KAMALA PROSAD BHATTACHARJEE Vs. EMPEROR

JUDGEMENT

(1.) The appellants in this case Kamala Prosad Bhattacharji alias Pagla Thakur and Dinesh Chandra Do alias Kaloo were placed on their trial along with two other persons on charges framed under Secs.366, 366A, 368 and 376, Indian Penal Code. The jury by a unanimous verdict acquitted the other two men but convicted the appellant, Pagla under Section 366, Penal Code, on the finding that he had kidnapped a woman in order that she might be forced or seduced to illicit; intercourse. They also convicted the appellant, Kaloo under Section 368, Indian Penal Code, on the charge that he wrongfully concealed the woman knowing that she had been kidnapped. On all the other charges the verdict against these appellants was one of not; guilty. The case for the prosecution was that a girl called Malina Bala Dassya of Mouja Mondail P. S. Koranigunj in the district of Dacca was sleeping on the night of Tuesday the 19 of Agrahayan in her house during the absence of her father who had gone to Dacca. The other occupants of her hut were her younger brother and her baby sister. At about 9 o clock she went out to answer a call of nature and as she was coming back she was seized and carried off by the appellant, Pagla, and a man called Paresh. They carried her to a neighbouring ghat and put her in a boat and took her to Sadar ghat, Dacca. From Sadar ghat she was taken to a char where Pagla and Paresh raped her. They spent the night in the boat on the char and a little before day light Paresh left the boat and returned at about 8 o clock with appellant 2 in this case Kaloo whom the girl had not met before. The three men then took her by way of a khal to the village Konda where they left her in the house of a woman. That evening the three men took her away again across the river in a boat; and put her in another house. Paresh left her there but Kaloo and Haripada remained with her that night and ravished her again. Next morning Haripada left and in the afternoon Kaloo said that he would take her to Netrakona to register her as a prostitute. On the night however the police arrived on the scene and arrested her in company with the appellant, Kaloo.

(2.) The jury by a unanimous verdict have acquitted the other two men mentioned above and convicted the appellant, Pagla of the offence of kidnapping with intent that the woman kidnapped should be forced or seduced to illicit intercourse. They have convicted the appellant, Kaloo under Section 368, Indian Penal Code. On behalf of the appellants it was urged in the first place by the learned advocate that there had been a misjoinder of charges in the case. In other words, that the trial of Pagla under Section 366, Indian Penal Code, and the trial of Kaloo under Section 368, Indian Penal Code, could not legally be held together. That question of course depends upon the consideration whether the offences charged against the two appellants were or were not committed in the course of the same transaction. If; was contended that as the offence of kidnapping was complete once the girl was taken away and as there was no suggestion that the appellant, Kaloo, had anything to do with that offence his trial jointly with the appellant, Pagla, resulted in a misjoinder of charges.

(3.) We are not impressed by this argument. As long as the offences charged were committed in the course of the same transaction it is immaterial that one offence was complete before the other was committed and the only question is whether the incidents between the time the girl left her home and the time when the appellant Kaloo appeared on the scene can rightly be regarded as forming part of one transaction. In our view, it is very difficult to hold that they do not fall within this category. Here the facts are, as found by the jury, that the girl was kidnapped and taken away by appellant 1, Pagla, and that on the following morning while the girl was still with Pagla and his companion that companion fetched the appellant Kaloo and the three men proceeded to escort the girl to a neighbouring village. From there they took her to Dacca and the appellant Kaloo actually stayed there until both of them were arrested by the police. It seems to us that this can properly be regarded as one transaction and therefore the offences committed in the course of it can rightly be tried together.