1. On 10th June, in the early hours of the morning, two girls Jaba aged 16 or 17, and Charu aged 18 or 19, the sister and cousin respectively of the complainant Mihi Lal, and under his care on behalf of their husbands, are alleged to have been abducted by the accused. Sova is a sister of Bepin, and mistress of one Nogen. Akshay is a fellow-worker of Nogen. Bepin was priest in the house-holds of both girls' parents and officiated at their marriages. Sova induced the girls to leave home on the pretext of taking them on a pilgrimage bo the Ganges. Later they were joined by Bepin, Akshay and another. Eventually they reached Calcutta, and from there Akshay took them by train to Khardah, and lodged them with a prostitute named Suro Bala. Then Akshay went away for three or four days, and returned with Bepin, and each girl was ravished by one of the two accused and deprived of their ornaments. They complained to Suro Bala about the loss and she informed one Kali Pado Basu, who got the ornaments back from Akshay, wrote to their parents, and eventually took them home.
2. On 30th June, with the consent of their husbands, Mihi Lal lodged a complaint in Court. The three accused were tried by the Additional Sessions Judge of Howrah and a jury who convicted them of offences under Section 498, Penal Code, with respect to each of the girls, and they were sentenced each to one year's imprisonment for each offence to run concurrently. All of them were acquitted under Sections 120-B, 366, 373 and 497 under which sections also they had been charged.
3. The defence was that neither of the girls was married, that the accused had nothing to do with the alleged incident, that they had been implicated falsely after long delay as a result of a conspiracy against Nagen, that the girls were not sound in morals, had eloped with some one, and came home because they got disgusted with the life when they began to be molested by goondas. The complainant explained the delay from 10th to 30th June, in lodging the complaint, by saying that he was advised not to do so until the girls had been recovered, and that he had to consult their husbands first. The evidence cannot be called satisfactory, and the Judge does not appear to have been impressed with the veracity of the witnesses.
4. The girls said that they opened their room door at night, because they thought that Bepin wanted them for some bona fide purpose. They said that they cried out when they ware being ravished, but Suro Bala did not hear any cries, and they never attempted to rouse her. They never complained to her about their ravishment, but only about the loss of their ornaments. Though these were taken forcibly, no marks were left on either of the girls. It was only after they got back some of the ornaments that they first expressed a desire to go home. Neither of their husbands seems to have taken any active steps for their recovery. The only evidence of inducement by deceitful means was the girls' evidence as against the accused Sova.
5. The evidence about the age of the girls was not satisfactory. The Judge seems to have been satisfied that Charu at any rate was over 18.
6. Three points have been raised on appeal: That the charges under Section 498 were added by the Sessions Judge, contrary to the decision in Abdul Azez Shah v. Emperor : AIR1931Cal524 , that no leave was obtained from the Court under Section 199, Criminal P. C, allowing Mihi Lal to make the complaints in the absence of the girls' husbands. Without such leave, he could not make the complaints and without such complaints the Court had no jurisdiction; that there was no evidence that either of the girls was legally married. These objections appear to be sound, and cannot be regarded merely as irregularities which can be cured by S 537, Criminal P.C. There is nothing in the record to show that leave was either asked for or granted, or that the requirements of Section 199 were ever present to the Magistrate's mind. This distinguishes the present case from Sahib Rai v. Emperor AIR 1926 Sind 159 where it was clear that the Magistrate had considered the point, but had omitted to record any formal sanction.
7. Moreover both husbands were available, and ought to have made the complaints themselves, if they desired to do so. I am not satisfied with the explanation that they thought that Mihi Lal ought to make the complaints, because the girls were in his custody at the time of the alleged abduction, though not at the time when the complaints were nude. As already stated both husbands seem to have been surprisingly lukewarm, and uninterested in the proceedings. Section 199 was provided in order to discourage prosecutions under Section 498, unless the husband (or, in his absence some one on his behalf) feels himself to be injured sufficiently to induce him to institute proceedings.
8. The only evidence of marriage consisted of the statements of the girls and their husbands and Mihi Lal, that they were married. As to the knowledge of the accused, Bepin was said to have officiated as priest, Sova was said to be his sister and visited the girls' parents' houses. Akshay had no direct concern with the girls'' parents' families. He was said to have been a worker in Sova's brother's mill.
9. This evidence was not, in my opinion, sufficient to justify a conviction, and the Judge ought to have pointed this ought much more clearly to the jury. Mere presumption that the accused must have known that the woman was married without proof of knowledge is not enough: Batiram Keot v. Bhandaram Keot AIR 1920 Cal 979. The evidence about marriage was proof only of the factum. There was no proof that the marriages had been celebrated strictly in accordance with the requirements of custom and law applicable to the parties. This is not sufficient in eases under Sections 497 and 498, where 'the validity of the marriage is questioned: Danesh Sheikh v. Tafir Mandal (1903) 7 CWN 143. For all these reasons this appeal must be allowed, and the convictions and sentences set aside and the accused acquitted and discharged.
10. I agree.