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Abdur Rahman v. Emperor
Structured Summary of the Opinion
Factual and Procedural Background
This is an appeal against the conviction and sentence of the appellant under Section 366/109 of the Indian Penal Code by the Sessions Judge of Saharanpur. Two other persons, Yusuf and Haidar Baksh, were tried along with the appellant under Section 366 but were acquitted by the Sessions Judge; there is no appeal against their acquittal by the Local Government.
The formal charge alleged that on or about 21 October 1915 at Dehra Dun the appellant instigated Haidar and Yusuf to kidnap Musammat Khatun so that she might be forced or seduced to illicit intercourse, and that the offence was committed in consequence of his abetment (i.e., an offence punishable under Section 366/109 IPC).
Relevant factual findings by the Sessions Judge (and as recited in the appeal): Musammat Khatun was under 16 years of age, wife of Sharif Ahmad, and was living with her husband. Sharif Ahmad left home for work and returned to find his outer door locked and his wife missing. The sequence of events as testified by Musammat Khatun: Haidar and Yusuf came, told her her brother-in-law Abdur Rahman had called because her sister was ill; she went with them to their house; Abdur Rahman arrived later; Azizan and Imaman were present; Azizan and Khatun accompanied Abdur Rahman to his house where, according to Khatun, Abdur Rahman locked the doors, had sexual intercourse with her by force, refused to let her go, and said he had paid money to Azizan and Haidar and would not let her go until that money was returned. Khatun was later found by police concealed inside a box in Abdur Rahman’s house.
All three accused were tried for relevant offences; the appeal before the court is confined to whether the appellant (Abdur Rahman) was rightly convicted of abetment of kidnapping under Section 366 IPC.
Legal Issues Presented
- Whether the appellant (Abdur Rahman) was rightly convicted of abetment of kidnapping under Section 366/109 IPC — i.e., whether the prosecution proved that he instigated the kidnapping of Musammat Khatun.
- Whether the offence of kidnapping from lawful guardianship is a continuing offence (continuing until return to the guardian) or is complete the moment the minor is taken or enticed out of the custody of the lawful guardian — a question affecting whether subsequent acts can constitute abetment of the taking.
Arguments of the Parties
Prosecution's Arguments
- Counsel Mr. Sital Prasad Ghosh argued that, although there was no direct evidence that Abdur Rahman was involved prior to the girl being brought to Haidar's house, the necessary inference that Abdur Rahman instigated the kidnapping could be drawn from the surrounding circumstances.
Defence's Arguments
This information was not available in the provided opinion.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Nemai Chattoraj v. Queen-Empress, 27 C. 104 : 4 C.W.N. 645 (Full Bench, Calcutta) | Held that the offence of kidnapping from lawful guardianship is complete when the minor is actually taken or enticed out of the custody of the lawful guardian (i.e., not a continuing offence). | The court follows this Full Bench view and treats the kidnapping as complete upon taking; this supports the conclusion that acts occurring after the taking cannot constitute abetment of the taking unless there is evidence of instigation prior to or at the time of the taking. |
| Reg. v. Samia Kaundan (Beg. v. Samia Kaundan), 1 M. 173 : 1 Weir 353 | Held (in the cited case) that the offence was not complete until the minor crossed the limits of British India (a contrary view). | The court distinguishes and does not follow this case, noting it as the only authority supporting the contrary position and explaining why it was not followed in subsequent courts. |
| Queen-Empress v. Sam Dei, 18 A. 350 A.W.N. (1896) 96 | Referenced in discussion of the law on whether kidnapping is a continuing offence. | The court notes this case referred to Reg. v. Samia Kaundan and not followed; used to demonstrate the prevailing line of authority against the continuing-offence view. |
| Queen-Empress v. Ram Sundar, 19 A. 109 : A.W.N. (1886) 191 | Referenced in the same context as other earlier decisions on kidnapping as a continuing offence. | Not followed; cited as part of the judicial history where Reg. v. Samia Kaundan was considered and not adopted. |
