JUDGMENT Edgley, J. - The Appellant in these two appeals, Biman Behari Mondal and Naba Kumar Kundu, were placed on their trial before the learned Additional Sessions Judge of Burdwan together with a man named Dharma Das Roy on charges under secs. 366, 368 and 363 of the Indian Penal Code. The jury unanimously found Biman guilty under sec. 363 of the Indian Penal Code, but not guilty under sec. 366 of the Code. Naba Kumar was unanimously found guilty under sec. 368 of the Indian Penal Code, and Dharma Das was found guilty under that section. The case for the prosecution was to the effect that, on the 30th May, 1942, a minor girl named Ranubala, aged about fourteen and a half years, was kidnapped from her house at Bhatia, police station Memori, in the District of Burdwan. The principal accused, Biman Bihari Mondal, kept a shop in the village, and he had become very friendly with Ranubala and her family. It appears that some time in May, 1942, Ranubala's mother had gone away to a neighboring village in order to see a daughter who was ill. Biman took advantage of the mother's absence to take the girl away from her house on the pretext that he would take her to Calcutta where he would obtain work for her as a cinema actress. It is said that, while all the members of the family were asleep, Biman entered the house, and after he had awakened Ranubala, they both went on foot to Saktigarh Railway Station where they boarded a train. After changing at Burdwan, they went to Mejhiari, where Biman took Ranubala to the house of the Appellant Naba Kumar Kundu. The girl was concealed here for some time, but later, she was taken to the house of Dharmadas Roy who was acquitted in the Court of the learned Sessions Judge. Later, the girl's whereabouts came to the notice of her co-villagers, and she was rescued. 2. The case for the defence was to the effect that the two Appellants were entirely innocent. They both maintained that the girl was not under sixteen years of age, and that she had not been kidnapped or abducted in the manlier alleged. It was further suggested that her mother tacitly consented to her elopement with Biman and that it could not, therefore, be said that she had been kidnapped from lawful guardianship. They both maintained that the girl was not under sixteen years of age, and that she had not been kidnapped or abducted in the manlier alleged. It was further suggested that her mother tacitly consented to her elopement with Biman and that it could not, therefore, be said that she had been kidnapped from lawful guardianship. Appeal No. 491. 3. We may say at once that the case of Biman Behari Mondal presents no difficulty. Mr. Taluqdar, on behalf of this Appellant, has placed before us certain passages from the evidence and the exhibited documents from which he has asked us to infer that Ranubala was not kidnapped at all, but that, if any question with regard to kidnapping were to arise, it should be held that it was the girl who really enticed Biman to take her away. He also contends that the evidence with regard to the girl's age was not properly placed before the jury, and that the jury may have been confused with regard to certain reference contained in the charge to such works as Lyons' Medical Jurisprudence. We are not prepared to accept any of these contentions. 4. In our view, all the evidence with reference to the charges against Biman Behari Mondal was very fairly and fully placed before the jury. Every thing that could be said in his favour was stated in the charge. It is true that the evidence may be taken to indicate that the girl was a willing party to the elopement, but the fact remains that it was conclusively proved that she was under the age of sixteen years, and all the elements required to establish an offence under sec. 363 of the Indian Penal Code were present. As regards the references in the charge to certain works on medical jurisprudence, we do not think that the jury could have been confused in any way by these references. In fact, they were necessary, having regard to the fact that they were cited by the doctor who gave his testimony before the Sessions Court. 5. As regards Biman Bihari Mondal, we do not think that the charge contains any misdirection or non-direction. On the other hand, it is full and fair. This man's appeal must, therefore, be dismissed and his conviction under sec. 363 of the Indian Penal Code will be affirmed. 5. As regards Biman Bihari Mondal, we do not think that the charge contains any misdirection or non-direction. On the other hand, it is full and fair. This man's appeal must, therefore, be dismissed and his conviction under sec. 363 of the Indian Penal Code will be affirmed. At the same time, we think that, having regard to the circumstances of the case, the sentence which has been imposed on him is unduly severe. We, therefore, reduce the sentence of rigorous imprisonment for a period of four years in his case to one of eighteen months. He must forthwith surrender to his bail and serve out this reduced sentence. 6. Subject to the modification in the sentence indicated above, Appeal No. 491 of 1943 is dismissed. Appeal No. 449. 7. With regard to Appellant, Naba Kumar Kundu, various points have been put forward by his Advocate. Most of these we do not consider to be of any substance, but it is not necessary to discuss them in detain because we think that on one point which will be mentioned presently, his appeal is entitled to succeed. 