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whatever in our minds that the appellants were members of the gang that
committed the dacoity in the house of Rati Ram and are guilty of an
offence punishable under section 395 of the Indian Penal Code. They
have, however, been conA^cted of an offence punishable under section 39()
of the Indian Penal Code, and we have to consider whether on the
evidence the conviction under that section can be sustained. Section 39(5
runs as follows : — " If any one of five or more persons who are conjointly
committing dacoity commits murder in so committing dacoity every one of
those persons shall be punished with death, Ac." According to the
evidence, after the dacoits had been driven out of the house without carry-
ing off any property they were followed up by the villagers. At a cattle
enclosure, which according to the complainant is " two fields distance
away," one of the dacoits was seized by Rati Ram's brother Amar Singh,
whereupon one or more of the dacoits struck Amar Singh with swords
inflicting wounds which there and then caused his death. On this state of
things the question arises whether Amar Singh was murdered by one of
five or more persons conjointly committing dacoity " in so committing

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dacoity." We adjourned the case in order that this question of law might
be separately argued, and we have to-day heard the arguments. We have
come to the conclusion that on the facts the case is not one falling within
the purview of section 396. As stated above, the dacoits were not carry-
ing off any property. Notwithstanding this the offence of dacoity as
defined in section 391 of the Indian Penal Code was completed by them,
an attempt to commit robbery by the gang being clearly proved. In the
present case the attempt to commit robbery was frustrated by the arrival
of the villagers. At the time when Amar Singh was killed the dacoits
were bent upon escaping from the village and had abandoned their inten-
tion to rob. We cannot therefore hold that in the present case there has
been murder " in so committing dacoity," and the conviction under sec-
tion 396 cannot therefore be sustained. We set aside the conviction under
section 396 of the Indian Penal Code. We alter the finding to one under
section 395 of the Indian Penal Code. We maintain the sentence in the
case of Murli and Brijmohan. In the case of Chandar we set aside the
sentence passed under section 366 and in lieu thereof we direct that
Chandar suffer transportation for life with effect from the 22nd November
1905. But although the evidence on the record is not sufficient to sustain
a conviction under section 396, there is evidence as to the truth of which,
for obvious reasons, we pass no opinion whatever, which, if true, would
justify a charge against Chandar of an offence under section 302 of the
Indian Penal Code. For this offence he has not yet boen tried, and we
think it just and proper that he should be tried for this offence. We
accordingly direct that Chandar be committed by the Court of a Magis-
trate of Muttra having jurisdiction to stand his trial at the Court of Session
at Aligarh on the charge of murder.

(7 P. L. i?., 74.)


Oct. 23 [CRIMINAL APPEAL No. 5(53 of 1905.] 1905.

Present : — Mr. Justice Kensington and Mr. Justice Chitty.

EMPEROR,— Appellant,


MIRAN BAKHSH and another,— Respondents.

Peml Code, (Act XLV(^1860), ttecthns 360, 368— Aid napping from lawful ffuardian-
ghlp — Muhamnmdan Law— Girl hunng attained the age of IS years.

A Muhammadan girl after having attained the age of 15 years does not cease to be under
the lawful guardianship of her mother with whom she is actually residing within the meaning
of Bcctions 366 and 368 of the Indian Penal Code,

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Vol III] Thb Criminal Law Journal. Reports. 297


The Government Advocate, for Appellant.

Tlie Hon'ble Mr. Muluimmad Shah Din, Advocate, and Khaimju
Zia-'ud-diriy Pleader, for Respondents.

