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Dighola Ahom and ors. Vs. the King - Court Judgment

LegalCrystal Citation
Subject;Criminal
CourtGuwahati
Decided On
Judge
AppellantDighola Ahom and ors.
RespondentThe King
Excerpt:
- - her younger brother called kaneswar asked her to take a jug of water to the field, no sooner bad mt. his giving prominence to the particular inference without making any reference to the absence of any direot evidence on the point, amounts on the facts of this case, particularly the failure to comply with the provisions of section 342, criminal p......judge, lower aasam division, with the aid of a jury for oflfonoes under s3. 147, 325 and 366, penal code. the jury brought a un-animous verdict of not guilty of any offence against i accused persons, but brought a verdict, of guilty against the 5 appellants under section 365, penal code., an offence with which they were not oharged, while acquitting them of the charges under section 366, penal code, and 147, penal code, the appellant bbanu was in addition found guilty under section 335, penal code, the learned sessions judge agreed with the unanimous verdiot of the jury against the s appellants and sentenced each of them to rigorous imprisonment ' for s years under section 365, penal code, and further sentenced the appellant bhanu under section 325, penal code., to rigorous.....
Judgment:

1. This is an appeal by 5 persons-one Dighola Ahom, Bhanu Ahom, Gopal Ahom, Dehiram Ahom, and Someswar Ahom-who were tried along with 4 others by the learned Sessions Judge, Lower Aasam Division, with the aid of a Jury for oflfonoes under S3. 147, 325 and 366, Penal Code. The jury brought a un-animous verdict of not guilty of any offence against i accused persons, but brought a verdict, of guilty against the 5 appellants Under Section 365, Penal Code., an offence with which they were not oharged, while acquitting them of the charges Under Section 366, Penal Code, and 147, Penal Code, The appellant Bbanu was in addition found guilty Under Section 335, Penal Code, The learned Sessions Judge agreed with the unanimous verdiot of the Jury against the S appellants and sentenced each of them to rigorous imprisonment ' for S years Under Section 365, Penal Code, and further sentenced the appellant Bhanu Under Section 325, Penal Code., to rigorous imprisonment for 6 months, the sentences to run concurrently.

2. The case for the prosecution was that some time before the present occurrence which took place on lab February 1918, Mt. Kapahi, a girl of 17 years of age and a daughter of one Kalai Bora, was forcibly dragged to the house of one Cheru by the appellants Bhanu and Dighala and one Gerela in order that she might be compelled to marry Cheru. After living for a while with Cheru who forced her live with him a3 his wife, she managed to escape and return to her father, and made a statement before a Magistrate.

3. On 1st February 1948, at about 2 p. M. her younger brother called Kaneswar asked her to take a jug of water to the field, No sooner bad Mt. Kapahi left the house with the watering than the appellant Dighala Ahom and a. brother of the appellant Dehiram seized her by the arm; almost immediately the other appellants and some others, about 16 in number, came armed with spears, lathis and daos and took away the girl by force; in the course of the abduotion, the appellant Bhanu is alleged to have in jured the father of the abduoted girl. In the first information report lodged by the father of the girl, he stated that the motive for the abduotion was revenge.

4. It is the prosecution case that the abduotefl girl was first taken to the house of appellant Mahidhar Ahom and thence to the house of appellant Someawar; in the house of Someswar her thuria (ear-rings) were removed by the appellant Dehiram, a brother of the appellant Someswar; in the house of Someswar, the appellant Bhanu hit her on the mouth with a fiat and dislocated her teeth; after sunset she was taken to a jungle in the bari of appellant Someawar and his brother, Dehi, later she was taken to the house of one Indiram, outside the house oE Indiram; in a bari of bamboo dumps, the appal-lants Dfchi, Gopal and Bhanu raped her; the following morning she managed to escape to the house of one Paniram, from where Paniram's son, Gandiuram, took her to father's house, . where she narrated the story to her parenta and implioated tho appellants and others; her father then lodged the fir3t information report at the Gahpur Police Station.

5. On completion of the investigation, the police sent up the appellants and their companiona before a Magistrate who, after holding a preliminary enquiry, committed the appellants and their companions to the Court of Sessions to stand their trial under SSection 147, 866 and 325, Penal Code.

6. Mr. Ben who appears for the appellants, has contended that the verdict of guilty brought by the Jury under B, 365, Penal Code and accepted by the learned Sessions Judge, was a verdict which the jury was incompetent to bring in view of the summing up of the learned Sessions -Judge which, except for a passing reference to the terms of Section 365, Penal Code was a summing up with reference to the charge Under Section 366, Penal Code. For instance, the learned Sessions Judge baa stated, in his charge to the jury :

You are to Infer from the conduct of the culprits and the circumstances of the case whether the culprits had the requisite intention as contemplated Under Section 366, Penal Case. In the ejahar, it was stated that there had been a previous case pending about the abduction of the girl, Mt. Kapahi, and timt the girl, Mt Kapahi, was abduoted this time while she was in Jimma (custody) ot Kolai with the permission of the Magistrate, and that some of the accused were accused in that previous case, That the occurrence of this case was committed by them because some of the accused in the previous case were arrested by polios and in order to take revenge for the previous case.

