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Bhawani Pathak and ors. Vs. Emperor - Court Judgment

LegalCrystal Citation
Decided On
Reported inAIR1936All253
AppellantBhawani Pathak and ors.
.....latter states that there were old women as well as young in the ashram, that they lived there of their own free will and that on each of the two occasions when witness went to the ashram, she found the door open......adrift in the world and in need of succour. sarju prasad was employed as munshi at the ashram and bhawani pathak was a chaprasi attached to it. the prosecution alleges that, however laudable the intention of the original founders of this ashram may have been, it had become to all intents and purposes a sort of exchange bureau for the purpose of supplying girls of a marriageable age to the punjab and sind; and it is alleged that the ashram employed agents including bhawani pathak and ram chandra prasad, whose duty it was to keep a look out for suitable girls and take them to the ashram to be 'rescued' whether they wished it or not. the case for the prosecution was as follows:2. mt. lakhraji is a chamar girl of about 17 or 18 years of age. she had been married twice, but each union had.....

Collister, J.

1. Bhawani Pathak has been convicted under Section 366, Section 344 read with Section 109 and Section 342, I.P.C. Sarju Prasad has been convicted under Sections 344 and 368, I.P.C., and Ram Chandra Prasad has been convicted under Section 366 and Section 342, I.P.C. The appellants have each been sentenced to three years' E.I. There was an institution at Gorakhpur which was known as the Abla Ashram, which was ostensibly a philanthrophie establishment and its avowed object was to shelter and rescue girls and women of all ages who were adrift in the world and in need of succour. Sarju Prasad was employed as munshi at the Ashram and Bhawani Pathak was a chaprasi attached to it. The prosecution alleges that, however laudable the intention of the original founders of this Ashram may have been, it had become to all intents and purposes a sort of exchange bureau for the purpose of supplying girls of a marriageable age to the Punjab and Sind; and it is alleged that the Ashram employed agents including Bhawani Pathak and Ram Chandra Prasad, whose duty it was to keep a look out for suitable girls and take them to the Ashram to be 'rescued' whether they wished it or not. The case for the prosecution was as follows:

2. Mt. Lakhraji is a chamar girl of about 17 or 18 years of age. She had been married twice, but each union had ended in a separation, and in 1933 she was living with her parents at a village in the Pipiganj Police Circle. She has an uncle at Gorakhpur named Suphal and it is said that she went and spent a month or so with her uncle and aunt in November 1933. On 20th December she left her uncle's house for the Railway Station intending to catch a train for Pipiganj; but she never reached the Station. She met an old woman who began to talk to her and then Bhawani Pathak and two other men came up and began asking her questions as to who she was and where she lived. Ultimately they taxed her with having run away from home and they told her that her parents were at the Abla Ashram and said that she was to accompany them to that institution. At first she refused, but she was forcibly taken on an ekka by Bhawani Pathak and one of his companions. Her name and address were taken down at the Ashram by Sarju Prasad and she was detained there against her will. There were about 20 other girls or young women at the Ashram and some of them plotted to escape on the night between 30th and 31st December. Mst. Lakhrajia was the first to make the attempt and she managed to scale the wall by getting on to the shoulders of another girl; but the persons in charge of the institution were aroused by the noise and so the effort of her fellow conspirators to escape was frustrated. Mt. Lakhrajia found shelter at the house of a woman for a couple of nights and on the evening of 2nd January 1934 she went to the Railway Station; but she was met there by Bhawani Pathak, who insisted on her accompanying him to the house of Babu Gopi Nath, now deceased, who was a legal practitioner and was the secretary of the Ashram.

3. Several persons collected including a couple of constables, but they were satisfied with Bhawani Pathaks' explanation that the girl had run away from the Ashram and that he was taking her to the house of Babu Gopi Nath. At the house of Babu Gopi Nath they met Ramchandra Prasad; and Babu Gopi Nath, after hearing what Bhawani Pathak had to say directed him to take the girl back to the Ashram. Bhawani Pathak and Ramchandra Prasad thereupon took her on an ekka to the door of the Ashram, but she refused to enter, saying that death would be preferable.