Kensington^ J. — This is an appeal by Government against an order of
the Sessions Judge, Lahore, acquitting Miran Bakhsh and Muhammad
Din, of charges under sections 366 and 368, Indian Penal Code, on which
they had been convicted by Mr. Harris, a Magistrate exercising powers
under section 30, Criminal Procedure Code. There is no material diflFer-
ence between the findings of the two courts on questions of fact, and with
one exception, we have not permitted any argument to be raised on these
findings. The exception is in regard to an allegation on behalf of the
respondents that both courts have gone wrong in overlooking a contention
that the girl Mussammat Sardar Begum was not kidnapped, inasmuch as
she was removed from her mother's house with the latter's consent, in
order to prevent her falling into the hands of the men to whom she had
been married in her father's life-time. There is nothing on the record to
support this contention, but we are asked to assume that it must be correct
in conseqnence of the failure of the prosecution to produce the girl's
mother as a witness. We cannot allow this assumption to be made. The
girl herself in her cross-examination (pages 86 to 96 of the Magistrate's
record) gave the clearest evidence that she was throughout the preliminary
negotiations deceived by her neighbour Mussammat Jano, and that she
concealed from her mother the proposals which were being made to her.
If the defence desired to contradict this e\'idence, it was open to them to
call the mother as a defence witness. From their not having attempted
to do so, we can only conclude that the evidence of the girl on the point
was recognised as correct.

On the facts, therefore, we need say no more than that the oflEence of
kidnapping is clearly established by the evidence, unless the learned Ses-
sions Judge's interpretation of the law on the point can be supported.
There can hardly be two opinions as to the heartless manner in which the
offence was committed, or as to the Criminal intentions of the men by
whom it was carried out. The girl was fortunately rescued after some 8
days, during which she was taken from place to place in the usual manner,
but this was not a circumstance for which the respondents are entitled to
credit. The girl's recovery was solely due to the energetic action taken
by a member of her family in reporting to the police on the 12th August,
1904, (3 days after her disappearance), to the formal com[)laint with which
he followed up this report on the 16th and to the promptness of the Police
in acting on the information given. There are so far no redeeming fea-
tures in the case to make it other than a l>ad one of its kind.

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298 The Criminal Law Journal Reports, [Vol. Ill


Tho point which wo have now to consider is whether there is any
authority for the Sessions Judge's finding that in law no offence has been
established, because the girl, though under the age of 16, has ceased to be
subject to guardianship under Muhammadan Law, thereby becoming, as
he expresses it, sui juris. This finding appears to us to be based on a mis-
taken assumption that the words " lawful guardianship " as used in tho
definition of the oflFence contained in section 361, Indian Penal Code, are
synonymous with the words " legal guardianship." The argument is that
under certain technical provisions of Muhammadan Law, the mother's
guardianship ceases when her girl attains the age of 15, and that failing
such fresh guardian as may be then prescribed by Muhammadan Law or be
appointed by the court under Act VIII of 1890, she becomes emancipated
from all control of her person. It is further urged that in the present
case, owing to the death of the girl's father and to the fact that her mar-
riage with Ahmad Din had not yet been followed by muklaica^ there
could be no legal successor to the mother as guardian under Muhammadan

The line of argument set up leads to the conclusion, which we can
only describe as monstrous, that under certain circumstances, for which
she is not herself responsible, a Muhammadan girl ceases to have any pro-
tection against a gross criminal offence during the period for which such
protection is specially required, namely, while she is between the ages of
15 and 16. We have been referred to various commentaries on Muham-
madan Law, by which it is sought to maintain this dangerous contention,
but we do not discuss them as in our view the terms of section 361, Indian
Penal Code, expressly exclude any such narrow interpretation of the bw
bearing on the point. The words lawful guardian (not legal guardian) are
carefully explained in tho section as including any person lawfully en-
trusted with the care or custody of a female under the age of 16. In
Empress v. Fetnantle, L L. 7?., VIII CaL, 971, the importance of this
explanation is well brought out in a case which might otherwise present
some difficulty.

The learned counsel for the respondents has urged that the case just
quoted shows that there must be some formal act of trust to constitute a
lawful guardian under the secfin in the absence of a natural guardian,
hut we cannot accept this plea. We think that the more correct view is
that taken in para. 470 of Mayne's Commentary on the Indian Penal Code,
and that the explanation admits of a wide interpretation of the words
' lawful guardian,' extending them to " not only the parents or relations
in whose house the minor lives and is brought up but any other person
with whom the minor resides by the consent, express or implied^ of those
who have the higher legal right."

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Vol. Ill] The Criminal Law Journal Reports. 299


Whatever cases of difficulty might conceivably arise in the case of a
minor who is under no care or custody, we must hold that no sort of doubt
exists where the minor is still living under the care of her own mother,
than whom there can be no more efficient lawful guardian. It follows
that in our opinion the ground upon which the Sessions Judge acquitted
the respondents is wholly erroneous.

