1. The appellant was charged with an offence under Section 366, I.P.C., and was tried by the Sessions Judge, Murshidabad and a jury who unanimously found him guilty and sentenced him to three years' rigorous imprisonment.
2. The charge was that he had kidnapped Saraswati, a girl, with the intent that she might be compelled to marry against her will and that she might be forced or seduced to illicit intercourse. It seems reasonably clear from the evidence that the girl was the illegitimate daughter of a man named Ramjiban and the complainant Jasoda and the story of the prosecution was that the accused took her away from Jasoda's guardianship while she was at work and took her by train to Calcutta and lived with her there. The defence was that she had been married to the accused according to the Marwari marriage rites and ceremonies and that it was for this purpose that Ramjiban had brought -her from home to Calcutta. On 30th May 1930, Ramjiban instituted a case against the accused charging him with having kidnapped Saraswati. In those proceedings Ramjiban claimed to be the father and guardian of the girl. The learned Chief Presidency Magistrate referred the case to Mr. Himat Singha to make an inquiry. The Magistrate apparently was satisfied that marriage had been arranged between Ramjiban and the accused, but that they had fallen out over the question of payment and for this reason Ramjiban had brought the charge against him. Eventually, a settlement was come to and the charge was dismissed.
3. Jasoda appeared as a. witness in that inquiry and stated that Saraswati was a daughter of herself and Ramjiban. The inquiry seems to have been held in August because the Sessions Judge draws the attention of the jury to the fact that as Jasoda gave evidence at that inquiry, she was in a position to know, as early as August 1930, who had taken Saraswati away. That charge was dismissed on 1st September 1930. Immediately thereafter, viz., on 8th September, Jasoda instituted the present case. The evidence to show that the accused took or enticed the girl out of the keeping of her lawful guardian depends solely upon the fact that she was found with him at the local station preparing to embark upon a train to Calcutta. As it seems to be clear that the girl went with him willingly and is now living with him quite happily, it is not unreasonable to assume that she met him willingly and went with him to Calcutta without any attempt on his part to take or entice her away from the house where her mother was living. The evidence about the guardianship of Jasoda is not very satisfactory.
4. There is some reason to suppose that the girl was being supported by Ramjiban, Jasoda not being in a position to support the girl. Nor is there any direct evidence, which is satisfactory, that Jasoda in fact paid for her support, and the fact that in the former charge made in Calcutta Ramjiban claimed to be the lawful guardian of the girl and made no reference whatever to the guardianship of Jasoda and that Jasoda was called as a witness in support of his case, leads one to doubt whether Jasoda's. evidence on the point of guardianship ought to have been accepted, that is to say, whether in law there was sufficient evidence to put before the jury. Owing to the fact that the defence case about the marriage was introduced, the learned Judge got himself into some confusion with regard to the law. His charge to the jury was as follows:
The question remains whether the marriage was compelled against the girl's will. At first sight it seems as if this was not so, as the girl appears very happy and to be staying with the accused willingly. However the girl being a minor, can have no will of her own in law. In law her will is presumed to be the same as her guardian's will. So if Jasoda is not privy to the marriage and it was done against her will, according to law, the girl would be considered to have been compelled to marry against her will.
5. This direction appears to us to be clearly wrong. The mere wording of Section 366 shows that that cannot possibly be the meaning of the section. The section deals with both kidnapping and abduction, with the result that it is apt to mislead people who do not read it carefully. But it seems to us quite clear that the will' referred to in the first part of the section means the will of the girl and certainly does not mean the will of her guardian. If the jury accepted the guardianship of Jasoda, there was clear evidence that she had not consented in any way to this marriage. Consequently, such a direction cannot have failed to mislead the jury and for this reason alone this conviction cannot be allowed to stand. In addition, the learned Judge does not seem to have been favourably impressed with Jasoda's evidence, nor was the evidence about the girl's age satisfactory. The doctor seems to have placed her ago at 14, but there are facts in the evidence which go to show that she might have been several years older than that.
6. On the whole, we are of opinion that there are several features of this case which are not satisfactory and in ordinary circumstances, we should have set aside the conviction and ordered a retrial. But in view of all the facts in this case, especially that the accused was charged with the same offence previously, which case was compromised with the consent of the girl's father, and the fact that the girl seems to be perfectly happy in her present situation, we do not think it necessary to send the case back for retrial. Therefore the conviction and sentence must be set aside and the accused acquitted. The accused will be discharged from his bail bond.