1. The appellants in this case were convicted in accordance with the unanimous verdict of the jury under Section 366, I.P.C. Some of them were also convicted under Section 346 and Section 346 read with Section 109, I.P.C. The prosecution case was briefly this : One Khuki Dasi, a married girl whom the jury found to be under 16 years of age, was due to return to her husband's house after a visit to her father in the village of Chorkalgram. On the morning of her return she was dressed up and given all her ornaments to wear. She then went off to see her sister who lived in the village. On the way she passed the house of the appellant, Nanda. He asked her to come inside on the pretext that his wife wanted her. When she went in, he bolted the door and demanded that she should remain with him. In the night he ravished her. Later on, he took her out and was joined by the other three appellants. They took her away, and according to her story, her ornaments were taken off. She was finally brought back again to Nanda's house, and on the next Friday returned by Nanda. Whereupon she inform, ed her relatives, and in the result the pre. sent case was instituted.
2. It may be noted here in connexion with this story, that the jury unanimously acquitted the appellants on the charge of robbery and that no charge of rape was framed. The substantive charges, leaving aside that of wrongful confinement, were charges (a) of kidnapping and (b) abduction against all the appellants jointly, and the learned Judge in dealing with the evidence and in explaining the law dealt with the whole matter on the assumption that the occurrence from the time when the girl entered the appellant Nanda's house until the time when she was finally released constituted not merely one transaction but one single offence. As I have said, the alter, native charges were that the appellants jointly either kidnapped or abducted the girl. The verdict of the jury was given in the following way : All the accused were found guilty under Section 366, I.P.C. Nanda was found guilty also under Section 346, and Deba under Section 346 read with Section 109. The jury added the age of the girl is less than 16. In the first place, this verdict is to some extent an obscure verdict. We are not actually in a position to say, except with reference to the finding as to the age of the girl, whether the jury actually convicted of kidnapping or abduction. The learned Judge's directions to the jury on this point are not particularly happy. In dealing with the offence of abduction he said in one place:
Abduction is a continuing offence. If you think that the other persons also removed the girl knowing that she was an abducted girl, they will also be guilty of abduction. If you think that the girl came to Nanda's house voluntarily, and if her age was not below 16 at the time, there will be no offence of abduction under Section 366, I.P.C.
3. Then the learned Judge deals with the question of kidnapping. As to this he says:
If you think that the girl came to Nanda's house of her own accord, the age of the girl is important. If she was not under 16 at the time, there was no abduction in regard to her as I have told you. If however she was under 16 the position will be different.
In that case, if she came to the house of Nanda voluntarily, the jury would have to decide whether the minor, that is to say the girl, was under 16 and definitely decided not to return to her lawful guardian. If the jury thought on the circumstances that there was no intention in her mind to return to her father's place, they would have to consider whether it could be said that she was still in her father's keeping. If they thought she was, the moment Nanda and the other accused took her from Nanda's house without the consent of her father, it amounted to taking the minor out of the keeping of her father, and those who participated in that taking, committed an offence under Section 363, I.P.C.
4. Now, in giving this direction, it appears to us that the learned Judge was not speaking with due regard either to the facts or the law. The evidence in this case was that Nanda had induced the girl to enter into his own house and kept her there under confinement. The jury actually found that she was under 16 years of age. If they accepted her story, then there was evidence to support the conviction of kidnapping against the accused Nanda. The evidence further was that after she had been kept in Nanda's house for the whole day, he took her out of it and it was only at that stage in the proceedings that the other appellants came on the scene at all. Further, the defence in the case of course was that the girl had never been near Nanda's house at any time, and that the prosecution story was a pure concoction. That being so, it was clearly unnecessary for the learned Judge to put to the jury any theory that the girl had gone to the house of Nanda or to tell them that any question arose as to her intentions when she did so. Neither it was correct to tell the jury that in such a case an offence was committed as soon as Nanda and the other accused took the girl from Nanda's house without the consent of her father. As I have said previously, the learned Judge seems to have regarded the whole incident as constituting a single offence. That is a view which seems to us difficult to uphold, and though it may be said that the whole occurrence was one single transaction, even in that case separate charges should have been framed for the separate offences which went to make up that transaction.
