B.K. Behera, J.
1. While the prosecution came out with a story that the appellant Lambodar and his brother-in-law Purnachandra, who figures as the other appellant, had been driven away from the service of Ganeswar Pati ( P. W. 1 ) because of their indecent behaviour towards his daughter Gourimani ( P. W. 3 ) and having kept a grudge, the two appellants kidnapped and abducted Gourimani alias Kunimani, the minor daughter of P. W. 1, from the lawful guardianship of her parents during the night of August 7/8, 1979, while she had gone out of the house to ease herself at about 3 a.m. and was ultimately being forged to marry the appellant Lambodar for which steps had been, taken for registration of the marriage before the Sub-Registrar, Balasore, which was thwarted by the timely efforts of her father and ultimately Gourimani was rescued from the house of the appellant Lambodar in pursuance of an order passed by the District Judge in a proceeding under the Guardians and Wards Action September 11, 1979, whereafter she remained under the care and custody of her father, the case of the defence was that while the two appellants were serving under the father of the girl Gourimani, who was being ill-treated by her parents, Gourimani left the house of her parents and came to stay with the appellant Lambodar who married her and a false case had been foisted against the two appellants who had been charged for kidnapping and abduction- the appellant Lambodar having been charged for the substantive offences punishable under Sections 363 and 365 of the Indian Penal Code ( for short, 'the Code' ) and the other appellant Purna Chandra for abetment of the commission of the two offences by the application of Section 114 of the Code. The prosecution had examined eight witnesses to establish the charge and six witnesses had been examined for the defence to substantiate the case put forward by it. Mr. R. S. P. Patnaik, the learned Assistant Sessions Judge, Balasore, accepted the case of the prosecution, held both the appellants guilty of the charges and convicted them. The appellant-Lambodar was sentenced to undergo rigorous imprisonment for a period of two years under Section 363 and for a period of eight years under Section 366 of the Code with a direction that the sentences would run concurrently and the other appellant was sentenced to undergo rigorous imprisonment for a period of one year under Section 363 read with Section 114 and for a period of four years under Section 366 read with Section 114 of the Code with a direction that the sentences would run concurrently. It is thus that the matter has come up in appeal to this Court.
2. Mr. G. N. Mohapatra, appearing for the appellants, has submitted on the basis of the evidence adduced by both the sides that neither of the two charges had been brought home to any of the appellants. Mr. A. Rath, the learned Additional Standing Counsel, has submitted and very fairly so, that the charge of kidnapping from the lawful guardianship cannot be said to have been established in the absence of clear and clinching evidence from the side of the prosecution that Gounmani was under eighteen years of age at the time of the occurrence. As regards the other offence, the learned Additional Standing Counsel has left the matter for the consideration of this Court and has submitted that the order of conviction in that regard may be sustained although the victim had made prevaricating statements at different stages. The learned counsel for both the sides have justifiably contended that without materials on record justifying such a conclusion, the trial Court has unreasonably observed that the two doctors ( P. W. 6 Dr. Kalpana Dey and P. W. 8 Dr. Prafulla Kumar Kar ) seem to have made statements in order to help the defence and that even the Investigating Officer, belonging to the same 'Pana' caste as the two appellants, had helped them in the course of investigation. In my view, the Court was not justified in drawing such unwarranted inferences. True it is that while submitting the charge-sheet, the Investigating Officer had not named the victim Gourimani as a witness which, as explained by him in his evidence, was owing to oversight, but from this omission coupled with the fact that the name of the Radiologist had also not been mentioned as a witness in the charge-sheet, no inference could be drawn that the Investigating Officer had intended to support the cause of the defence. After all, if the Investigating Officer had any real intention to support the defence and had directed his investigation that way, he would not expose himself by not naming the victim, as a witness in the charge-sheet. If for some reason, the Investigating Officer felt that the evidence of the Radiologist would not be very material in the course of the trial and he omitted his name, an inference could not readily be drawn that his investigation had been actuated with mala fides. The learned Assistant Sessions Judge has observed in the body of the judgment that some highly placed persons in the administrative hierarchy had been attempting to help the defence right from the stage of investigation and also during the trial and had influenced the witnesses without naming who they were. Did the trial Judge have any personal knowledge about such matters If he had, it was not fair that he should have taken up the trial himself. If he had not, he ought not to have made such remarks against public officers including two doctors, A Court is to judge the strength of the case of the prosecution on its evidence and not by drawing unwarranted inferences in its favour. A court is concerned with practical realities to be judged on the materials placed before it and not with fantastic possibilities.
