ABDUL GAFUR KOTWAL Vs. EMPEROR

JUDGEMENT

(1.) The judgment going to be delivered by my learned brother in this case has been read and considered by me carefully; and I have not thought it necessary or proper to record a separate judgment, as I am in entire agreement with the same. The judgment of my learned brother is the judgment of this Court. I consider it necessary to state this only that the observations contained in some of the recent decisions of this Court in cases relating to sexual offences, referred to by the learned Counsel in support of this appeal, must be taken to be applicable to the facts of those cases only. It was, to my mind, never intended that any rule of general application was going to be laid down in those cases, departing from the rules of evidence applicable to trial of criminal cases in this country. Lethbridge, J.

(2.) The case against the appellants briefly was that, on 23 April 1936 at Palong in the District of Faridpur, one Binapani Devi, a married girl aged about 19, was abducted by deceit by her relative, the appellant Mati Lal Mukhuti, together with one Manu Das, who was not on trial, in pursuance of a conspiracy between them and the appellant Abdul Gafur, a local shop- keeper and President of the Union Board, and taken to a boat on the river where Abdul Gafur representing himself to be the Chairman of the District Board outraged her modesty. On this Abdul Gafur was tried on the complaint of Binapani by the Second Assistant Sessions Judge of Faridpur and a jury on charges of abducting Binapani and outraging her modesty, and Mati Lal Mukhuti with abducting her, and abetting the latter offence. Both were also tried under Section 498, I. P. C, on the complaint of the husband with enticing her way. A charge of conspiracy to abduct was added by the Assistant Sessions Judge against both and tried by him sitting with the same jurors as assessors. Both were convicted of all charges, the jury finding them guilty by a majority of 3 to 2, and the assessors giving their opinions in the same proportion. Abdul Gafur has accordingly been convicted under Secs.366, 498, 354 and Mati Lal Mukhuti under Secs.366, 498 and 354/109 and both under Section 120-B read with Section 366, I.P.C. The practice of adding a charge under Section 120.B in cases where it is not necessary, with the result that the jurors sit in the same trial as assessors, has been condemned by this Court more than once. In the present case it was quite unnecessary. A charge of abetment by conspiracy under Sec. 109 would have served the same purpose and would not have been open to this objection.

(3.) The complainant, Binapani, had been married some seven years before to Monmohan Chakravarti, P. W. 13, who had just served three years imprisonment under Section 110, Criminal P. C, and was under police surveillance. The prosecution case was that she had been brought to Palong by her mother during the Falgun before the occurrence and had not lived there before. Her mother also was not living with her husband. Shortly -- before the occurrence, Binapani had been taken to the house of her mother's brother Surendra at Kurashi, about two miles from Palong. On the evening before the occurrence Mati Lal Mukhuti and Manu Das went there and said that the Chairman, District Board, would be in Palong next day, and suggested that she should apply to him for a stipend to learn midwifery. She agreed and next morning they came and took her to Palong District Board. The prosecution case is that there they pointed out the accused Abdul Gafur who was on the verandah as the Chairman of the District Board. The pretended Chairman however said he was busy and asked them to come in the afternoon. The other two then left her with her mother in Palong. In the afternoon they came again and took her to the waiting room at the old steamer station, where they left her till dusk. At dusk they returned and said that the Chairman was going across the river in a boat to catch a steamer at the new station, and asked her to go with them to the boat where she could speak to him. She went to the boat and found there the appellant Abdul Gafur. Mati Lal Mukhuti boarded the boat with her, but Manu went away. The pretended Chairman began to talk about midwifery, but some time later, after the boat had started, Mati Lal went outside and got on the roof and Abdul. Gafur caught hold of her and made immoral proposals. She shouted but Mati Lal did not respond. She then came out and was about to jump into the river, when another boat approached, and she shouted for help. In this boat were three men, the Manager of the Madaripur Branch Office, Singer Sewing Machine Co., and two of his canvassers. They brought their boat along-side and Binapani, who was trembling and crying, jumped into it. She told them her story and they informed her that her assailant was not the Chairman of the District Board but Abdul Gafur. She was taken back to her mother and told her story to the assembled neighbours, but no complaint was filed till 1 May, nine days later. Binapani gave the explanation that her father was at Noakhali and her husband at Calcutta, and she had to wait till her father came home. She said that she did not lodge ejahar at the thana as Abdul Gafur was intimate with the police.