| Chekutty v. Emperor, 26 M. 454 : 2 Weir 296 (Madras) | Expressed that the offence of kidnapping was not continuing and relied upon the Full Bench Calcutta decision; rejects the continuity argument when assault occurred after the taking. | The court cites the Madras Chief Justice's observation in support of the non-continuing view and applies the same reasoning to the facts at hand. |
| Punjab Chief Court decision (Sir Meredyth Plowden & Mr. Justice Roe) — unnamed in the opinion | Held that generally guardianship ends when custody is transferred from guardian to a person not entitled to custody; there can be no abetment by conduct commencing only after the minor has once been completely taken out of the guardian's keeping. | The court relies on this principle to conclude that if the taking was complete before the appellant became involved, he cannot be convicted for abetting the taking on the basis of conduct that occurred only after the taking. |
| Chandn v. Queen-Empress, 6 P.R. (1894) Cr. | Stated that whether the taking was complete is a question to be determined with reference to the particular circumstances proved in the case. | The court invokes this proposition to emphasize that the completeness of the taking must be assessed on the facts of the present case and concludes the taking was complete before the appellant appeared on the scene. |
Court's Reasoning and Analysis
The court proceeded by first identifying the sole question on appeal: whether the appellant had been rightly convicted of abetment of kidnapping under Section 366 IPC.
The court considered recent authority on whether kidnapping is a continuing offence. It summarized the prevailing line of decisions (notably Nemai Chattoraj and supporting decisions) holding that kidnapping from lawful guardianship is complete when the minor is actually taken out of the guardian's custody and is not an offence continuing so long as the minor remains away from guardianship. Cases contrary to that view (e.g., Reg. v. Samia Kaundan) were distinguished and not followed.
Applying those legal principles to the facts, the court noted the evidential timeline: there was no direct evidence that the appellant had any involvement before the girl had been brought to Haidar's house. The first time Abdur Rahman appears in the evidence is after the alleged kidnapping had occurred. The only evidence of his conduct at that point was a conversation with Imaman and Azizan (the content of which is not proven) and Musammat Khatun's account that, once alone with Abdur Rahman in his house, he refused to let her go and claimed he had paid money to Azizan and Haidar.
The court addressed the prosecution's submission (advanced by Mr. Sital Prasad Ghosh) that an inference of instigation could be drawn from circumstances despite the lack of direct evidence. The court concluded that the record contains no evidence to support such an inference: the evidence shows the taking had been completed before Abdur Rahman became involved, and there is nothing to demonstrate he instigated the taking by Yusuf and Haidar. Given the authorities that treat the taking as complete upon removal from guardianship, conduct occurring after the completion cannot amount to abetment of the taking unless it is shown to have existed at the time of the taking.
On this factual and legal analysis, the court found that abetment of kidnapping was not proved against the appellant.
Holding and Implications
HOLDING: The court allowed the appeal, set aside the conviction and sentence of the appellant, and directed that the appellant be released forthwith.
Implications:
- Direct effect on the parties: The appellant's conviction and sentence under Section 366/109 IPC were quashed, and he was ordered to be released immediately.
- On the evidence, abetment of kidnapping was not established; the court did not convict the appellant of any other offence and expressly stated that whether the appellant may be guilty of any other offence for which he was not charged was not before the court.
- No broader or novel legal principle was created by this decision; the court applied existing authorities on the legal question of when kidnapping is complete and concluded those authorities supported acquittal on the charge of abetment in the present facts.
1. This is an appeal against the conviction and sentence passed on the appellant under Section 366/109 of the Indian Penal Code by the Sessions Judge of Saharanpur. Along with the appellant two other persons, viz., Yusuf and Haidar Baksh were put on their trial under Section 366 of the Indian Penal Code, but, have been acquitted by the learned Sessions Judge for reasons given in his judgment. The charge framed against the appellant by the Committing Magistrate ran in the following terms, viz.
