George Glaus Rankin, C.J.
1. In this case the accused Iza or Izazuddin has been acquitted by the verdict of four Jurors out of five on charges under Section 366 and 363 of the Indian Penal Code, i.e., upon the charge of having on the 18th of December, 1926, abducted a Hindu Brahmin widow Hemlata and kidnapped her from lawful custody.
2. The facts are that on the night in question, according to the evidence of the mother, the girl wanted to go outside the house for the purpose of relieving 'nature and that the mother went with her. According to one version of the story both of them went outside to relieve nature. The mother's story is that when the girl had finished she was seized by hands and feet by two men--the accused Iza and one Sriram, and they carried her off then and there, that she awoke the members of the house-hold and certain neighbours and that Girindra and a servant and some one else gave chase. The story of Girindra is that three men were seen running into Iza's house. According to another witness five men were seen. According to the servant no mention is made of these men at all in his evidence-in-chief. There can, however, be no doubt that the girl on that night did go to the house of the accused Iza. The question is whether or not Iza went there and whether he took her by force, there being no case of enticement which we have to consider.
3. The fact is that no First Information Report was laid until five days afterwards and the reasons for that have been given by the witness Girindra. They do not appear to be very good reasons. He tells a story of having gone to Iza's house and having argued with him, of having been taken to the prostitute's quarter and of having ultimately failed to find Hemlata. He then came back and sent for the father and after the father had tried to get her back asking the Muhammadan matbars they came to the conclusion that they had better lodge the First Information.
4. Curiously enough it so happened that on the 24th of December the accused was sent to Jail in another matter and his brother-in-law took this girl from his house to the house of a Muktear of the town so that on the 26th of December the girl was produced before the Sub-Divisional Officer. The girl at that time said that she had left home alone, that she was unwilling to return to her father and that she was eighteen years old. The Sub-Divisional Officer thought that she was eighteen years old and told her father to get her medically examined. The father did not do so and she was handed back to her father against her will. She was then taken to the house of one Ananda Chukerbutty and from there on the 10th of January she disappeared again with the accused. On the 11th the accused purported to marry her and then on the 12th an application was again made to the Police and a search warrant was issued for the girl. That night she was produced with Iza in bridal dress before the Sub-Divisional Officer and much against her will was sent back to her father. On the 13th the accused filed more than one petition urging that the girl might be medically examined as to her age but she was not at that time produced for examination at all.
5. In these circumstances it is evident that after, it is true, being with Iza for a few days the girl when first found was found to be telling before the Sub-Divisional Officer a story utterly inconsistent with any case under Section 366, Indian Penal Code, namely, of forcible abduction.' It is quite true that afterwards again she tells a different story after having been back home to her father's house for a certain number of days. It is idle to say that there was any obligation on the part of the Jury to set her later statement against her earlier statement and to ignore the girl's evidence and to proceed on the basis of the mother's evidence alone. The crux of the case is whether the story which she tells ultimately in Court--a story which she was induced to tell under home influences--or the first story is the true one. That is a matter for the Jury.
6. The evidence (as regards forcible abduction) of the mother is subject to a considerable degree of comment. Particularly it is important to notice that in her evidence-in-chief there is no reference to gagging which case in the cross-examination is forthcoming. How these two people took this girl away by force is described in the thinnest manner and there is nothing of the elaboration which comes afterwards to say that the girl was not going willingly. These are matters which the Jury had to consider. The learned Judge putting on one side the opinion of the Jury and discussing the matter entirely for himself comes after much reasoning and considerable difficulty to an opinion of his own that the mother's story is more probable than the defence story. The defence story was, as put forward by the accused under Section 342, that the girl went alone to his house without any previous invitation from him and the learned Judge accepts the mother's evidence in the circumstances which I have already stated because he thinks that the tale told by the accused in the dock is considerably less probable than the tale told by the mother in her evidence. In my judgment that is not the correct way to look at this case. The question is whether this Court, contrary to the verdict of the Jury, is going on this evidence to say that it is so clear that the Jury were wrong, that it is proposing to convict the accused under Section 366 : and unless the case can be put as high as that it is idle to trouble this Court in a Reference under Section 307, Criminal Procedure Code.
7. There remains for consideration the question whether the girl is under sixteen. On that it appears to me that the Jury were well justified in refusing to accept that it is proved that the girl was under sixteen. The story told in the end is that the girl was born in a certain month of the year 1318 B.S., so that at the material date she would on that calculation be 15 1/2 years. The mother and the other relatives at the time put her age up to 17 or even up to 18. The girl claimed to be 18 before the Sub-Divisional Officer and he thought that that was about right. The learned Sessions Judge admits on looking at the girl that she looks older than the age attributed to her and gives various explanations which may be good or may be bad. A doctor is called and he says that he thinks she is under sixteen. The question is whether the Jury were unreasonable in thinking that the doctor in his opinion that she could not be as much as sixteen had insufficient evidence to go on. He examined her general appearance and he examined her in other ways which cannot be crucial tests to the extent of a mere month or two in coming to an opinion. In my judgment the matter is concluded by the circumstance that whereas one witness says that there was a horoscope at the time this girl was born that horoscope is not produced in evidence. In these circumstances it appears to me that it would be entirely wrong on our part to substitute a conviction for the acquittal.
8. The only other observation I propose to make in this case is that this is a case of a somewhat common type, namely, accusation against a Muhammadan of tampering with a Hindu (in this case a Brahmin) girl. The Jury were four Muhammadans and one Hindu. The learned Judge has called to our attention that the majority were Muhammadans and the minority of one was a Hindu. In these circumstances and also because he considered that certain questions which he asked of the Jury showed that the Jury were taking an unreasonable view he thought that he would go into the matter for himself and he has said in his letter of reference that in all the circumstances of this case the opinion of a European Judge is of greater importance than the opinion of the Jury. I am far from saying that such reasons might not induce this Court under Section 307, Criminal Procedure Code, to attribute to the opinion of a Jury less weight than it is ordinarily entitled to. But when the Jury has by a majority acquitted it is necessary that this Court who cannot see the witnesses must be very careful before substituting a conviction. It may or may not be that in this case the opinion of the Jury ought not to have the same weight attached to it as against the opinion of a Judge that one ordinarily would attach. Even so, it is necessary to show upon the evidence that the case is such that the verdict of the majority was plainly unreasonable. Until that can be shown upon the evidence, until that can be shown to a Court which has not seen the witnesses it is not possible for the Court to substitute a conviction. Acting on these principles, I think that in this case the Reference ought not to be accepted.
9. A judgment of acquittal must be given and the accused, if on bail, will be discharged from his bail-bond.
10. I entirely agree.