4. Finally, in order to avoid a scandal and apprehending that she might create disaffection among the other girls Sarju Prasad released her. Thereupon she started to go towards her uncle's house, but Ramchandra Prasad caught her up and compelled her to go with him to his own house where he kept her for some days. One day she happened to see her aunt as she was looking through the bars of a window and she sent a message to her father Nohar and the latter came in due course and insisted on Ramchandra Prasad handing the girl over to him. A plea has been taken by learned Counsel for the appellants that the joint trial of the three appellants was illegal and that the whole trial is thereby vitiated. The reply of the learned Government Advocate is that the series of events from the 20th December to the 5th or 6th of January was one and the same transaction within the meaning of Section 239(d), Criminal P.C., that the appellants had a community or identity of purpose and that in any case they have not been prejudiced and the misjoinder is therefore curable under Section 537, Criminal P.C. In Dosa v. Emperor 1928 Lah 751, a single Judge of the Lahore High Court held that the joint trial of three persons, two being charged under Section 366, I.P.C., and one being charged under Section 368, I.P.C., was not illegal; but another learned Judge of the same Court in Nawab Khan v. Emperor 1929 Lah 496, took a contrary view. In Kushei Malik v. Emperor 1924 50 Cal 1004, a Bench of the Calcutta. High Court held that persons who abducted a girl and persons who detained her with the knowledge that she had' been abducted could legally be tried together; but another Bench of that Court in Mozam Dafadar v. Emperor 1933 Cal 563 was of opinion that the joint trial of an accused charged with an offence under Section 366 and accused charged under Section 368 was irregular and prejudicial to the accused and must be set aside.

5. A Bench of the Oudh Chief Court, in Emperor v. Zamin 1932 136 IC 243, held that a joint trial for offences under Section 366 and Section 368,. I.P.C., is not illegal where the whole-chain of events beginning with kidnapping or abduction and ending with the discovery of the woman can fairly be regarded as forming one and the same transaction. There is no reported case of this High Court directly in point. It. will be observed that in the present case Bhawani Pathak was charged under Section 366 for having abducted Mt. Lakhrajia. on 20th December 1933 and he was charged under Section 344/109 for having abetted her wrongful confinement in the Ashram. Sarju Prasad was charged under Sections 368 and 344, I.P.C., for having, wrongfully confined the girl in the Ashram knowing her to have been abducted; Bhawani Pathak was further charged, under Section 342, I.P.C., for having wrongfully restrained Mt. Lakhrajia at the station on 2nd January; and Ramchandra Prasad was charged under Section 366 for having abducted her on the 2nd January and under Section 342 for having, wrongfully confined her thereafter in his house. I am inclined to think that the charges against Bhawani Pathaki under Sections 366 and 344/109, I.P.C., and; the charges against Sarju Prasad under Sections 368 and 344, I.P.C., could legally be tried together inasmuch as there was obviously a community of interest or purpose between these two accused and the acts were so closely connected as to form one and the same transaction. But it seems doubtful whether Sam Chandra Prasad ought to have been tried jointly with the other two appellants in respect of the acts committed by him on the 2nd January and thereafter, nor do I think that a charge against Bhawani Pathak under Section 366, I.P.C., in respect of 20th December 1933 and a charge against him under Section 342, I.P.C., in respect of 2nd January 1934 should have been combined at one trial. The question is whether on this view of the matter the conviction of the appellants ought to be quashed and whether a separate re-trial of each appellant should be ordered. In Kapoor Chand v. Suraj Prasad 1933 ALJ 188 a Full Bench of this Court considered the provisions of Section 537 Criminal P.C. It held that no distinction could be introduced between an illegality and an irregularity and that the sole criterion given by Section 537 was whether the accused person had been prejudiced or not. The learned Judges observed:

The object of procedure is to enable the Court to do justice, but if in spite of even a total disregard of the rules of procedure justice has been done, there would exist no necessity for setting aside the final order which is just and correct simply because the procedure adopted was wrong.

6. The Privy Council case of Subrahmania Ayyar v. Emperor (1902) 25 Mad 61 has been discussed and interpreted by the Full Bench. It is contended by the learned Counsel for the appellants that his clients have been prejudiced by a joint trial inasmuch as each of them has been prevented from producing the others as witnesses in his defence; but I do not think that there is any force in this plea. If the three appellants had been separately tried, the evidence which any one of them might give could have contributed little towards a rebuttal of the evidence for the prosecution, if the statements which they have made as accused persons in this are any criterion. Nor is it likely that the evidence of one person who was being tried for an offence closely connected with the offence for which another person was being tried would materially assist the latter in his defence or would impress the mind of the Court. Section 537, Criminal P.C., provides that in determining whether any irregularity in any proceeding has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could, and should have been raised at an earlier stage in the proceedings. The learned Sessions Judge wrote in his judgment that all the three accused had. been tried jointly because the offences were committed in the course of the same transaction and in prosecution of a common object, the offences constituting links of one and the same chain; but it is not suggested that the appellants themselves at any stage of the proceedings objected that a joint trial was illegal and was calculated to prejudice them. In my opinion the appellants in this case have not been prejudiced by their joint trial and this plea is therefore disallowed.

