1. The appellants before us are three persons named respectively Nirmal Kumar Bhowmik, Nihar Kumar Khan who is popularly known as Bolai, and Surja Kanta Haldar alias Saheb. Nirmal Kumar Bhowmik was charged with having committed an offence punishable under Section 366, I.P.C., and all the three appellants were charged with conspiring to commit that offence and with thereby committing an offence punishable under Section 366 read with Section 120.B, I.P.C. They were tried by the learned Assistant Sessions Judge of Hooghly. The trial was not altogether satisfactory. Under orders issued from time to time by the Local Government where an accused person is on his trial for an offence punishable under Section 366, he is tried by a Court of Session with the aid of a jury. On the other hand, it appears that trials of persons accused of offences punishable under Section 366 read with Section 120-B are held with the aid of assessors. With the laudable purpose of saving time the learned Assistant Sessions Judge empannelled a jury, and treated its members as jurors for the purposes of the trial of the appellant, Nirmal Kumar Bhowmik, for kidnapping, and as assessors for the purpose of the trial of all three of the appellants on the conspiracy charge. He charged them as jurors with respect to the charge under Section 366 and then took their verdict under that section, and they unanimously returned a verdict of guilty against the appellant Nirmal Kumar Bhowmik. The learned Judge then proceeded to question each 'juror assessor' separately, and asked them their opinions on the conspiracy charge. They all stated that their opinion was that all the three appellants were guilty under that charge. The final order passed by the learned Judge was in the following terms:
Agreeing with and accepting the unanimous verdict of the jury and assessors, I convict the accused Nirmal Kumar Bhowmik and Nihar Kumar Khan alias Bolai and Surja Kanta Haldar alias Saheb under Sections 366/120-B, I.P.C., and I sentence all the three accused persons to five years' rigorous imprisonment each. Agreeing with and accepting the unanimous verdict of the jury, I convict accused Nirmal Kumar Bhowmik under Section 366, I.P.C. and sentence him to rigorous imprisonment for five years. Both the sentences to run concurrently.
2. The trial, in our opinion, furnishes another instance of the difficulties which constantly arise from the mania of the prosecuting authorities in this province for framing charges against accused persons under Section 120-B. It would have been far simpler in this case to have charged Nirmal Kumar Bhowmik with an offence under Section 366, and the other appellants with having abetted the commission of that offence. In our opinion even assuming that the learned Judge was justified in dealing with both charges at the same trial, he has not observed the provisions of the law, because he has not done what he is required to do by Section 309, Criminal P. C, that is to say, he has not given a judgment. In a trial with assessors it is the duty of the presiding Judge to ascertain the opinion of the assessors after summing up the evidence to them if he thinks it necessary, and then to deliver a judgment. That judgment must conform to the provisions of Section 367 of the Code, and must accordingly contain the reasons for the learned Judge's decision. We do not think that the section is complied with if the learned Judge merely states that he agrees with the opinion of the assessors. In this particular case we do not think that any miscarriage of justice has been occasioned because the learned Judge clearly was aware that he was dealing with the conspiracy charge as a charge triable by him with the aid of assessors; and we consider we are justified in crediting him for having weighed the evidence and made up his mind that the case for the prosecution was satisfactorily proved independently of the opinion expressed by the assessors. We trust our observations will be noted by learned Sessions Judges in the province because it is easy to conceive a case where considerable difficulties would arise if a course similar to the one that has been followed in this trial were adopted.
3. We now have to deal with the facts of the case. The story is that there were two-families living in a house at Serampore. The head of one family was a gentleman named Mohini Mohan Choudhury who had a son named Manindra Choudhury. Mani is said to be implicated in the offence which is the subject matter of this appeal, but he has hitherto evaded arrest. Appellant 1, Nirmal, is closely related to Mohini Mohan Choudhury and he came to live as a member of the family in the house at Serampore in April or May of last year. In another part of the house there lived the family of a man named Panchanon Banerjee. Panchanon lived with his wife and three daughters, the eldest of whom is named Renubala, and is the girl who was the victim of the offence with which the appellants were charged. Renubala, it is stated, had just completed her fourteenth year in the beginning of August 1937. The second daughter who gave evidence at the trial is a girl of eleven, and the youngest daughter a girl of four years and a half.
