1. These appeals by the appellants are against their convictions and sentences under Sections 366 and 366-A, I. P.C. The appellants Rahim Bux and Katyayani Dasi were tried by the learned Assistant Sessions Judge of 24 Parganas with the aid of a jury. The unanimous verdict of the jury was that both the accused were guilty under Section 366, I.P.C. and that the accused Katyayani was further guilty under Section 366.A, I.P.C. The learned Judge sentenced each of them to rigorous imprisonment for seven years in spite of the recommendation by the jury that lighter punishment should be inflicted upon the woman on account of her age and 'because she had done what she did because of her excessive love for the girl Radharani.' That accused Katyayani has filed a regular appeal before this Court which is Appeal No. 264 of 1937. The appeal by her co-accused, which is Jail Appeal No. 213 of 1937, has been admitted and heard with the regular appeal. The case for the prosecution is briefly as follows : The complainant Radharani Dasi lost her mother when only 11 months old and since that time had been brought up by the appellant Katyayani, who is her mother's sister. Radharani was a married girl but at the time of this occurrence was not living with her husband but in the house of her father Abinash Chandra Pal where her aunt Katyayani and the other accused Rahim Bux were also residents. As has been pointed out by the learned Judge in his charge to the jury, the girl Radharani fell in love with the accused Rahim Bux and this love affair obviously enlisted the sympathy of the aunt Katyayani. Before the actual date of the occurrence, the girl had made preparation to leave home with the assistance of her aunt with the accused Rahim Bux. On the date of the actual occurrence the girl with her aunt left the house, joined the accused Rahim Bux and departed by train. They travelled together via Calcutta and Ranaghat to a village called Santipur where the complainant and her aunt lived together for one day and one night. The next morning the girl was rescued by the Santipur police and the whole party was taken into custody. Both the appellants were charged with kidnapping the complainant, a girl under 16 years of age, in order that she may be or knowing that she will be forced or seduced to illicit intercourse under Section 366. The woman appellant is further charged under Section 366-A of the Code for inducing the girl under 18 years of age to leave her father's house with intent that she may be, or knowing that it is likely that she will be forced or seduced to illicit intercourse with Rahim Bux.
2. In dealing with the charge under Section 366, I.P.C., the learned Judge explained the law as follows : He said that the prosecution to bring home the charge of kidnapping to the accused persons must prove first the taking or enticing away of Radharani by the accused persons, secondly that Radharani was under 16 years of age, thirdly the taking or enticing was out of the keeping of lawful guardian and lastly the taking or enticing was without the consent of the lawful guardian. With regard to the first item referred to in the charge the 'direction was inadequate. Where an allegation is made that two persons have joined in taking or enticing another, the direction should be certainly that the prosecution must prove that the taking or enticing was by the accused persons or either of them. The manner in which the learned Judge has formulated the law ignores the necessity of examining carefully the evidence against each accused person jointly charged with the particular offence. Throughout the charge there is no other reference to this aspect of the case. Indeed the only reference which can be found tends further to confuse the real issue. In dealing with the question whether the requisite intention required by Section 366 was made out against the accused persons, the learned Judge said that the jury ought only to convict if they thought that the only possible inference is that the girl was taken away with the object of illicit intercourse. He went on to say that if the jury found that one of the accused only had that object in view, the object was not shared by both, then they ought to hold that one was guilty of the higher offence under Section 366, I.P.C. What the learned Judge means is that if the jury was not satisfied that the offence under Section 366 was made out in the ease of both the accused, the alternative was under Section 366-A and this taken in conjunction with his previous direction is undoubtedly inadequate and misleading. If the intention required by Section 366 was not proved in the case, then it was the obvious duty of the Judge to say that the jury was bound to acquit them or one of them with regard to whom intention had not been made out. The next matter on which the learned Judge's charge in our opinion is bad in law is on the question of the lawful guardian. Having told the jury that the taking or enticing must be out of the keeping of the lawful guardian, he proceeds as follows:
The girl was taken out of the keeping of Abinash, her father. The girl was married and her lawful guardian is her husband. But under Section 361 of the Code the words 'lawful guardian' include any person lawfully entrusted with the care and custody of the minor. The girl was living with her father and it is for you to decide whether he had been entrusted with the care and custody of the girl Radharani.
3. There is no reference whatever in the charge itself to any evidence purporting to show that the girl was entrusted by her lawful guardian to the custody of her father. There is no reference whatever to the fact that the husband who presumably was the one person capable of giving evidence on this point was not examined as a witness for the prosecution. Moreover, in dealing with this question of lawful guardian, the learned Judge still further misdirected the jury having put before them the question whether the father, with whom the girl was actually living, was or was not the lawful guardian within the meaning of the explanation to Section 361. He proceeded to deal with the position of the accused aunt with reference to the provisions of that exception. What he said was that it was for the jury to consider whether there was any reasonable ground for her to believe, because she had been entrusted with the rearing of the girl, that she had authority to take the girl away from her father's house. This is a clear misdirection of law, because the exception to Section 361 simply is that the section does not extend to the act of any person who in good faith believes himself or herself to be entitled to the lawful custody of the child. There is no question whatever of any authority to remove the girl from the control of her lawful guardian. The misdirections above referred to are, in our opinion, amply sufficient for setting aside the verdict of the jury and the findings on which the convictions and sentences are based. The learned Judge's charge contains series of errors and is bad both for misdirection and for non-direction upon-the material points in the evidence which should have been brought to the notice of the jury in order to enable them to bring in a correct verdict. Moreover, it is perfectly clear from the evidence in the case and from the form in which the verdict of the jury was ultimately returned that the sentences passed by the learned Judge are, to put it mildly, quite out of proportion to the gravity of the alleged offences.
4. In the result the present appeals must, be allowed. The convictions of the accused persons, Katyayani Dasi and Sheikh Rahim Bux under Sections 366 and 366-A, Penal Code must be set aside and they must be acquitted. In the circumstances of the case we do not propose to order a retrial.
5. I agree and have little to add. As so frequently happens in these cases the male accused did not admit the. real object with which he and the girl ran away. He put forward a suggestion, which I am quite sure no jury would ever believe, that they ran away in order to have a bath in the Ganges at some holy place. Now it is established in the evidence that before the occurrence love letters of the warmest kind had been exchanged between the parties. At the time when the police arrived at the scene the girl was wearing a watch belonging to the male accused while he had a handkerchief on which the girl had embroidered both his and her own name. The learned Judge put this evidence before the jury when he was asking them to consider with what object the accused went away with the girl. I do not think that he did it very satisfactorily, because the letter which the girl admits that she wrote to the accused goes to show that no question of force or seduction could possibly arise in the case. Be that as it may, the learned Judge entirely failed to put this evidence before the jury in its bearing on the essential question whether the female accused had been proved to have taken or enticed the girl away. I cannot imagine that, if this had been done, the jury would have convicted her at all. It is clear from the recommendation which they made on the question of sentence that they realized more or less the true state of affairs and in view of this recommendation it is difficult to believe that they would have brought in a verdict of guilty if the case had been properly put before them.