JUDGMENT
1. This is an appeal from a conviction and sentence based upon the unanimous verdict of a jury by whom the accused has been found guilty of the offence of kidnapping under Section 363 of the Indian Penal Code. To succeed on this appeal, therefore, it is necessary for the appellant to substantiate that there is an error of law. For that purpose it is contended before us that there has been a misdirection by the Judge to the jury, in three particulars. First, it is said that the comment on the husband’s attitude amounted to a misdirection; then that the charge as to guardianship was incorrect; and, thirdly that the Judge erred in dealing with the age of the accused. Though we think there is much that calls for comment on all three points, still, in our opinion, there was misdirection only in regard to the question of guardianship. The girl in this case was married, and the theory of the prosecution is not that she was taken out of the keeping of her husband who was her lawful guardian but that she was taken out of the keeping of her father, and that he in the circumstances of this case was the lawful guardian. For that purpose, reliance is placed on the explanation to Section 361 of the Indian Penal Code, which provides that the words “lawful guardian” in this section include any person lawfully entrusted with the care and custody of such minor or other person. The learned Sessions Judge deals with this question of guardianship, as follows: He says, “now the lawful guardian of a married woman is no doubt her husband But there is the evidence before you that she came with the consent of the husband into the house of her father, if you believe such evidence. Therefore, the father of the girl was her de facto lawful guardian for the time that the girl was residing in her father’s house.” In matters of this kind a Judge Should adhere to the words of the particular section of the Indian Penal Code with which he has to deal, and not substitute phraseology of his own, and what should have been left to the jury was whether or not the father had been lawfully entrusted with the care or custody of the girl said to have been kidnapped, instead of the form adopted by the learned Judge. We might possibly have got over this, had it stood alone, but we are faced with this further obstacle in the way of upholding the verdict of the jury, that, when we asked what was the evidence that she came with the consent of her husband to the house of her father, Counsel for the prosecution had to tell us that the position of affairs was this: The husband had not been called, neither the father nor the girl herself had in so many words deposed to the alleged consent, and all that could be relied on as a justification for the Judge’s explicit assertion, was a statement in the evidence of witness No. 6 to the effect that Sabitri (the girl) was taken to her father’s house in Baisak last, by her husband. Seeing that the evidence before the Court, apart from this, was that the girl went to her father’s house not in Baisak but in Joista, if the learned Judge meant to direct the jury that this was the evidence of consent then he Certainly failed to place before them a fair and proper statement of the evidence on the record, and his charge in this respect amounts to a misdirection. It may be that there is some other evidence on the record to which the learned Judge alluded. If there is, the learned Counsel, who has appeared for the prosecution and the defence have not been able to discover it. In the circumstances the conviction cannot stand. Mr. Sanyal has pressed us now to reverse the conviction and sentence and to discharge the accused. That we came not do, and we must send the case back for retrial. It is quite true, as Mr. Sanyal has pointed out that the accused has been in prison now close on six months. That cannot alter our decision on this point of law. But I have no doubt that should the accused be again convicted, the Court, in estimating what would be the proper sentence, will have regard to the detention already suffered by him.
