Bhupendra Nath Ghoshal vs Dulal Dey and Others

N.G. Chaudhuri, J.—On behalf of the defacto complainant the legality of a judgment of acquittal in a Sessions trial u/s 368 read with section 34 I.P.C. is being challenged in this Rev. case under Sec. 401 read with Sec. 482 Cr. P.C. 1973. It is contended that a bare outline of the facts, the learned Judge''s manner of framing charge and discussion of evidence adduced show that there has been a gross miscarriage of justice necessitating a retrial. Defacto complainant examined as P.W. 2. has a daughter who was examined as P.W. 1, P.W. 3 is a qualified medical practitioner. Having passed her Madyamik Examination P.W. 1 was reading in class XI in a College. On 3.8.78 she went out of house avowedly for the purpose of attending her classes but did not return. P.W. 2, the father, made anxious enquires with friends and relations in whose house P.W. 1 might have gone, but could not trace her out. On 4.8.78 P.W. 4 an acquaintance infor med P.W. 2 that he had seen P.W. 1 on 3.8.78 with some friends in front of a sweetmeat shop standing close to an important road crossing. P.. W. 5, another acquaintance, told P.W. 2 on 5.8.78 that he had seen P.W. 1 along with accused No. 1 and others walking along a lane near the shop earlier referred to. On the basis of the information so gathered P.W. 2 went to the house of accused No. 2 on the said lane and found P.W. 1 there. The three accused however, did not allow P.W. 1 to come along with her father. P.W. 2 and gave out that accused no. 1 had married her. On 6.8.78 at about 8 A.M.P.W. 2 lodged information with local thana alleging commission of offence u/s 363 and 365 I.P.C. by the accused. After usual investigation police submitted charge sheet and the accused were committed to the court of Sessions thereafter. Eventually the Sessions Case was transferred to an Assistant Sessions Judge. The learned Judge after taking into consideration evidence of 17 witnesses examined by the prosecution, a number of documents exhibited both by prosecution and defence and the statements of the accused recorded under Sec. 313 Cr. P.C. has found the accused not guilty and has acquitted them by the judgment under attack.

Since the principal offence alleged is under Sec. 363 I.P.C. it is necessary to recall the important elements of the offence of kidnapping from lawful guardianship as defined in section 361 I.P.C. In the instant case a girl was allegedly Kianapped. So it was the duty or the prosecution to prove abrasively that P.W. 1 on 3.8.78 was under eighteen years or age. The second important element, the prosecution was required to prove, was that P.W. 1 was either taken away or enduced away by the accused. The act of taking away implies use of force actual or constructive, or in other words, close physical association or the accused with the victim at the time of commission of crime. "Enticement on the other hand involves the idea of in ducement as allurment given by the accused from a distance to the victim. for proper appreciation of what constitutes enticement reference may be made to the decision of the Supreme Court in the case of Thakorlal D. Vadgama Vs. The State of Gujarat, . To prove the age of P.W. 1, the victim in this case prosecution led three fold evidence. First of all both parents of hers, namely, P.W. 2 and 3 were examined and they deposed that P.W. 1 was born on 20.12.62 at Bally, Howrah, at the residential house of P.W. 3''s father. P.W. 1 also deposed in the same vein regarding her age. Secondly prosecution adduced documentary evidence in the shape of school admission Register Ext. 6/1 conjointly proved by P.W. 1, 11 and 16 showing that on 15.1.70, more than eight years before the occurrence, P.W. 1 was admitted in school with 20.12.62 declared as her date of birth. College admission Register Ex. 3\\1 proved by P.W. 12 indicated the identical date, namely, 20.12.62 as the date of birth of P.W. 1. P.W. 1 explained nonproduction of the admit card issued to her at the time of her Madhyamik examination and deposed that the accused had obtained custody of the same from her. The point to note is that if the Judge required reassurance he could take resort to Section 311 of the Cr. P.C. summon any officer of the board of Secondary Education, west Bengal, requiring production of relevant papers, necessary details regarding Roll No. School etc. of P.W. 1 were easily obtainable from Ext. 3\\1 and P.W. 12 deposed that she had only verified them with reference to admit card. The learned Judge, however, omitted to proceed in the way indicated above. Thirdly, prosecution also led evidence in the shape of medical opinion regarding the age of P.W. 1, namely Ex. 2 (1) a report prepared on the basis of X Ray plates. The doctor preparing the report on 3. 11. 78 clearly opined that P.W. 1 was approaching 17 years of age. The doctor opining as above as however, after dead at the time of trial and his report was proved by another doctor, namely P. W, 9. Police had referred P.W. 1 to another doctor also for ossification test namely, P.W. 13 on 10. 8. 7.8. P.W. 13 opined that P.W. 1 seemed to be 18 to 19 years of age. The point to note is that P.W. 13 was declared hostile by the prosecution while he was in the witness box. The letters of accused No. 1 addressed to P.W. 1 marked Ext. 5 series revealed his anxiety regarding the medical report.

