KUSHAI MALIK Vs. EMPEROR

JUDGEMENT

(1.) The appellants before as are four in number, and they were tried before the learned Sessions Judge of Faridpur and a Jury, along with one Mokhoda alias Kuti Peshakar, on charges under Secs.366, 368 and 498 of the Indian Penal Code. The Jury found the four appellants guilty of offences punishable under Secs.366 and 498 of the Indian Penal Code, and they found the accused, Mokhoda alias Kuti, guilty of offences punishable under Sections 366 and 368 of the Indian Penal Code. The learned Sessions Judge, agreeing with the verdict of the Jury, has sentenced the four appellants, to undergo rigorous imprisonment for three years under Section 366 of the Indian Penal Code and rigorous imprisonment for one year under Section 498 of the Indian Penal Code the sentences to run concurrently.

(2.) The case for the prosecution was as follows: One Mohomed Jonab Ali married one Najibunnessa in the nika form at Dacca about 18 months ago. They lived together at Doyarampur. On the 25 June, 1922, the husband was not at home, and on the night of that date, at about 12 p.m. Najibunnessa came out of her room to answer a call of nature. The appellant, Khuda Bux, paught her and gagged her mouth from behind. The remaining three appellants dragged her to the house of one Tarakhan, and kept her there for two days. Then she was taken to two different places and was kept for several days. Afterwards she was again taken to the house of Tarakhan and kept there. On receipt of certain information, the husband came to Tarakhan's house on the 7 July, and met the four appellants there. He requested Tarakhan to release his wife, whereupon an altercation ensued. The wife was within a hut and she screamed out and requested, her husband to rescue her. The husband was driven away. On the night of the 7 July, the four appellants and Tarakhan took Najibunnessa to Kuti Peshakar's ghat, and Najibunnessa was kept in a boat. Kuti Peshakar was requested by the four appellants to make Najibunnessa a prostitute, and to have her name registered in the register of prostitutes, on payment of a reward of Rs. 50. Khuda Bux and Kuti remained in the boat and the other persons went away. The boat went on and reached Kanchanpur on the other side of the river Padma, where, one Gadadhar met the girl and Kuti. They were taken, to hishouse, where the girl was kept for two days. She was removed to the house of Jamini Peshakar where her husband came and rescued her. She was then taken to the house of the local zemindar, one Harendra Babu, and she made a statement there regarding her abduction and confinement, and she mentioned the names of the four appellants. She filed a petition of complaint at Faridpur.

(3.) On behalf of the appellants, it has been argued that the trial has been vitiated by misjoinder of charges, and joint trial of offences and of offenders which are not sanctioned by law. It is argued that, inasmuch as the offences committed by the four appellants were complete on the 25 June, long before the fifth accused, Mokhoda alias Kuti Peshakar, came on the scene, the series of acts on the 25 June and on the 7 July, 1922, were not so connected together as to form the same transaction, nor were they committed in the same transaction within the meaning of Secs.235 and 239 of the Criminal P. C., and that, therefore, the trial of the five persons, i.e., the fourappellants and the said Mokhoda alias Kuti, was bad.