1. The three appellants were all charged under Section 366, Indian Penal Code, and there were separate charges, against Abdul Gohur under Sections 372, 109, Indian Penal Code., against Erfan under Section 373, Indian Penal Code, and against Sarojini tinder Section 372, Indian Penal Code. They were found guilty on all the counts, and the learned Judge sentenced Abdul Gohur to three years rigorous imprisonment, and the other two to Tour years rigorous imprisonment each, all under Section 366, Indian Penal Code, but did not pass any separate sentences on the other charges.
2. The girl in the case is Sukhoda, the daughter of Sarojini, and briefly stated the story is that Sarojini took her to Abdul Gohur's house and afterwards made her over to Erfan for purposes of cohabitation. The defence is that the woman became a Mussalman, and that Erfan wanted to warry the girl.
3. So far as the charges under Sections 572 and 373, Indian Penal Code, are concerned, the age of the girl is an essential point. It was necessary for the prosecution to prove that she was under the age of 16 years. For this purpose the Assistant Surgeon was examined, and he expressed a definite opinion that, she was below sixteen years.
4. The first objection taken to the learned Judge's charge is that he has not dealt properly with the question of minority. In explaining the law he said that for kidnapping the girl must be under sixteen years, and in explaining the terms disposing of and 'immoral purpose' he used the word minor, but he nowhere said that if the girl was not proved to be under sixteen, there could be no offence under Section 372 or 373, Indian Penal Code. Further on the question of fact, he merely referred to the medical evidence, said that the defence tried to make out that she was Sixteen, and left it to the Jury to decide. That seems rather a summary treatment if an important matter, but looking at the evidence on the record I am not prepared to hold that the verdict is vitiated by the defects. Secondly, it is said that the learned Judge did not explain to the Jury that the burden of proof lay on the prosecution. It is pointed out that at the beginning of the summing up, he said, 'It is for the gentlemen of the Jury to decide Which hypothesis the better fits the facts and the probabilities-that of guilt or innocence,' and that his conclusion is in similar words, 'The Jury must ask themselves which view of the facts they find the more consistent and the more probable, and which seems to them the better supported by the evidence they have heard and should return a verdict accordingly.' On the other hand, the charge began with general remarks on the burden of proof and the benefit of the doubt and the earlier of the two passages which I have quoted is immediately followed by the word's, 'The question which, the Jury will have to answer is this: and the accused either kidnap or abduct the girl, etc.' In the absence of details as to, what the learned Judge said about the burden of proof I think this criticism is well-founded, for when the Jury Was asked to decide which hypothesis suited the facts better, they were in effect told that the prosecution would discharge its one by producing the better hypothesis, That was the last instruction they received from the Judge, and I think it is Very probable that in consequence they looked at the evidence from a wrong point of view.
5. Thirdly it is said that the learned Judge has expressed his own views, very emphatically with nothing, more than a conventional direction that the responsibility of deciding questions of facts rests with the Jury. This criticism does not commend itself to me for I find it difficult to understand what view of the facts as a whole the learned, Judge did take. He certainly takes it for granted that Erfan was cohabiting with the girl to the knowledge of Sarojini, but those are facts not in dispute, for the appellant's story is that the mother and daughter were married to Abdul and Erfan respectively. So far from taking from the Jury the duty of determining questions of fact, I think the charge is defective rather because it does not set out all the questions that required decision, and because it offers extremely little guidance.
6. Another criticism, affecting only Abdul Gohur, is that he is not said to have taken the girl to his house and that he was not at home when she was brought there. The learned Judge has not said anywhere in his charge what act on the part of Abdul Gohur could render him liable to, a charge. under Section 366, Indian Penal Code; he took no part in bringing the girl to his own house: the removal on the first night to Sabi Molla's house does not appear to have been in furtherance of any scheme fox abducting the girl, so that, if Abdul Gohur participated in any abduction it must have been when he escorted the girl to Brian's house. The learned. Judge has not dealt with this matter, although, he should, have told the Jury when and where the abduction was said to have taken place, and asked them to say whether Abdul Gohur took any part in it.
7. In regard to the exposition of, Sections 372 and 373, Indian Penal Code, I wish to point out that the learned Judge was wrong in referring to the amendments, proposed in 1914, for they have not become part of the law, and also to say that the meaning of the, sections, has been discussed in the case of Queen-Empress v. Sukee Raur 21 C. 97 : 10 Ind. Dec. (N.S.) 697. If the Judge had studied) that authority his explanation of the terms dispose of and 'use' would have been very different.
8. As I have indicated; the charge is defective in several respects, particularly in the manner in which the burden of proof was treated. The case is a very perplexing one, and I cannot say that in spite of misdirections the Jury has arrived at a right decision.
9. The course which we must, adopt is to set aside the convictions, and sentences and leave it to the authorities to decide whether there should be a fresh trial or not. The appellants will be released.
10. I agree.