The main legal point established in the judgment is the requirement for a fair trial, proper direction to the jury, and adherence to matters on the record in criminal proceedings.

JUDGMENT

Rankin, J. - In this case the accused who goes by the name Yusuf has been found guilty u/s 366, Indian Penal Code, of having on the 26th February 1925 taken part in an occurrence with reference to a girl called Pipuljan who seems to have been about 14 years of age and who had been married for some two years. There was also a charge u/s 323, Indian Penal Code. The prosecution story is that the girl with her husband's permission had gone to pay a visit to her mother and brothers who were living in the house that had been her father's. The girl's husband lived in the same village, and it is said that as the mother of the girl and the younger brother were all sleeping in the same room at midnight, the accused with other persons came in, seized the girl, took, her outside in the yard and made off with her; that she was taken from one place to another and was ravished and that she came back on the 8th March, the elder brother Daga having on the 3rd March in the meantime filed a complaint as to the incident. It appears that the prosecution was at first a private prosecution, but the Magistrate on the 17th March ordered the police to make an investigation and the prosecution was a police prosecution afterwards. It may be said that the girl was examined by a doctor on the 23rd March. He discovered certain scratches on her person and he estimated them to be some 10 or 12 days old.

2. Now the charge on which the accused was tried was a charge of kidnapping. It was brought against Yusuf and two others, reliance being placed on Section 34 of the Code. It ran thus : That you in furtherance of the common intention of all kidnapped Pipuljan Bibi for her defilment. An objection to the charge has been taken that it did not specifically mention the name of the guardian from whose keeping she was taken. It is not necessary for me to make any pronouncement as to that matter, but there are three objections taken to this trial, all of which appear to me to be good.

3. The first is that although the accused was charged with the offence of kidnapping only, the learned Judge left it to the jury to convict the accused of the offence of abduction under the same section, namely, 366 Indian Penal Code. When the matter is looked at carefully it appears that in order to prove the offence of kidnapping the prosecution have to show that the girl was taken away or enticed and in that case it might well be that the accused person would rely upon the fact that the guardianship could not be made out against him. As regards the charge of abduction, however, that is, the charge of taking the girl by force or by deceitful means it seems to me that notice of the charge of kidnapping is not a fair, proper or sufficient notice of the charge of abduction. That it has in the present case prejudiced the accused is a matter as to which there may be some room for difference of opinion. But I find it very difficult to hold that the learned Judge should, without taking proper steps to add an additional charge and taking the usual course consequent upon such action, leave to the jury, as he has done, the question of abduction as distinct from kidnapping.

4. The second matter which impresses me as a valid objection to the trial is that the learned Judge put before the jury matters which are not on the record and matters prejudicial, at all events, on a certain view, to the accused. The learned Judge put it to the jury that there was evidence that after the girl returned she was taken by her husband and made over to the accused at the accused's house and the husband had received from the accused presents in consideration thereof. Mr. Khondkar for the Grown does not contest that what the learned Judge put to the jury is not borne out by the record as we find it. But he suggests that in view of the fact that the defence set up, among other things, that the accused might have done the acts alleged with the husband's consent, the Judge's action in putting these statements to the