Since alter {he removal of the girl, Mt. Kapahi, to Mabidhar'a house, as I have already stated, we have the evidence of no other exeept the girl barself. She says that from Mahidhar's house she was taken to Someswar's house by Dighala, Bbanu, Someswar, Dehi, flropul and Mahidhar. That Gopal nnd Dehi dragged her by the hands and Bhanu and Dighala pushed her from behind. That there at Someewar' a house, Dehi snatched of her thurias from her wearing, and that the three women accused pressed her when the thurias were Enatebed of from her ears. But her father, Kolai, gives evidence that after the girl escaped and returned liorne, she reported to him that at Someswar'u house her thurias were taken by Someswar....

7. Mr. Sen has drawn our attention to these passages to point out that in the entire evidence of the girl, which the loarned Sessions Judge placed before the jury, there is no reference whatsoever to her having ever been secretly and wrongfully confined. Indeed it appears that apart from a passing reference to Section 365, Penal Code under the heading 'The Law', there is nothing to show that the learned Sessions Judge had in mind the particulars which constitute an offence Under Section 365, Penal-Code. It is true that in the last paragraph of his charge to the jury, the learned Sessions Judge has stated :

Therefore, on the evidence placed before you, you are to consider whether she was abducted with the requisite intention as contemplated Under Section 366, Penal Code, or with intent to cause her to be wrongfully confined secretly so that her evidence might be shut out in the previous case of abduction, which was still under investigation. I have placed the law and the evidence of the ease and you are to decide whether any of the accused persons could be held guilty under any of the sections of the Indian Penal Code I have explained saove

8.We are unable to find from the evidence on record, even as much as a suggestion, that She girl was secretly and wrongfully confined.

9. In connection with this aspect of the case, we are constrained to observe that having regard to the examination of the appellants under the provisions of a, 343, Criminal P, 0., the learned Judge was not justified in referring to the particular inference upon which he invited the jury to act. It the learned Judge thought that the particular inference was an adequate piece of evidence to enable the jury to consider their verdict in relation to an offence under Section 365, Penal Code, he should have given an opportunity to the appellants, aa he was required to do under the provisions of Section 842, Criminal P.C. to explain this piece of evidence, the more so when the appellants were not charged with an offence Under Section 865, Penal Code.

10. In the committing Magistrate's Court, the examination of the appellants was in these terms:

Q. What is your defence ?

A. I did not commit any offense. I cannot say anything.

I was out for cutting thatch, I know nothing,

I was at Jorhat.

11. At the trial in the Court of Session, the learned Judge put the following questions to the appellant:

Q. Have you heard the depositions of the witnesses ?

A, Yes, I have heard,

Q. You may say what you have got to say ?

A, I did not drag the girl. I are not guilty,

12. By his reference to the terms of Section 865, Penal Code in his charge to the jury, merely on the strength of an equivocal inference upon which he invited the jury to consider the application of Section 365, Penal Code when there was no oharge against the appellants under that section, the learned Judge, we think, misdirected the jury in law, in the absence of an explanation from the appellants in their examination Under Section 342, Criminal P.C. It was not the prosecution case that the intention of the appellants in abducting the girl was secretly and wrongfully to confine her. The learned Judge should have warned the jury that there was no direct eyidenc as to the intention required for a conviction Under Section 366, Penal Code. His giving prominence to the particular inference without making any reference to the absence of any direot evidence on the point, amounts on the facts of this case, particularly the failure to comply with the provisions of Section 342, Criminal P.C. to misdirection and has resulted in the erroneous verdict, a verdict which we regard as against the weight of evidence.

13. Mr. Barua who appears for the proseflution, contends that the verdict of the jury Under Section 366, Penal Code was justified in view of the provisions of Section 288, Criminal P.C. Section 238, Criminal P.C., is in these terms :

(1) When a person is charged with an offence consisting of Beveral particulars, a combination of some Daly of which constitutes a complete minor offence, and snob, combination is proved, but the remaining particulars are not proved, he may be convicted of the minor offence, though ho was not charged with it.

(2) When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence, although he is not charged with it.

(2-A) When a person in charged with an offence, he may be convicted of an attempt to commit such offence although the attempt is not separately charged.

(3) Nothing in this section shall be deemed to authorise a conviction of any offence referred to in Section 198 or Section 199 when no complaint has bean made as required by that goation.

