Fazl Ali, J.The appellants were tried before the Additional Sessions Judge of Shahabad and a jury of five for offences under Sections 366 and 363, I.P.G. There were two additional charges against the appellant K.K. Ali under Sections 366 and 363 read with Section 109. The jurors unanimously returned a verdict of guilty on all these charges and the learned Sessions Judge having accepted the verdict of the jury has sentenced the two appellants u/s 366 to undergo rigorous imprisonment for a period of six years each and to pay a fine of Rs. 500 or in default to undergo further rigorous imprisonment for two more years. He has passed no separate sentence on K.K. Ali u/s 363 read with Section 109 or 366 read with Section 109.

2. The gravamen of the various offences with which the appellants were charged consisted in the kidnapping of a minor girl named Basanti Devi. According to the evidence adduced by the prosecution this girl was about 14 years of age on 4th July 1935 when these offences are said to have been committed, and she used to live with her mother and three brothers in a two-storeyed rented house in mohalla Karmontola in the town of Arrah. Of her three brothers Ketaki Ranjan Mukherjee, the eldest was a schoolmaster and, the other two Annada and Kumar, whose ages are stated to be 23 and 20, respectively acted as insurance agents. On the other hand the first appellant K.K. Ali was at the time of the occurrence employed as a Sub-Inspector of Detective Police at Arrah, while the second appellant (Samarendra Kumar Chakravarti or Samaresh) was working as a fitter in an electrical company. These appellants and one Kiranbala sister of second appellant also lived in Karmantola in a two-storeyed rented house between which and the house occupied by Ketaki Ranjan Mukherjee only a one-storyed house intervened. There has been some controversy between the parties as to the relationship between K.K. Ali and Kiranbala, but it seems to me to be fairly clear that Kiranbala was the wife of K.K. Ali and Samaresh was his brother-in-law. It appears that sometime in February or March 1935 the appellant K.K. Ali took out an insurance policy for Rs. 2,000 through Kumar, and while the negotiations for this transaction were in progress, Annada and Kumar on the one hand and the accused persons on the other met and visited each other at their respective houses on several occasions. In course of time both K.K. Ali and Samaresh became acquainted with Basanti Devi also who is said to have paid several visits to the house of K.K. Ali, these visits being arranged mostly by Kiranbala. It is also alleged by the prosecution that both the appellants used to meet Basanti at her house sometimes secretly and sometimes openly between March and April and on 4th July. However that may be, in May 1935 there happened an important incident which made the elder members of Basantis family alive to the necessity of keeping a watch on her movements. As the school was closed for the summer vacation Ketaki Ranjan left for Calcutta and he was followed a few days later by Annada with their mother. Annada was however absent only for a few days and when he returned he found that one night Basanti was missing from her room on the first floor, and while searching for her he noticed K.K. Ali slipping out of the house through the entrance door and Basanti hastily re-entering her room. Basanti being questioned eventually confessed that she had been in the company of K.K. Ali downstairs and so on the following day Kumar sent a telegram to Ketaki which was to the following effect: "Dada hopeless, come with mother."

3. What is stated by Annada and Kumar in their evidence is that, in fact Annada was not ill, but they had to couch the telegram in the words already stated in order to induce Ketaki to return to Arrah immediately and to avoid any reference to the unpleasant incident. Ketaki returned to Arrah two or three days later and from his evidence it appears that one-night he was roused from sleep and saw Samaresh his sister, and Ali standing on the open roof of their house and flashing a torch in the direction of his own house. Ketaki states that when he woke up he remonstrated with the appellants but Ali assumed a threatening attitude. This is not the only occasion on which a torch light is said to have been flashed by the appellants, it being stated in evidence that they had done so on previous occasions also. But whether these incidents about the flashing of the torchlight actually happened as alleged by the prosecution or are to be regarded as mere embellishment to the main story as suggested by the defence there can be no doubt that a serious incident happened on 4th July. On that day Basanti Devi left her house at night and was subsequently recovered from the house of K.K. Ali at about midnight. The prosecution case which is strongly supported by the evidence of Basanti herself is that in pursuance of an arrangement between her and the two appellants the latter knocked at the front entrance door of the house, and on hearing the knock she came out and went away with them. Her case is that the previous arrangement between her and the appellants was that she should leave her house for good that night and that she acceded to the proposal owing to the inducement which had been from time to time held out to her by the appellants and Kiranbala that she would be happily married to Samaresh. She has further stated in her evidence that the accused had planned to take her away to Calcutta that very night, but the plan was frustrated by the appearance of Ketaki Ranjan at the house of Ali with a number of other persons with the result that K.K. Ali was compelled to return Basanti to him. Ketaki Ranjan himself has stated that he had heard the knock at his door and when he went to open the door he found it chained from outside and thereupon he and his brothers finding that Basanti was not in the house proceeded at once to Alis house and questioned him about Basanti. Ali at first denied her presence in his house but later on after the arrival of a number of other persons who lived in the locality they somehow got inside the house (it is said that somebody from inside the house opened the entrance door and so they could enter the house) and finally discovered Basanti in one of the rooms on the first floor.