3. A bare reading of the judgment would give an indication that the approach of the trial Judge was basically wrong. He had judged the case by adopting the theory of preponderance of probabilities as in a civil case by discussing the cases of both the sides with reference to the evidence and in particular, by being influenced by the weaknesses in the evidence adduced from the side of the defence. . This is opposed to the cardinal principles of criminal jurisprudence. No doubt, as has rightly been observed by the trial Court, the evidence from the side of the defence in support of its story was not impressive and the witnesses seemed to be belonging to a hostile faction some of whom had strained relationship with Ganeswar (P. W. 1), but it was for the prosecution to establish its case by its evidence and not merely on the basis of some weaknesses or supposed weaknesses in the defence. If there is clear and convincing evidence from the side of the prosecution in support of its case, the falsity of the defence may lend some assurance to the case of the prosecution by being an additional link, but, by itself, it would not lead the Court to a conclusion that the prosecution story must be true.
4. Whoever takes or entices any minor under eighteen years of age, if a female, out of the keeping of the lawful guardian of such minor without the consent of such guardian, is said to kidnap such minor from lawful guardianship. In the instant case, consent of the father of Gourimani had not been taken as would appear from his evidence and it was not also the case of tb.2 defence that Gourimani had come to or had been taken away by them with the consent of her father. Where the kidnapped minor is a girl under eighteen years of age, it is no defence that the accused did not know the girl to be under eighteen years of age or that from her appearance, he might have thought that she was of a higher age. Any one dealing with such a girl does so at his own peril of being prosecuted. If the girl is not under eighteen, no offence of kidnapping is committed.
5. As has been submitted at the Bar, there had been over-writings as to the date of birth in the school register on the basis of which a certificate with regard to the date of birth had been furnished. There has been indications that the horoscope had been changed. The highly interested evidence of the father (P. W. 1) and the mother (P. W. 2) with regard to the age of Gourimani by approximation with reference to the ages of their children could not be received with exactitude while judging the criminal culpability of an accused person. There thus remains for consideration the evidence of the two doctors, P.Ws. 6 and 8. P.W. 6. had opined as per her report (Ext. 7) after x-ray examination that Gourimani was seventeen to nineteen years of age at the relevant time. She had testified in her examination-in-chief :
'... On reading of the X-ray plates and without the report of the Radiologist, I was not definite if the age of Gourimani was 17, 18 or 19. I cannot deny if she was 17 years old at that time. '
She had stated in her cross-examination that Gourimani might be nineteen years of age at the time of her examination. She had further testified :
'...It is true that the possibility of the age of the victim girl being 19 years at that time is not remote and is more probable because of the finding of the Radiologist as per Ext. D. The public hair of the victim girl was well and thickly developed, which factor may also lead to believe that she might be 19 years of age. ...'
P. W. 8 had opined initially that Gourimani might be below seventeen years of age at the relevant time, However, with reference to authoritative extracts from medical jurisprudence during his cross examination, he could not deny if Gourimani was nineteen years of age at the time of her examination. It would thus be seen that the prosecution had failed to establish that Gourimani was a minor within the meaning of Section 351 of the Code defining kidnapping and that she was under eighteen years of age. For these reasons, the learned counsel for the appellants have rightly contended and the learned Additional Standing Counsel has fairly submitted that the charge of kidnapping had not been established.