Discussing the evidence of age of P.W. 1 as summarised above, the learned advocate for the petitioner argues with force that in the present case there was no necessity for the learned Judge to rely on medical opinion. Even if, medical opinion was required P.W. 13 having been declared hostile, the learned Judge should not have relied on his opinion. He makes a grievance that the learned Judge did not follow the decision in the case of Sachindra vs. Bistu reported in 1978 Cr, L.J. 1494 laying down that the date of birth as noted in school admission Register is reliable as evidence of age. The learned Judge, he points out, referred to an earlier decision in, Biswanath vs. State, reported in 1957 Crl. L.J. 1114, here again the Judge misread the decision and used it as authority for a proposition which it did not propound. He refers me to a number of decisions laying down that medical evidence regarding age cannot be credited with accuracy. Mr. Mukherjee, the learned advocate for the accused contends that the doctor giving the report Ex. 2 (1) could not be cross examined on account of his death; so his report cannot be accepted as an opinion on the point of age of P.W. 1. Further he contends that P.W. 13 having given an opinion inconvenient to the prosecution, value of the opinion did not diminish, despite the prosecution treating him as a hostile witness.

Having heard the learned advocates and going through the judgment, I find that the learned Judge has not given reasons why he could not rely on the testimony of P.W. 1, 2 and 3 corroborated by Ex. 3/1 and 61 regarding the age of P.W. 1 or why he accepted the views of P.W. 15 in preferences to other evidence on the point. The learned Judge does not appear to have made a comparative assessment of different types of evidence, nor does he appear to have considered how accurate or unfailing the medical experts'' opinion regarding age could be. The judgment under attack, therefore, is lacking in firm foundation regarding an important element of the case.

Regarding the other element of the offence, the learned advocate for the petitioner argues that the learned Judge did not at all consider the element of enticement; he took a lopsided view focussing attention on the element of taking away only. To emphasize the importance of the element of enticement he points out that evidence of P.W. 1 indicated that her father P.W. 2 had engaged accused No. 1 as an employee in his dispensary 3/4 years before the occurrence when he picked up acquaintance with P.W. 1. It further transpired that although accused no. 1 left the said job after a few months still p.w. 1 unknown to her parents, visited accused No. 1 at different places including his residence occasionally and on 13. 5. 78 accused No. 1 had sexual intercourse with P.W. 1 against her wishes in his room when there was no one else. Sometime, thereafter, she suspected that she had developed symptoms of pregnancy and disclosed her apprehensions to accused no. I who assured her repeatedly that he would make some "arrangement." The learned advocate for the petitioner points out that accused no. 1 in course of his examination u/s 313 C.P. Code stated that inconsequence of his cohabitation with P.W. 1 she had conceived. Against the above back ground, he contends "arrangement" referred to by accused no. 1 meant for p. w. 1 a way of escape from social stigma either by formally marrying her or by causing an abortion secretly. Pursuant to his assurance of an "arrangement" and by previous appointment, P.W. 1 deposed, she met accused no. 1 at a particular Bus Stand, on 3.8.78 and from there accused no. 1 along with other accused brought her to a house standing on a lane; and from there she was brought to Marriage Registrar''s Office in a taxi and made to sign some papers. The learned advocate for the petitioner contends that by holding up prospects of social prestige in a suitable way by making promises accused no. 1 allured P.W. 1 and made her come out of parental protection, but the learned Judge totally overlooked this aspect of the case. Reading of the judgment assailed will convince anybody regarding the force of the above contention. The learned Judge, it seems, was under the impression that for the purpose of proving an offence u/s 363 Cr. P.C. the prosecution was required to prove only forceful and actual taking away of the victim by the accused; he was unaware or unmindful of the expression "entices" used in Sec. 361 I.P.C. and implications thereof. In the result the learned. Judge took wrong perspective of the case and misread the evidence adduced. This has resulted in a gross miscarriage of justice. In the prevailing social set up in urban areas and spread of college education amongst adolescent or grown up girls the element of "enticement" in an offence under Sec. 363 I.P.C. has acquired an importance which the learned Judge should not have missed, particularly when there was substantial evidence on record on the point.