4. A few days later, Ketaki Ranjan left for Calcutta and put Basanti in charge of his first cousin Sudhir who had a house in Serpentine Lane. His object in removing Basanti to Calcutta was to arrange a suitable marriage for her, but as he could not succeed in doing so he returned to Arrah. Meanwhile Basanti sent a letter addressed both to Ali and Samaresh in which she entreated Samaresh to start at once for Calcutta "treating the letter as telegram and take her away," it being proposed in the letter that they should meet at the Sealdah station. Samaresh readily responded to this letter and on the evening of 27th July when both Ketaki and Sudhir were absent from the house, Basanti disappeared. For some days Ketaki could not trace Basanti though it is said that Sudhir had found a letter in an open envelope which showed that someone had come from Arrah and met Basanti at the Sealdah Railway Station on the previous evening. On 10th August 1935 Ketaki found Basanti with Samaresh and his sister near the over-bridge at the Arrah Railway Station and after some altercation with Samaresh, Ketaki succeeded in bringing his sister to his house. Basanti however was found missing again on 13th August. Ketaki now made up his mind to inform the authorities without delay and accordingly, on 18th August 1935, after taking legal advice, he appeared at the house of the District Magistrate of Shahabad and made a complaint against the two appellants for kidnapping his minor sister. The District Magistrate, after examining Ketaki on solemn affirmation, ordered the Subdivisional Officer to make an inquiry u/s 202, Criminal P.C. On 19th August 1935 the Sub-Divisional Officer himself went to the house of K.K. Ali with a search warrant and recovered Basanti from his house. At that time in the course of her examination Basanti stated that she was 21 years of age; that she had been in love with Samaresh and that on the 20th Sravan she had been married to him at Calcutta. The Sub-Divisional Magistrate thereupon remanded Basanti to the local sub-jail and she remained there until about the end of the month and then she was released on bail. Later on the Sub-divisional Officer being satisfied that a prima facie case had been made out against both the accused, recommended to the District Magistrate that they should be proceeded against. The two-appellants were accordingly summoned and after a preliminary inquiry under Ch. 18, Criminal P. C, they were committed to the Court of Sessions.

5. As the defence version has been rejected by the jury it is unnecessary to dwell upon it at any length, but it may be briefly stated that according to the appellants Basanti was not below 16 but well above that age and that she and Samaresh had been duly married in Calcutta. Appellant 2, Samaresh, also produced in the Court below a number of letters written by Basanti to prove that she had been passionately in love with him and as to the incident of 4th July the case of the appellants was that Basanti had been turned out of her house by her mother and brothers who did not wish her to associate with Samaresh, that she had taken shelter in the house of K.K. Ali while a religious ceremony (Milad Sharif) was in progress-and that K, K. Ali had ultimately prevailed upon her brother Ketaki to take her back to his house. From these brief statements of the respective cases of the parties it must be clear that one of the questions which the jury had to decide was whether the prosecution had established that Basanti was under 16 years of age. The evidence adduced by the prosecution on this point may be divided under three heads: (1) the opinion of the doctors by whom the girl had been examined; (2) the statements of her brothers and other relations who were competent to depose as to her age; and (3) her horoscope (Ex. 21) which was proved by P. Ws. 25 and 29, which shows that Basanti was born on 9th march 1328 corresponding to 23rd June 1921.

6. Now, one of the contentions raised on behalf of the appellants before us is that the learned Judge has while dealing with the question of age in his charge to the jury made certain important omissions. It is said in the first place that the learned Judge should have drawn the attention of the jury to two important statements made by Basanti in, her evidence, one of which was to the effect that her brother Ketaki was, about 17 or 18 years older than herself and the other to the effect that Annada, her second brother, was 6 years older than her. Ketaki has stated in his evidence that he is 36 years of age and it is argued that if it is a fact that he was 17 or 18 years older than Basanti, it follows that she was 18 or 19 years of age at the time of the trial. Similarly it is argued that Annada being 6 years older than Basanti, her age could not be less than 16 according to her own statements. On the other hand, the learned Assistant Government Advocate contends that inasmuch as Basanti herself was never asked in her cross-examination what she thought Ketakis age to be, it would be unfair to draw the inference which is sought to be drawn by the learned Counsel for the defence. It is also pointed out by him that some of the statements made by Basanti herself show that she had no accurate idea of the relative age of her brothers. For example, when Basanti was questioned as to the difference between her age and that of Kumar and Annada she stated: "Annada is 6 years older than myself. Kumar is 5 or 5 years older than myself." Now if these statements are true, Annada would be about a year or a year and a half older than Kumar, but Basanti herself when asked about the difference between the ages of Ananda and Kumar stated "Annada is 3 or 3&half years older than Kumar." These passages which have been taken from Basantis deposition do show that her statements as to the difference between her age and the age of Ketaki and Annada may not have been quite accurate and it is just possible that the learned Judge taking the same view did not refer to these statements when he was summing up the case to the jurors. His failure to do so therefore, cannot be regarded as a misdirection and still less a misdirection of a serious nature. We have, however, only his heads of charge before us. Judging by the time he took to charge the jury, his actual summing up could hardly have been confined to the heads of charge to the exclusion of all matters that he considered relatively unimportant. Besides there was nothing to prevent the advocate appearing for the accused in the trial Court from drawing the attention of the jury to these statements and it is also not to be presumed that the jurors themselves who had heard the evidence would not have taken into consideration all the material statements of Basanti.

