1. The three appellants Miajan Biswas, Afser alias Afseruddin Molla and Samsil alias Samseluddin Molla with two other men Mokshea Shaikh and Ismail Shaikh were put on their trial under Sections 366, 458, 147 and 148, I.P.C. The trial was held by a jury. The jury unanimously found Mokshea Shaikh and Ismail Shaikh not guilty but Afser and Miajan guilty under Sections 147, 148, 366 and 458, I.P.C., and Samsil guilty under Sections 147, 366 and 458, I.P.C. The learned Judge accepted this verdict of the jury and sentenced Miajan and Afser to rigorous imprisonment for five years each under Sections 366 and 458, I.P. C, no separate sentence being passed under Sections 147 and 148 and the direction being that the sentences under Sections 366 and 458 were to run concurrently. The learned Judge sentenced Samsil to five years' rigorous imprisonment under each, of the Sections 366 and 458(the sentences to run concurrently) no separate sentence being passed under Section 147, I.P.C. The facts of the case for the prosecution were very briefly these:
2. The accused Afser and Miajan one day came to the house of Bhim Mandal, the husband of Shama Dasi during Bhim Mandal's absence and made immoral proposals to Shama Dasi which Shama Dasi rejected. Afser and Miajan went away threatening her. When Bhim returned home, Shama Dasi told him what had happened whereupon Bhim took her to the house of one Jagnessar and kept her there for safety. On the night of 29th April 1931, the accused men with four or five other persons came to Jagessar's house, broke open the walls of the ghar in which Shama Dasi was sleeping and forcibly dragged her away. Shama Dasi thereafter was taken from one place to another until she was recovered on 17th May 1931 from the akra of one Ramananda Goswami by her husband Bhim Mandal. The appellants with two others were thereupon put on their trial with the result that has been stated before.
3. On behalf of the appellants it was first contended that the learned Judge in his charge to the jury had not given full direction as to the effect of non-examination of material witnesses in the case. (After overruling this contention the judgment proceeded). It appears that the defence wanted a muktear to produce in Court a petition of complaint which, according to the accused, the complainant wanted to file in Court. The muktear refused to produce this document seeking privilege under Section 126, Evidence Act, and this claim of privilege was allowed by the learned Judge. It was said that here the learned Judge was wrong in law and it was contended that on that account the trial was vitiated. In support of this contention our attention was drawn to the decision in the case of Emperor v. Mariane G. Rodrigues  5 Bom LR 122, the argument being that the petition was meant to be filed in Court and there could not therefore be anything confidential in it. The argument, so far as it goes, seems to be all right. But facts were not established in the case which would make the decision in the case, Emperor v. Mariane G. Rodrigues  5 Bom LR 122, applicable to the case before us. It could not be elicited from the muktear that the document which was sought to be produced was the document meant to be filed in Court. The evidence shows that it was only a draft of some statements made by the complainant and that the petition had not been completed. It might very well be that there were some statements in that draft which were not to be incorporated in the petition of complaint when it would be finally prepared for presentation to the Court. If in these circumstances the learned Judge upheld the claim of privilege I do not think he did anything that was wrong in law.
4. There was another ground on which the learned Judge's charge was assailed before us. The ground was that the learned Judge in his charge did not deal with the evidence in the case as it stood against the accused persons separately. This contention, in my opinion, is not without foundation. There can be no doubt that the evidence against appellant 3, Samsil, was not the same as the evidence against the other two appellants Miajan and Afser. To mention only one or two such instances, Samsil had not been identified by Shama Dasi in the lower Court whereas she had experienced no such difficulty in the case of Miajan and Afser. P.W. 7, Tarak Pramanik, could say something against Miajan and Afsar but not against appellant 3 Samsil. To the same effect is the deposition of P.W. 14 Ramananda Das Bairagi. There is no doubt therefore that the evidence as it stood against Samsil was different from that as it stood against the other two appellants Miajan and Afser which alone the learned Judge discussed and put before the jury without telling them that the evidence against Samsil was less than that against the other two men Miajan and Afser. In these circumstances the omission on the part of the learned Judge to deal with and discuss the case against Samsil individually and separately from that of the other two men was, in my opinion, a serious non-direction so far as Samsil was concerned, making his conviction untenable.
5. As regards the other two appellants the severity of sentence passed on them was another point urged before us. Having regard to the facts of the case and remembering that the accused broke open the house of Jajnessar, forcibly entered that house and from there dragged the woman away after having assaulted Jajnessar the sentence of five years' rigorous imprisonment does not seem to me to be unduly severe.
6. The result is that the appeal of Miajan and Afser is dismissed and that of Samsil allowed. The conviction and sentence of Samsil are set aside. Samsil will be set at liberty immediately.
7. I agree.