SYEDALI Vs. EMPEROR

JUDGEMENT

(1.) The three appellants in this appeal were put upon trial on charges under Secs.363, 363/34, 366 and 366/34, I. P.C., before the Court of Sessions at Barisal in the district of Bakarganj. The case for the prosecution was that with the object of getting hold of some landed property, the appellant 2 Mafijuddi proposed to the complainant Kuni Bibi, a widow, that she should marry him and give her small daughter Ayaton in marriage to one of his sons; that as the complainant refused, the appellants along with some others came to the house of the complainant on 2 March, 1940, when she was practically alone and appellant 1 forcibly took away the little girl Ayaton while appellants 2 and 3 carried away the complainant out of the house but seeing that some of the neighbours were approaching dropped her and made off with rest of the party. The defence was a total denial of the occurrence and an allegation that it was a false case started against the accused out of enmity. The jury unanimously found appellant 1 guilty under Section 363, Indian Penal Code, and the other two appellants guilty under Section 363/34, Indian Penal Code. They found the appellants not guilty under Secs.366 and 366/34, Indian Penal Code. The learned Sessions Judge accepting the unanimous verdict of the jury acquitted the appellants under Secs.366 and 366/34, Indian Penal Code, and convicted appellant 1 under Section 363, Indian Penal Code, and the other two appellants under Section 363/34, Penal Code, and sentenced each of them to rigorous imprisonment for three years. On appeal before us, it has been urged by the learned advocate on behalf of the appellants that the learned Sessions Judge expressed his own views too strongly before the jury. We do not think so: besides the learned Judge properly cautioned the jury by telling them: You are the sole judges of the facts but you will accept the law as I explain it. It is my duty also to sum up the evidence on both sides and in doing so I shall have to express my opinion on matters of fact, but you are not bound to accept those opinions. You must make up your minds for yourselves on all matters of fact. We do not think that the appellants have been prejudiced in any way in this respect.

(2.) Next it is argued that as the evidence shows that appellant 1 alone carried away the girl Ayaton and that appellants 2 and 3 did not take any active part in it, their conviction under Section 363/34, Indian Penal Code, can-not be sustained. The prosecution case, however, was that the appellants had gone in a body with the intention both of abducting Kuni Bibi and kidnapping Ayaton; for a conviction under Section 34, Indian Penal Code, it is not necessary that each of the accused should himself commit the offence or take any active part in it: it is quite enough if he shares the common intention of those committing the criminal act. The conviction under Section 363/34, Indian Penal Code, cannot therefore be assailed on this ground. Having regard to the circumstances of the case and the fact that Ayaton remains untraced, we do not think that the sentence passed is unduly severe. We accordingly dismiss the appeal and affirm the conviction and the sentence passed by the learned Sessions Judge in accordance with the unanimous verdict of the jury. Bartley, J.

(3.) I agree.