7. The second omission on the part of the learned Judge is said to have consisted in his not properly directing the jury as to the value of ossification in determining the age of a particular person. Now it appears that Basanti was examined by the Civil Surgeon, the Assistant Surgeon and two lady doctors, namely Mrs. Maitra and Miss A. Begum. The Civil Surgeon and the Assistant Surgeon based their opinion partly upon their own examination and partly upon the examination of the two lady doctors. The result of these examinations disclosed that she had 28 teeth, was 4 feet 9 or 11 inches in height and 6 stone 8 pounds in weight; her breasts were fully developed and her armpit and pubic heirs were half inch long and of light dark colour. On these data, the medical witnesses expressed the opinion that Basanti was about 14 years of age. The accused persons challenged the evidence of the Civil Surgeon, the Assistant Surgeon and Mrs. Maitra on the ground that they were all Bengalis and the evidence of Miss A. Begum on the ground that she had deposed under the threat of a proceeding which either had been or was going to be instituted against her on the allegation that she had visited the goal at the instance of the accused and without any authority from the officers concerned to find out the age of Basanti. They accordingly moved the Court that Basanti might be examined by another lady doctor of a different district and that arrangement might be made for an x-ray examination of her bones at Patna in order to determine the stage of ossification. Basanti, however, was not agreeable to either course and the Court recorded an order to the effect that as it had no authority under the law to compel a persons medical examination against her will, no action could be taken on the petition filed by the accused. The medical witnesses, however, were fully cross-examined on behalf of the accused as to the value of ossification as a test for determining the age of a person and they all admitted that it was one of the important tests for determining the age, the Civil Surgeon stating in his evidence as follows:

To a certain extent ossification is considered as one of the true tests for the purposes of judging the age. It may differ within a certain limit. This depends upon many factors, eg., diseases of constitutions, bones, etc., and it may vary within certain period.

8. The learned Judge summarized the evidence of these doctors in his charge to the jury in these words:

That in their opinion, though each of the tests applied by the Civil Surgeon would not in itself be a reliable test of the age ... there are the items to be noted generally in the ascertainment of age and that reliable opinion of the girls age can be formed from the combined result of observation of all these items without necessarily waiting for ossification to confirm such opinion.

9. The learned Judge then observed as follows:

The trend of this cross-examination has been to show that ossification is not only one of the chief tests but the most reliable test for determining age ... No authority was filed in Court with a view to show that ossification is an indispensable test or that it is above all other tests the most important test for determining the age of the girl.

10. As counsel for the appellants has cited some passage from certain well known treatises on medical jurisprudence, I will briefly refer to these passages. The opinion expressed by Lyon is "that ossification is perhaps the most accurate method of arriving at age" (Lyons Medical Jurisprudence, Edn. 9, page 85). Again Modi states that:

Ossification is an important additional sign for determining the age until ossification is completed, for skigraphy has now made it possible to determine even in living persons the extent of ossification.

11. Taylor while dealing with the question of estimating age from one year to puberty states as follows:

When the teeth commence to erupt they form the most reliable means for the estimation of age of a child from about the age of six months to puberty.

12. Then he adds:

It is possible by X-ray examination to corroborate such evidence from the ossification of the bones (Taylors Medical Jurisprudence, Edn. 8, page 167).

13. These opinions however must be read subject to an important qualification. In some of the books of medical jurisprudence we find tables showing the periods of life at which centres of ossification appear in bones; but these tables have been taken from European authorities and, apart from the fact that no authoritative table has been prepared in India, various authors have taken care to emphasise the fact that the figures in the tables must not be taken too rigidly but only as implying an average. Thus on a perusal of these authorities, although it may be recognized that ossification is an important test for determining the age, yet having regard to the practical difficulties which would attend the application of this test, it cannot be said that the learned Judge was in the circumstances of the case far wrong in stating that it had not been shown that ossification was an indispensable test for determining the age of a girl. Learned Counsel for the defence also raised two other minor points on the question of age and these are as follows: (1) that the learned Judge while telling the jurors that along with other circumstances of the case they might apply the results of their own observation of the girl for coming to a finding as to Basantis age should have warned them not to attach too much importance to their own observation and (2) that the learned Judge, while discussing the evidence of those relations of Basanti who had come from Bengal to prove her horoscope, should have pointed out that these relations could not have had a personal knowledge of the age of Basanti, because Ketaki had deposed in his evidence that his family had been domiciled in Chapra for more than five generations. Now, the answer to the first point is that the learned Judge did not ask the jurors to base their opinion about Basantis age solely upon their observation but told them to apply the result of their observation along with other circumstances in the case. As to the second point, it is sufficient to say that there is ample evidence on the record to show that Ketaki and other members of his family had been visiting Bengal from time to time, that his father was in Calcutta when he died and that Basanti was born in the house of his maternal uncle in the district of Nadia.