In regard to the question of sentence, we are asked to take account of
matters which are said to have occurred since the date of the Magistrate's
original conviction, and which are therefore not established by the record
before us. It is alleged that the girl's husband divorced her some ten days
before the appeal was disposed of in the Sessions Court, and that she has
been very recently married again to the respondent Miran Bakhsh. A
petition has been presented to us purporting to be on behalf of the girl,
and we are asked to take a lenient view of the offence in her inte>rest«.
We regret that we are unable to do so. There is in the first place a
counter petition before us by the girl's mother representing that she is
entirely opposed to the alleged remarriage or to any condonation of the
offence, and in the second place there is much to be said for the contention
of the learned Government advocate that the alleged remarriage effected
during pendency of the present appeal aggravates rather than condones
the offence of Miran Bakhsh. We think that in any case our proper
course is to take the offence as it stood proved before the Magistrate, and
we do not consider the main sentences passed by him excessive.

The appeal is accordingly accepted. The order of acquittal in the
Sessions Court is reversed. The convictions of Miran Bakhsh under sec-
tion 366, Indian Penal Code, and of Muhammad Din, under section 368,
are restored. The sentences of imprisonment for periods of 4 and 3 years
respectively are restored, such sentences running from the 20th February
1905. The only change made is that the additional fine of Rupees 50 on
Miran Bakhsh is remitted as being an unnecessary and unsuitable form of
further punishment.

Appeal accepted.

(7 F. L. Ji., 100.)

Nov. 4 [CRIMINAL REVISION No. 1359 of 1904. 1905.

Present : — Mr. Justice Reid.


Penal Code (Act XLVoflSSO), section 403—^nsappropriatwH^BMV(f^tt of ptoof—Dh-
himesttj — rV of xt rayed nnlma} — FhIm' ntntcmcnt hij /tccv»eff.

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300 The Criminal Law Journal Reports. [Vol. Ill


The accused was found riding on a mare which had strayed away from the posscsidon of
its owner. The day after he was found riding he confessed that he had found the mare hob-
bled, had unfastened the rope, and used it as a bridle, had mounted the mare intending to
ride her to his house, being tired, and to loose her when he reached his house. Subsequently
he stated before Magistrate that his intention was to take the strayed mare to a Police Station.
He was convicted under section 403 of the Indian Penal Code.

Held, that the conviction was illegal, for it could not be assume<l that the intention of the
accused was dishonest. The subsequent statement being attributable to fear did not aflfect the
question of the accused's guilt.

Tho facts of the case are as follows —

The accused Muhammada was found nding a mare at Sheikh Bilawal at midday by
Muhammad Din, Lambardar. The latter suspecting him questioned him and as he gave a
suspicious statement took him to the Thana with the mare and a filly which was following it.
Enquiries were made and it was found that the animals belonged to a resident of the Jhang
District. Accused in his defence said he had seen the animals grazing in the Jhang District
and therefore caught them and was taking them to the pond at Sayedwala in the Montgomery
District. At the time he was caught he was coming from the east and Sayedwala is east of
Sheikh Bilawal.

The accused, on conviction by Lala Ganga Ram exercising the powers of a Magistrate of
the Ist Class in the Montgomery District, was sentencetl, by order dated 27th September 1904,
under section 562 of the Criminal Procedure Code, to be released for six months on a bond of
Rs. 200 with one surety.

The proceedings are forwarded for revision on the following grounds :—

There is no doubt whatever as to the guilt of the accused. He had no business whatever
to seiKC the mare and filly as they were not grazing on his land but in another District, while
his dishonest intention is evident from the fact that he was taking them away from Savedwala
and in the direction of his own village Pir Ali (r/W/* the map attacheil).

The sentence is absunl, section 562, Criminal Procedure Cotle, was never intended for
horse-stealers. The age of the accused is said to be 30 and the fact of two of his friewls of no
jKJsition saying he is of good character does not prove any thing.

If such sentences are given crime will be encouraged and I would request that a full sen-
tence of two years with a fine be given, the sentence being enhancetl.

Lala Sangam Lai, Pleader, for accused.

