1. In this case the learned Sessions Judge of the Assam Valley Districts has referred the case of two persons, Makhan Lal Garodia and DebiDutt (Serangi) alias Kopa Driver, to us under Section 307, Criminal P.C. The accused were tried together with three other persons, namely, Bhuban Bijoy Singh, Sew Prasad Agarwalla and Sew Pujan, in the following circumstances: There is an unmarried girl whom the medical evidence shows to be of about 20 years of age, who at the time of the events in question was living with her brother-in-law Gaziram Kooch in Dibrugarh. There is a Marwari shop keeper in Dibrugarh of the name of Lachiram Agarwalla. It is an admitted fact that Lachiram formed an illicit connexion with the girl Subhadra. It appears that Lachhiram was in the habit at first of visiting Subhadra at Gaziram's house.
2. In April or May 1932 according to the prosecution, Makhania, Bhuban Bijoy and his mistress an Assamese Dom named Kusum, visited Gaziram's house and obtained possession of the person of Subhadra by falsely representing that they had been sent to fetch her by Lachiram. On this the girl consented to accompany Makhania and Bhuban. But she was taken by them not to Lachiaram's house but to Kusum's house where she was raped by Makhania. She was discovered by Gaziram at this house and recovered by him. His story is that he consented to compromise the matter for a sum of Rs. 100 of which Rs. 50 was paid on that occasion with a promise that the balance would be paid at a later date. He signed a document which does not support this theory but lends colour to the defence suggestion that he agreed to make over his sister-in-law to Makhania as his concubine. Whatever may be the truth as regards this part of the story, it is quite certain that Subhadra returned to Gaziram's house on or about the 10th May 1932 and that a fortnight later she was removed from that house with her consent to become the kept mistress of Lachiram. On that occasion formal documents were executed by the parties duly stamped and embodying an agreement that Subhadra should behave as an obedient and faithful wife towards Lachiram who on his side undertook to treat her properly and provide for her in a suitable fashion. Lachiram is a married man whose wife lives in the same house with him at Dibrugarh. Arrangements were accordingly made whereby Subhadra was installed in a room in a corrugated iron building in Dibrugarh belonging to a man named Dhaneswar. There were other people living in the building including a relation of Subhadra's, a man about 25 years of age named Manik Ram Subhadra lived in that house, Lachiram visiting her there periodically, until the night of 10th August 1932.
3. According to the prosecution, on that night, Makhania, Bhuban Singh and Debi Dutt who is a taxi driver, broke into the house and climbed over a partition into the room occupied by Subhadra and forcibly removed her. It is said that they carried her from the house towards Debi Dutt's taxi which was standing close at hand and that before they reached the taxi Subhadra struggled and forced them to drop her in the mud, a fact which roused the attention of Sew Dayal Hajam, P.W. 2, who claims to have recognized the three persons whom I have named. Subhadra however was put into a taxi which was driven in the direction of some cross roads. There were various people in the neighbourhood of the cross roads and a considerable number of them have given evidence. They say they heard the screams of a woman as also shouts of the male occupants of the taxi. None of them however claims to have recognized Bhuban by sight, though one says that he recognized Bhuban's voice. Subhadra's story is that she was taken to Kusum's house as on the previous occasion in May and there ravished by Makhania. Two days later she was removed to a village named Romai where she was kept in the house of one Sew Prasad. 'Within the course of the same day she was taken from Romai by one of Sew Prasad's servants, a man of the name of Sew Pujan, to another hut belonging to Sew Prasad in an adjoining village of the name of Churikata. From there she was rescued by the police and Gaziram. This was the prosecution story and charges were eventually framed against Bhuban, Makhania and Debi Dutt under Sections 457 and 866, I.P.C. and against Sew Prasad and Sew Pujan under Section 383, I.P.C. Bhuban denied having had anything to do with the occurrence and having seen Subhadra on or about 10th August.