14. Counsel for the appellants also contended that the learned Judges charge to the jury was deficient on the question of criminal intent. u/s 361 an offence would be committed if a minor girl is kidnapped with one of two criminal intents: (1) that she may be compelled to marry any one against her will; or (2) that she may be forced or seduced to illicit intercourse. In the present case, the actual charge drawn up against the accused was that they had kidnapped Basanti with intent to seduce her to illicit intercourse. The point which is urged on behalf of the appellants is that there are indications in the evidence that Samaresh intended to marry Basanti and as there are also indications that Basanti herself was willing to marry him, the accused could not possibly be charged with having intended to marry her against her will. The learned Counsel for the appellant, thus contends that this aspect of the case should have been placed before the jury and they ought to have been asked to consider whether the intention of the accused being what the appellants suggested it to be, the charge drawn up against them could be sustained. On a reference to the heads of charge it appears that the learned Judge after explaining the law to the jurors formulated certain questions for their decision and in the fourth and the fifth questions he asked them to consider whether it had been established that the alleged kidnapping or abduction of Basanti had been committed with the intention or knowledge specified in Section 366. As however, the prosecution had elected to charge the accused with having kidnapped the girl with intent to seduce her to illicit intercourse, the question before the jury was whether this charge had been established or not and it cannot be said that the circumstances upon which the accused found their argument were not substantially before the jury. I will now refer to two very important questions which have been raised in the case, these being (1) that there is a lacuna in the prosecution evidence on the question of guardianship and (2) that counsel for K.K. Ali was greatly hampered in placing his case fully before the jury. Both these questions require serious consideration and they will have to be dealt with at some length.

15. u/s 361 it is incumbent on the prosecution to prove that a girl under 16 years of age was taken or enticed out of the keeping of her lawful guardian without his or her consent. The Explanation to the section states that the words "lawful guardian" include any person lawfully entrusted with the care or custody of such minor or other person." Now, in this case according to the prosecution there were two lawful guardians of Basanti namely her mother and her eldest brother Ketaki, and the charge which has been drawn up against the accused specifically states that she was kidnapped from the lawful guardianship of both these persons. At the trial, Basantis mother was not produced, but only her eldest brother Ketaki was examined, and the learned Judge in his charge to the jury, though he stated at several places that the case for the prosecution was that Basanti had been kidnapped from the keeping of both the guardians, stated at one place at least that what the jury had to consider was whether Basanti had been removed from the guardianship of Ketaki. Upon these facts the following contentions have been raised on behalf of the appellant: (1) that a dual guardianship such as has been set up in this case is an anomaly and that in law both Ketaki, and his mother could not be the guardians of Basanti at the same time; (2) that there is no evidence whatsoever on the record that Ketaki had been lawfully entrusted with the care and custody of Basanti in the sense in which the expression has been used in Section 361; (3) that the prosecution not having produced, the mother of Basanti as a witness in the case and there being no evidence that Basanti had been removed without her consent, one of the important elements of the charge had not been made out and the conviction under Sections 363 and 366 cannot be sustained. (4) that there was a serious misdirection on the part of the learned Judge when he told the jury that what they had to decide was whether Basanti had been kidnapped from the keeping of Ketaki alone.

16. Now, so far as the first point is concerned I should like to observe that the conception of a dual guardianship is by itself not repugnant to law and it is not difficult to conceive of cases where there may be more than one guardian. If any judicial authority is needed for this proposition it will be found in Jagannadha Rao v. Kamaraju (1901) 24 Mad 284, in which it was pointed out that the guardianship of the father did not cease while a minor was in the possession of another person who had been lawfully entrusted with the care and custody of such minor by the father. Again there is nothing in law to prevent the father or the mother of a minor, who may be his or her lawful guardian for the time being, from entrusting lawfully the care and custody of such minor to more than one person at a time. Let us now consider whether the position taken up by the prosecution in this case was really inconsistent. Now it is not denied that the mother was in fact the lawful guardian of Basanti at the time of the alleged occurrence and it has also not been disputed that Ketaki, as eldest son of Basantis mother, was the managing member of the family. There is evidence to the effect that his younger brothers used to make over all their earnings to him; that all the expenses of the family were defrayed by him and that he was responsible for the maintenance, education and marriage of all the junior members of the family. The argument put forward on behalf of the appellants is that he could not be treated as the lawful guardian of Basanti, because there is no evidence of the entrustment to him of the care and custody of the minor as contemplated by Section 361, I.P.C., and to support his own interpretation of the expression "lawfully entrusted" as used in this section, counsel for appellant 1 relies upon the decision of the Full Bench in Mt. Kesar v. Emperor AIR 1919 Pat 27

17. In that case it was held that the word "entrust" means the giving, handing over, or confiding of something by one person to another and that the Explanation to Section 361 contemplated a declaration of trust by a person competent to make such a declaration conveying, handing over and confiding a minor to the care and custody of another in whom confidence and trust is imposed. Atkinson, J., who delivered the leading judgment in that case, also expressed the view that for an "entrusting" within the meaning of the Explanation to Section 361 there must be necessarily three persons, namely (1) the person imposing the confidence or trust, (2) the person in whom the trust is imposed and (3) the person constituting the subject matter of the trust. Mr. Yunus who appears on behalf of appellant 1 contends that when the evidence adduced in the case is read in the light of this decision it will be found that there is no evidence of entrustment in this case.

