MANIK MOLLA Vs. EMPEROR

JUDGEMENT

(1.) This appeal is by two persons, Manik Molla and Hadan Molla. Manik Molla was charged with having committed offences punishable under Secs.344, 366 and 366A, Indian Penal Code. Hadan Molla was charged with having committed an offence punishable under Section 368, Indian Penal Code. They were tried by the Assistant Sessions Judge of Jessore and a jury. Manik Molla was found guilty of having committed offences punishable under Secs.344 and 366A, Indian Penal Code. He was acquitted of the charge under Section 366, Indian Penal Code. Hadan Molla was found guilty of having committed an offence punishable under Section 368, Indian Penal Code. The case for the prosecution briefly is as follows:

(2.) The accused Manik Molla is the husband of the elder sister of Abdul Gafur, who is the husband of Asiran Bibi. It is alleged that Asiran Bibi is aged fourteen or fifteen. The prosecution case is that Manik Molla kidnapped Asiran Bibi and took her away from the lawful guardianship of her husband. He kept her in various houses in most of which, the girl alleges she was raped, both by Manik Molla and others. Finally, she was taken to the house of Hadan Molla and there confined by Hadan Molla. One day Abdul Gafur was passing by Hadan Molla's house and Asiran Bibi heard his voice and ran out to meet him. Abdul Gafur then tried to take his wife away, and there was a struggle between him on the one side and Hadan Molla and Manik Molla on the other. The villagers intervened, and eventually the girl was taken away by the husband. These are the main facts of the case for the prosecution.

(3.) The learned advocate appearing on behalf of the appellants contends, first, that the conviction of Manik Molla under Section 366A, Indian Penal Code, should be set aside on the ground that there was no proper direction to the jury given with respect to this offence. In our opinion, there is substance in this argument. In order to establish an offence punishable under Section 366A, Indian Penal Code, the prosecution must prove that the accused by some means or other induced a minor girl under the age of eighteen to go from one place to another with the intention that such girl may be forced or seduced to illicit intercourse with another person, or knowing it that it is likely that she will be forced or seduced to illicit intercourse with another person. If a person induces a girl to go from one place to another for the purpose of seducing her himself, the offence is not one which comes within the purview of Section 366A, Penal Code. The section is aimed at procurers. The prosecution must prove that the accused intended that the girl would be forced or seduced to illicit intercourse with someone other than himself; or that the accused knew that it was likely that she would be so forced or seduced. It is true that the learned Judge placed the section before the jury and stated the different elements constituting the offence. This he did at the beginning of his charge, but when he came to deal with the evidence he did not point out to the jury that before they could find Manik Molla guilty of the offence punishable under Section 366A, Indian Penal Code, they were to be satisfied that Manik Molla either intended that Asiran Bibi should be seduced or forced to illicit intercourse with others or that he knew that she was likely to be so forced or seduced when he took her away and kept her in different houses. The existence of this specific intention or knowledge is a most important element in the constitution of an of fence punishable under Section 366A, and it was the duty of the learned Judge to ask the jury to consider the evidence and to decide whether the evidence conclusively proved such intention or knowledge. He has, however, not done this, and we are of opinion that the jury were not properly directed in so far as this charge is concerned. That being so, the conviction of Manik Molla with reference to the charge under Section 366A, Indian Penal Code, cannot be upheld and must be set aside. We accordingly acquit him of that charge.