Lancelot Sanderson, C.J.
1. In this case the accused Safdar Reza was convicted by the Jury of an offence under Section 363 and of an offence under Section 366 of the Indian Penal Code by a majority of 7 to 2, which verdict I accepted, and the matter which is now for consideration arises with regard to the offence under Section 366. The offence under Section 363, in this case, consists of kidnapping from lawful guardianship--no question arises with regard to that matter. But with regard to Section 366, the material part which applies to this case, is kidnapping a woman 'in order that she may be forced or seduced to illicit intercourse.'
2. In this case there was no suggestion of any force being used by the accused, and I left it to the Jury to say whether the girls Matabia and Bhagbania or either of them, were kidnapped by the accused in order that they or either of them might be seduced to illicit intercourse. The Jury by their verdict found that the accused kidnapped the two girls with that object and attention, and found him guilty under Section 366 by a majority of 7 to 2, as well as under Section 363.
3. The evidence was that after the accused had kidnapped the two girls he did in fact have sexual intercourse with both the girls at Goberdanga. It was, however, argued on behalf of the accused that at the time the girls left Doman's house they had the intention of having illicit intercourse with the accused and that, if that were their intention, the accused could not be convicted under Section 366.
4. In order that this question might be argued before me, I directed the Jury to give a special finding upon this question, and they found that the girls intended, at the time they left Doman's house, to have illicit intercourse with the accused.
5. The question, therefore, arises whether that fact is sufficient to prevent the accused being convicted under Section 366.
6. On the evidence it appears that neither of the girls had been seduced until their illicit intercourse with the accused at Goberdanga, which took place after the kidnapping by him. The material facts in this respect, stated shortly, are that both the girls were under 16 years of age. They lived in Calcutta with Doman, who is the father of Matabia and the uncle of Bhagbania, whose parents were dead, and he was, therefore, the lawful guardian of both girls. They had been married some four years before this occurrence, but it was proved that neither of them had lived with their husbands. They had come back to Calcutta immediately after the marriage ceremony.
7. The evidence of Matabia on the question of seduction was as follows:--'I had no connection with any one else.' With regard to Bhagbania it seems to me that the Doctor's evidence was important: he found that in her case the hymen had not been ruptured he said that there could be sexual connection without the rupture of the hymen, and especially, having regard to the fact that the hymen in this girl was situated far up in the passage, that it would be possible to allow a certain amount of penetration without injuring the hymen. Bhagbania said that the accused cohabited with her at Goberdanaga The Doctor's evidence shows this may have been possible; but the Doctor's evidence, in my opinion, is inconsistent with Bhagbania having been in the habit of cohabiting with other men.
8. It is admitted that with regard to the offence under Section 363, that is, kidnapping from lawful guardianship, the girls being under 16 years of age, their consent is immaterial. It is further conceded that the offence dealt with by Section 366 is merely an aggravated form of the offence created by Section 363; and it would, therefore, seem to follow that when the matter under consideration in relation to Section 366, is the seduction to illicit intercourse of a girl under 16 years of age, as in this case, her consent or intention would be just as immaterial as it would be in connection with the offence dealt with under Section 363.
9. One object of the Sections under consideration is not only to protect the rights of parents and others having the lawful guardianship of girls under the age of sixteen, but also to protect the girls themselves and to prevent persons taking improper advantage of their youth and inexperience, and it is obvious that, on the facts of this case, however willing the girls may have been, the accused was the cause of their being seduced from the path of virtue and having illicit intercourse with him.
10. In my judgment, therefore, the fact that the girls, at the time they were enticed away from their home by the accused, had the intention of having illicit inter-course with him, is no defence to the charge ; under Section 366.
11. On the facts of this case the consent of the girls, who were tinder the age of sixteen and who had not had any illicit intercourse with any man before the accused, is not inconsistent with their having been seduced to illicit intercourse by him.
12. In my judgment, the intention of the accused is the material matter, and on the findings of the Jury and the facts of this case,. there can be no doubt that he kidnapped the girls in order that they might be seduced to illicit intercourse with him. In my judgment, therefore, on the facts of this case the point which has been raised constitutes no defence to the charge under Section 366 of the Indian Penal Code. There is no question as to the propriety of the verdict of the Jury or the liability of the accused to be convicted in respect of the charge under Section 363 of the Indian Penal Code. But inasmuch as the greater offence under Section 366 includes the lesser offence under Section 363, the accused should not be convicted under both. I, therefore, convict him under Section 366.
13. The offence, in my judgment, is a serious one, the conduct of the accused was calculated to ruin the two girls for life; fortunately they were discovered and brought back to their home, and I hope that the damage done to them by the accused may not be irremediable.
14. The chance which they now have, however, was in no way due to any action or repentance on the part of the accused. He took advantage of the girls, who were in a humble walk of life, kept them in an out of the way village for over two months, and acted in such a way as was calculated to ruin their lives.
15. I sentence the accused to two years' rigorous imprisonment.