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Nanku and ors. Vs. Emperor - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad
Decided On
Reported inAIR1935All916; 159Ind.Cas.183
AppellantNanku and ors.
RespondentEmperor
Cases Referred and Saharali Mahommad v. Kamizuddin Mahammad
Excerpt:
- - nothing which is done in good faith for the benefit of a person under 12 years of age or of unsound mind by or by consent either express or implied of the guardian or other person having lawful charge of that person is an offence by reason of any harm which it may cause. clearly it is against the policy of the act that a husband should obtain possession of his wife if she has not attained the age of 14 years laid 'down in the act. i cannot therefore consider that the obtaining possession of this minor by nanku would be for her benefit as the law clearly provides that such marriages shall rapt take 1 place......for 15 days only after the marriage and she was then brought back to the home of her father durga prasad. durga prasad refused to allow his daughter to go back to her husband. the reason which he has given in cross-examination is 'i do not send my daughter to her husband as she is too young and as her husband cannot support her properly.' for the defence it was alleged that durga prasad had some intention of remarrying her to someone else. learned counsel alludes to a passage where durga prasad states 'in our community a woman can be remarried' ('hamlogon men dusri shadi hai'). but this passage apparently means that widows can be remarried and it does not mean that a woman who has her husband alive can be remarried in this caste of sunars. learned counsel points out that the.....
Judgment:

Bennet, J.

1. This is an appeal on behalf of four persons Nanku, Asharfi Singh, Shankar and Ramlal who have been convicted by the Sessions Court of Budaun under Sections 148 and 352/149, Penal Code, and Shankar has also been convicted under Section 19(f), Arms Act. Sentences of one and two years' R.I. under Section 148 and three months' and one month's R.I. under Section 352/149, Penal Code, have been imposed and an additional one year's R.I. under the Arms Act on Shankar. The circumstances are somewhat peculiar. It is admitted that the accused Nanku, whose age is given as 20 years, was married four years ago to a child Mt. Chandrakali whose age is about ten years and her age at that period was apparently six years. She stayed with her husband for 15 days only after the marriage and she was then brought back to the home of her father Durga Prasad. Durga Prasad refused to allow his daughter to go back to her husband. The reason which he has given in cross-examination is 'I do not send my daughter to her husband as she is too young and as her husband cannot support her properly.' For the defence it was alleged that Durga Prasad had some intention of remarrying her to someone else. Learned Counsel alludes to a passage where Durga Prasad states 'In our community a woman can be remarried' ('hamlogon men dusri shadi hai'). But this passage apparently means that widows can be remarried and it does not mean that a woman who has her husband alive can be remarried in this caste of Sunars. Learned Counsel points out that the allegation that Durga Prasad was going to marry his daughter to someone else was pleaded by the accused to the committing Magistrate; but the mere making of an allegation is no proof and there is no evidence on the record that Durga Prasad had any such intention. In fact Durga Prasad specifically denied that he ever said anything of the sort to Nanku.

2. Now, Nanku desired to obtain possession of his wife and learned Counsel argues that it was legal for him to obtain possession of her because as her husband he was entitled to be her legal guardian. Learned Counsel refers to Mulla's Principles of Hindu Law, Edition 7, paras. 442 and 443, where it is staled that the husband is a lawful guardian of his minor wife and is entitled to require her to live with him however young she may be, unless there is a custom enabling the wife to live with her parents until she has arrived at puberty. In para. 444 the remedy of the husband is stated to be a suit for restitution of conjugal rights, and in para. 442 no agreement between, the parties would be an answer to such a suit. But it is not written anywhere in Mulla that a husband has any right to enforce his rights over his wife otherwise than by a suit in the Courts. Learned Counsel Mr. Bradley for the appellants contends that this is a case in which Nanku was entitled to take his wife away, whether she desired to come home or not; in other words that it was a case where a man is entitled to the doctrine of self-help. He relies on Section 89, Penal Code, which states:

Nothing which is done in good faith for the benefit of a person under 12 years of age or of unsound mind by or by consent either express or implied of the guardian or other person having lawful charge of that person is an offence by reason of any harm which it may cause...to that person.