That you on or about the 21st day of October 1915 at Dohra Dun instigated Haidar and Yusuf accused to kidnap Musammat Khatun in order that she may be forced or seducod to illicit intercourse, which offence was committed in consequence of your abetment, and thereby committed an offence punishable under Section 366/109 of the Indian Penal Code and within the cognizance of the Court of Session.
2. Musammat Khatun, whose age has been found to have been under 16 years, was, as found by the learned Sessions Judge, the wife of one Sharif Ahmad and at the time the offence has been said to have been committed was living with her husband at Dehra Dun. The other two accused persons, viz., Haidar and Yusuf, are related to Sharif Ahmad, who has stated that they are the sons of the foster-brother of his father. Musammat Azizan whose name figures in the evidence is the wife of Haidar. Sharif Ahmad about this time was out of employment and was maintaining himself by bringing fuel or wood from the jungle for sale in the town. On the day following the Bakr(sic)id, Sharif Ahmad left his house as usual in the morning for the jungle, and on returning home found that the outer door of his house was looked up and his wife away from the house. He made enquiries about her from the neighbours, but could find no trace of her for several days. I will leave Sharif Ahmad's story here and come at once to the account given by "Musammat Khatun of the circumstances under which she left her husband's house. The day after the Bakr Id, at about 1 P.M. when she was alone in the house, Haidar and Yusuf came to her and told her that her brother-in-law (namely, her sister's husband) had come and had called her, as her sister was very ill. Abdur Rahman is the name of the brother-in-law. He is, however, a person other than Abdur Rahman the accused, who is a stranger, and not related to the family of Musammat Khatun in any way. She demurred to going,, before the return of her husband, but on being pressed to do so by Haidar and Yusuf, she left with them after locking the outer-door of her house and followed them to their house. There she did not find her sister's husband who, she was told, was coming by the evening train. She asked them to escort her back to her husband's house. They said they had then to go to the bungalow of the person in whose service they were, and that they would convey her back in the evening to her house and they left her in the house.
3. A little while after Abdur Rahman the accused, came in, whereupon she went into the house as he was a stranger. Abdur Rahman entered into conversation with Azizan and Imaman (who is the mother-in-law of Haidar), and he left them shortly afterwards, telling Azizan to come to his house as his wife was very ill. Azizan did not go and Abdur Rahman came back to summon her to go to his wife. At his request Azizan decided to go. She also induced Musammat Khatun to go with her, after she had promised to take her from there to her husband's house. The two women followed Abdur Rahman to his house and sat there for some time, when without on some pretence and Khatun and Abdur Rahman were left alone in the place. Abdur Rahman locked the doors from inside and according to Musammat Khatun had sexual intercourse with her by force. He refused to let her go back, and according to Musammat Khatun is said to have told her that he had paid a lot of money to Azizan and Haidar and that he would let her go back if she gave back the money. She was found a few days later by the Police in the house of Abdur Rahman, concealed inside a box, over which were placed a couple of other boxes in a room in the house. Upon these facts the three accused persons were put on their trial. I am not concerned with the reasons given for the acquittal of the other two accused persons, for there is no appeal against their acquittal by the Local Government. The only question in appeal before me is whether the appellant has been rightly convicted of the offence charged, viz., abetment of the offence described in Section 366 of the Indian Penal Code. Under Section 361 of the Indian Penal Code, whoever takes or entices any minor.... if a female under sixteen years of age, out of the keeping of the lawful guardian of such minor...without the consent of such guardian is said to kidnap such minor...from, lawful guardianship" where such kidnapping of any woman is with the intent that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, the offence comes within the purview of Section 366 of the Indian Penal Code.