7. It now remains to be determined whether the charges have been established against all or any of the three appellants. They all pleaded not guilty. Bhawani Pathak alleged that Mt. Lakhrajia was a prostitute and that she had gone willingly with him to the Ashram on 20th December 1933. He admitted that she escaped from the Ashram and that he brought her back from the railway station on the 2nd January, but he alleges that she again accompanied him willingly. He states that the reason for his prosecution is that he went surety for Ram Chandra Prasad in respect of two cases which wore instituted against him by the Mohamedans of the locality. Ram Chandra Prasad had converted a Mohamedan woman to Hinduism and was keeping her as his wife or mistress and this caused resentment among the Mohamedans. He says that the Sub-Inspector has challaned him because he instigated certain persons to lodge a complaint against the said Sub-Inspector.

8. Ram Chandra Prasad also pleaded enmity with Sub-Inspector Shafaat Nabi and he alleged that he had been prosecuted on account of the matter of a Mohamedan woman referred to by Bhawani Pathak; and he denied having any direct connexion with the Ashram. Sarju Prasad pleaded that he had been prosecuted because he had helped Ram Chandra Prasad in his case and also because he refused to give evidence for the Crown in this case at the instance of the police. He alleged that Mt. Lakhrajia had been a willing inmate of the Ashram and that the only reason why she was brought back to it on the 2nd January after her escape, was that her own clothes had to be restored to her. It appears that in August 1933 the police at Hardwar made enquiries in respect to two girls and obtained information about this Ashram and after that the Superintendent of Police at Gorakhpur deputed Sub-Inspector Shafaat Nabi to make an enquiry about the affairs of this institution. He began his enquiry in January 1934 and took possession of the registers of the Ashram. -On 26th April 1934 he got into touch with Mt. Lakhrajia, and he sent her to the kottwali to make a report. After Shafaat Nabi had begun his investigation various complaints and applications were made against him, but to no purpose; and ultimately this case was launched and the three accused were convicted.

9. There can be no doubt whatever that Mt. Lakhrajia was kept in the Ashram against her will. It is not denied that she escaped secretly at dead of night by climbing over a wall and that on the 2nd January she was brought back to the Ashram. There is good evidence of Hindus, (I mention this because an attempt has been made to give a communal flavour to this ease) to show that she was weeping when brought back to the Ashram on the 2nd January and there is a significant entry by Sarju Prasad in the register to the effect that she was set at liberty. Several illuminating facts have been brought to light by these registers. It appears that in 1932, 88 women were admitted to the Ashram. Of these, six were between the ages of 9 and 13; two between 14 and 15; 57 between 16 and 20; 21 between 21 and 25; 1 between 26 and 30; and 1 between 31 and 35. In 1933 there were 109 admissions. Of these 2 were between the ages of 9 and 13; 1 between 14 and 15; 53 between 16 and 20; 45 between 21 and 25; 5 between 26 and 30; and 3 between 31 and 35. Thus there was not a single woman above the age of 35 and the large majority of them were of an age at which it would be profitable to supply them to the Punjab or elsewhere as wives. It appears that in 1932, 26 girls were married off, 15 ran away, 1 went mad, 3 were released, 40 returned home and 3 were ultimately released by the police. In 1933, 33 girls were married off, 13 ran away, 1 died, 1 went mad, 8 were released, 39 went home and 14 were released when the institution was raided by the police. Out of the 26 who were married in 1932, 19 went to the Punjab and Sind and each of the 33 girls who were married in 1933 went to the Punjab or Sind.