3. To obtain the benefit of this exception it is necessary to show that the act was done for the benefit of the, minor. In the present case it appears that Nanku desired to have possession of his wife for his own benefit. But it does not follow that for Nanku to obtain possession of the person of his wife would be for her benefit. She has not attained the age of puberty and apparently the presumption is that Nanku desired to have her for the purpose of having sexual connexion with her. This purpose is one which it is the policy of the law to prevent. Under Act 19 of 1929, an Act to restrain the solemnisation of child marriages, otherwise known as the Sarda Marriage Act, it is stated to be an offence if after 1st April 1930, when the Act came into force, any marriage is celebrated with a female under 14 years of age. Now the marriage in question having taken place four years before the Sessions trial in 1935 must have taken place in 1931, that is after this Act came into force. The celebration therefore of this marriage was a criminal offence. Clearly it is against the policy of the Act that a husband should obtain possession of his wife if she has not attained the age of 14 years laid 'down in the Act. I cannot therefore consider that the obtaining possession of this minor by Nanku would be for her benefit as the law clearly provides that such marriages shall rapt take 1 place. No doubt the Act does not make the marriage illegal and after the girl has attained 14 years the objection would no longer arise, but the girl is at present only 10 years of age and the objection does not exist. Moreover this question of guardianship for which learned Counsel relied on two rulings : Emperor v. Sital Prasad 1919 All 36, at p. 149 and Saharali Mahommad v. Kamizuddin Mahammad 1931 Cal. 446, is a question which has arisen in connexion with convictions under Section 366, Penal Code., for kidnapping from lawful guardianship. In the present case the trial and convictions are not under that section, but are under Sections 148 and 352/149, Penal Code.

4. The next legal argument which was addressed to me was that Sections 148 and 149 would not apply because it is not shown that there were five persons concerned in the transactions. Seven persons were placed on trial before the learned Sessions Judge and he has acquitted three of these persons. The argument therefore is that on his findings there were only four persons concerned in these transactions. But I find that at the end of his judgment the Sessions Judge states 'that a number of guilty persons have escaped.' He therefore was of opinion that there were a large number of persons concerned in these transactions than the four whom he convicted. In the first report there were seven persons named and the complaint was that 15 or 20 other persons unknown with these seven persons, that is 22 to 27 persons in all committed the riot in question. The prosecution evidence is to that effect. As regards the three persons who were acquitted by the Sessions Court two of these persons Jadon Singh and Har Prasad were arrested on the spot by Sub-Inspector Krishna Kumar Chaturvedi. He stated that these persons 'were resisting the scouts and others who were helping the girl.' The learned Sessions Judge in considering the evidence of the prosecution against these accused Jadon Singh and Har Prasad on pp. 89 and 90 omits to notice the evidence of this Sub-Inspector as to what they were doing when they were arrested. I see no reason to disbelieve the evidence of the Sub-Inspector and accordingly it appears to me that these two persons were also taking part in the riot.

5. Learned Counsel has addressed some arguments to me in regard to the other four persons who were convicted; but it appears to me that they were undoubtedly taking part in the riot also. There were therefore at least six persons who took part in this affair who were known besides a number of others who were apparently not known. In regard to the accused Buddha who was also acquitted, the Court below merely gave him the benefit of the doubt.