18. Now, with great respect to the learned Judges who decided that case, I would venture to say that in my opinion, they have taken a much more rigid view of the section than what the words of the section warrant and I doubt if the section con templates either a formal declaration of trust or that there must necessarily be three persons in order that a person may be lawfully entrusted with the care and custody of a minor. I think that a person should be regarded in the eye of the law as having been lawfully entrusted with the care and custody of a minor, if he has acquired control over the minor lawfully and in such circumstances as would imply trust even though he may not have been formally entrusted with the care and custody of the minor by a third person. Let us suppose that a person finds an unclaimed child wandering about, and out of humanitarian motives takes charge of the child and brings him up. It may be questioned whether it cannot be said that by the circumstances under which he took charge of the child he should be deemed to have been lawfully entrusted with the care and custody of the minor child even though his parents never formally entrusted him with such care and custody. A similar position would arise in the case of unclaimed young orphans and illegitimate infants abandoned by their mothers. We doubt whether the law could have ever contemplated that if such children are kidnapped from the custody of the person with whom they have been living and who has brought them up, the offence of kidnapping would not be committed. Such being, at present, the inclination of my mind as well as that of my learned brother we would have referred the matter to a larger Bench if we thought that the decision of the Full Bench would in any way affect the decision of the present case. In my opinion, however, the present case may well be decided under the principles enunciated in that decision. In the present case the mother being alive she could create a trust in favour of her eldest son and the only question is whether there is evidence of such trust being created. Now in this connection reference may be made to the following passage in the judgment of Atkinson, J:

Neither the declaration of trust itself nor its acceptance need be necessarily in writing. It is sufficient if the declaration is verbally made and given; or if it arises from a course of conduct consistent only with the existence of such antecedent declaration; and accepted verbally or by necessary implication arising from the conduct of the party so entrusted with the duty imposed.

19. This view was endorsed by Manuk, J. who was also a party to the decision in these words:

However that may be, I am of opinion that even as the law now stands such "entrustment" as the section requires may be inferred in the absence of proof of an express declaration, written or oral, from a well-defined and consistent course of conduct governing the relations of the lawful guardian alleged in the indictment and of the minor.

20. The substance of these passages is that the entrustment may be proved not only by oral evidence but also by surrounding circumstances and the conduct of the parties concerned. Now, in the present case, Ketaki who is claimed to be a lawful guardian under the Explanation to Section 361 is not a stranger to the family but the eldest brother of the minor, and he is also admittedly the karta of the family. The position of a karta in a Hindu family is a unique one and even though for the purposes of this case one need not go so far as to say that a person would necessarily be the lawful guardian of a minor within the meaning of Section 361 by the mere fact of his being a karta, it is safe to say that very slight evidence of the consent of the natural guardian would be required to hold that the karta of the family was in fact the guardian of a minor who is being brought up under his care. In the present case, Basantis mother is an old lady of about 54 and whatever evidence there is on the record, clearly shows that Ketaki exercised absolute control over Basanti with at least the acquiescence of their mother. For instance when Ananda and Kumar suspected that Basanti was going wrong, they sent a wire to Ketaki and it was Ketaki who after the incident of the 4th of July took Basanti to Calcutta for the purpose of marrying her. There is nothing on the record to suggest that whatever he was doing for Basanti was not being done with the consent of his mother, and in these circumstances I think that the prosecution has every justification for treating Ketaki as the lawful guardian of Basanti.

21. The next question which arises is as to the effect upon this case of Basantis mother not having been examined at the trial. There can be no doubt that she was the best witness to state that Basanti had been kidnapped without her consent and if it had been established that she had been deliberately and without good reason withheld from the witness-box the defence would have been entitled to ask the Court to draw an inference adverse to the prosecution. But the prosecution accounts for her not being examined by pointing out that she is an old lady of 54 who being a chronic patient of rheumatism can hardly walk about. As against this, it is argued that there being some evidence that she used to have her meals on the ground floor, we ought to infer that she could walk about in the house and that at any rate she might have been examined on commission. But having regard to her age and ailments one can easily understand that the members of her family would not have been too anxious to allow her to be subjected to a prolonged cross-examination on an unpleasant subject which affected the reputation of the family.

22. The real question then, to be considered is whether upon such evidence as there is on the record it was not fairly open to the jury to hold that the appellants had taken away Basanti from her house without the consent of her mother. Mr. Yunus appearing on behalf of appellant 1 (K.K. Ali) contends that there is no evidence whatsoever on this point and the learned Judge should have directed the jury under B. 289(2), Criminal P. C, to return a verdict of not guilty on the ground that there was a total absence of proof as to one of the main ingredients of the offence. Now, it need not be stated that the evidence contemplated in Section 289(2) includes both oral and circumstantial evidence and I am not prepared to hold that in this case there was no evidence to go to the jury or that there was before the jury no such evidence as might reasonably lead them to the conclusion that the fact sought to be proved was established. There is nothing on the record to suggest that Ketaki and his mother held different views on the question of Basantis association with the accused. Ketaki says that he had told his mother to give proper advice to Basanti and look after her carefully and there is also some evidence to show that her mother was sleeping in the same room with Basanti on the night of 4th July. If Ketaki had the slightest suspicion that his mother was disposed favourably towards the appellants he would, it seems obvious, not have acted in the manner in which he is said to have acted. Again, the appellants own case with regard to the incident of 4th July is that Basanti had been driven out by her relatives including her brothers as well as mother. This case was definitely put to her in her cross-examination, but her answer was as follows:

It is a complete lie to say that my brothers and mother having failed to dissuade me from persisting in my love to Samar expelled me from our Karmantola house on the night of 4th July.

23. This by itself would suggest--and from the defence too--that not only Ketaki but his mother also disapproved of Basantis association with the appellants. Counsel for appellant I has made capital out of a statement made by Ketaki to the effect that he had once heard from his mother that Basanti had expressed a desire to be allowed to go with the accused. But Ketaki has not stated anywhere that his mother approved of the suggestion made to her by Basanti. On the other hand, when it was some what faintly suggested to him that Basanti had left her house with her mothers consent the suggestion was promptly repudiated by him in these words:

It is not a fact that my mother had consented to the removal of Basanti from my house by the accused and I am concealing the fact.