8. The charge against Naba Kumar Kundu was in respect of an offence under sec. 368 of the Indian Penal Code. The material words of this section are as follows: Whoever, knowing that any person has been kidnapped or has been abducted, wrongfully conceals or confines such person, shall be punished... 9. In view of the clear language of the section, it is essential that a person accused of an offence of this nature should know that the person in question has been kidnapped or abducted. In other words, if the accusation is to the effect that the prisoner has wrongfully concealed or confined a girl, it is necessary that the accused should know that the age of the girl at the material time was under sixteen years and that she had been taken out of the keeping of her lawful guardian without the consent of such guardian. It would be for the prosecution to show that the accused person had knowledge of all the requisite elements mentioned in sec. 361 of the Indian Penal Code. It would be for the prosecution to show that the accused person had knowledge of all the requisite elements mentioned in sec. 361 of the Indian Penal Code. Similarly, with reference to an abducted person, it would be necessary to show that the accused person knew that the person abducted had been by force compelled or by deceitful means induced to go from any place as required by sec. 362 of the Indian Penal Code. 10. It is said on behalf of the Appellant, Naba Kumar Kundu, that the directions contained in the charge did not constitute a sufficient warning to the jury with regard to the elements of knowledge on the part of Naba Kumar which it was necessary for them to find. On this point, in explaining the law, the learned Judge in the first part of his charge referred to sec. 361 of the Indian Penal Code, and explained to the jury that this section required: Firstly,-that the female must be under sixteen years of age, Secondly,-that the accused must take or entice her, Thirdly.-that the accused must do so out of the keeping of the lawful guardian of the female. Fourthly,-that the accused must do so without the consent of such guardian. 11. He then went on to explain the elements of the law with regard to abduction and said, You see, therefore, that this section requires:- 1. Firstly-that a person trust be compelled or induced to go from any place. 2. Secondly-that this compulsion must be by force, and the inducement must be by deceitful means. 12. After having done this, the learned Judge read and explained sec. 368 of the Indian Penal Code. On this point, his direction was: You Bee, therefore, that this section requires: 1. Firstly-that the accused must know that the woman has been kidnapped or has been abducted. 2. Secondly-that knowing the above the accused wrongfully concealed or confined such woman. In the present case each of accused Naba Kumar and accused Dharamdas has been charged with having wrongfully concealed or confined Ranubala knowing that Ranubala has been kidnapped or has been abducted. You already know what is meant by kidnapping and abduction. It must be proved that Ranubala has been wrongfully concealed or confined and that by each of these two accused. You already know what is meant by kidnapping and abduction. It must be proved that Ranubala has been wrongfully concealed or confined and that by each of these two accused. It must be further proved that each of these two accused knew that Ranubala had been kidnapped or had been abducted. This knowledge must be proved as a matter of fact. Mere suspicion about it or mere thinking that there are reasons for such belief will not do. 13. He therefore emphasised the fact that the requisite knowledge must be proved, and reiterates a similar direction at a later stage in the charge. 14. It might possibly have been more satisfactory if in explaining the law under sec. 368 of the Indian Penal Code, more particularly, with reference to the allegation that Naba Kumar had concealed a girl who had been kidnapped, if the learned Judge had stressed the necessity for finding as a fact that Naba Kumar knew that the girl was under the age of sixteen. After reading the charge as a whole, I am however not prepared to hold that there was any serious misdirection or non-direction on this point. The constituent elements of the offences of kidnapping and abduction had, in fact, been sufficiently discussed in dealing with secs. 361 and 362 of the Indian Penal Code. The direction of the learned Judge with regard to knowledge in connection with sec. 368 seems to me to have meant that knowledge of those constituent elements would have to be established. In that view it was hardly necessary to discuss the matter in greater detail although, as I have said before, it might have been more satisfactory if this had been done. 15. On a reference to the record, however, we find that the only evidence from which an inference could possibly be drawn to the effect that Naba Kumar knew the requisite facts with regard to the girl's age and the other elements mentioned in sec. 361 of the Indian Penal Code, is the following statement which the girl made before the committing Magistrate: Biman bore all the expenses of the journey There at his house I was introduced as his wife. I objected but he said this could not be avoided. Biman told Naba Kumar the real story about me in my presence. 