1. In this case the appellant was charged with and convicted, by the Additional Presidency Magistrate of Calcutta, of an offence under Section 498, I.P.C. and sentenced to, rigorous imprisonment for 12 months. The accused is 19 and the married woman whom, it is alleged, he took or enticed away from her husband, is aged 25. In cases under this section consent is immaterial. But it is essential to see that there is evidence that the accused took or enticed away the woman, within the meaning of the section.
2. The complainant and his wife and the accused have been on intimate terms of friendship for a considerable time. The accused was constantly at the complainant's house and there is no doubt, that he knew quite well that she was married to the complainant, and the marriage was sufficiently proved. The complainant was not able to give any evidence himself with regard to the taking away of his wife, because he was not present at the time. All that he could say was that she disappeared from his house and, consequently, he charged the accused with having enticed her away. In cross-examination, he admitted that the accused was constantly at his house, playing cards with him and his wife and sister, that he used to give the complainant tips for the races, and that he was left in the house alone with the complainant's wife on many occasions. He stated that neither Stella, that is, his wife's mother, nor Daisy, his father's daughter, who was called by him stepsister nor some person, Charlie Davies, who also lived in the same house, knew when his wife left the house, nor was he able to say who carried her boxes. His wife did not tell him how this was done.
3. Mrs Stella Davies, the girl's mother, stated that the accused took her daughter away. But it seems apparent that this evidence was merely hearsay because she was not actually present when the woman went away, though she lives in the same house. In cross-examination she stated that the accused was a frequent visitor at the complainant's house, but she was not sure whether he used to sleep there at night. She saw him in the house very early in the morning having his tea. He used to sit the whole day in the house, while the complainant was at work. Her son, apparently meaning the complainant, was very friendly with the accused and so he was allowed to live with them like the others.
4. Nur Mohammed is a servant employed in the house and he stated that he saw the complainant's wife and the accused go away in a taxi. In cross-examination he said that the accused carried down the memsahib's boxes. He was not able to say who called the cab. The complainant's wife gave evidence of her marriage, and stated that the accused took her away on 19th December. She stated that she was not happy; so she went to Asansol with him and then visited various other places. During this time they lived as man and wife. A letter was put in evidence (Ex. A) which was written by the woman's mother to her daughter, in which she stated that the complainant was not in any way concerned about her daughter and the accused, and that he had expressed himself that as she had gone away of her own free will, he did not want to have anything more to do with her, and that he was not going to spend any money with regard to her in any way. It is obvious, from this letter and the attitude of the mother, that whatever it was that happened with regard to the complainant's wife's departure from her home, it was concurred in and approved of by the mother.
5. The complainant's wife, in cross examination, said that the accused used to play cards in the house at night and that on occasions stayed for the whole night. She used to go out on a cycle with him, and her husband used to leave her and the accused together in the house alone and made no objection. The accused and the complainant and his wife all used to sleep in the same bed, though she said that nothing improper took place at those times. She had no relations with the accused before she left home. Her marriage was unhappy, as it was arranged while she was still at school, and she did not like to get married so early. Though her husband has forgiven her, she is still unhappy and wants to be free and earn her own living.
6. One witness was called on behalf of the defence, the complainant's half-sister, Daisy Davies. Her evidence was that she used to live in the house with the complainant and his wife and they always quarrelled; the complainant's wife told her that she was not happy, and the complainant often told his wife that if she was not happy she could get out. On 19th December, the complainant's wife left the house. On the previous night the complainant and his wife had a quarrel and he told her that she could go away. This witness was in the house when she loft. She did not see the accused at that time. The complainant's wife went away in a cab and Nur Mohammed, the servant, took down her luggage. She had money with her. The witness told the complainant that his wife had gone away, and he said that he was not anxious to get her back, but wanted his money. Further, she said that she tried to prevent her from going, but she said that if she did not go then, she would, go away sometime or other.
7. In his written statement the accused said that the complainant's wife came to his place in a taxi at about 10-30 a.m. on 19th December, and asked him to accompany her to Howrah Station as she was going to a friend's place in Assansol. He got into the taxi and went with her to the station. There she begged him to go with her as she was afraid of travelling alone, so he went. According to this statement, the complainant's wife paid the whole of the expenses, both of the journey and during their absence from Calcutta. The accused, who was out of employment at the time, was unable to support himself, much less any one else. Now, these are the whole of the facts, and the learned Magistrate's opinion was that it was a sordid case, and that the story was a sad one. He came to the conclusion that the girl was very unhappy and wanted to be free of her marriage. He accepted the evidence that these three people had been sleeping in the same bed together. Nevertheless, he came to the conclusion that there was evidence that the accused enticed the woman away and for this reason, he found it necessary to convict him.
8. In this case there is an appeal upon acts, and we have carefully considered the evidence. In all the circumstances, we have come to the conclusion that there is considerable doubt whether the evidence is sufficient to show that the accused either took away or enticed away this woman within the meaning of Section 498, I.P.C. The mere fact that the wife went away of her own accord from her husband's house, and was accompanied a part of the way by the accused, is not, in our opinion, sufficient to show that the accused took or enticed the woman away within the meaning of the section. There must be some tangible evidence of taking or enticing. Having regard to the evidence given by the complainant's sister, Daisy, which seems to ring true, and probably gives a more accurate description of what took place on 19th December, we think there is considerable doubt in this case, and the benefit of that doubt ought to have been given to the accused. Therefore the conviction and sentence are set aside and the accused is acquitted. The accused who is on bail is discharged from his bail bond.
9. I agree.