DHUMA MANJHI Vs. EMPEROR

JUDGEMENT

(1.) This is an appeal by three men, who have been convicted under Secs.343 and 366, Indian Penal Code, and have been sentenced to undergo rigorous imprisonment for five years each. All of them are Santals, and two of them, Dhuma and Chhoto, who are young men in the early twenties, are brothers and belong to Liludih. The other appellant, Sita Ram, who is considerably older, is their uncle and belongs to another village, Kumirdih. Kumirdih and Liludih are apparently within less than a mile of one another. Jaleshwari, whom the appellants are said to have kidnapped, is a girl of about fourteen years of age. On 5 June 1942, she and her two brothers went to a hat to sell rice. In the evening her two brothers remained to watch a cock fight, and Jaleshwari set out for her home with some other men and women of her own village, which was also the village of the appellants, Dhuma, and Chhoto, namely, Liludih. It is said that, when she and her companions had got to Kumirdih, the appellants stopped her and took her to a house nearby, where she remained for some seventy, two hours or so until she was rescued by the Sub- Inspector. It was admitted that the appellant, Dhuma, had in fact accosted Jaleswari in Kumirdih, when she was passing through that village on her way back to her parents house, and had taken, or induced her to go away, with him.

(2.) The defence set up was that, in doing this, the appellant, Dhuma, committed no offence, as, sometime previously, the girl, Jaleswari, and himself had gone through a valid ceremony of marriage. It was conceded that, at a festival known as the garukhuta festival, Dhuma had gone up to the girl and smeared vermilion on her forehead. It was also conceded that this incident was resented by the parents of the girl; that, in consequence, a panchaiyat was convened; that, as a result of the panchaiyat, Dhuma had to make a payment of Rs. 34; and that the panchaiyat was followed by a feast. Barsa, the father of the girl, and his brother, Sraban, both insisted that the panchaiyat had merely punished Dhuma for his conduct by imposing a fine on him.

(3.) Dhuma, on the other hand, asserted that the payment was a payment made to Barsa and was made by way of dower. On this point he was supported by admissions obtained in cross-examination from one Harma Manjhi. Harma Manjhi not merely said that, the payment of Rs. 34 was made by way of dower, but that dower had been demanded by Barsa and, when it was paid, Barsa had agreed to send his daughter to Dhuma on the next day. He went on to explain that next day Barsa had not in fact sent the girl to Dhuma on the pretext that the day was not an auspicious one. Barsa and Sraban were both very evasive when questioned as to what took place at the panchaiyat and the subsequent feast. The evidence of Harma Manjhi, on the other hand, rings true. It is very unlikely indeed that so heavy a fine would have been imposed on Dhuma, still less that, if it had, the whole of it would have been spent on a feast. Moreover, as will appear presently, the smearing of vermilion by a Santal man, on the forehead of a Santal girl amounts to a ceremony of marriage, and the girl must either go and live with him or take steps to get divorced. The learned trying Magistrate. dealt with the defence, which was put forward, in a very summary manner, merely observing that there was no evidence to show the existence of such a custom as was alleged, and that, in any case, even if such a custom did exist, it was contrary to public policy and could not be supported by the Courts. In point of fact, there was on the record evidence of the existence of the custom in question. Harma Manjhi, for instance, said this: Even if vermilion be rubbed by force, the girl cannot be given in marriage in biah form, but can be married in sanghai. The forcible rubbing of vermilion constitutes perfect marriage. If the man after this refuses to marry he -will be excommunicated from the caste.