1. This is a case which has had reference to the abduction from her home of a minor girl and the accused Muktal, it is clear, wanted to marry her. There were eight persons put on their trial of whom we are concerned with four only. Muktal has been given five year's rigorous imprisonment and Imamuddin has been given two years' rigorous imprisonment under Section 366, I.P.C., that is, abducting a woman to compel her to marry. The other two Tobdul and Sundar Ali have been fined Rs. 200 each upon a conviction under Section 368 read with Section 109, I.P.C. and the charge against them was that they were ongaged with Muktal and Imamuddin in a conspiracy wrongfully to conceal Jobeda Khatun--an abducted girl--knowing her to have been abducted in pursuance of which conspiracy she was actually wrongfully concealed. All the accused were charged under Section 342, I.P.C. (wrongful confinement) and all were expressly acquitted under that section
2. Mr. Chatterji on behalf of Tobdul and Sundar Ali points out that, if there was no conviction of Muktal and Imamuddin or anybody else under Section 342, I.P.C. and no conviction or even accusation against them under Section 368, I.P.C., then it cannot be that the conviction of Tobdul and Sundar Ali upon this charge is sustainable. By Section 109, it is premised that the offence abetted is an offence which has been committed. If persons who are said to have been the principals are acquitted under Section 342, it cannot, therefore, be right, according to Mr. Chatterji's argument, to convict the others under Section 368 read with Section 109. That argument is logical and there is no escape from it. Mr. Chatterji has pointed out that abetment does not necessarily involve that the offence has been committed ; but, in this case, it would not seem right merely to alter the conviction to one under Section 368 read with Section 116 because in this case we have to consider that the abetment alleged is an abetment by conspiracy ; and, if we were to alter the charge in the manner suggested, we would probably have to retry the case from an angle at which it has not yet been examined. That too, if I may say so, appears to me to be a sound argument.
3. Mr. Khundkar for the Crown points out that what is really wrong in this trial is that, on the prosecution case which has been accepted by the jury, the principal accused Muktal and Imamuddin ought never to have been acquitted Under Section 342 and that certainly it would seem paradoxical to say in this case that the jury accepted the prosecution case for any purpose and still were able to find that Muktal and Imamuddin had not committed an offence under Section 342.
4. In these circumstances, no doubt there has been a miscarriage of justice in that sense ; that is to say, the jury having acquitted people under Section 342, it becomes impossible to sustain what otherwise is a perfectly good charge against Todbul and Sundar Ali under Section 368 read with Section 109. In this case, it is to be observed that Todbul and Sundar Ali have been fined Rs. 200 each and I am not minded to enter a conviction for any purpose where the jury have entered an acquittal merely to get over a technical difficulty. I doubt extremely whether in a case of this sort the powers of the Court under Section 537, Criminal P.C., could be employed so as to straighten the matter out. I am of opinion that the correct course in this case is to give effect to the argument of Mr. Chatterji and to acquit Tobdul and Sundar Ali. They will, therefore, be acquitted and the fines, if paid, will be refunded.
5. As regards Muktal and Imamuddin, the only question which arises is the question of sentence. I do not know that this is as bad a case as one often met with ; but, at the same time, there remains the fact that this girl of 13 or 14 years of age was gagged and taken away by force and very elaborate steps were apparently taken to induce her to marry Muktal. I do not think it necessary to interfere with the discretion of the learned Sessions Judge and the appeal of Muktal and Imamuddin must be dismissed.
C.C. Ghose, J.
6. I agree.