1. Two persons Upendra Nath Ghose and Sudhir Pramanik were tried by the Sessions Judge of Khulna and a special jury charged with the offence of murdering one Abala and also with the offence of abducting her in order that she may be murdered or put in danger of being murdered. The Jury by a unanimous verdict have found both these persons not guilty of the offence of murder. By a majority of 6 to 3 they found Sudhir not guilty of the charge of abduction and by a majority of 8 to 1 they found Upendra guilty of the charge of abduction. The learned Judge accepting the verdict of the Jury has acquitted Sudhir of both the charges and has convicted Upendra of the charge of abduction under Section 364, I.P.C. He has sentenced Upendra to undergo rigorous imprisonment for a term of eight years. The case for the prosecution briefly is as follows : One Sumati is the wife of Baroda Ghose, a person of unsound mind. She had a daughter named Abala who was aged between 11-12 years. The appellant, Upendra is aged about 25 years and he is a maternal cousin of Sumati. It is alleged that Upendra came to the house of Sumati on Friday, 9th June 1939 and invited her to attend a function at his house on the next day. He told her that there would be certain festivities in connection with the puja of Satyanarayan. Sumati told Upendra that she would not be able to go on the next day as she had arranged to go to some other place. Thereupon, Upendra proposed that he would take Abala. Sumati agreed to this.
2. On Saturday, 10th June 1939 Upendra came to the house of Sumati and Abala went away with him. She was dressed in a Sari with a particular kind of border and underneath she wore a rose coloured petticoat. She also wore a green blouse. At one end of the Sari there was a bunch of keys tied up. She had certain articles of jewellery on her person amongst which may be mentioned some gold madulis. Her hair was tied in a khopa and she had steel hair pins in it. After the girl left with Upendra on 10th June, they were seen on that day it two places by some of the witnesses. With Upendra and the girl Abala was Sudhir. The understanding with Sumati was that the girl would be returned next morning, that is, on Sunday. On Sunday the girl did not return home. Sumati went to Upendra's house in search of her and found that neither Upendra nor the girl had been there. She made enquiries at different places but no trace of the girl could be found. She also got information from one Debendra that there had been no festivities in the house of Upendra. On 13th June 1939 one Nitai, who is a relation of Sumati's husband, lodged a missing information at the thana.
3. It is necessary to go back again to the consideration of certain events which had taken place on Monday afternoon. One Arapdi Gazi witness 21, Madar Molla, P.W. 22 and others saw the body of a woman in a veel. They have given a description of the dress of the body and of the way in which the hair of the woman was tied and it seemed to tally with the dress of Abala and with the way in which her hair had been tied when she left with Upendra. These persons however did nothing. On Tuesday the bones of a female skeleton were seen by a number of persons and near these bones, there were lying a sari, a petticoat, a bunch of keys, some sankhas, churis and certain other articles. Information was sent to Sumati and the members of her family and they came and identified the articles of clothing and jewellery as being those of Abala. The girl, when she left with Upendra was wearing certain gold, madulis. They were missing. Upon the discovery of the skeleton and articles of clothing, Nitai again went to the thana with Sumati and there the first information was lodged. The police took up investigation. Evidence has been given that on Tuesday, Debendra, a relation of Upendra, met him and Sudhir. Debendra heard before that Abala had been taken by Upendra from her house and that she was missing. He questioned Upendra and the latter said that he had left the girl in the house of a friend of Sudhir at Basirhat. Sudhir, who was there, denied this. Evidence has also been given that Sudhir and Upendra went to the house of a goldsmith Kalidas swarnakar and there sold five gold madulis. The five madulis have been identified as belonging to Abala. On these fact a Sudhir and Upendra were sent up for trial charged with murder and abduction with the intent that the person abducted should be murdered or be so disposed of as to be put in danger of being murdered. The defence taken by the accused consists of a denial of all the facts alleged against them. A suggestion was made that the girl Abala had accompanied one Charubala to the house of Charubala's father-in-law and that she disappeared from there. It was also suggested that Sumati was carrying on an intrigue with Nitai which was discovered by Upendra and that Upendra had been implicated by Nitai and Sumati because of this.
4. As I have said before, the jury have found Upendra guilty of an offence punishable under Section 364, Penal Code, and the learned Judge accepting that verdict has sentenced Upendra to eight years' rigorous imprisonment. Upendra has appealed from Jail, The charge of the learned Judge to the jury, which is an extremely lengthy one, contains many irrelevant details but certain vital circumstances of the case have not been placed before the jury in their proper perspective. To establish an offence punishable under Section 364, Penal Code, it must be proved that the person charged with the offence had the intention at the time of the abduction that the person abducted would be murdered or would be so disposed of as to be put in danger of being murdered. In this case the prosecution had to prove that Upendra at the time when he took away the girl Abala, had this particular intention. Now this element of the offence was not properly placed before the jury. The learned Judge nowhere told the jury that they must be satisfied that this was the state of mind of Upendra at the time of the alleged abduction. He should have told them that they could not find Upendra guilty unless there-was evidence to establish beyond all doubt that at the time he took Abala from her house he had the intention that she should be murdered or be put in danger of being murdered. Now what are the circumstances proved in this case? The evidence given on behalf of the prosecution is that on Friday, Upendra asked the girl's mother to come with him to witness the festivities at his house and that it was only after the mother had refused that Upendra suggested that the girl should come with him. This is a circumstance which negatives the case that Upendra had at that time any intention to have the girl murdered or to put her in danger of being murdered.
