1. This appeal is by two persons, Manik Molla and Hadan Molla. Manik Molla was charged with having committed offences punishable under Sections 344, 366 and 366A, Penal Code. Hadan Molla was charged with having committed an offence punishable under Section 368, Penal Code. They were tried by the Assistant Sessions Judge of Jessore and a jury. Manik Molla was found guilty of having committed offences punishable under Sections 344 and 366A, Penal Code. He was acquitted of the charge under Section 366, Penal Code. Hadan Molla was found guilty of having committed an offence punishable under Section 368, Penal Code. The case for the prosecution briefly is as follows:
2. The accused Manik Molla is the husband of the elder sister of Abdul Gafur, who is the husband of Asiran Bibi. It is alleged that Asiran Bibi is aged fourteen or fifteen. The prosecution case is that Manik Molla kidnapped Asiran Bibi and took her away from the lawful guardianship of her husband. He kept her in various houses in most of which, the girl alleges she was raped, both by Manik Molla and others. Finally, she was taken to the house of Hadan Molla and there confined by Hadan Molla. One day Abdul Gafur was passing by Hadan Molla's house and Asiran Bibi heard his voice and ran out to meet him. Abdul Gafur then tried to take his wife away, and there was a struggle between him on the one side and Hadan Molla and Manik Molla on the other. The villagers intervened, and eventually the girl was taken away by the husband. These are the main facts of the case for the prosecution.
3. The learned advocate appearing on behalf of the appellants contends, first, that the conviction of Manik Molla under Section 366A, Penal Code, should be set aside on the ground that there was no proper direction to the jury given with respect to this offence. In our opinion, there is substance in this argument. In order to establish an offence punishable under Section 366A, Penal Code, the prosecution must prove that the accused by some means or other induced a minor girl under the age of eighteen to go from one place to another with the intention that such girl may be forced or seduced to illicit intercourse with another person, or knowing it that it is likely that she will be forced or seduced to illicit intercourse with another person. If a person induces a girl to go from one place to another for the purpose of seducing her himself, the offence is not one which comes within the purview of Section 366A, Penal Code. The section is aimed at procurers. The prosecution must prove that the accused intended that the girl would be forced or seduced to illicit intercourse with someone other than himself; or that the accused knew that it was likely that she would be so forced or seduced. It is true that the learned Judge placed the section before the jury and stated the different elements constituting the offence. This he did at the beginning of his charge, but when he came to deal with the evidence he did not point out to the jury that before they could find Manik Molla guilty of the offence punishable under Section 366A, Penal Code, they were to be satisfied that Manik Molla either intended that Asiran Bibi should be seduced or forced to illicit intercourse with others or that he knew that she was likely to be so forced or seduced when he took her away and kept her in different houses. The existence of this specific intention or knowledge is a most important element in the constitution of an of fence punishable under Section 366A, and it was the duty of the learned Judge to ask the jury to consider the evidence and to decide whether the evidence conclusively proved such intention or knowledge. He has, however, not done this, and we are of opinion that the jury were not properly directed in so far as this charge is concerned. That being so, the conviction of Manik Molla with reference to the charge under Section 366A, Penal Code, cannot be upheld and must be set aside. We accordingly acquit him of that charge.
4. As regards the charge under Section 366, Penal Code, that is, the charge of kidnapping, the jury have found Manik Molla not guilty. We need say nothing further about that charge. So far as the charge under Section 344, Penal Code, is concerned we can find no misdirection or non-direction in the charge, and the conviction of Manik Molla on this charge must be upheld. No separate sentence was passed in respect of this offence. We are of opinion, in the circumstances of this case, that the maximum sentence should be awarded. We accordingly sentence Manik Molla to undergo rigorous imprisonment for a term of three years with respect to the charge under Section 344, Penal Code. He must surrender to his bail and serve out the sentence. There remains the case of Hadan Molla. As stated before he was charged under Section 368, Penal Code. That section reads as follows:
Whoever, knowing that any person has been kidnapped or has been abducted, wrongfully conceals or confines such person, shall be punished in the same manner as if he had kidnapped or abducted such person with the same intention or knowledge, or for the same purpose as that with or for which he conceals or detains such person in confinement.
5. The section consists of two parts. One part deals with the wrongful concealment or confinement of a person who has been kidnapped, and the other with the wrongful concealment or confinement of a person who has been abducted. Hadan Molla was charged under both parts of the section. In other words, it was alleged that he knew that Asiran Bibi had been either kidnapped or abducted, and knowing that, he wrongfully confined her in his house. Now, Manik Molla has been acquitted of kidnapping and, therefore, it must be taken that Asiran has not been kidnapped. Hadan Molla cannot, therefore, be found guilty of confining or concealing Asiran Bibi, knowing her to be kidnapped.
The question remains whether he could be found guilty of confining or concealing Asiran Bibi, knowing her to have been abducted. Now, there is no charge of abduction against Manik Molla. He was charged with kidnapping. This is apparent from the charges themselves and also from the directions of the Judge to the jury. He says that the charge against the accused Manik Molla 'is the one under Section 366, Penal Code--kidnapping (not abduction).' There was, therefore, no case made out to the jury that Asiran Bibi was abducted. Manik Molla had not to meet such, a case. In these circumstances, I find extremely difficult to conceive how Hadan Molla could be called upon to meet a case of confining an abducted girl. It seems to me that it would be in the highest degree unfair to subject Hadan Molla to a trial for concealing an abducted girl when the charge against the person who has taken away the girl is not one of abduction but of kidnapping. If Manik Molla had been charged in the alternative with abduction, he would have been called upon to disprove such a charge and he may have exonerated himself by showing that he did not practice any force or any deceitful means in taking away the girl. He was, however, charged with kidnapping pure and simple. He was, therefore, not called upon to meet any case of forcible taking away, or taking away by deceitful means and there was no need for him to show that no force or deceipt was employed. The absence of a charge of abduction against Manik Molla has thus deprived Hadan Molla of the advantage which he may have got had Manik Molla been charged with abduction. As I have stated before, Manik Molla may have shown that he was not guilty of the charge because he did not use force or deceitful means; and if Manik Molla had succeeded in showing this Hadan would have been entitled to the benefit of Manik's successful defence. In my opinion as Manik Molla has not been charged with abduction Hadan Molla cannot be charged with concealing or confining an abducted girl. The proper course for the learned Judge would have been to tell the jury that as there was no charge of abduction against Manik Molla, all that they had to consider was whether Hadan Molla confined Asiran Bibi knowing her to have been kidnapped. Not having framed the charge of abduction against Manik Molla, the learned Judge should not have allowed the case of confining an abducted girl against Hadan Molla to go before the jury. In these circumstances I am of opinion that the sentence and conviction of Hadan Molla must be set aside. The appeal of Hadan Molla is allowed. He is acquitted and discharged from his bail bond.
6. I agree.