The learned advocate for the petitioner proceeds on to argue next that even in the matter of framing charge the learned Judge was wrong. He points out that police had submitted charge sheet against all the three accused u/s 363 read with S. 34 I.P.C. and u/s 365 I.P.C. No doubt there is no evidence on record that, accused No. 2 and 3 had anything to entice or take away p. w. 1 from the guardianship of the parents. But p. w. V7. 2 deposed that all the three accused prevented p. w. 1 from coming away with him when she was found by him in a house on 5. 8. 78. P.W. 1 also deposed that subsequent to her meeting accused no. 1 on 3. 8. 78 at the Bus stand she was kept confined in a house by all the accused and thereafter taken to the office of Marriage Register. The Marriage Registrar examined as P.W. 15 deposed that on 3. 8. 78 p. w. 1''s marriage with accused no. 1 was according to Hindu rites was registered disclosing 2. 8. 78 as the date of marriage. The learned advocate contends that there is no evidence that P.W. 1 had come out on 2.8.78 and her marriage with accused no. 1 had taken place anywhere. In the premises aforesaid, he contends that there were materials strongly suggesting that all the three accused wrongfully concealed or confined P.W. 1, subsequent to her coming out of her parental guardianship on 3. 8. 78, knowing that she was kidnapped. He argues that instead of finding accused 2 and 3 not guilty of the offence u/s 363 read with S. 34 I.P.C. in the case, the learned Judge should have framed a charge and tried all the three, accused for an offence under S. 368 read with S. 34 I.P. C This argument of the learned advocate has substance. The learned Judge failed to consider two different episodes making up the totality of facts; the first episode of taking or enticeing away off P.W. 1 and the second and subsequent episode of her confinement and concealment till discovery by p. w. 2 on 5. 8. 78. The learned Judge also failed to consider the different roles played by the three accused in the two episodes. In the result he wrongly framed charge in this case. Ordinarily the High Court in exercising its power of revision against a judgment of acquittal is slow to interfere therewith. But in the present case a gross miscarriage of justice has been caused. The learned Judge did not frame charges properly appreciating the offences disclosed by the papers and documents sent with the order of commitment. He failed to examine the evidence in right fashion keeping in view the elements of the offence charged, particularly the element of enticement. Furthermore the learned Judge''s finding regarding the age of the victim girl on the date of occurrence is untenable and the conclusion reached by him has not been supported by legally sound reasons. The judgment assailed, therefore, deserves to be set aside with direction for a retrial. Hence it is ordered that the Revision application be allowed on contest, the judgment dt. 13. 8. 79 by the Assistant Sessions Judge, 4th Court Alipur, is set aside and the learned Judge is directed to hold a retrial of the accused in the light of observations made above. He will frame fresh charges against the accused, namely, one charge under Sec. 363 I.P.C. against accused no. 1 Dulal only and another charge u/s 368 read with 34 I.P.C. against all the three accused and obtain the pleas of the accused. While preparing his judgment he will formulate points for decision in the light of observations made above and give his decisions thereon upon consideration of evidence already on record. Both prosecution and defence may however, be allowed to adduce further evidence" only in a limited fashion, if they like, in view of framing of charges afresh. Subject to above condition the trial should be held more or less on the evidence already on record. Nothing will prevent the Court from exercising its power under Sec. 311 of the Code of Criminal Procedure and no observation made herein will influence the learned Judge in arriving at his findings on fact. The records of the Court below be sent down without delay with copy of this judgment.