JUDGMENT

Sunder Lal, J. - This is an appeal against the conviction and sentence passed on the appellant u/s 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 u/s 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 u/s 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 fe