24. The jury would also naturally take into consideration the probability that an old lady of an orthodox Brahmin family would consent to the removal of her daughter by the appellants, one of whom is a Mahomedan and the other a Christian. The letters which passed between Basanti and Samar also indicate that Samar wanted her to maintain secrecy about their relations and that she had ultimately agreed to his proposal. The statements which have been made by Basanti herself also point in the same direction as will appear from the following extracts from her deposition:

(1) I never informed my elder brothers or my mother that I was intimate with the accused or that they were putting temptations in my way in order to take me away with them; (2) I did not mention my proposed marriage with Samar to my brothers and mother as the accused and Samars sister had warned me against doing so.

25. In my opinion, these and other similar statements made by her and Ketaki in their evidence as well as the positive case which has been put forward in Court on behalf of the defence with regard to the incident of 4th July would have been sufficient to entitle the jury to come to the conclusion that Basanti could not have left the house with the consent of her mother. Indeed, once it is held to be established that Basanti had secretly left the house, the jury would naturally presume and rightly that she had left the house without the consent of her brothers as well as her mother. The point which we may now consider is whether we would be justified in ordering a re-trial merely on the ground that Basantis mother has not been examined and the Judge has not drawn the attention of the jury to the fact that she was the best person to prove that Basanti had been removed from her house without her consent. Now it seems to be well settled by authorities that the power of setting aside convictions and ordering a new trial for any error or defect in the Judges charge to the jury will be exercised by the High Court, only when the Court is satisfied that the accused has been prejudiced by error or defect or that a failure of justice has been occasioned thereby. This view was expressed by no less eminent a Judge than Sir Barnes Peacock in Elahee Buksh v. Emperor (1866) 5 WR 80 and it has, so far as I am aware, been always applied by the Courts of appeal in this country subject to one limitation only which was suggested by Jackson, J. in the same case in these words:

In regard to the proposed rule that we should not interfere in the case of misdirection where the facts are such that if the trial had been held before a Judge and assessors, we should have affirmed the sentence, I have only one misgiving. It is not always safe--I might say it is rarely safe --for an appellate Court with papers before it to put itself in the place of the Court below which, has heard the witnesses; and it might be that in affirming the conviction on the faith of some unnoticed circumstances of corroboration found in the evidence we might be using that which the Judge and the jury would not have relied upon.

26. But as the same learned Judge pointed out, this only suggests caution in the application of the rule rather than an objection to the rule itself. Now, if the case for the appellants had been that on the night of 4th July Basanti bad left her house with her mothers consent, and if there had been any indications in the record to lead us to believe that the suggestion had any foundation in fact, we would have felt it our duty to set aside the conviction of the appellants and order a re-trial. But as I have already shown, the facts are otherwise and in my opinion it will serve no useful purpose what so ever to order a re-trial. In fact Mr. Yunus himself took some pains to argue that a re-trial should not be ordered merely to enable the prosecution to tender evidence which it might have but has not tendered in the original trial. The next serious point which arises in the case is raised in the 12th ground of the memorandum of appeal which runs as follows:

That the learned Judge erred seriously in stopping Mr. Manzar, Counsel for accused K.K. Ali, from continuing his argument.

27. This ground was supported in Court by two affidavits both sworn by a son of the appellant K.K. Ali and a letter of Mr. Manzar to Mr. Yunus (counsel for the appellant K.K. Ali) which was attached to one of the affidavits. Even the first affidavit was filed late, without any attempt to explain the delay. Mr. Yunus was engaged late in the case, but ultimately conceded that the first affidavit with which he began his argument on the second day was worthless. As we wanted to have all the material facts before us, we called for a report from the learned Sessions Judge and informed the Assistant Government Advocate that if he considered it necessary to file any counter-affidavit he was at liberty to do so. The learned Assistant Government Advocate therefore filed an affidavit sworn by the Government Pleader of Arrah who had argued the case for the prosecution before the Sessions Court and as Mr. Manzar had made no statement directly to us from the Bar we called him to make a statement which he made on 28th August 1936. Now the facts which we are able to gather from the materials before us seem to be as follows:

28. Mr. Manzar was engaged by the accused in the case after some 23 out of about 45 prosecution witnesses had been examined in the Court of Session and with the exception of a few days he was present throughout during the cross-examination of the remaining witnesses. The defence witnesses however, were examined by two pleaders named Mr. Sharif and Mr. Nurul Huda in Mr. Manzars absence. On 26th May when the evidence for the defence was closed the learned Judge who was then under order of transfer allotted four days for arguments in consultation with the lawyers appearing for the parties. It is abundantly dear that he did not do so arbitrarily, but after enquiring from the lawyers of both parties how long their respective arguments were likely to occupy them. Indeed, it appears from the report of the learned Judge and the affidavit sworn by the Public Prosecutor of Arrah that at first Mr. Sharif who was then in charge of the appellants case offered to finish the entire defence argument within one day if the Public Prosecutor gave a similar undertaking; but as the Public Prosecutor informed the Court that his argument would not be finished in less than two days, Mr. Sharif also wanted two days for his argument and so the learned Judge allotted two days to each party. On 27th May before beginning his argument, Mr. Sharif intimated to the Court that as Mr. Manzar, counsel for the appellants, had not turned up, he had been requested by the accused to argue the case and he proposed to argue the case generally and more particularly for Samaresh leaving it to Mr. Manzar to follow up his arguments when he arrived and deal with the case of K.K. Ali in particular.