Feid, J. — This conviction cannot be maintained. The day after the
convict was found riding the mare in question he confessed tliat he had
found the mare hobbled, had unfastened the rope and used it as a bridle,
had mounted the mare intending to ride her to his house, being tired, and
to loose her when he reached his hou ;o. The evidence of Muhammad
Din, Lambardar, is not opposed to this statement and the fact that the
convict subsequently stated that his intention was to take the strayed mare
to a police station is attributable to fear that the original statement might
be damaging to the convict.

No dishonest intention has been established and it cannot be assi^tned
that the convict's intention was dishonest.

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Vol. Ill] The (Criminal Law Journal Reports. 301


I set aside the conviction and the order under section 5G5 of the Code
o£ Criminal Procedure. Muhammada son of Mahabat, will be forthwith

Conviction set aside.

(6 P. L. R., 581.)


Feby. 21 [CRIMINAL REVISION No. 14 of 1905.] 1905.

Present : — Mr. Justice Reid.


CuHtoHinent Code, 1899, sections 94, 104.

A notice under section 94 of the Cantonment Cotle must give the owner the option of re-
moving the buikling or making adequate repairs.

And a conviction under section 104 of the Cantonment Cotle for not obeying a notice
issued under section 94 which merely required removal of the building is ill^al.

The facts of the case are as follows : —

The petitioner is liquidator of the Club of Northern India, Murree. The Club was des-
troyetl by fire some years ago and certain roofless walls thereof remained standing. Kc^^arding
the ownership of the site of the club litigations are going on between the club and the Military
Department in the Court of the District Judge, Rawalpindi. On 9th June 1904 the Canton-
ment Committee Murree gave the petitioner a notice under section 94, Cantonment Code, for
the demolition of the remains of the club because they were in the opinion of the Committee
dangerous to public safety. To this the petitioner replied saying that the notice was defective
and denying that any danger was apprehended. To this the Comr^ittee replied directing the
petitioner to appeal to the General Officer Commanding, Rawalpindi District, and meanwhile
applied to the Assistant Commissioner, Murree to issue summons against the petitioner under
section 101, Cantonment Code. The petitioner did ap[)eal to the General Officer Commanding,
but it was rejected without hearing the petitioner.

The accused, on conviction by J. E. Stephens, Esquire, exercising the powers of a Magis-
trate of the 1st Class in the Rawalpindi District, was sentenced by order, dated 3iil November
190t, under section 104 of the Cantonment Cotle to pay a fine of Rs. 10 or in default one
weak's simple imprisonment.

The proceedings are forwarded for revision on the following grounds: —
1 must refer this case to the Chief Court with a recommendation that the conviction be
net aside and the fine refunded.

The petitioner is liquidator of the Club of Northern India, Murce. Regarding the owner-
ship of the site litigation is now in progress in the Court of the District Judge, Rawalpindi,
between the Club and the Military Department. The Club premises wei*e destroyed by fire
some years ago, and at the time when the present affairs began some of the walls of the roof-
less buildings remained standing. A public foot-jmth passes below the ruins which ai'c situated
ou a slope. On 9 June 1904, the Cantonment Conmiittee of Murree passctl a Resolution calling
upon the petitioner " to demolish the club ruins " within a " month " " as in the opinion of the
Cantonment authority it *' (sic) is in a ruinous state and is a source of imminent danger." This
Resolution purports to have been passetl under section 94, Cantonment Code, 1899. To this
the petitioner replie<l on 18th June, pointing out that the notice was defective, inasmuch as it

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302 The Criminal Law Journal Reports. [Vol. Ill


did uot call uixm him as the section requires to remove or to cause necessary repairs to be
done, and denying that the walls are as a whole dangerous to the public, and refusing to demo-
lish property worth thousands of rupees without real need. To this the Cantonment Committee
replied on 27th June intimating that petitioner should appeal under section 240, Cantonment
Code, if he objectetl to it. Then on I3th September 1904 the Committee passed a further
Resolution directing the caiTying out of the original order by the Committee's servant at the
expense of the club, basing the Resolution on sections 94 and 205 of the Code. (Meantime on
10th August 1904 the Committee hatl applied to the Assistant Commissioner, Murree for a
summons against the petitioner under section 104 of the Code for refusal to obey the order of
8th June 1904).