14. The several particulars which constitute an offence Under Section 362, Penal Code are these : (1) that a woman was compelled by force or deceitful means to go from any place, (2) that she was so compelled or induced with intent that she may be compelled or knowing it to be likely that she will be compelled to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse or knowing it to be likely that she will be forced or seduced to illicit intercourse. Section 362, Penal Code, merely defines what 'abduction' is. It does not define an offence, Abduction becomes an offence only when it is accompanied by one of the 8 intentions described in Sa. 364, 365 and M, Penal Code.

15. Section 238 (1), Criminal P.C. applies when a person is charged with an offence conaisting of several particulars, a combination of some only of which constitutes a complete minor offence, and when such combination is proved, but the remaining particulars are not proved, he may be convicted of the minor offence, though he was not charged with it. Section 238 (1), therefore, in term3 has no application to a case when the offence charged Under Section 360, Penal Code is sought to be reduced to one Under Section 365, Penal Code. If any part of Section 238, Criminal P.C. of applies to such a case, it is Section 238 (2), which is in these terms:

When a person is charged with an offence and facts aj'6 proved which reduce it to a minor offence, ha may be convicted of the minor offence, although he is not charged with it.

Illustration (b) to Section 238, Criminal P.C. elucidates the meaning of subs. (2) of s 238, Criminal P.C. We have already observed that we are unable to take the view that facts have been proved in this case which reduce the offence charged Under Section 366, Penal Code to one under Section 368, Penal Code.

16. Mr. Barua next contended that Rs. 236 and S37, Criminal P.C. of applied to the facts of the case. Section 336, Ct. P.C. reads as follows:

If a single act or series of acts is of such a natura that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences, and any number of such charges may be tried at once; or ha may be oharged in the alternative with having mmmitted some one of the said offences.

Section 237, Criminal P.C., says:

(1) If, in the ease mentioned in Section 236, the accused is oharged with one offence, and it appears in evidenoe that he committed a different offence for which he might have bean charged under the provisions of that section, he may be convicted of the offence which he is shown to have committed, although he was not oharged with it.

Section 23G, Criminal P.C. applies only when it is doubtful which of several offences upon the facts which can be proved will be constituted. In this case, it was attempted to prove that the girl was compelled by force to go from her house with the intent specified in 8. 366, Penal Code. There is no doubt that if this fact could be proved, it would constitute an offence Under Section 366, Penal Code. The question, therefore, of the applicability of Section 365, Penal Code, did not arise.

17. Mr. Barua has referred us to a decision of the Calcutta High Court reported in Queen Empress v. Sita Nath, 22 cal. 100G. It is true that the decision in that case supports the view that where a charge had been framed against an accused person Under Section 366, Penal Code and the charge fails, the Court could convict the accused person Under Section 365, Penal Code in the absence of a formal charge having-been framed against him. Macpherson J. observed:

Bat the object of the outrage was, we consider, not to violate the coraplainant'g person but to prevent her from prosecuting the complaint which she had made, to bring her under the influence of the person who had abduetod her and lo keep her away from the influence of those who might compel her to go on with the com-plaint, and for that purpose it was neoessary to keep her in confinement....

It is true that wrongful confinement la not an essential feature of the commission of an offence Under Section 366, but it must often be involved in it, and the whole case for the prosecution is not only that there was abduction but confinement with the view to force the complainant to illicit intercourse.

18. With great respect, the words in Section 365, Penal Code are not 'confinement or wrongful confinement' but 'secret and wrongful confinement. Macpherson J,, did not say under which Sub-section of Section 238, Criminal P.C., such a case would fall, but Lanerjee J., apparently applied subs, (a) of Section 238, Criminal P.C. to the facta of that case. He observed:

Now Section 238, Criminal. I P.C., Para. 2, says: 'When a person is oharged with an offense and facts are proved which reduce it to a minor offence, he may be outvote-ad of the minor offence, although he is not charged With it.

19. Assuming Sub-section (2) of Section 338, Criminal P.C. applies to the facto before us, we are of the view that facts have not been proved in this ease which reduce the offence charged Under Section 866, Penal Code to one Under Section 865, Penal Code. Indeed I am more inclined to the view that when the two intentions as described in 8. 865 can be proved by direct or inferential evidence, an accused person ought to be charged with both offences Under Section 236, Criminal P.C., and that Sections 236, 237 and 238, Criminal P.C., have us application. If the intention described in 8. 366, Penal Code, fails and that described in Section 365. Penal Code is established, an accused person can be convicted Under Section 86S, Penal Code, provided a charge is framed against him Under Section 365, Penal Code in accordance with the provisions of Section 235, Criminal P.C. But we leave this question open for a decision upon a more appropriate occasion.

20. The result is that the appeal is allowed is respect of the conviction and sentence passed on the appellants Under Section 365, Penal Code. They are acquitted of the offence Under Section 865, Penal Code. 80 far as the conviction and sentence passed upon the appellant Bhanu Under Section 325. Penal Code, is concerned, we see no reason to interfere. The conviction and sentence passed upon Bhanu Under Section 325, Penal Code are confirmed.


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