4. The story is that the families became-closely acquainted, and that Nirmal was in the habit of taking walks in the river bank in company with Renubala and was also in the habit of giving her presents of sweetmeats and cosmetics. The Banerjee family seem, not unnaturally, to have viewed the situation with disapproval, and Panchanon accordingly arranged a marriage for his daughter, which was to have been celebrated on 26th of Sravan last, corresponding to 12th August 1937. This appears to have been distasteful to Renubala and also to Mani Choudhury and to the appellant. Nirmal. It is said that Nirmal entered into a conspiracy with Mani and the other two appellants to take Renubala away from her home for the purpose of preventing her marrying the proposed bridegroom, and also for the purpose of having illicit intercourse with Renubala. Accordingly in the early hours of the morning of 10th August. Renubala left the house in company with Nirmal. They went first to the house of a prostitute at Serampore named Gouri-bala who apparently has from time to time had immoral relations both with Nirmal and Balai. They waited there for a short;, time and then the appellant Surja, who was in Gouribala's house at the time, was sent to, fetch a taxi. The taxi arrived and Nirmal,, Renubala and Surja proceeded in the taxi together with luggage and bedding belonging to Nirmal and Renubala to Calcutta. When they came to Calcutta they discharged the taxi in, Beadon Street, and then went to a boarding house where Balai lived. They sent for Balai and Balai came down to the street and after some discussion two rickshaws were called, in which Balai, Benubala and Nirmal proceeded to a house in No. 1/1 Imam Bux Lane in the Chitpore locality. At that house Balai had engaged a room which he had furnished with bedding. I will deal with the circumstances in which the room was engaged when I come to consider the merits of the appeal. Renubala and the appellant Nirmal remained there for some hours, but later in the day they left Calcutta by train. They seem to have gone to various villages in the neighbourhood of Cossimbazar and they were finally discovered in a village called Keshabpur. Nirmal was arrested, Balai and Surja being already under arrest and Renubala was returned to the custody of her father. The date on which Nirmal was found was 16th August 1937.
5. With regard to the verdict of guilty and the consequent conviction of the appellant Nirmal under Section 366, the learned advocate was forced to admit that he had very little to say. The charge which the learned Judge gave was a lengthy and careful charge and he pointed out to the jury the various elements which had to be proved before the prosecution case could be established. First with regard to the age of the girl it appears to us that it has been established beyond question that she was born on 25th July 1923. Her father and mother both have given evidence to this effect and a copy of the local register of births has been produced which shows that Panchanon registered a female child as having been born to him on that date. A neighbour of Panchanon happened to become a father at about the same time and Panchanon gave information as to the birth of the neighbour's child as well. The neighbour has been called and he said that he remembered the birth of Panchanon's daughter as having occurred at the same time as the birth of his own child, that is to say, in July 1923. He recognized that daughter as Renubala who was of the same age as his own son. It was suggested that the entry in the birth register might have reference to the birth of the second daughter. The second daughter gave evidence and it is clear that having seen her the jury considered that such a theory was not supported by the girl's appearance. Moreover, the horoscope of Renubala has been-put in and her maternal grandfather gave-evidence of how he instructed the astrologer to prepare the horoscope and the astrologer had also been called as a witness. The learned advocate on behalf of the appellant Nirmal has suggested that Nirmal might be entitled to the protection of Section 79,I.P.C. which provides:
Nothing is an offence which is done by any person who is justified by law or who by reason of a mistake of fact and not by reason of a mistake of law in good faith believes himself to be justified by law in doing it.
6. The suggestion is that Nirmal might have thought that Renubala was over sixteen years of age and therefore not capable-in law of being kidnapped. The answer to this suggestion is that Section 79 is one of the general exceptions in the Code and the onus of showing that the section applies in his case is on the person who seeks to take advantage of it. Nirmal has not asserted that he believed the girl to be over sixteen years of age or that he had reasonable grounds for such belief. Having regard to the relationship of the parties it is highly improbable that he had a wrong impression about Renubala's age.
