S.K. Ghose, J.
1. The appellant Rajani Kanta Barman was tried along with three other persons on charges under Section 366, I. P.C., before the learned Sessions Judge at Jalpaiguri with the aid of four assessors. The assessors found the appellant guilty on those charges and the learned Judge agreeing has convicted the appellant and sentenced him to undergo rigorous imprisonment for three years. Two other accused Teperu and Dhephua were also similarly convicted and were ordered to execute bonds to be of good behaviour for two years. Another accused Galim was held to be not guilty.
2. The prosecution case briefly is that on 10th August 1929 the present appellant with others took away Batashi, the 13 year old wife of Tiara Borman from the latter's house. She was taken to certain places and ultimately to Jalpaiguri railway station. There she was found by the Government Railway Police havildar and taken charge of by one Rambadan. The last named person took her to some lawyers, one of whom ultimately sent her to the thana. Some days later the appellant Rajani came with the mother of the girl and got the girl released and made over to the mother. On 19th August it is alleged while the girl was being taken by the dafadar and chowkidar to Debigunj police station, she was waylaid by the appellants Rajani and Teperu and taken to the house of Rajani. Subsequently she was recovered by the police. The accused in their defence pleaded not guilty and made certain-statements.
3. The learned Judge has discussed the evidence very fairly and has pointed oat various weak points in the evidence' adduced by the prosecution. On reading his judgment I should have thought that he would have concluded by holding that the accused were entitled to the benefit of the doubt. But after rejecting a great part of the prosecution evidence as untrustworthy, the learned Judge has relied on the evidence of the girl herself and he considers that the assessors were also impressed by her evidence. But that evidence also, as the learned Judge himself points out, is open to severe criticism. She has made various misstatements all of which cannot be due to lapses of memory. It is clear that she has not told the truth as regards many material matters. She was evidently a consenting party and in a case of this nature she has to be materially corroborated regarding the part played by the accused. The case presents some curious features. The grandmother is hostile to the prosecution and her evidence as given before the learned Judge was distinctly in favour of the defence. The learned Deputy Legal Remembrancer has pointed out that there was some reason for this attitude on the part of the mother, because after being a widow she had married a man who was the tenant of the appellant Rajani and she was not on good terms with her daughter. But, having regard to the circumstances, I agree with the learned advocate for the appellant in thinking that it is not possible to assess this sort of evidence at its true worth. The husband also, as the learned Judge has pointed oat, did very little to trace out the girl. The other persons who appeared at the various stages, including the chowkidars, dafadar and havildar, are indifferent, if not hostile, to the prosecution, and the learned Judge also considers that their evidence has been given for their own protection. Mr. Khundkar for the Crown has laid stress on the evidence of the pleader, P. W. 6. That evidence also shows a curious feature, namely that one Rambadan, who for some reason or other, was taking interest in the girl and had apparently rescued her, was not willing to take her to the 'thana which was less than 100 yards from the pleader's house. I do not think, having regard to all the circumstances, that it can be said that the prosecution evidence has at all gone beyond the region of doubt. That being so, the appeal must be allowed and the appellant must be acquitted of the offence with which he was charged, and set at liberty.
4. The learned advocate for the appellant has brought to our notice the cases of the other two accused Teperu and Dhephua. In the view that we have taken of the evidence and having acquitted the principal accused, we think it is obvious that the conviction of the other two and the order passed upon them directing them to execute bonds to be of good behaviour cannot be sustained. Mr. Khundkar for the Crown has suggested that we might in the first place issue a rule with regard to them on the Deputy Commissioner of Jalpaiguri. But ho concedes that that is only a matter of practice and not necessary even technically, for under Section 439, Criminal P.C., it is open to us to make an order in our discretion, so long as the accused persons is are not prejudiced. On merits, as say, in the view that we have taken of the evidence, it is impossible that the conviction of these two persons will stand and the issue of a rule will only delay matters. In his view we acquit Teperu and Dhephua of the offences under Section 366, I. P.C., and sat aside the order that has been made against them by the learned Sessions Judge.
5. I agree.