Baharuddin Mandal v. Emperor Opposite Party.

1. The accused Baharuddin Mandal, was charged with the commission of offences under Ss. 148, 365 and 365, I.P.C He has been convicted under Ss. 148 and 365, but acquitted under S. 366, I.P.C Under S. 148, he has been sentenced to rigorous imprisonment for three years and under S. 365 to rigorous imprisonment for seven years, the sentences to run concurrently.

2. The case for the prosecution, as sought to be established by the evidence, may be briefly narrated. The complainant Kanu Mandal in September 1911, married in nika form one Sheolai Aurat. The accused is a very rich min of the village Baulapara where Kanu resided with his newly married wife. On 10th October 1911 Baharuddin, assisted by ??? maa attenptal to breik into the house of the complainant and to carry his wife away by force. The attempt was unsuccessful but the complainant's father Kali Mandal since deceased laid an information at the police station on the day after the incident. The accused absconded in order to evade arrest and trial. About two months later however on 10th December 1911, he appeared with a large body of persons before the house of the complainant who was at the time away at the fair which is held on Sunday afternoons. There were in the house at the time the father of the complainant and the women of the family. The accused remained outside the house, while three of his co-??? went inside and forcibly dragged out Sheclai. The girl caught hold of a post which was broken in the struggle and she was carried off. The old father of the complainant made an ineffectual attempt at resistance; he received a cut on his hand from one of the assailants, but he was able to cause a wound on the hand of one of the aggressors. The accused and his companions then carried away the girl, and the occurrence was witnessed by some of the villagers who were returning from the fair. About two weeks later the girl was discovered in the house of one Murad Mandal, five or six miles from Baulapara.

3. She came back with the headman of the village and joined her husband. On 3rd July 1912, she disappeared again and since then her whereabouts have not been discovered; the suggestion is that she has again been carried off by or at the instance of the accused with a view to keep her away from the witness-box. During all these months the accused had not been in his home but he was arrested and prosecuted for attempt to abduct the girl on 10th October 1911. He was convicted and sentenced to rigorous imprisonment for three months; attempts to have the convictions set aside by appeal to the Sessions Judge and by application for revision to this Court have been unsuccessful. The accused was then put on his trial for offences under Ss. 148, 365 and 366 I.P.C, in connexion with the incident of 10th December 1911, when the girl was actually, carried away. He has been convicted and seritenced as already stated. The conviction has been assailed before us on the ground that the Sessions Judge ought not to have admitted evidence of the previous conviction or incident and that his conclusion as to the guilt of the accused is not supported by the evidence on the record.

4. In so far as the fact of conviction of the accused on account of the incident of the 10th October 1911 is concerned, the conviction has not been legally proved; no copy of the order has been produced. It is also plain that evidence could not have been given of the previous conviction under Section 54 of the Evidence Act. Evidence however has been given by eyewitnesses of the occurrence of the 10th October 1911, and the question arises, whether such evidence was admissible, namely, evidence that the accused did on that date attempt to carry off the girl. Reliance has been placed upon Section 14 of the Evidence Act, to show that the evidence was admissible. That section provides that facts showing the existence of any state of mind—such as intention, knowledge, good faith, negligence, rashness, ill will or good will towards any particular person, or showing the existence of any state of body or bodily feeling—are relevant, when the existence of any such state of mind or body or bodily feeling is in issue or relevant. Illus (i) is in these terms: “A is charged with shooting at B with intent to kill him; in order to show A's intent the fact of A's having previously shot at B may be proved.” This illustratino which is based on the decision in R. v. Voke . [1823] R. & R. 531., is in principle like illustration (o), which is in these terms: “A is tried for the murder of B by intentionally shooting him dead; the fact that A, on other occasions, shot at B is relevant as showing his intention to shoot B.” The section as also the illustrations, do not carry the doctrine far enough to assist the contention of the Crown; the evidence is held admissible, not to prove that A did shoot at B, but only to prove the intention of A; the act ascribed to him is assumed to have been otherwise established. The distinction may be subtle, but is quite intelligible: see the judgment of the Judicial Committee in Mahin Attorney-General for New South Wales2. To put it broadly an accused cannot be convicted of the offence charged against him simply because he has been guilty of another offence. When such evidence is offered to prove his commission of the offence on trial, evidence of his participation, either in act or design, in commission or preparation, in an independent crime cannot be reaeived; in other words, proof cannot be offered of such independent offence to show that by reason of such independent offence the accused is more likely to have committed the one for which he is on trial; evidence of such collateral offence cannot be received as substantive evidence of the offence on trial. Evidence however may be given to prove the elements mentioned in Section 14 of the Evidence Act (intention and like matters). From this point of view it was ruled in R. v. Lloyd . [1836] 7 C. & P. 318. that where A is charged with assaulting B, with intent to ravish, evidence that on former occasions A took liberties with B was not admissible. In so far as the charge under S. 366 is concerned, evidence of the previous incident is clearly inadmissible. But in so far as the charge under S. 365 is concerned, the fact that a complaint had been preferred against the accused in respect of the first incident, would be relevant as furnishing evidence of a motive for confining the girl; but how far the facts constituting the first incident would be admissible is open to question.

5. The point however is immaterial, because, even if the evidence be excluded we feel no doubt as to the merits of the case.

6. The events of the afternoon of the 10th December have been narrated by three eyewitnesses, one of whom alone is shown to be in any way connected with the complainant; the other two witnesses have been believed by the Sessions Judge and by one of the assessors, and we see no reason to distrust their testimony. That the girl was forcibly carried away that afternoon from the home of her husband is established beyond all doubt, and we are of opinion that it has also been satisfactorily proved that the present accused was the leader in that affair. The day and the time had been carefully selected; the male population of the village would at the time be away at the market and the girl would practically be unguarded and helpless. We have further the significant fact that the accused absconded, and his absence from home has not been satisfactorily accounted for; this is a relevant circumstance as is shown by ilius (c) Section 9 of the Evidence Act.

7. The accused has been rightly convicted under S. 148, I.P.C, but we are of opinion that the conviction under S. 365 cannot be supported. The circumstances of the case make it plain that the girl was abducted not with intent to cause her to be secretly and wrongfully confined, but with intent that she might be forced or seduced to illicit intercourse. To support a conviction under S. 365, it must be clearly proved that, at the time of the abduction, it was the intention of the accused to secretly and wrongfully confine her; this has not been established. On the other hand we consider that the natural inference to be drawn is that the offence was prompted by lust. We must consequently alter the conviction to one under S. 366, I.P.C The result is that the appeal is dismissed and the sentence affirmed.

V.B/R.K

8. Appeal dismissed.