ABBAS BAHARA Vs. EMPEROR

JUDGEMENT

(1.) In this case we directed the appeal to be re-argued because it turns upon a comparatively recent amendment of the Indian Penal Code, namely, what is now Section 366-A which was added by Act 22 of 1923. At the original hearing, Mr. Talukdar contended that, if the two accused persons were found to have induced the girl to go from her father's house to some other house, nevertheless, if the intention or knowledge was that she would be forced or seduced to illicit intercourse with themselves and not with another person, the offence under Section 366- A would not be made out. It appeared to mo at the time that this state of the law was a little paradoxical and I confess I did not appreciate that so much can be said for that argument. The case before us is of a widowed girl, It is fairly evident that the jury were not prepared to find that she was under 16 years of age. It is also evident that the jury were not prepared to find that force or fraud had been used upon her. They acquitted both the accused persons therefore of the charge under Section 366, I.P.C. By a majority, however, they convicted the accused under Section 366-A; and we have to see what the learned Judge's charge was as regards that particular offence.

(2.) Now, the learned Judge told the jury that he did not agree that under Section 366-A it was necessary to show that the illicit intercourse was to be with some other person besides the accused. It appears that, as the law now stands, the person who induces a girl of an age between the years 16 and 18 without force or fraud to go from any place with the intention that she will have illicit intercourse with himself does not commit any offence. The new section however makes it an offence in the case of such girl if she is induced by a person to go from any place with intent that she may be or knowing that it is likely that she will be forced or seduced to illicit intercourse with another person. We have to see what the case is as regards each of the two appellants before us. The prosecution case as against the appellant Abbas apparently is that he was ultimately minded to get married to this girl if he could. She was a Hindu girl and he was a Mahomedan. The prosecution case however was that when this girl came away from her father's house with the accused she was taken from place to place and from house to house for a certain number of nights, and the learned Judge left it to the jury as it was a question for the jury to determine whether there was any intention of illicit intercourse. On the other hand, it is clear enough according to the prosecution case that the accused Abbas was taking the girl because he wanted apparently to marry her or to have illicit intercourse with her himself and therefore he is not guilty under Section 366-A and apparently not guilty also of any other offence the girl being over 16 and under 18 years of age.

(3.) As against the other appellant Ujir, no doubt, it might be said that if the intention was that Abbas would have intercourse with her it was open to the jury to convict him under Section 366-A; but in that case it would be very necessary indeed that it should be shown that Ujir did something by way of inducing the girl. It is much more probable that Abbas did whatever was necessary to induce her to go. There is the evidence of the girl herself that she went of her own accord and there is no material on the record to show that Ujir did anything particular at the time the girl left her father's house. On the whole, it appears to me therefore having reconsidered this matter that the conviction of the appellants cannot stand. I think that there are no materials before us which would justify us in ordering that either of these two accused be retried. I would therefore direct that the appellants be acquitted and discharged. Costello, J.