29. It appears that Mr. Sharif argued on 27th May from 6-30 to 11-30 a.m. as the Court then used to hold morning sittings and on the next day he argued till about 8-15 a.m. About this time Mr. Manzar arrived and he was allowed to continue the argument. The learned Judge states in his report that he had told Mr. Manzar that four days had been allotted for the argument of the parties in consultation with their lawyers and Mr. Manzar did not say anything to suggest that he was not satisfied with the adequacy of the arrangement. Mr. Manzar continued his argument till 11-30 a.m. and upon being reminded of the arrangement told the Judge that he had not quite finished his argument and had some more submissions to make. The Judge was prepared to sit a little longer to enable Mr. Manzar to finish his argument, but Mr. Manzar states that as it was a hot day, and as he had already argued for three hours and wanted about two hours more to finish his argument, he could not continue his argument on that day and asked the Court to hear him on the following day. The learned Judge did not however accede to this request and thereupon, to quote the words of the learned Judge:

Mr. Manzar wound up his arguments after telling the jury that he had some more points to urge, but he was bound to respect the orders of the Court.

30. On 29th May the Public Prosecutor started his argument and he concluded it on 30th May. The Judge being ill on 1st June the case was not taken up on that day and on 2nd June the Judge charged the jury in Hindi and their verdict was recorded. The learned Judge has stated in his report that Mr. Sharif had argued the case very ably and exhaustively and that there was very little left for Mr. Manzar to argue about. He also lays some stress upon the fact that no petition was filed by the accused then and there, to show that either the party or their counsel had been prejudiced by reason of the procedure adopted by the Judge. Mr. Manzar has on the other hand, stated that he drafted a petition embodying the material facts and gave it to the karpardaz of the appellant but the petition was not filed. It is further stated by him that he asked his client after the judgment had been delivered whether the petition had been filed but was told that it had not been filed, as the accused thought they might thereby incur the displeasure of the Judge.

31. Now, I do not wish to dwell at any length upon the abstract question as to how far a Court would be justified in imposing a time limit upon the arguments of the lawyers and whether such a time limit is binding upon the parties. It seems to me to be plain that any arbitrary and undue curtailment of the parties right of argument is to be deprecated. In the present case, however it is quite clear that when the learned Judge asked the lawyers of the parties how long their arguments were likely to occupy them, he had no intention of curtailing their arguments, but on the other hand he allotted two days for the defence argument though the advocate then appearing for both the accused had suggested in the first instance that the argument could be finished in one day. The learned Judge also, while he might well have insisted on Mr. Sharif arguing the whole case, tried to accommodate Mr. Manzar by allowing him to follow Mr. Sharif. In these circumstances, it is clear that the learned Judge had no desire to hamper the defence and it seems to me that he declined to grant further time for argument as he was probably convinced that the case had already been fully argued. Assuming, however, that the learned Judge should have acceded to Mr. Manzars request, the question which is still to be considered is whether we would be justified in ordering a re-trial. Unfortunately Mr. Manzar did not ask Mr. Sharif before commencing his argument what points had already been dealt with by him, but he has stated before us that when he concluded his arguments he

had still to deal with the entire defence evidence and had also to place authorities on the charge of kidnapping and abduction and medical authorities on the question of age.

32. Now it is clear from the report of the learned Judge and the counter-affidavits filed on behalf of the Crown that Mr. Sharif had already dealt with the general aspects of the case as well as the points bearing on the case of the appellant Samaresh and Mr. Manzar had to deal with the case of K.K. Ali in particular. Mr. Sharif himself has made no statements before us and it is nowhere stated in the affidavit filed on behalf of the appellants that Mr. Sharif had omitted to deal with the defence evidence nor has it been argued on behalf of the appellants that the learned Judge did not deal with the defence evidence adequately in his charge to the jury. As to the authorities on the charges of kidnapping and abduction, they were presumably to have been cited for the satisfaction of the Judge, as the questions of law were to be decided by him and not by the jury; but nothing has been said to us in the course of the prolonged argument addressed on behalf of the appellants to convince us that the learned Judge has taken any erroneous view of the law so far as the charges against the appellants are concerned. As to the medical authorities the only authorities which have been cited before us were those which had reference to the question of Basantis age and I have already shown that those authorities could not have materially altered the conclusion of the jury. Besides, although it cannot be denied that for the proper administration of justice the parties should be allowed a full and unrestricted right of addressing the jury, yet it cannot be overlooked that the summing up of the case by the Judge in his charge to the jury plays a very important part in a jury trial.