6. I now come to deal with the question of what occurred according to the prosecution. The prosecution stated that Durga Prasad, the father of Mt. Chandrakali, went for a walk to see a certain mela and his daughter who was sitting near the mela was suddenly seized by Nanku and a large party of persons, three of whom had guns and the rest had lathis. Nanku caught hold of the arm of the girl and dragged her for a considerable distance. Her brother Ramsarup, a boy of 12, ran up and raised an alarm. The accused Shankar had a bandoleer of cartridges and a gun and he fired a shot and another shot was fired half a minute later. Two boy scouts who were on duty at the fair, Durga Prasad and Muhammad Ibrahim, came up and made an attempt to prevent the party of the accused forcibly taking away the girl. Nanku snatched the gun and pointed it at the chest of the scout Durga Prasad and threatened to fire. The scout Muhammad Ibrahim ran away. Sub-Inspector Krishna Kumar Chatur-vedi came up with some constables and saw Nanku dragging along Chandrakali who was screaming, and the accused helping Nanku and resisting the scouts and the Sub-Inspector arrested Jadon Singh, Har Prasad, Nanku and Shankar. The guns had been taken away by the other accused who ran away, but Shankar was found in possession of the bandoleer of cartridges in which there were 23 live. 12 bore cartridges. A number of witnesses are produced to support this story. It is obvious that the Sub-Inspector and the two boy-scouts who belonged to the Baden-Powell Srous are independent witnesses and have no reason to give false evidence. The boy-scout Durga Prasad aged 18 years, states that he saw Nanku and a number of persons with him dragging this girl along who was screaming and that there was a crowd. Muhammad Ibrahim gives similar evidence. It is obvious that what was goeing on was a riot and that there were a large number of persons concerned in it in the party of the accused. I am of opinion therefore that Sections 148 and 149, Penal Code, do apply.

7. Learned Counsel argued further that Section 352, Penal Code, (criminal force), would not apply because in the definition of 'criminal force' in Section 350 there is the element 'in order to the committing of any offence.' He argues that for a husband to take his wife would not be an offence. It may be that, the particular offence of kidnapping would not exist, but it appears to me that the latter portion of the definition of Section 350 does apply, that is to cause injury, fear or annoyance to the person to whom the force is used. I consider that Nanku in dragging his wife forcibly caused injury, fear and annoyance to her, and I do not consider that a husband has any legal right to cause injury, fear and annoyance to his wife. His wife was at the time living with her father. If Nanku had a legal right to obtain possession of his wife the means which he should have used were to have recourse to the Courts and not to use force. I may point out that under Section 141, Fourth, it is a part of the definition of an unlawful assembly where criminal force is used to enforce any right. Even therefore if the right existed the right must not be enforced by the use of criminal force, and where five or more persons employ criminal force for the enforcement of a right they constitute an unlawful assembly.

8. One point taken in the grounds of appeal was that it was not suggested that the appellant Nanku was armed with a deadly weapon and his conviction under Section 148 was illegal. The witness Durga Prasad, the boy-scout, states that Nanku pointed his gun at him and threatened to fire at him. This is also stated by the scout Muhammad Ibrahim. The same statement occurs in the evidence on p. 11 of Durga Prasad and in the statement to the police on p. 17 of Muhampad Ibrahim scout. Learned Counsel invited attention to these two places because he said that the statement was not there, but his argument is incorrect. These two witnesses stated that there were 3 guns, one, with Nanku, one with Asharfi Singh and one with Shankar. These three persons have been correctly convicted under Section 148, Penal Code. The remaining accused Ramlal has not been convicted under that section. There was also a conviction of Shankar under Section 19(f), Arms Act. For his defence it is argued that there are various rulings of this Court that the possession by a servant of a gun is legal if his I master has a license for the gun. In those cases the servant was carrying the gun for a lawful purpose on behalf of his master. In the present case the gun was used by Shankar in a riot and he fired the gun for that purpose. Obviously this was not possession for a lawful purpose. It is not possible for a person licensed to possess gun to authorise the possession of that gun by his servant for an unlawful purpose. Therefore I consider that the rulings in question do not apply and that Shankar has been correctly convicted under Section 19(f), Arms Act.

9. The only question remaining is the question of sentences. The Sessions Court has provided that the sentences should be consecutive. I consider that the sentences imposed are severe in the case of Nanku and accordingly I reduce his sentence from two yeans' R.I. under Section 148 to one year's R.I.I. also reduce the sentence on Shankar under Section 19(f), Arms Act, from one years' R.I. to six months' R.I. Otherwise I maintain the convictions and sentences and dismiss the appeal. Those accused who are on bail must surrender to their bail and undergo the remainder of their sentences. The courageous conduct of the B.P. Boy Scouts Durga Prasad and Muhammad Ibrahim is commended and this judgment may be shown to Iqbal Ahmad, J., Provincial Commissioner.


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