted under Section 366.