T.V. Thadani,Ram Labhaya, JJ. -
(1.) THIS in an appeal by one Jatindranath Bardoloi who was convicted by the learned Sessions Judge, L.A. Districts, under Section 363, I. P.C. and sentenced to 2 years' R. I. at a trial held with the aid of a jury which brought an unanimous verdict of guilty against the appellant Under Section 363 I.P.C.
(2.) THE case for the prosecution was that on 13 -6 -1949, at about 8 A.M. the kidnapped girl, Musst, Sarumai, said to be some 13 years of age, was going with her mother to a jute field for weeding. On the way, the appellant who was apparently hiding behind a clump of bamboo trees on the road -side, seized Musst. Sarumai and forcibly dragged her away. Musst. Samurai's mother intervened, but she was overpowered. The appellant then disappeared with the girl. They were joined by 3 other persons who have been acquitted by the jury. One Mohiram and Motirara pursued the appellant, but abandoned the pursuit when they were threatened by the appellant. The following day the girl's elder brother, called Maheswar Bora, lodged a first information report at Nowgong Police station. A flay later the police secured the girl from the house of the appellant. She was taken before a Magistrate to whom she made a statement. On the completion of the investigation, the appellant and his 3 companions were sent up for trial. At the trial, three charges were framed against the appellant - one under Section 363, another under Section 363, and a third under Section 376, I.P.C. The Jury acquitted the appellant of the charges under Sections 366 and 376, I P.C. but convicted him of the charge under Section 363, I.P.C. Mr. Medhi for the appellant has contended that the learned Judge erred in law in framing a charge against the appellant both under Section 363 and Section 366, I. P.C. and misdirected the jury on the law involved in the two offences, - a misdirection which, according to Mr. Medhi, has led to an erroneous verdict. Mr. Medhi further contended that the learned Judge should have directed the jury that if they disbelieved the prosecution evidence as to the use of force, they should bring a verdict of not guilty, even under Section 363, I. P.C. In support of this contention, Mr. Medhi has relied upon a case reported in 'Krishna Chandra v. Emperor, : 45 C W. N. 27. But it is plain from the body of the judgment that in that case there was only one charge Under Section 366, I. P.C. framed against the accused. No separate charge had been framed in that case under Section 363, I. P.C. The learned Judges interfered in that case on the ground that the charge to the jury was for a verdict of a charge under Section 366, I.P.C, upon both heads of abduction and kidnapping, i.e., the charge directed the jury to find whether each of the accused was guilty of the offences of both abduction and kidnapping, which, according to the learned Judges, was a complete misunderstanding of the law.
(3.) IN the case before us, a separate charge was framed against the appellant under Section 363, I. P.C. The jury was clearly within its rights, upon proof of taking away a minor girl from lawful guardianship, to hold the appellant guilty under Section 363, I. P.C. Apparently the jury did not accept the prosecution case that the appellant took the girl away with the intention described in Section 366 of the Indian Penal Code. No authority has been cited to us showing that, where two separate charges have been framed against an accused person - one under Section 363, I. P.C. and another under Section 366, I. P.C. and he is acquitted of the charge under Section 366, I.P.C, he cannot be convicted Under Section 363, I. P.C.;