33. It is obvious that in those cases where the accused is undefended or where he is defended by an incompetent counsel or is too poor to engage the services of a competent lawyer, his case cannot generally be adequately placed before the jury by means of argument. If however in those cases the Judge has properly charged the jury, the mere fact that the case has not been adequately argued on behalf of the accused cannon by itself be a good ground for ordering a re-trial. On the same principle, I do not think that a re-trial should be ordered, unless it can be shown that matters which counsel would have placed have not been placed before the jury or that the charge of the Judge is defective and erroneous in material particulars. In the present case there is also this additional fact to be considered that the cases of K.K. Ali and Samaresh are closely connected with each other and it has not been suggested that the case of Samaresh had not been adequately argued. The points however which were urged before us as affecting K.K. Alis case as distinct from the case of Samaresh were very few in number and of little importance. In fact the strongest point which was urged in this connexion was that this appellant had been prejudiced by the learned Judges assuming that certain letters which had been addressed to Samaresh alone had been written both to K.K. Ali and Samaresh. The learned Assistant Government Advocate had no difficulty in refusing this argument. In these circumstances, I think, that no good case has been made out for ordering a re-trial of appellant 1. Another point which was urged before us relates to the conviction of K.K. Ali both for the substantive offences under Sections 366 and 363 and for the abetment of such offences. It appears that after the jurors had returned their verdict holding K.K. Ali guilty of the offences under Sections 366 and 363 the learned Judge put to them the following questions:

Q.--Do I understand that as in the case of Samar, you consider Ali also guilty of the substantive offences under Sections 363 and 366, I.P.C., and the question of Ali abetting Samar in the commission of these offences for which Ali has been separately charged under Sections 363/109 and 366/109, I.P.C., does not arise

34. To this question the answer of the jurors was:

Ali committed the offences under Sections 366 and 363 and also abetted the crime of these offences u/s 109, I.P.C.

35. The verdict of the jury in this respect cannot be defended except on the ground that in some cases where the commission of the offence is abetted by aid and, conspiracy the abettor may be treated as a principal u/s 34, I.P.C. broadly speaking, however, it would be illogical to hold that a man is guilty of both the principal offence and of its abetment and this was conceded even by learned Counsel for the Crown. Learned Counsel for the appellants contends that this illogical verdict of the jury was due to the fact that the law had not been properly explained by the learned Judge in his charge. I am however not prepared to agree with this contention. It is stated in the heads of the charge that all the charges and the various sections of the Penal Code bearing upon them had been explained to the jury and we have no ground for holding that they were not properly explained; but however that may be, as the learned Judge has given no separate sentences to the appellant K.K. Ali for the offences of abetment the point is of little more than academic importance.

35. As the contentions to which we have so far referred, were the main contentions put forward by the appellants against the verdict of the jury and as they all fail, the verdict must stand and the conviction of the appellants u/s 366, I.P.C. cannot be disturbed. The question however which still remains to be dealt with is the question of sentence and it appears to me that in dealing with this question we cannot overlook certain important features of the case. There can be no doubt that Basanti is the most important witness to prove the circumstances under which she came in contact with the accused and was prevailed upon by them to leave her relations and her evidence can also throw considerable light on the intention of the accused. As I have already stated she completely supported the accused when she was examined by the Sub-divisional Officer on 19th August 1935. She was then remanded to jail and when she ultimately appeared to give her evidence before the Committing Magistrate she completely resiled from her previous statement and supported the prosecution case in its entirety. It is clear that in these circumstances her evidence will have to be approached with great caution. There are, however, on the record a series of letters which were written by her from time to time to Samaresh and I think that these letters can be of material assistance to us in finding out the true situation. These letters disclose that Basanti was not only a strong-willed girl but also a girl of remarkably mature ideas and indeed if one had to base ones conclusions as to her age upon these letters and her handwriting and the manner in which she has replied to questions put to her in the course of her long examination, one would be inclined to think that her age has been under-estimated by the prosecution. I shall here reproduce an important passage from the learned Judges charge to the jury in which he has referred to some of her letters: (After referring to some of the letters, His Lordship proceeded.) We find from her letters that she was pressing Samar for an open marriage and although she eventually expressed her willingness to a secret union, it is clear that what she meant was an honourable union. She also once wrote in strong terms to Samar because she thought that Ali had behaved to her in a manner in which he should not have behaved. These being the circumstances of the case, I think that the sentence which has been passed by the learned Sessions Judge on Samaresh is excessive and I think that the ends of justice will be served by reducing the sentence to rigorous imprisonment for l years. The sentence of fine which has been imposed on Samar appears to me to be inappropriate, because the evidence shows that Samar was earning merely Rs. 20 a month as a fitter in an electrical company and had hardly any other means. I would therefore set aside the sentence of fine.

36. As to the sentence on K.K. Ali, we must keep in view the fact that he had grossly abused his position as a Sub-Inspector and that not only did he actively help Samar in the commission of an offence but also allowed Basanti to be concealed in his house on the 4th July as well as after the incident of the 10th August. At the same time, we have to bear in mind that Samar was his brother-in-law and that his action must have been considerably influenced by the attitude of his wife who was the sister of Samar. We should also consider that his conviction will not only bring him into social disgrace but also involve his dismissal from Government service. Taking all these circumstances into consideration I would sentence him to undergo rigorous imprisonment for two and a half years and to pay a fine of Rs. 250, in default to undergo a further term of rigorous imprisonment for six months. The whole of the fine, if realised, will be paid to Ketaki Rajan as compensation u/s 545, Criminal P.C. Before parting with this case I consider it necessary to make one or two observations. There can be no doubt that by this unpleasant case which seems to have been given an undue notoriety, the reputation of a family (which though poor is undoubtedly a respectable one) must have greatly suffered, but as I have already stated it is clear from the record that even though Basanti may have behaved somewhat foolishly and impulsively, she never departed from the path of honour and her virtue remains unstained. Indeed this is the main ground on which we have thought it fit to reduce the sentence passed on the accused.

Dhavle, J.

37. I agree.