1. The appellant has been convicted under Section 368, Indian Penal Code and sentenced to undergo rigorous imprisonment for one year, on a second trial held by the Additional Sessions Judge and a Jury, the Jury having on this occasion brought in a unanimous, verdict of guilty: on the said charge.
2. The point that has been urged in support of this appeal is that the directions of the learned Judge on the question of knowledge'--knowledge on the part of the appellant that the girl was abducted--are defective.
3. The learned Judge's charge is an elaborate one, very fully dealing with the evidence and circumstances of the case, and he set out the details of the ingredients necessary to constitute an offence punishable under Section 368, Indian Penal Code with punctilious care. There is, however, an unfortunate defect, and that, in our opinion, a serious one, as regards his presentation of the facts and circumstances relating to 'knowledge.'
4. He first of all told the Jury that one of the essential ingredients of an offence punishable under Section 368, Indian Penal Code. was knowledge on the part of the accused person that the girl was abducted, and that it was not necessary to prove who abducted the girl but that it was sufficient that the woman was abducted and that the' accused had knowledge of the abduction. He next placed before the Jury the evidence as to abduction, and then asked them to 'consider the evidence and conclude whether the girl was abducted or not.' He then observed as follows: 'It is an admitted fact that she (meaning the girl) was kept in the house of the accused and Kuti was with her. Both of them were kept there. The explanation is that Kuti was a prostitute, the girl looked to be a female of a cultivator, so to ascertain her whereabouts and to send her to her husband's house she had been kept in the house. It is for you to consider whether this suspicion indicates that the accused knew her to be an abducted girl.' Then he proceeded to place before the Jury the evidence of the girl, which, if believed, would afford a piece of direct evidence as to knowledge on the part of the appellant. Lastly he again referred to the circumstances that the girl did not look to be a prostitute but the wife of a Grihastya and observed thus: 'The latter (meaning Kuti) was a prostitute, which seems to have been known to the accused; the young girl was with her; naturally a suspicion should have arisen about abduction. The evidence of these two defence witnesses (meaning D. Ws. Nos. 1 and 2) also seem to give support to this inference. You are the best and sole judges of fact, it is for you to conclude whether the accused knew the girl's abduction when he retained her in his house.'
5. This is how the learned Judge has dealt with the matter. It will appear then, that the learned Judge placed before the Jury three things for their consideration in order to determine the question as to whether the appellant had knowledge that the girl was an abducted girl: Firstly, suspicion which arose in the mind of the appellant that the girl might have been abducted and in consequence of which he desired to ascertain her whereabouts; secondly, direct evidence of the girl to the effect that she told the appellant that she had a husband and that she had been abducted,' which she says, she did after having been ravished by the accused; and thirdly, a suspicion which should have naturally arisen in the mind of the appellant that the girl had been abducted. Each one of these has been placed before the Jury as evidence or circumstances, independently of the others, from which appellant's knowledge might be inferred. This, in our opinion, was wrong and had the effect of obliterating from the mind of the 'Jury any distinction that they might have entertained between knowledge and suspicion on the part of the appellant with regard to this matter. The importance of this distinction cannot be overstated for the section says ' knowing ' and not ' suspecting ' or ' having reason to believe.'
6. The proper way to charge the Jury in this matter would have been to place before the Jury the evidence,--the direct evidence of knowledge as given of the abduction of the girl, to point out the strength and weakness of that evidence to tell them that this was the only evidence relating to knowledge, and then to place before them the circumstances, if any, which might raise an inference of knowledge on the part of the accused that the girl was an abducted girl; and lastly to have asked the Jury to draw their own conclusion on that question.
7. A defect of this nature on a curcial point is likely to vitiate the verdict; at any rate on a careful consideration of the facts and circumstances of the case we are unable to say that it did not so vitiate it. Having regard to the erroneous delay in implicating the appellant on the charge and the very poor explanation that has been offered in order to account for it, the fact that the mukhtear who drew the original petition of complaint was not examined as a witness for the prosecution, and lastly the extremely unsatisfactory nature of the evidence of the girl herself. We decline to prolong the harassment of the appellant which he has already suffered in the course' of two trials by directing a third one.
8. The appeal is allowed, the conviction and sentence passed on the appellant are set aside and he is directed to be discharged from his bail-bond.