JUDGMENT

Pullan, A J C - This is a report by the Sessions Judge of Lucknow referring to this Court for orders the verdict returned by the Jury in the case of King-Emperor v. Ali Raza which the Sessions Judge considers to be deliberately perverse. The two accused were charged with an offence under Section 366, Indian Penal Code, and the abetment of the same respectively. Ali Raza is a young man and Nur Muhammad is a boy of 12. The Jury has found that Ali Raza kidnapped Mt. Idan, a girl of 12, from the house of her step-father and that he was abetted in so doing by Nur Muhammad. The Jury, however, found that the offence committed by Ali Raza was one punishable under Section 363, and not Section 366, Indian Penal Code and they also found that Nur Muhammad was at the time of committing the offence less than 12 years of age and was unable to understand the nature of the act, and that he was, therefore, not guilty of any offence. The Sessions Judge disagrees with the Jury on both points and considers that their verdict is perverse. In the case of Ali Raza, the learned Judge summed up as follows:

The Jurors should note that it is not necessary for an offence under Section 366, Indian Penal Code, that it should clearly be proved that the girl was actually subjected to illicit intercourse. It would be enough if from the evidence of Mt. Idan and the circumstances of the case the Jurors should be satisfied that the intention of the offenders was, that the girl should be forced to illicit intercourse after her being kidnapped. If the Jurors should be of opinion that there are grounds for holding such view they should hold the offence to be one under Section 366, Indian Penal Code. But in case the Jurors should consider, that Mt. Idan was actually kidnapped, but they should not be of opinion that the kidnapping was effected with the object of forcing the girl to illicit intercourse, then the offence will fall under Section 363, Indian Penal Code." In these words the learned Judge indicated to the Jury that there was material for a conviction under Section 366, Indian Penal Code, but he certainly left it to the Jury themselves to determine under which section the conviction should be recorded. No doubt in cases of this kind, there is always a strong probability that the girl who has been kidnapped will be submitted to illicit intercourse. But such a conclusion is not inevitable and a contrary conclusion on the part of the Jury need not be, and in this case is not, necessarily perverse. Moreover, there is only a technical difference between the two sections and Section 363 provides the possibility of a sentence of seven years' rigorous imprisonment. I am of opinion that the Sessions Judge should, in view of his own summing up, have accepted the verdict of the Jury as to Ali Raza and passed a sentence according to law.

2. As to Nur Nuhammad, the learned Sessions Judge had instructed the Jury at great length and I shall quote in full the passage in which he dealt with the question of age. It runs as follows:

The learned Vakil appearing for Nur Muhammad has also contended that Nur Muhammad is a boy of small age and immature understanding and he has asked the Jurors to bear these facts in mind in judging Nur Muhammad's guilt. With regard to this I have to warn the Jurors that it is not open to Nur Muhammad's Pleader to make any such contention in the present case, because Nur Muhammad never pleaded that by reason of his tender age, or immature understanding he was incapable of understanding the nature and effect of his act in the present case. If the plea should have been taken before the Committing Magistrate, or at a preliminary stage of the trial before me, it would have been possible for the prosecution to put in medical and other evidence about the exact age of Nur Muhammad and his power of reasoning. The Jurors should also note that Nur Muhammad gives his age as 12 years to-day: which means that he admits that he has completed his 12 years