HARI MAHTO Vs. EMPEROR

JUDGEMENT

(1.) The petitioner has been convicted by the Assistant Sessions Judge of Bhagalpur, sitting with a jury, of an offence punishable under Section 366, I.P.C., and has been sentenced to four years rigorous imprisonment. The appeal by the petitioner to the Sessions Judge was dismissed. The learned Sessions Judge in the course of his judgment in appeal held that certain remarks by the learned Assistant Sessions Judge in his address to the jury amounted to misdirection; but he considered that they could not have misled the jury or have led to any failure of justice.

(2.) The case for the prosecution was that the petitioner Hari Mahto had taken away by force from her father's house the girl Sagia. When the father returned to his house late at night he learnt from his wife that his daughter had been dragged away by Hari Mahto. After attempting to recover her from Hari Mahto's house he reported at the police station that Hari Mahto had taken her away and would not permit her to return. The expression used by the Sub-Inspector bolakelegya may imply that he called her and took her away without the use of force though it does not necessarily imply that force was not used. It was suggested on behalf of the prosecution that up to the time of lodging information at the police station, the father did not suspect that his daughter had been taken away for the purpose of being forced to illicit intercourse, since she had already been working as a maidservant in Hari Mahto's house and the father did not suspect what the Assistant Sessions Judge calls foul play. He told the jury to consider this explanation in arriving at their conclusion. It is difficult to see any misdirection in his statement to the jury; and I do not understand why the learned Sessions Judge regarded it as such. But he considered that it could not have misled the jury or have led to a failure of justice, in which view he was certainly right. The learned advocate for the petitioner suggests that having found that there had been misdirection, the learned Sessions Judge was obliged to set aside the verdict; but by the provisions of Section 537(d), Criminal P.C., he could not do that unless he found that the misdirection had in fact occasioned a failure of justice.

(3.) It is suggested in the second place that we should exercise extraordinary revisional powers and interfere with the verdict of the jury, because the girl, a fortnight after the institution of the case, is said to have told a police officer that before she was abducted she had had a love affair with the petitioner. The suggestion is of course quite impracticable. It appears that two days before the trial opened, the defence obtained a copy of this statement, on which the girl or the Sub-Inspector might have been questioned. They preferred to keep silent upon the matter; and it is quite impossible to make use of that statement now. It certainly cannot be suggested that the learned Assistant Sessions Judge erred in not mentioning to the jury facts which had not been proved in Court. The witness Rasul Buksh remarked in the committing Magistrate's Court that when the girl was found by the police she said that she had been taken by force and also that she had gone away willingly. It is suggested that in some way or other the jury have been misled regarding the evidence of this witness; but the learned Assistant Sessions Judge clearly says that the evidence of the witness did not support the girl's story that she told him that she was being forcibly taken away by the two accused. It is suggested that the jury were not told with sufficient clearness that they must find that the girl was taken away by force; but there is no ambiguity in the manner in which the learned Assistant Sessions Judge has dealt with this question. Their verdict must be treated as a finding that the allegation that the girl had been taken away by force had been proved.