5. In this view of the matter, we are definitely of opinion that the convictions and the sentences passed on the three appellants other than the appellant Nanda cannot be sustained and that they must be set aside. In the case of the appellant Nanda, we are unable to hold that the form of the charge or the Judge's address to the jury amounted in his particular case, to any such misdirection as would vitiate the verdict which the jury returned against him. On the evidence, if the jury believed it, there was ample material to justify a conviction in his case for the offence of kidnapping under Section 366, I.P.C. He was charged with that offence. The jury did find definitely as they must have found to justify a conviction that the girl was under 16 years of age and their verdict also implied that they accepted her story that she had been induced to enter the house of Nanda.
6. In these circumstances we are unable to find any good reason for holding that the verdict of the jury should be set aside in the case of the appellant Nanda Ghose. With regard to the other appellants, the-further question is whether in the circumstances of the particular case we should direct a retrial. On consideration of the whole record we do not think that such a course is necessary. As against two of them the only substantive allegation is that they accompanied Nanda and the girl from his house to a tank where they left her. As regards the third accused there is a further allegation that he had a lathi in his hand and that he took some part in terrorizing, the girl. It is however abundantly clear from the evidence that these three appellants were nothing more than hirelings of the appellant Nanda. In the circumstances we do not think that they ought to be retried. In the result, the appeal of the appellant Nanda is dismissed. The verdict of the jury, the conviction and the sentence in his case are upheld. In the case of the other appellants their appeals are allowed and they will be acquitted and released-from bail.
7. I agree. The facts of the case have been set out by my learned brother. Prom this it will be clear that if the girl's story was true and she was under 16 years of age the appellant Nanda was undoubtedly guilty of kidnapping, wrongful confinement and rape. The charge of abduction was not so easy. It depended upon whether Nanda's wife really asked him to call the girl or not. Proof of this could hardly be established by the evidence of the girl alone, and at its highest the prosecution was extremely weak so far as the charge of abduction went. In addition to this, the prosecution case comprised another incident in which the other three appellants are said to have been concerned.
8. The charges were most unhappily drawn. They were framed thus : That all the appellants were guilty of both kidnapping and abduction. With regard to the first incident alone, the only person who could possibly be guilty of kidnapping is Nanda and no such charge should have been framed against the other appellants. The charge of abduction seems to have assumed that everything that took place afterwards was part of this offence. Now it is not enough to observe generally that abduction is a continuing offence. The facts in the particular case must be looked at. When this is done, it seems clear to me that these other appellants could not be convicted of abduction, punishable under Section 366, I.P.C. If the story of the girl is accepted, the necessary intention was absent, because this incident was really in connexion with an attempt to commit robbery. On this part of the case the jury disbelieved the girl's story. As, in my opinion, there was no ground for charging these three appellants either with kidnapping or abducting, I entirely agree with my learned brother that we ought not to order a retrial.
9. Apart from the unhappy nature of the charge, further confusion has been introduced into the case by the way in which the learned Judge took the verdict. We have pointed put before that in a case where an accused person is charged with both kidnapping and abduction, it is essential to take a separate verdict on each charge. If this is not done, it may become a mere matter of speculation what the decision of the jury really was. In the present case the jury added a rider to the effect that the girl was under sixteen. It is therefore difficult to see how it could be said that they did not intend to convict of kidnapping. Mr. Chatterjee however contended, that some confusion has been introduced as the result of the following direction given by the learned Judge:
If you think that she was still in her father's keeping, the moment Nanda and other accused took the girl from Nanda's house without the consent of her father it amounted to taking the minor out of the keeping of the father and those who participated in that taking, committed an offence of kidnapping under Section 363, I.P.C., and if this was done with intent set forth in the charge, it became an offence under Section 366, I.P.C., and all the participants would be guilty under that Section.
10. If it had been the defence case, that the girl came to Nanda's house of her own accord, it would be impossible to say that this passage in the charge might not render it impossible for us to know what the jury found. We have therefore been through the record. So far from suggesting that the girl came to his house of her own accord, Nanda denied that she was ever there at all and suggested that she had gone away to conceal herself for reasons best known to herself, and that on her return she concocted a false case. In these circumstances the jury must have believed her story and if they did so, their verdict of guilty was the only possible verdict.