7. With regard to the intention with which he kidnapped Renubala, it is now suggested that he may have contemplated a lawful marriage. It is admitted however that he could not have married her according to Hindu law, as he and Renubala belong to different castes. Neither could he have married her under the Special Marriage Act before she attained the age of 21 with-out the consent of her lawful guardian, that is to say, her father. Accordingly, the marriage not being practicable he must have contemplated illicit intercourse. The' girl states that he made immoral proposals to her, but that she declined to accede to them. As the girl has been under the influence of her parents since her return by the police, we cannot attach much credit to her statement, but the facts leave no, doubt as to the intention of the appellant Nirmal. Accordingly the appeal against his convictions is dismissed. We consider the. verdict right and we do not think there is. any just ground for criticism of the learned Judge's charge.
8. With regard to the other appellants, they have an appeal on facts. We have been taken through the evidence and as regards the appellant, Surja, we consider that the case has been satisfactorily proved against him and his conviction by the learned Judge must be supported. The driver of the taxi, who has not been shown to be an untrustworthy person, swears that his taxi was engaged by Nirmal and Surja in the afternoon of 9th August and that Surja came and called upon the taxi-man to fulfil his engagement in the early morning of the 10th and to come to 'Gouribala's house. Moreover there is evidence that Surja was seen in the previous evening in consultation with Manindra and Nirmal. We consider that he was perfectly well aware of what was going on and his position was not that of one who was merely carrying out instructions which he did not understand. His conviction and that of Nirmal under Sections 366/120.B must therefore be confirmed and his appeal against it dismissed.
9. With regard to appellant 3, Nihar Kumar Khan alias Balai, we have come to the conclusion that there is a reasonable doubt of his guilt. He is not said to have been at Serampore on the day when Renubala was taken away, and we do not think that the evidence shows that when Nirmal called at Gouribala's house he was expected by Balai. Much has been made of the fact that Balai had engaged a room at No. 1/1 Imam Bux Lane. Balai's story is that he had engaged it for the purpose of accommodating Gouribala who had become tired of Serampore. There is a certain amount of evidence to support this and we are not prepared to say that it is not a reasonable hypothesis to entertain. Finally there is the conduct of Balai during the time that Renubala and Nirmal were at 1/1 Imam Bux Lane. A gentleman was called as a witness for the prosecution who is the secretary of a society which interests itself in the re-marriage of Hindu widows. This witness said that Balai came to him and explained to him that a friend of his brought a girl of 14 years of age from her home at Serampore without her father's permission, and enquired whether it would be possible for the parties to marry. The witness said that he told Balai that marriage was out of the question, that the girl should be immediately sent back to her father and that police inquiries might be expected. Balai apparently then informed Renubala and Nirmal that the police were after them whereupon they left Calcutta by train from Sealdah.
10. Now, to us Balai's conduct appears to be somewhat more consistent with good faith than with the reverse, because if he had been a party to a pre-arranged plan, the conspirators would have already decided on their course of action, and would have satisfied themselves as to the legal position from the point of view of a possible marriage. His conduct in visiting the witness appears to be that of a man faced with a sudden emergency who wished to find the best way out of it. The prosecution point to the fact that he said that the girl was likely to commit suicide, which was a threat made in a letter written by Gouribala purporting to be addressed by the girl to the man to whom she was to be married. This may be a mere coincidence or as is more probable, Nirmal may have told Balai that the girl was threatening to commit suicide. In our opinion there is reasonable doubt as to the guilt of Balai and we therefore allow the appeal against his convictions and sentences. He is acquitted, will be released and discharged from his bail bond forthwith. With regard to the sentences passed upon Nirmal and Surja we consider them to err on the side of the severity although the offences of which they have been convicted are serious. We reduce the period of imprisonment in the case of Nirmal from five years to four years and in the case of Surja from five years to two years. If on bail they will surrender to their bail to serve out the sentences now imposed upon them.
11. I agree. In particular I want to say that the charge of conspiracy ought not to have been laid in this case. It was obviously a case of a charge of abetment only.