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Kushai Malik and ors. Vs. Emperor - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in81Ind.Cas.906
AppellantKushai Malik and ors.
RespondentEmperor
Excerpt:
criminal procedure code (act v of 1898), sections 235, 289 - abduction of married woman by several persons--her subsequent concealment by them with another--joint trial of all, whether legal. - .....to the trial of the four appellants for offences under sections 366 and 498 of the indian penal code committed on the 25th june, 1922, there is, however, grave objection to the joint trial of the four appellants along with the fifth accused in respect of the offences committed on the 25th june, and on the 7th july, 1922, seeing that the 5th accused did not at all appear on the scene till the 7th july 1922. in other words, the contention is that all the five persons did not start together for the same goal; the four appellants before us, no doubt, started for the same goal, but the association of the fifth accused with the four appellants did not take place till the 7th july, 1922. it is, therefore, argued that this case is not covered by the provisions of sections 235 and 239 of the.....
Judgment:

1. The appellants before as are four in number, and they were tried before the learned Sessions Judge of Faridpur and a Jury, along with one Mokhoda alias Kuti Peshakar, on charges under Sections 366, 368 and 498 of the Indian Penal Code. The Jury found the four appellants guilty of offences punishable under Sections 366 and 498 of the Indian Penal Code, and they found the accused, Mokhoda alias Kuti, guilty of offences punishable under Sections 366 and 368 of the Indian Penal Code. The learned Sessions Judge, agreeing with the verdict of the Jury, has sentenced the four appellants, to undergo rigorous imprisonment for three years under Section 366 of the Indian Penal Code and rigorous imprisonment for one year under Section 498 of the Indian Penal Code the sentences to run concurrently.

2. The case for the prosecution was as follows: One Mohomed Jonab Ali married one Najibunnessa in the nika form at Dacca about 18 months ago. They lived together at Doyarampur. On the 25th June, 1922, the husband was not at home, and on the night of that date, at about 12 p.m. Najibunnessa came out of her room to answer a call of nature. The appellant, Khuda Bux, paught her and gagged her mouth from behind. The remaining three appellants dragged her to the house of one Tarakhan, and kept her there for two days. Then she was taken to two different places and was kept for several days. Afterwards she was again taken to the house of Tarakhan and kept there. On receipt of certain information, the husband came to Tarakhan's house on the 7th July, and met the four appellants there. He requested Tarakhan to release his wife, whereupon an altercation ensued. The wife was within a hut and she screamed out and requested, her husband to rescue her. The husband was driven away. On the night of the 7th July, the four appellants and Tarakhan took Najibunnessa to Kuti Peshakar's ghat, and Najibunnessa was kept in a boat. Kuti Peshakar was requested by the four appellants to make Najibunnessa a prostitute, and to have her name registered in the register of prostitutes, on payment of a reward of Rs. 50. Khuda Bux and Kuti remained in the boat and the other persons went away. The boat went on and reached Kanchanpur on the other side of the river Padma, where, one Gadadhar met the girl and Kuti. They were taken, to hishouse, where the girl was kept for two days. She was removed to the house of Jamini Peshakar where her husband came and rescued her. She was then taken to the house of the local zemindar, one Harendra Babu, and she made a statement there regarding her abduction and confinement, and she mentioned the names of the four appellants. She filed a petition of complaint at Faridpur.

3. On behalf of the appellants, it has been argued that the trial has been vitiated by misjoinder of charges, and joint trial of offences and of offenders which are not sanctioned by law. It is argued that, inasmuch as the offences committed by the four appellants were complete on the 25th June, long before the fifth accused, Mokhoda alias Kuti Peshakar, came on the scene, the series of acts on the 25th June and on the 7th July, 1922, were not so connected together as to form the same transaction, nor were they committed in the same transaction within the meaning of Sections 235 and 239 of the Code of Criminal Procedure, and that, therefore, the trial of the five persons, i.e., the fourappellants and the said Mokhoda alias Kuti, was bad.

4. The expression 'same transaction', used in Sections 235 and 239 of the Criminal Procedure Code, has been the subject of discussion in numerous cases. It has been held in some cases that, if a series of acts are so connected together by proximity of time, community of criminal intention and continuity of action and purpose, or from the relation of cause and effect, as to constitute, in the opinion of the Court, one transaction, then the accused may be charged with and tried at one trial for every offence committed in such series of acts, and if more persons than one are accused of different offences in a series of acts so connected, they may be tried together. In other cases it has been held that the word 'transaction' suggests not necessarily proximity in time so much as continuity of action and purpose, i.e., it is not necessary that the acts should have been committed all on the same occassion, but it is sufficient that, though separated by a distinct interval of time, they are closely connected by continuity of purpose or progressive action towards a single object. In accordance with the last mentioned view it has been held that, where the accusation against all the accused persons is that they carried out a single scheme by successive acts done at intervals, and there was a complete unity of project, and the whole series of acts were so linked together by one motive and design as to constitute one transaction within the meaning of Section 239, a joint trial is not only legal but is demanded in the interest of public time and convenience. In all these cases, however, the foundation for the procedure is the association of two or more persons concurring, from start to finish to attain the same end.

5. Now, in this case it is argued that, while there can be no objection to the trial of the four appellants for offences under Sections 366 and 498 of the Indian Penal Code committed on the 25th June, 1922, there is, however, grave objection to the joint trial of the four appellants along with the fifth accused in respect of the offences committed on the 25th June, and on the 7th July, 1922, seeing that the 5th accused did not at all appear on the scene till the 7th July 1922. In other words, the contention is that all the five persons did not start together for the same goal; the four appellants before us, no doubt, started for the same goal, but the association of the fifth accused with the four appellants did not take place till the 7th July, 1922. It is, therefore, argued that this case is not covered by the provisions of Sections 235 and 239 of the Code of Criminal Procedure.

6. On the facts of this particular case, there can be no doubt that, inasmuch as the offence of abduction is a continuing offence, the four appellants and the fifth accused could have been tried together in respect of offence committed on the 7th July, 1922, and on all subsequent dates thereafter. The four appellants wanted that Najibunnelssa should be made a prostitute; and the fifth accused also wanted that Najibunnessa should be made a prostitute; therefore, they were rightly tried together for offences committed on the 7th July, 1922, and on all subsequent dates thereafter. The question is whether the trial has been vitiatedby reason of the four appellants being tried together with the 5th accused in respect of the occurrences before the 7th July, 1922. Now illustration. (b) to Section 239 of the Criminal Procedure Code shows that such a trial is permitted by the provisions of the law. We do not think, therefore, that the trial in this case is bad, and, therefore, we must negative, the contention urged on behalf of the appellants.

7. A small point has been taken, viz., that there was no proper cognizance of the offence under Section 498 of the Indian Penal Code. Now, it is unnecessary to deal with this matter at length, because, for the reasons given by the learned Sessions Judge in his charge to the Jury, we are of opinion that there is no substance in this contention, and this must fail also. The result, therefore, is that this appeal must be dismissed.


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