10. The income from 'donations' in 1932 was Rs. 1941 and in 1933 it was Rs. 3572. When a girl was admitted to the institution, no information was sent either to the police or to a Magistrate and it does not appear that any official was ever invited to inspect the institution; and apparently the fact that a girl may have been already married was no bar to her remarriage. D. W. Sadho Saran, who is a member of the managing committee and who has held various offices at the Ashram, says that when a girl was admitted, enquiries were made by letter or by a messenger from her parents or guardian; but there is no documentary evidence to support this allegation. Mt. Lakhrajia's second husband Bairagi has given evidence for the defence and he says that he had received a letter about her from the Ashram, but he took no notice of it as he had already left his wife. He did not produce that letter and was unable to say whether he still had it or not. An entry in the register shows that on her admission Mt. Lakhrajia stated that her parents were alive and that she had been wandering about for the last year or year and a half. In the circumstances, if a letter was to be sent, it obviously ought to have gone to her parents and not to the husband who had left her. Sadho Saran has made certain admissions when confronted with the registers and these make interesting reading. He admits that on 14th April 1932, 5 women escaped by making a hole in the wall of the privy: that on 5th May 1932, 3 women ran away by breaking a lock and scaling a wall, that on 24th May 1932 a girl ran away at midnight by scaling the wall; and that on 6th June 1932 three other women ran away during the night by breaking open the lock of the upper storey and removing a tattar. Witness pretends that he has no recollection whatsoever of these incidents; but he was unable to deny them when confronted with the register. In the statement which she made before the Sessions Judge on 9th February 1935 Mt. Lakhrajia supported all the allegations of the prosecution. February 10th was a holiday; but when she was further examined on 11th she went back on her previous statement and supported the defence.

11. I have no doubt whatsoever that she had in the meanwhile been influenced by the appellants, and the lower Court has rightly relied on the statement which she made on 9th February and also on the evidence which she gave before the committing Magistrate. It is extremely doubtful whether she could have invented that story or could have repeated it if she had been tutored to make it; and having considered it in the light of all the circumstances, I am satisfied that she was speaking the truth before the committing Magistrate and on 9th February 1935 before the Judge. As regards her abduction on 20th December, she is corroborated by Mt. Habiban and Abdul Wahid. Abdul Wahid also went back in the Sessions Court on the statement which he had made before the Magistrate and the learned Judge appears to think that he is not a reliable witness; but he believes Mt. Habiban. Even without the evidence of Mt. Habiban, I am satisfied from Mt. Lakhrajia's own statement that she was taken unlawfully by Bha-wani Pathak to the Ashram on 20th December 1933; and the evidence on this point draws support from the fact that Bhawani Pathak brought her back weeping from the station on 2nd January 1934. As regards her forcible detention in the Ashram, there is the evidence of two other inmates, namely Mt. Dhanpatia and Mat. Kumari, and, what is even more convincing, the fact that in order to get away she scaled a wall secretly at dead of night. The evidence to show that she was brought back from the station on 2nd January 1934 consists in the statement of the girl herself and in the statements of Hubdar Khan, Jhurai and three Hindu constables, namely Jagarnath Ram, Muneswar Singh and Ram Samojh Pande.

12. Jhurai in the Sessions Court went back on his previous statement, but the evidence which he gave before the Magistrate was read under Section 288, Criminal P.C., and there can be little doubt that he had been won over by the appellants before the case came to Sessions. In any event the evidence of the three constables and Hubdar Khan proves beyond any doubt that Mt. Lakhrajia was brought back from the station by Bhawani Pathak and that she was weeping and unwilling to go. In corroboration of her statement that she was subsequently confined by Ramchandra Prasad after having been released at the door of the Ashram on 2nd January there is the evidence of her father Nohar, a woman named Mt. Dulari and one Abdul Jab-bar. Abdul Jabbar has not been relied upon by the learned Judge and Mt. Dulari went back on the statement which she had made before the Magistrate. She was a maid-servant of Ram Chandra Prasad and in the Sessions Court she said that Mt. Lakhrajia had complete freedom in the house and that she never saw her weeping; but before the Magistrate she stated that she used to weep and that the house was locked and that she was never allowed to go anywhere except in company with Ramchandra Prasad's wife. I have no doubt whatever that what she stated before the Magistrate was correct and her evidence in that Court and the evidence of Nohar and Mst. Lakhrajia herself leaves very little room for doubt that the latter was being confined in the house of Ram Chandra Prasad. The only defence evidence to which I have been referred is that of Sadho Sharanand Bairagi to-both of whom I have already referred -and a midwife named Mrs. Edmund. The latter states that there were old women as well as young in the Ashram, that they lived there of their own free will and that on each of the two occasions when witness went to the Ashram, she found the door open.

13. In my opinion the charges have been satisfactorily brought home to the appellants and the learned Judge of the Court below has rightly accepted the evidence which was given in his Court by most of the prosecution witnesses and the evidence given by some of them before the committing Magistrate and has rightly rejected the defence. Sarju Prasad has been convicted under Sections 344 and 368, I.P.C., but his conviction under the former Section must be set aside since that offence is included in the offence under Section 368, I.P.C. This will make no material difference since the sentences which have been awarded are concurrent. I set aside Sarju Prasad's conviction under Section 344, I.P.C. Except for this modification, the appeal is dismissed. The appellants must surrender to their bail.

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