4. The question whether the offence of kidnapping is completed the moment the girl is taken out of the custody of her lawful guardian, or is a continuing offence until she returns back to her guardian, has been the subject of consideration in several recent cases. In Nemai Chattoraj v. Queen-Empress 27 C. 104 : 4 C.W.N. 645 (F.B.) a Full Bench of the Calcutta High Court (Rampini, J., dissenting) held that the offence was not a continuing one, but. became complete the moment the girl was taken, or enticed out of the custody of her lawful guardian. The only case in support of the contrary view is that of Beg. v. Samia Kaundan 1 M. 173 : 1 Weir 353, in which the accused was charged with the offence on kidnapping a minor out of India. In that case the offence was not completed until the minor crossed the limits of British India. The case was referred to in two cases of this Court, viz., Queen-Empress v. Sam Dei 18 A. 350 A.W.N. (1896) 96 and Queen-Empress v. Ram Sundar 19 A. 109 : A.W.N. (1886) 191 and not followed. The judgment of this Court is on the same lines as the judgment of the Pull Bench of the Calcutta Court already referred to. In a later case in the Madras Court Chekutty v. Emperor 26 M. 454 : 2 Weir 296, the Chief Justice (Sir Arnold White) observed as follows: "in support of the conviction it was argued that the offence of kidnapping was continuous and that the assault on the mother having been committed during the continuance of the kidnapping, the two offences were committed in one series of acts so connected together as to form the same transaction. It has recently been held by a Full Bench of the Calcutta High Court in Nemai Chattoraj v. Queen-Empress 27 C. 104 : 4 C.W.N. 645 (F.B.) that the offence of kidnapping from lawful guardianship is complete when the minor is actually taken from lawful guardianship and that it is not an offence continuing as long as the minor is kept out of such guardianship." The case of Reg. v. Samia Kaundan 1 m. 173 : 1 Weir 353 was distinguished on the ground I have already indicated. In a very similar case which came up before the Punjab Chief Court, Sir Meredyth Plowden and Mr. Justice Roe held that speaking generally, the keeping of the guardian came to an end when the person of the minor had been transferred from the custody of the guardian, or some person on his behalf, in to the custody of some person not entitled to custody of the minor". They further observed at page 21: But there can be no abetment of taking by conduct, which commences only after the minor has once been completely taken out of the keeping of the guardian, and the guardian's keeping of the minor is completely at an end." Whether the taking was or was not complete is a question for determination with reference to the circumstances proved in the particular case: Chandn v. Queen-Empress 6 P.R. 1894 Cr. We have now to see whether on the evidence it has been proved that Abdur Rahman instigated the kidnapping of Musammat Khatun.
5. There is no direct evidence that before the girl was actually brought to the house of Haidar, Abdur Rahman had any thing to do with the matter. The first mention we have of Abdur Rahman is when the girl had actually been kidnapped and brought to the house of Haidar, and the only evidence of what then happened is that he had some conversation with Imaman and Azizan. We have no evidence of what that conversation was about, Abdur Rahman had asked Azizan to come over to his house to see his wife who was very ill and as she did not go as promised, he came again a little while afterwards. According to the evidence of Musamrnat Khatun, she and Azizan then accompanied him back to his house. Mr. Sital Prasad Ghosh has argued that although there is no direct evidence, it must be inferred from the circumstances that it was at the instance of Abdur Rahman that the girl was kidnapped. We have no evidence upon that point. The only evidence that we have is that of the woman Khatun, who says that Abdur Rahman refused to let her go as he had spent a lot of money to obtain possession of her and that until she refunded the money he would not let her go. We have no other evidence upon the point. I cannot upon this evidence alone hold that Abdur Rahman had some concern with the kidnapping. The offence had been completed long before Abdur Rahman came on the scene, and on the authorities of this Court as well as of other Courts cited by me above there is nothing to show that he was concerned in any way in abetting the kidnapping by Yusuf and Haidar.
6. Upon the evidence on the record, therefore, abetment of kidnapping has not been proved against the appellant, and the conviction, therefore, must be set aside. Whether the appellant is guilty of any other offence for which he has not been charged is not a matter for me to consider here. All that I have to see is whether the offence of abetment of kidnapping has been proved. I have held that there is no evidence to prove the offence charged. I accordingly allow the appeal, set aside the conviction and the sentence and direct that the appellant be released at once.
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