4. On the other hand, Makhania and Debi Dutt admitted having taken the girl away from Kusum's house to Romai on 12th August. Makhania's story was that Subhadra consented to accompany him in May, as the document signed by Gaziram on 10th May indicates, but that Lakhman had subsequently obtained possession of her by a trick. He said that on 10th August, he received a message from Subhadra asking him to remove her from Lachiram's control and that he therefore made arrangements with Debi Dutt for the use of the latter's taxi with which he went to the house where Subhadra was living and took her away in the taxi at her request and with her consent. Similarly he admitted the removal of Subhadra from Dibrugarh to Romai on 12tb August, and states that this was done with Subhadra's approval. Sew Prasad and Sew Pujan also stated that they had acted very much in the way that the prosecution alleged, but they said that the girl had approved the arrangements that were made and that she was cheerful throughout and that they had no suspicion that she was the victim of abduction. The jury unanimously found Bhuban Singh, Sew Prasad and Sew Pujan not guilty of the charges framed against them. The learned Sessions Judge has accepted the verdict of the jury and has acquitted these three persons. The jury however unanimously found Makhania and Debi Dutt guilty under Sections 457 and 366, I.P.C. The learned Judge has not accepted this verdict and has recorded that in his opinion it is perverse and opposed to the weight of evidence, and has also recorded that it is necessary for the ends of justice to refer their case to the High Court.
5. When we turn to the learned Judge's letter of reference, its terms occasion considerable doubt in our minds whether the circumstances of the case bring it under Section 307, Criminal P. C, at all. There is no statement in the letter that it is necessary for the ends of justice to refer the case to us, but having regard to what was recorded by the learned Judge at the time of the verdict, this is of trifling importance. What is however of importance is that the learned Judge states that he would have been prepared to act upon a verdict of guilty against Bhuban, Makhania and Debi Dutt under Section 366, I.P.C. He says however that he has not recommended the conviction of all these three, because there seems to him to be a considerable element of doubt in the case, and because the verdict of the jury showed that they thought the principal witnesses capable of falsely incriminating the most important of the accused. It is clear that what has weighed with the learned Judge is not so much the opinion that the verdict of guilty with regard to these two accused is erroneous in fact, as his view that if the jury were prepared to convict these two accused on the prosecution evidence, they should also have convicted Bhuban Bijoy. As we have had occasion to observe before, this line of reasoning is to be applied with a considerable degree of caution. It is notorious that in this country, as probably elsewhere, it is not an uncommon thing for the witnesses to give a substantially correct story but at the same time to endeavour to implicate the innocent as well as the guilty. If the Court suspects that the evidence of a witness is affected by a motive of this sort, it will be reluctant to accept any portion of that evidence; but at the same time, it is going too far to say that the jury are acting perversely, because they are of opinion that the evidence of certain witnesses proves the guilt of certain of the accused but does not prove the guilt of their co-accused, although on the face of it, it implicates the latter in an equal degree.
6. It appears to us that the very fact that the learned Judge was in doubt whether to recommend the conviction of Bhuban Bejoy or the acquittal of Makhania and Debi Dutt, shows that he could not be said to disagree with the verdict of the jurors within the meaning of Section 307, Criminal P.C. A disagreement within the meaning of that section is one of the Conditions precedent to a reference; and we very much doubt whether a Judge is justified in referring the case to this Court, where his quarrel with the jury's verdict is not that the persons who were found guilty should in fact have been found not guilty, but that logically the persons who have been found not guilty should have been found guilty as well. However we do not desire to dispose of the reference on this ground, although we consider it a substantial ground. (After considering the case on merits also the order proceeded.) In these circumstances we feel that the reference should be rejected, and we accept the verdict of the jury and convict Makhania and Debi Dutt under Sections 457 and 366, I.P.C. having regard, however, to the disreputable character of all the persons concerned, we do not think that a heavy sentence is called for. We therefore sentence Makhania to one year's rigorous imprisonment under Section 366 and Debi Dutt to six months' rigorous imprisonment under that section. We pass no separate sentences under Section 457. If on bail, they will forthwith surrender to their bail bonds and serve out the sentences imposed on them.