16. 361 of the Indian Penal Code, is the following statement which the girl made before the committing Magistrate: Biman bore all the expenses of the journey There at his house I was introduced as his wife. I objected but he said this could not be avoided. Biman told Naba Kumar the real story about me in my presence. 16. The girl does not give any details with regard to the story which was told by Biman to Naba Kumar, and from this bald, statement, it is very difficult, if not impossible, to hold that Naba Kumar could have known that the girl was under sixteen years of age. Had she been a small girl of nine or ten years, the circumstances might have been sufficient to have enabled the jury to hold that Naba Kumar had the requisite knowledge, but according to the medical evidence, at the material time, Ranubala was about fourteen and a half years of age. At this stage of a girl's life, it would be very difficult for an ordinary person to form any precise opinion as to whether she was below or above the age of sixteen. 17. In these circumstances, it was necessary that the attention of the jury should have been clearly drawn to the very vague and unconvincing character of this part of the girl's evidence, and it was desirable that the learned Judge should have told them that this part of the girl's testimony before the committing Magistrate, standing alone, would be insufficient to justify them in holding that Naba Kumar knew that the girl's age was not sixteen years and that it would follow that, as regards the kidnapping part of this charge, one of the requisite elements of knowledge had not been established. No such warning appears to have been given to the jury, and in the circumstances, I am of opinion that the charge as regards Naba Kumar must be regarded as vitiated on account of an important non-direction. Apart from this particular item of the evidence, the learned Advocate for the Crown has not been able to refer us to any other circumstances from which it would be at all possible to draw an inference that Naba Kumar knew that the age of the girl was under sixteen. 18. Apart from this particular item of the evidence, the learned Advocate for the Crown has not been able to refer us to any other circumstances from which it would be at all possible to draw an inference that Naba Kumar knew that the age of the girl was under sixteen. 18. The state of the evidence being such as it is, we do not think it necessary to direct that Naba Kumar Kundu should be retried. The result is that he will be acquitted and set at liberty forthwith, and if on bail, his bail bond will be cancelled. Roxburgh, J. 19. I agree with the orders proposed by my learned brother. 20. I agree with the interpretation given by my learned brother as regards sec. 368 of the Indian Penal Code, in particular that it is necessary to prove in the case of a person charged with wrongfully concealing or confining a girl who has been kidnapped that he knew the age of the girl to be under sixteen rears. 21. With respect to my learned brother, I do not agree, however, with his view of the charge as delivered by the learned Additional Sessions Judge. In my opinion, the learned Judge failed to appreciate himself that it was necessary to prove that Naba Kumar knew that Ranubala was under sixteen years of age. I go further, I doubt very much if the prosecution themselves were aware of the fact, and it is for this reason that there is no reference in the charge itself to the evidence or rather to the lack of evidence on this point. The learned Judge charged as follows: In respect Of the charge under sec. 368 of the Indian Penal Code as against each of accused Naba Kumar and accused Dharmadas, the points for determination are: 1. Firstly-whether each of the two accused knew Ranubala to have been kidnapped or abducted.... It seems that is by no means obvious when it is necessary to prove whether the accused knew that the person had been kidnapped that this involves that the accused knew the age of the kidnapped person. On a consideration of the wording of sec. Firstly-whether each of the two accused knew Ranubala to have been kidnapped or abducted.... It seems that is by no means obvious when it is necessary to prove whether the accused knew that the person had been kidnapped that this involves that the accused knew the age of the kidnapped person. On a consideration of the wording of sec. 368 of the Indian Penal Code, it no doubt becomes clear that such must be the effect of the words used, but it is particularly important to stress the need of proof of this knowledge, in view of the fact that in the case of the kidnapper himself, it is clear that his knowledge of the age of the person kidnapped is immaterial. There is an important distinction between the two cases. When considering a charge under sec. 368 of the Indian Penal Code, relating to a case of kidnapping under sec. 363, it is, therefore, particularly important that in explaining the law with regard to the former section, special emphasis should be given to this distinction. I feel, therefore, that the failure to prove this in the present case led to the failure to point out that there was a lack of evidence on the point and to draw the attention of the jury to the matter.