NANDA GHOSH Vs. EMPEROR

JUDGEMENT

(1.) The appellants in this case were convicted in accordance with the unanimous verdict of the jury under Section 366, I.P.C. Some of them were also convicted under Section 346 and Section 346 read with Section 109, I.P.C. The prosecution case was briefly this : One Khuki Dasi, a married girl whom the jury found to be under 16 years of age, was due to return to her husband's house after a visit to her father in the village of Chorkalgram. On the morning of her return she was dressed up and given all her ornaments to wear. She then went off to see her sister who lived in the village. On the way she passed the house of the appellant, Nanda. He asked her to come inside on the pretext that his wife wanted her. When she went in, he bolted the door and demanded that she should remain with him. In the night he ravished her. Later on, he took her out and was joined by the other three appellants. They took her away, and according to her story, her ornaments were taken off. She was finally brought back again to Nanda's house, and on the next Friday returned by Nanda. Whereupon she inform, ed her relatives, and in the result the pre. sent case was instituted.

(2.) It may be noted here in connexion with this story, that the jury unanimously acquitted the appellants on the charge of robbery and that no charge of rape was framed. The substantive charges, leaving aside that of wrongful confinement, were charges (a) of kidnapping and (b) abduction against all the appellants jointly, and the learned Judge in dealing with the evidence and in explaining the law dealt with the whole matter on the assumption that the occurrence from the time when the girl entered the appellant Nanda's house until the time when she was finally released constituted not merely one transaction but one single offence. As I have said, the alter, native charges were that the appellants jointly either kidnapped or abducted the girl. The verdict of the jury was given in the following way : All the accused were found guilty under Section 366, I.P.C. Nanda was found guilty also under Section 346, and Deba under Section 346 read with Section 109. The jury added the age of the girl is less than 16. In the first place, this verdict is to some extent an obscure verdict. We are not actually in a position to say, except with reference to the finding as to the age of the girl, whether the jury actually convicted of kidnapping or abduction. The learned Judge's directions to the jury on this point are not particularly happy. In dealing with the offence of abduction he said in one place: Abduction is a continuing offence. If you think that the other persons also removed the girl knowing that she was an abducted girl, they will also be guilty of abduction. If you think that the girl came to Nanda's house voluntarily, and if her age was not below 16 at the time, there will be no offence of abduction under Section 366, I.P.C.

(3.) Then the learned Judge deals with the question of kidnapping. As to this he says: If you think that the girl came to Nanda's house of her own accord, the age of the girl is important. If she was not under 16 at the time, there was no abduction in regard to her as I have told you. If however she was under 16 the position will be different. In that case, if she came to the house of Nanda voluntarily, the jury would have to decide whether the minor, that is to say the girl, was under 16 and definitely decided not to return to her lawful guardian. If the jury thought on the circumstances that there was no intention in her mind to return to her father's place, they would have to consider whether it could be said that she was still in her father's keeping. If they thought she was, the moment Nanda and the other accused took her from Nanda's house without the consent of her father, it amounted to taking the minor out of the keeping of her father, and those who participated in that taking, committed an offence under Section 363, I.P.C.