Hari Mahto vs Emperor

James, J.—The petitioner has been convicted by the Assistant Sessions Judge of Bhagalpur, sitting with a jury, of an offence punishable u/s 366, I.P.C., and has been sentenced to four years'' rigorous imprisonment. The appeal by the petitioner to the Sessions Judge was dismissed. The learned Sessions Judge in the course of his judgment in appeal held that certain remarks by the learned Assistant Sessions Judge in his address to the jury amounted to misdirection; but he considered that they could not have misled the jury or have led to any failure of justice.

The case for the prosecution was that the petitioner Hari Mahto had taken away by force from her father''s house the girl Sagia. When the father returned to his house late at night he learnt from his wife that his daughter had been dragged away by Hari Mahto. After attempting to recover her from Hari Mahto''s house he reported at the police station that Hari Mahto had taken her away and would not permit her to return. The expression used by the Sub-Inspector ''bolakelegya'' may imply that he called her and took her away without the use of force though it does not necessarily imply that force was not used. It was suggested on behalf of the prosecution that up to the time of lodging information at the police station, the father did not suspect that his daughter had been taken away for the purpose of being forced to illicit intercourse, since she had already been working as a maidservant in Hari Mahto''s house and the father did not suspect what the Assistant Sessions Judge calls foul play. He told the jury to consider this explanation in arriving at their conclusion. It is difficult to see any misdirection in his statement to the jury; and I do not understand why the learned Sessions Judge regarded it as such. But he considered that it could not have misled the jury or have led to a failure of justice, in which view he was certainly right. The learned advocate for the petitioner suggests that having found that there had been misdirection, the learned Sessions Judge was obliged to set aside the verdict; but by the provisions of Section 537(d), Criminal P.C., he could not do that unless he found that the misdirection had in fact occasioned a failure of justice.

It is suggested in the second place that we should exercise extraordinary revisional powers and interfere with the verdict of the jury, because the girl, a fortnight after the institution of the case, is said to have told a police officer that before she was abducted she had had a love affair with the petitioner. The suggestion is of course quite impracticable. It appears that two days before the trial opened, the defence obtained a copy of this statement, on which the girl or the Sub-Inspector might have been questioned. They preferred to keep silent upon the matter; and it is quite impossible to make use of that statement now. It certainly cannot be suggested that the learned Assistant Sessions Judge erred in not mentioning to the jury facts which had not been proved in Court. The witness Rasul Buksh remarked in the committing Magistrate''s Court that when the girl was found by the police she said that she had been taken by force and also that she had gone away willingly. It is suggested that in some way or other the jury have been misled regarding the evidence of this witness; but the learned Assistant Sessions Judge clearly says that the evidence of the witness did not support the girl''s story that she told him that she was being forcibly taken away by the two accused. It is suggested that the jury were not told with sufficient clearness that they must find that the girl was taken away by force; but there is no ambiguity in the manner in which the learned Assistant Sessions Judge has dealt with this question. Their verdict must be treated as a finding that the allegation that the girl had been taken away by force had been proved.

When the father made his first statement to the police station he named certain witnesses and he named other witnesses when he lodged his first information after the girl had been found. Only three of these witnesses were examined in Court and the prosecution was criticised on the ground that a number of witnesses named in the sanha and first information had not been examined. On this point the learned Assistant Sessions Judge remarked that there was no bar to the examination of witnesses not mentioned in the first information; and that as regards the witnesses who were named therein and not examined, it did not appear that they would have given evidence material to the case. He remarked that if the accused had wanted these witnesses to be produced they could have applied to the Magistrate or to him; and he would have called them if it had been suggested to him that the witnesses were wanted. There is nothing to indicate in the sanha or in the first information report on what particular points these witnesses were to be examined; and when the informant and the investigating officer were in the witness-box no questions were put to them on this matter. It is suggested that these were witnesses who would have given evidence regarding the dragging away of the girl from her father''s house. If this was so, it is sufficient to say that three witnesses were examined on this point; and no presumption adverse to the prosecution can be drawn from the fact that they did not consider it necessary to examine nine. If the defence desired that these witnesses should be treated as necessary witnesses, they should have elicited from the first informant or from the Sub-Inspector on what points they were giving evidence. They did not do so and the learned Assistant Sessions Judge has dealt with this matter quite correctly in his charge to the jury.

The jury attached to their verdict of guilty a rider recommending the accused persons to mercy; but the learned Assistant Sessions Judge imposed a sentence of four yours'' rigorous imprisonment. We cannot agree with the learned Advocate for the petitioner that this recommendation for mercy really implied that the jury did not believe the prisoners to be guilty at all. But they probably recommended Hari Mahto to mercy on account of his youth; and we consider that a lighter sentence might have met the ends of justice in this case, since although the girl may have been dragged by force from her father''s house, she appears to have been subsequently travelling willingly with the servant of the petitioner. The sentence may be reduced to one of six months'' rigorous imprisonment.

Saunders, J.

I agree.