C.C. Ghose, J.
1. This matter was argued before us on Friday last and has been argued today. We have had the advantage of hearing Mr. Satindra Nath Mukherjee on behalf of the Crown. But having examined the record we are of opinion that the ease against the accused is not a clear one. The matter really depends upon this : as to whether Jhapuran Bibi had lost her right to the lawful guardianship of her minor daughter Amiran Bibi. If she has lost her right then the accused must be given the benefit of the doubt and their conviction set aside. If however she has not lost her right then the conviction and sentence must remain. Now, Mr. Mukherjee has gone into the matter and has, with great candour, admitted before us that Jhapuran Bibi had married a person who was not related to the infant within the prohibited degrees as laid down under the Mahomedan law. In other words Mr. Mukherjee admits that Jhapuran Bibi had married a person who was an outsider so far as the family were concerned. It follows therefore that Jhapuran Bibi had lost her right to be the lawful guardian of Amiran Bibi. If that was so then the conviction of the accused under Section 363, I.P.C., cannot be sustained at all. Mr. Mukherjee had addressed to us a lengthy argument with the object of showing that although Jhapuran Bibi might have ceased to be the lawful guardian of the infant Amiran Bibi she was still entitled to the lawful custody of Amiran Bibi, she having entrusted herself with the lawful custody of the infant before she married an outsider. This is a specious, ingenious and attractive argument. But having regard to the facts in this case the whole point is whether, in the circumstances, the accused should or should not have been given the benefit of the doubt. We are of opinion that the circumstances were and are such that it is our primary duty to examine the case of the accused with very great scrutiny and if, as we have come to the conclusion that Jhapuran Bibi has ceased to be the lawful guardian of Amiran Bibi on her marriage with an outsider, the accused must be given the benefit of the doubt. It follows therefore that the conviction and sentence must be set aside.
2. The accused who are on bail will be discharged from their bail bonds.