1. The appellants in this case Kamala Prosad Bhattacharji alias Pagla Thakur and Dinesh Chandra Do alias Kaloo were placed on their trial along with two other persons on charges framed under Sections 366, 366A, 368 and 376, Penal Code. The jury by a unanimous verdict acquitted the other two men but convicted the appellant, Pagla under Section 366, Penal Code, on the finding that he had kidnapped a woman in order that she might be forced or seduced to illicit; intercourse. They also convicted the appellant, Kaloo under Section 368, Penal Code, on the charge that he wrongfully concealed the woman knowing that she had been kidnapped. On all the other charges the verdict against these appellants was one of not; guilty. The case for the prosecution was that a girl called Malina Bala Dassya of Mouja Mondail P. S. Koranigunj in the district of Dacca was sleeping on the night of Tuesday the 19th of Agrahayan in her house during the absence of her father who had gone to Dacca. The other occupants of her hut were her younger brother and her baby sister. At about 9 o'clock she went out to answer a call of nature and as she was coming back she was seized and carried off by the appellant, Pagla, and a man called Paresh. They carried her to a neighbouring ghat and put her in a boat and took her to Sadar ghat, Dacca. From Sadar ghat she was taken to a char where Pagla and Paresh raped her. They spent the night in the boat on the char and a little before day light Paresh left the boat and returned at about 8 o'clock with appellant 2 in this case Kaloo whom the girl had not met before. The three men then took her by way of a khal to the village Konda where they left her in the house of a woman. That evening the three men took her away again across the river in a boat; and put her in another house. Paresh left her there but Kaloo and Haripada remained with her that night and ravished her again. Next morning Haripada left and in the afternoon Kaloo said that he would take her to Netrakona to register her as a prostitute. On the night however the police arrived on the scene and arrested her in company with the appellant, Kaloo.
2. The jury by a unanimous verdict have acquitted the other two men mentioned above and convicted the appellant, Pagla of the offence of kidnapping with intent that the woman kidnapped should be forced or seduced to illicit intercourse. They have convicted the appellant, Kaloo under Section 368, Penal Code. On behalf of the appellants it was urged in the first place by the learned advocate that there had been a misjoinder of charges in the case. In other words, that the trial of Pagla under Section 366, Penal Code, and the trial of Kaloo under Section 368, Penal Code, could not legally be held together. That question of course depends upon the consideration whether the offences charged against the two appellants were or were not committed in the course of the same transaction. If; was contended that as the offence of kidnapping was complete once the girl was taken away and as there was no suggestion that the appellant, Kaloo, had anything to do with that offence his trial jointly with the appellant, Pagla, resulted in a misjoinder of charges.
3. We are not impressed by this argument. As long as the offences charged were committed in the course of the same transaction it is immaterial that one offence was complete before the other was committed and the only question is whether the incidents between the time the girl left her home and the time when the appellant Kaloo appeared on the scene can rightly be regarded as forming part of one transaction. In our view, it is very difficult to hold that they do not fall within this category. Here the facts are, as found by the jury, that the girl was kidnapped and taken away by appellant 1, Pagla, and that on the following morning while the girl was still with Pagla and his companion that companion fetched the appellant Kaloo and the three men proceeded to escort the girl to a neighbouring village. From there they took her to Dacca and the appellant Kaloo actually stayed there until both of them were arrested by the police. It seems to us that this can properly be regarded as one transaction and therefore the offences committed in the course of it can rightly be tried together.
4. The next point taken on behalf of the appellants is that the offence of kidnapping cannot be said to have been made out because the Judge did not properly place before the jury the evidence relating to the age of the girl. There is no substance in this contention. Apart from the statement of the girl's father as regards her age there was the evidence of the doctor, who examined the girl, to the effect that she was under 16 years of age. All the evidence on the question of age including the deposition of the girl herself - which would suggest that she was more than sixteen - was placed fully and fairly by the learned Judge before the jury who of course had the girl herself before them. On consideration of that evidence the jury definitely found, as the verdict shows, that she was under 16 years of age. We are quite unable to hold that that verdict can in the circumstances be assailed in any way.
5. The next point urged by the learned advocate on behalf of the appellant is however a point of substance. He contends, and in our opinion contends rightly, that the learned Judge should have told the jury that there was no evidence upon which the appellant Kaloo could have been convicted under Section 368, Penal Code. The finding of the jury was that the girl had been kidnapped and the indications of the evidence are of course that she went away willingly with the people who took her from her house. The only evidence led to prove that the appellant Kaloo knew that she had been kidnapped in order that she should be forced or seduced to illicit intercourse, is that she was taken from home by two other men, brought to Dacca and from there to a char on the other side of the river where next morning she met the appellant Kaloo whom she had never seen before. Kaloo was not a resident of the same village and it appears to us that there is nothing in this evidence to indicate that he must have known that she had been kidnapped. It was therefore the duty of the learned Judge to put this clearly to the jury and to indicate, as he did not do, that an offence under Section 368, Penal Code, consists in something more than the wrongful concealment or confinement of a woman. We are accordingly satisfied that in the case of the appellant Kaloo there has been material non-direction in the charge and that his conviction under Section 368, Penal Code, cannot be sustained.
6. The only other point taken by the learned advocate was the question of the sentence passed upon the appellant Pagla which is a sentence of four years rigorous imprisonment under S.366, Penal Code. We are of opinion that in the circumstances of this particular case this sentence is excessive. There are very clear indications in the record that this was not a case of a woman being forcibly compelled or unlawfully induced to leave her home for the purpose of illicit intercourse. Indeed, it is clear from the verdict that the jury Were equally satisfied on this point because they definitely convicted not of abduction but of kidnapping. The medical evidence in the case indicates that although the girl was under 16 years of age she was accustomed to sexual intercourse. We find from the record that the appellant Pagla has already been in custody for something over twelve months and in view of the conclusion which we have formed on the whole case, a conclusion which the jury undoubtedly shared as their verdict shows, we think that this appellant has been sufficiently punished for the offence which he has committed.
7. In the result the unanimous verdict of the jury in the case of the appellant Dinesh Chandra De alias Kaloo is set aside and we direct that he be acquitted and released. The unanimous verdict of the jury in the case of the appellant Kamala Prosad Bhattacharjee alias Pagla Thakur is upheld but we reduce the sentence passed upon him to the period of imprisonment already undergone. In the result he will now be released from custody.
8. I agree.