5. Next we cannot find any motive which may have impelled Upendra to encompass the death of Abala at the time of his taking her away. We find no reason whatsoever why he should desire her death. In a case depending on circumstantial evidence the question of motive is of great importance and it was the duty of the learned Judge to emphasise this absence of motive which was a circumstance in favour of the accused. The circumstances relied upon by the prosecution tend to show that Upendra had stolen the gold madulis from the girl. Even if that evidence be believed it was very far from establishing that Upendra must have intended to get these madulis by killing the girl. The evidence shows that the girl used to frequent Upendra's house. He had ample opportunity of securing these madulis without adopting this elaborate plan of abducting her from her mother's house. It seems to us inherently improbable that anyone placed in the position of Upendra would abduct the girl from her mother's house with the intention of killing her in order to take away five gold madulis from her person. This inherent improbability was not properly placed before the jury. We find further that there has been a serious misdirection to the jury with respect to the charge under Section 364, I.P.C. The learned Judge in explaining the charges of murder and abduction says this:
The charge under Section 302, I.P.C., is the main charge in the present case. If you find the accused persons guilty under this Section, you need not consider the other charge against them. In case however the charge under Section 302, I.P.C., is not made out in your opinion, you will consider whether the other charge has been established.
6. Then he goes on to say:
For the charge under Section 364, I.P.C., however it is not essential that the dead body should be beyond doubt proved to have that of Abala.
7. Now, in this case unless it is proved that Abala has been murdered, there is nothing whatsoever to show that the motive for abducting her was to murder her or put her in danger of being murdered; and the only evidence given to prove that she has been murdered is the evidence that the skeleton was that of Abala. The learned Judge was therefore quite wrong in telling the Jury that it was not essential to prove beyond doubt that the body was the body of Abala. The learned Judge repeats this error again towards the end of his charge. This is what he says:
As for the charge under Section 302, I.P.C. , it must be definitely proved beyond reasonable doubt that Abala was murdered and that by the accused persons. As for the charge under Section 364, I.P.C., however, actual proof of murder is not neoessary. It is sufficient if the prosecution makes out that the accused person or persons placed Abala under such circumstances that she was in danger of being murdered.
8. There can be no doubt that theoretically It is not necessary to prove that the person abducted has been murdered in order to establish a charge under Section 364, I.P.C. But these theoretical discussions of the alements that go to constitute an offence punishable under Section 364 of the Code are useless and indeed in the circumstances of She present case are apt to be mischievous. As we have pointed out before, having regard to the particular facts of this case there can be no case of abduction under Section 364, of the Code unless it has been conclusively proved that Abala has been murdered. To tell the jury that even if they are not satisfied that Abala was murdered, they could still find the accused guilty of an offence punishable under Section 364, I.P.C., was to mislead them on a most vital part of the case. Again, the learned Judge was entirely wrong in telling the jury that it was sufficient if the prosecution established that the accused person or persons placed Abala in such circumstances that she was in danger of being murdered. In telling the jury this, the learned Judge seems to have overlooked the most important element necessary to establish an offence punishable under Section 364, I.P.C., namely the state of the mind of the accused person at the time of the abduction. Even if after the abduction the accused person placed Abala in danger of being [murdered that would not establish the charge of abduction punishable under Section 364 against him. It would be necessary for the Crown to establish that he intended at the time of the abduction to place Abala in a position which would put her in danger of being murdered.
9. We are of opinion that these misdirections of the learned Judge have resulted in a wrong verdict being given. If the Crown took the view that the evidence established that Upendra had murdered the girl then he should have been charged with murder and nothing Clause A charge under Section 364, I.P.C., in the circumstances of the present case is entirely misconceived. We do not think, that the circumstances proved in this case can lead to the conclusion that the girl was murdered by Upendra. They are capable of many reasonable explanations which would be consistent with his innocence. We are, however, not concerned at present with the charge of murder inasmuch as the jury have found Upendra not guilty of that charge. As regards the charge under Section 364, I.P.C., it seems to us that the circumstances established are very far from establishing it. No motive has been shown as to why Upendra should want to abduct the girl in order to get her murdered; it would be ridiculous to assume that he intended to murder her in order to get possession of five gold madulis which are of not much value and which he could have secured without adopting this elaborate method. No circumstance has been proved which would indicate that Upendra wanted to murder the girl or get her murdered at or before the time that he took her away. If all the circumstances sought to be proved are accepted as having been proved it raises at most a suspicion that Upendra had taken away the girl for some improper purpose. They are certainly not sufficient to establish a charge under Section 364, Penal Code.
10. This prosecution is one of the many instances in which we have found that the provisions of Section 364, Penal Code, have been misused. When the case for the prosecution is that the person abducted has been murdered by the abductor there can be no scope for a charge under this section. The abductor should be charged with murder pure and simple. We have noticed however in such cases where the evidence to establish the charge of murder is weak or inconclusive the prosecution is prone to adopt this device of adding or preferring a charge under Section 364, Penal Code in the hope that a jury which may hesitate to find the accused guilty of murder on such slender evidence may be induced to find against him on the lesser charge. We need hardly point out the unfairness and impropriety, to use no stronger term, of this procedure and we are determined so far as lies in our power to stop this abuse of the provisions of Section 364, Penal Code. It was the duty of the learned Judge in this case to refuse to frame a charge under this section. We find that there is really no evidence to bring home this charge to the appellant and we accordingly set aside the order of conviction and sentence and acquit him. He shall be released forthwith.
11. I agree.