FEDU SHEIKH Vs. EMPEROR

JUDGEMENT

(1.) In this case the petitioners were charged under Secs.147 and 366 of the Indian Penal Code. As regards the charge under Section 366 it ran as follows: That you on or about the night of the 12 day of June, 1927, at Dasora Ambori Village kidnapped Tola Bibi, a woman with intent that she may be compelled to marry against her will or may be forced to illicit intercourse and thereby committed an offence punishable under Section 366 of the Indian Penal Code....

(2.) The learned trial Judge directed the Jury that the portion of Section 366 relating to the intention of compelling the girl to marry against her will did not apply in the present case and without amending the charge under Section 147, Indian Penal Code left to the Jury the case with regard to that charge, and with regard to the question of guardianship the learned trial Judge did not charge the Jury at all but towards the end of the charge he told the Jury as follows:

(3.) "If she is 14 or below 16 and if you believe the evidence the accused will be guilty under Section 363, Indian Penal Code irrespective of any indent with which she was taken as she was living under the lawful guardianship of her mother and step-father." It is to be remembered that the charge against the petitioners under Section 386 was one of kidnapping only, but the learned Judge directed the Jury in several places in his charge to the following effect: "So you see the accused persons may be guilty under Section 366 if they kidnapped or abducted the girl in order that she may be forced or seduced to illicit intercourse either when the girl is under 16 or above 16" The Jury returned a unanimous verdict of guilty under Section 147 and by a majority of 4 to 1 a verdict of guilty under Section 366 against the petitioners, The learned trial Judge accepted the verdict and convicted the petitioners under Secs.147 and 366 and sentenced each of them to undergo rigorous imprisonment for four months under Section 147, Indian Penal Code and two and half years under Section 366, Indian Penal Code the sentences in each case to run concurrently.