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Torap Ali and ors. Vs. Emperor - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Reported inAIR1926Cal1059
AppellantTorap Ali and ors.
RespondentEmperor
Excerpt:
- .....judge of bakarganj with the aid of a jury and have been convicted under section 147 of the indian penal code. the appellants 1 and 2 have been sentenced to suffer rigorous imprisonment for a period of six months, while the appellants 3 to 5 have been sentenced to suffer rigorous imprisonment for a period of one year.2. the facts giving rise to the prosecution shortly stated, are as follows: on the 4th december 1924, the complainant, chootoo fakir, married a widow named hatiman as his third wife with her free consent. hatiman had two brothers, namely, the appellants 4 and 5. their consent was not taken to the marriage, the marriage being celebrated at the place of hatiman's deceased husband, elimaddi mridha, and registered on the 4th december 1924. since the date of the marriage chootoo.....
Judgment:

1. The appellants before us are five in number. They were tried by the Additional Sessions Judge of Bakarganj with the aid of a jury and have been convicted under Section 147 of the Indian Penal Code. The Appellants 1 and 2 have been sentenced to suffer rigorous imprisonment for a period of six months, while the Appellants 3 to 5 have been sentenced to suffer rigorous imprisonment for a period of one year.

2. The facts giving rise to the prosecution shortly stated, are as follows: On the 4th December 1924, the complainant, Chootoo Fakir, married a widow named Hatiman as his third wife with her free consent. Hatiman had two brothers, namely, the Appellants 4 and 5. Their consent was not taken to the marriage, the marriage being celebrated at the place of Hatiman's deceased husband, Elimaddi Mridha, and registered on the 4th December 1924. Since the date of the marriage Chootoo and Hatiman lived as man and wife. On the 20th December 1924, the Appellants 4 and 5 tried to take Hatiman away forcibly but failed in their attempt. Hatiman thereafter filed a petition against her brothers on the 23rd December 1924, under Section 107 of the Criminal Procedure Code. Meanwhile the Appellants 4 and 5 went to the local zemindar and prayed for his help in the matter of taking away Hatiman from her husband. The zemindar called both parties before him, and on looking at a copy of the entry in the marriage register, and being satisfied therefrom that Hatiman had married Chootoo with her own free will, he informed the Appellants 4 and 5 that he could not help them in any way. Some time thereafter Hatiman, her step-son, Sabed Ali, and her husband Chootoo were returning home in a small boat. The five appellants before us, along with various other persons, came up in boats and attacked the people in Chootoo Fakir's boat. Sabed Ali and Chootoo were beaten and thrown into the river, and the appellants with the help of others forcibly carried off Hatiman. It is suggested that their object was to marry her to a man called Lehajuddi. Chootoo lodged a complaint with the panchayat and with the local zemindar on the 27th December 1924, and he filed a complaint before the Magistrate on the 2nd January 1925. The appellants with some others, were thereafter sent up for trial.

3. The charges against the accused were three in number and they were as follows:

That you, on or about the 27th December 1924, at Jalabari river, p.s. Swarupkati, were members of an unlawful assembly, and in prosecution of the common object of the assembly viz., to abduct Chootoo Fakir's wife, Hatiman Bibi, with intent that she will be compelled, or knowing it to be likely that she will be compelled, to marry somebody else against her will committed rioting, and thereby committed an offence punishable under Section 147 of the Indian Penal Code.

4. The second charge was one under Section 366 of the Indian Penal Code, and it ran as follows:

That you, on or about the 27th December 1924, at Jalabari river, p.s. Swarupkati, abducted Hatiman Bibi, wife of Chootoo Fakir, with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry somebody else against her will, and thereby committed an offence punishable under Section 366 of the Indian Penal Code.

5. The last charge was one under Section 498 of the Indian Penal Code and it was added in the Court of Session, It ran as folldws:

That you, on or about the 27th December 1924, at Jalabari river, p.s. Swarupkati, took away Hatiman Bibi from her husband, Chootoo Fakir, whom you knew or had reason to believe to be the wife of the complainant Chootoo Fakir, With intent that the said Hatiman Bibi might have illicit intercourse with some person and thereby committed an offence punishable under Section 498 of the Indian Penal Code.

6. The jury found the accused guilty of having committed an offence punishable under Section 147 of the Indian Penal Code. They found that the appellants before us were not guilty under Section 366 or under Section 498 of the Indian Penal Code.

7. At the hearing of this appeal before us it has been contended on behalf of the appellants that, having regard to the fact that the jury had found that the appellants were not guilty under Sections 366 and 498 of the Indian Penal Code, it ought to have been held that there could be no conviction under Section 147 of the Indian Penal Code, inasmuch as the common object specified in the charge under Section 147 had failed, because it had been found by the jury that the appellants before us were not guilty of the offences under Sections 366 and 498 of the Indian Penal Code. It has also been contended before us that the learned Judge was guilty of misdirection in the following passage:

If you hold that Hatiman Bibi was compelled by force to go from her husband's boat i.e. abducted, her brothers Echamuddi and Elimuddi dragging her by the arms and her maternal cousin, Mabdool, dragging her by her hair, then such abduction only (even in the absence of an intent that she may be compelled to marry any person against her will, even in the absence of an intent that she may have illicit intercourse with any person), then such abduction only (to bring Hatiman Bibi away from the social environment of her husband) would amount to offences under Sections 341 and 352 of the Indian Penal Code.

8. The contention of the learned vakil who appears on behalf of the appellants is that there was no charge under Section 341 or Section 352, and that, therefore, the learned Judge could not ask the jury to convict them under Section 147 of the Indian Penal Code by inviting them to consider whether in the state of the evidence on the record, an offence under Section 341 or Section 352 had or had not been committed by the appellants. On behalf of the Crown it has been argued that the position here was this: that the charge of abduction under Section 366 was composed of various particulars; the combination of some of such particulars constituted a minor offence, such minor offence being contained in the charge under Section 147, and that, therefore, the conviction under Section 147 was legal, inasmuch as the common object mentioned therein involved a minor charge which was included in the, particulars of the charge under Section 366 of the Indian Penal Code. Similarly it has been argued with reference to the charge under Section 498 that the minor charge involved therein is to be found specified in the charge under Section 147. Lastly it has been argued that before the conviction and sentence can be set aside, this Court will have to be satisfied that there has been such prejudice to the appellants, that by reason of the omission to state in so many words the said minor charges the appellants were misled, and that there has been miscarriage of justice.

9. We are satisfied, on examination on the record and on perusal of the learned Judge's charge to the jury, that the charge to the jury cannot be attacked on the ground of misdirection on the facts of this particular case. The charge under Section 341 is involved in the charge under Section 366. So also is the charge under Section 362 involved in the charge under Section 366. Similarly, with reference to Section 498. That being so, having regard to the specific charge set out in Section 147, we have got to satisfy ourselves that that charge with the common object specified therein was of such a misleading description, that the appellants were handicapped in their defence and they did not really know what case they had to meet. The facts of this case set out above constitute in our opinion a sufficient answer to a contention of this nature. Moreover, by the application of the principle laid down in Section 238 of the Criminal Procedure Code, it may legitimately be held that the conviction such as has been had in this case is not illegal; in fact it is amply borne out by the evidence on the record. In this view of the matter we are of opinion that there has been no prejudice whatsoever caused to the appellants and that the charge to the jury cannot be attacked in the manner in which it has been sought to be attacked.

10. Lastly, on the question of sentences taking all the circumstances into consideration, we are unable to say that the sentences are of such severity that it is incumbent on us to interfere with them.

11. The result, therefore, is that this appeal fails and must be dismissed.


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