1. This appeal by the Local Government is directed against the acquittal of two persons, Forhad and Ramis, who were tried before an Assistant Sessions Judge of Dacca and a jury, on charges framed under Sections 366 and 458, I. P. C. The prosecution case in brief was that on the night of occurrence these two accused and another man cut away the mat wall of the hut in which a girl called Bimala, now said to be under 16 years of age, was sleeping, carried off the girl and disappeared. A week later, accused Ramis was arrested in Dacca and the girl was discovered in a house there. The defence was in the main that the girl, who was more than 16 years of age, was in love with accused Ramis, and left the house of her own accord. The jury unanimously found that the accused were not guilty of kidnapping. By a majority of 4 to 1, they found them not guilty of abduction and by a majority of 3 to 2, not guilty under Section 458, I. P. C. The Judge accepted the verdict. In order to appreciate the grounds of appeal framed in the case, it is necessary to mention certain other facts appearing from the record. To prove that the girl was under 16, the prosecution produced and proved certain registers, and in the lower Court examined the man who had drawn up the horoscope of the girl. The registers were records of the vaccination and of the inoculation of the girl, and the record of the date of her birth in a school register opened in 1931. The evidence is that these entries relate to a girl called Mohamaya, now said to be Bimala and that her age was given by her father at the time the entries were made, that is 13 or 14 years after she was born.
2. With regard to the horoscope, the evidence is that it was drawn up by one-Pundit Hari Deb Sharma, who was called as a witness in the Court of the Committing Magistrate and there said that he had prepared the horoscope. In the Sessions Court however, this witness did not appear, though he had been summoned. The prosecution adduced evidence to show that he was absent from his home on 7th September when a telegram was sent to the local police to produce him, and examined his son to show that he had left home before receipt of a summons to depose in the Court of Session. The Sessions trial began on 4th September. The Public Prosecutor, when these facts came to light, applied, in the alternative for an adjournment of the case to procure the attendance of the witness or that his evidence in the committing Court should be admitted under Section 33, Evidence Act. The Court refused both applications. The grounds of appeal are that the Judge misdirected the jury by telling them that the documentary evidence as to the age of the girl, that is the registers and horoscope, was merely corroborative and vanished if the oral testimony was disbelieved. Secondly that he was wrong in refusing to admit the evidence of the witness Sharma before the Magistrate under Section 33; Evidence Act. Thirdly that he should not have told them that the horoscope of the girl had not been proved though its maker, Sharma, was living. Fourthly that he was wrong in his direction that a confession by Ramis was not evidence against the other accused. Lastly, that his charge was defective in substance.
3. Before proceeding to consider these points in detail, it is necessary to note that the learned Deputy Legal Remembrancer who argued the case for the Crown, admitted with his characteristic fairness, that he was not prepared to contest the position that the jury were entitled, on the evidence on record, to reject the circumstantial story now told regarding the circumstances under which the girl left the house of her parents. It was however urged before us with vigour that the girl was below 16, and that she had been taken or enticed from the lawful guardianship of her parents in circumstances which established an offence under Section 366, I. P. C. With regard to the registers, the direction of the Judge was that the people who made these entries did not know the ages they recorded so that these documents would be no evidence at all unless somebody knowing the age gave it, in which case they would corroborate him if he spoke to the age himself. It is contended on behalf of the Crown that this direction is wrong, and that the jury should have been told that under Section 35, Evidence Act, these documents are substantive evidence of the factum of age.
4. Now what Section 35 lays down is that such entries, when they state a fact in issue or relevant fact, are themselves relevant, that is are among the class of facts which the law allows to be proved. Nothing is said about substantive evidence, and when the learned Judge admitted the entries and put them before the jury, we are not prepared to hold that his comment on their importance amounted in the present case to a serious misdirection. The weight to be attached to them was purely a question for the jury to decide. The next point taken is that the evidence of the witness Sharma should have been admitted under Section 33 of the Act. It is not contended that this witness was dead, or could not be found, or was incapable of giving evidence or was kept out of the way by the opposite party. He had given evidence and had been summoned to attend the Sessions Court. That summons had not been served on him, though the prosecution did not discover the fact until the Sessions trial had gone on for some days. In such circumstances we are decidedly of opinion that it was not open to them to invoke the aid of Section 33 of the Act and that the learned Judge was right in refusing to admit evidence given in the lower Court.
5. It follows that there was nothing incorrect in his statement that the horoscope had not been proved. Next it is said that the Judge was wrong when he told the jury that a statement made by Ramis to a prosecution witness, implicating himself and another accused, was no evidence against his co-accused.
6. We are not prepared to accept this contention. The statement said to have been made was that he and some others 'had brought the girl,' In view of the extreme vagueness of this statement and of the defence set up in the case, we are quite unable to hold that the direction given was a wrong direction of such a character as would tend to nullify the verdict. With regard to the charge in general, we have gone through it with care, and are satisfied that it contains no material misdirection or non-direction amounting to a mis-direction, which could warrant any interference with the verdict returned by the jury and accepted by the Judge. The evidence on all material issues was fully and fairly placed before the jury, and as we have indicated above we are entirely unable to hold that there is any error on a point of law which could have affected, or did affect the findings come to by the jury on the facts. In the result we hold that there has been no material misdirection or non-direction by the Judge in this case which justifies any interference with the verdict of the jury. That verdict must accordingly be affirmed and the appeal dismissed.
7. It is in our view unfortunate that an appeal against a unanimous verdict of acquittal in a trial by jury should have to proceed upon grounds of a character so purely technical as those pressed before us in the present instance. The appeal is dismissed and the accused discharged from their bail.
8. I agree.