Petitioner then appealed to the General Officer Commanding, RaMralpindi District, and in
para. 12 of his petition specially asked that he might be heard in support of his appeaL This
appeal is datetl 6th July. On loth July the General rejected the appeal in a summary manner
without hearing the petitioner aud relying on a recent ruling of the Chief Court apparently
19 P, B. (Criminal) 1904.

The first class Magisti-ate who tried the case convicted the petitioner and fined him Rs. 10,
relying, as did the General, upon 19 P. <R. (Criminal) 1904. I forward the ca«e for orders
for following reasons : -

(1) It was illegal for the General to decide the appeal without hearing the petitioner —
proviso to section 244, Cantonment Code, 1899.

(2) If it be held that this Court and the Chief Court cannot take cognizance of such a
point as (1) then I atld that 19 P, R. (Criminal)^ 1904, does not justify what has been done
in this case. There the notice was '* to rei)air" and the owner did not repair, and the Chief
Court held that section 94 of the Code gives the Cantonment Committee discretionary power
to issue such orders as it may think fit with reference to the repair of any building, &c., which
in the opinion of the Committee the public safety may require and that it is not open to a
Civil or Criminal Court to say whether the repairs were really necessary or not for the public
safety. Here, on the other hand, the order was " to remove," and no option to re^Miir was
given. In my opinion the section means that the notice must give the owner the option to
remove or to make adequate repaii*s, and this was pointed out by petitioner in his reply to the
Resolution and also iu his appeal to the General. Further on the appeal, para. 10, the peti-
tioner points out that the Cantonment Committee had already pulled down what was deemed
dangerous and that he (the petitioner) was preparetl to attend to any part shown to him to be

(3) With reference to the phrase *' maliciously or corruptly '' in the ruling quoted above,
I would like to say that though I would not apply it to the action of the Cantonment autho-
rities in this case, 1 have no hesitation in describing that action as wanting in good fiuth.

Rekl^ J. — For reasons recorded by the learned Sessions Judge I set
aside the conviction and sentence. The order passed was not an order
under section 94 of the Cantonment Code. That section does not run

"may by notice in writing either require the owner to remove the

same or require him to cause such repairs, &c." The owner or occupier is
to have the option of removal or repair.

The fine, if realised, will be refunded.

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Vol. Ill] The Orimlkal Law Journal llispouxsi. 303


(3 C. L. J., 302.)


June 28 [CRIMINAL REVISION No. 530 of 1905.] 1905.

Present : — Mr. Justice Pargiter and Mr. Justice Woodroffe.


Criminal Procedure Code (Act V of 1808), sedim 416— Penal Cods (Act XLVofl860),
section 193 — Projmety of taking proceedinjs under section 470^ Criminal Procedure Code, until
final orders are jtassed.

Proceedings under section 476, Criminal Procetlure Code, should not be taken agaiubt a
person for giving false CTidence or fabricating false document under section 193, Indian Penal
Code, until the case in which the said evidence was given or such document was usetl, has been
finally decided.

The facts of the case are as follows : —

One Chamari Sonar brought a case under sections 380 and 448, Indian Penal Code, against
one Bhetu Singh and another. In that case the petitioner Gendan Singh gave evidence for the
accused persons and produced a document in support of such evidence. The Sub- Divisional
.Magistrate of Xowadah who tried the case convicted the accused persons, but in his judgment
said nothing with regard to the evidence given on behalf of the accusetl by the petitioner, and
thereafter, without issuing any notice upon the petitioner and without hearing him, directed
his prosecution under section 193, Indian Penal Code, for giving and fabricating false evidence
and 83nt the reconl to the District Magistrate of Gaya for trial of the petitioner. The accused
Bhetu Singh and another appealed to the Sessions Judge of Gaya, who, without finding the
evidence given by the petitioner to be false and without finding the document to be fabricatetl,
directeil further evidence to be taken. Pbtitioner thereupon movetl the High Court for quash-
ing proceedings and obtained a rule.

Online LibraryKarl HeimThe Criminal law journal of India : a monthly legal publication containing full reports of all reported criminal cases of the high courts and chief courts in India → online text (page 60 of 91)