SUPERINTENDENT AND REMEMBRANCER OF LEGAL AFFAIRS Vs. FORHAD

JUDGEMENT

(1.) This appeal by the Local Government is directed against the acquittal of two persons, Forhad and Ramis, who were tried before an Assistant Sessions Judge of Dacca and a jury, on charges framed under Secs.366 and 458, I. P. C. The prosecution case in brief was that on the night of occurrence these two accused and another man cut away the mat wall of the hut in which a girl called Bimala, now said to be under 16 years of age, was sleeping, carried off the girl and disappeared. A week later, accused Ramis was arrested in Dacca and the girl was discovered in a house there. The defence was in the main that the girl, who was more than 16 years of age, was in love with accused Ramis, and left the house of her own accord. The jury unanimously found that the accused were not guilty of kidnapping. By a majority of 4 to 1, they found them not guilty of abduction and by a majority of 3 to 2, not guilty under Section 458, I. P. C. The Judge accepted the verdict. In order to appreciate the grounds of appeal framed in the case, it is necessary to mention certain other facts appearing from the record. To prove that the girl was under 16, the prosecution produced and proved certain registers, and in the lower Court examined the man who had drawn up the horoscope of the girl. The registers were records of the vaccination and of the inoculation of the girl, and the record of the date of her birth in a school register opened in 1931. The evidence is that these entries relate to a girl called Mohamaya, now said to be Bimala and that her age was given by her father at the time the entries were made, that is 13 or 14 years after she was born.

(2.) With regard to the horoscope, the evidence is that it was drawn up by one-Pundit Hari Deb Sharma, who was called as a witness in the Court of the Committing Magistrate and there said that he had prepared the horoscope. In the Sessions Court however, this witness did not appear, though he had been summoned. The prosecution adduced evidence to show that he was absent from his home on 7 September when a telegram was sent to the local police to produce him, and examined his son to show that he had left home before receipt of a summons to depose in the Court of Session. The Sessions trial began on 4 September. The Public Prosecutor, when these facts came to light, applied, in the alternative for an adjournment of the case to procure the attendance of the witness or that his evidence in the committing Court should be admitted under Section 33, Evidence Act. The Court refused both applications. The grounds of appeal are that the Judge misdirected the jury by telling them that the documentary evidence as to the age of the girl, that is the registers and horoscope, was merely corroborative and vanished if the oral testimony was disbelieved. Secondly that he was wrong in refusing to admit the evidence of the witness Sharma before the Magistrate under Section 33; Evidence Act. Thirdly that he should not have told them that the horoscope of the girl had not been proved though its maker, Sharma, was living. Fourthly that he was wrong in his direction that a confession by Ramis was not evidence against the other accused. Lastly, that his charge was defective in substance.

(3.) Before proceeding to consider these points in detail, it is necessary to note that the learned Deputy Legal Remembrancer who argued the case for the Crown, admitted with his characteristic fairness, that he was not prepared to contest the position that the jury were entitled, on the evidence on record, to reject the circumstantial story now told regarding the circumstances under which the girl left the house of her parents. It was however urged before us with vigour that the girl was below 16, and that she had been taken or enticed from the lawful guardianship of her parents in circumstances which established an offence under Section 366, I. P. C. With regard to the registers, the direction of the Judge was that the people who made these entries did not know the ages they recorded so that these documents would be no evidence at all unless somebody knowing the age gave it, in which case they would corroborate him if he spoke to the age himself. It is contended on behalf of the Crown that this direction is wrong, and that the jury should have been told that under Section 35, Evidence Act, these documents are substantive evidence of the factum of age.