6. For the offence of abduction, however, age is no factor. Section 362 of the Code provides :
'Whoever by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct that person. '
The volition, the intention and the conduct of the accused determine the offence. If a woman is not compelled to do the acts specified in the section, no offence is committed. Every act done against the will of a person is done without that person's consent, but an act done without the consent' of a person is not necessarily against that person's will which expression imports that the act is done in spite of the opposition of the person to the doing of it. 'Will' means the will of the girl and not that of the guardian. Consent may take the act out of the purview of Section 366 of the Code, where the girl is above the age of consent, but consent would not necessarily take it out of this section, where the seduction is the result of the abuse of authority or of force or other form of compulsion. The mere act of helpless resignation in the face of inevitable compulsion, acquiescence, non-resistance or passive giving in, when volitional faculty is either clouded by fear or vitiated by duress, cannot be deemed to be consent as understood in law. Consent on the part of a woman as a defence to an allegation of seduction requires voluntary, participation, not only after the exercise of intelligence based on the knowledge, significance and moral quality, of the act, but after having freely exercised a choice between resistance and assent. Submission of her body under the influence of fear or terror is no consent. These principles may be kept in mind while judging the evidence with regard to the charge of abduction.
7. As has been submitted by the learned counsel for both the sides, the main evidence in this regard was that of the victim girl (P. W.3). She was the person competent to say as to how and under what circumstances she was found in the custody of the appellant Lambodar as no one else had seen the act of the two appellants taking away the victim girl. The case presented by her in the Court was that while she went out at about 3 a. m. during the night of occurrence for urination outside her house, the two appellants forcibly asked her to come away with them and when she resisted, the appellant Lambodar gagged her mouth and both the appellants caught hold of her and bodily lifted her to the house of the appellant Purna Chandra in spite of her resistance and they confined her in one room and locked it and guarded outside holding a knife threatening to take away her life all the time. After being confined for two days in the course of which her ornaments had been removed from her person, she was asked to dress herself as a male parson which she did under compulsion and then was taken by them to Remuna. She was compelled to marry the appellant Lambodar to which she did not agree. But the appellants brought her forcibly to Balasore in a Tempo threatening her with dire consequences on the paint of knife if she raised any alarm or protest and the appellants asked her to sign on a piece of paper forcibly on the point of knife. She signed involuntarily without knowing the contents of the paper. According to her, no marriage took place between her and the appellant Lombodar in any form. From the office of the Sub-Registrar, Balasore, as her story -went on, the two appellants brought her and kept her in the house of the appellant Lambodar for about a month. The case of the prosecution was that she was found in that house and was recovered on the basis of an order passed by the District Judge and this fact is not disputed by the defence.
8. The initial part of the story presented by her would not appeal to common sense, much less to reason. It was highly unlikely that in a particular night without any previous plan or talk, the two appellants would be waiting outside the house of P. W. 3 at that part of the night to take a chance for abducting P. W. 3, in case there was an occasion for her to come out for the purpose of urination. If as deposed to by her father (P. W. 1), the two appellants had been driven away from their house while they were serving under him because of indecent behaviour on the part of theirs towards his daughter, it would only have been natural on his part to make a report at the police station immediately after the missing of his daughter which, as deposed to by him and his wife, was detected in the morning following the night of occurrence. Although he h d claimed to have gone to the police station and had reported verbally and had been advised by the police officer to make; a search and then approach the police authorities, this assertion of his had not found support in any other evidence. The Officer-in-charge of the police station (P. W. 7 ) had categorically stated that before the first information report was lodged on August 14, 1979, no one had reported to him about the missing of Gourimani (P. W. 3). He had further stated that P. W. 1 had not coma to him prior to August 14, 1979 to report about the occurrence. This would show that all was not well with the story of the prosecution presented at the trial 3rd that the real facts had been suppressed for which no immediate report was made at the police station and after deliberation, a belated first information report was lodged about a week after the alleged occurrence. The delayed first information report, in the circumstances of the case, would certainly affect the bona fides of the story put forward by the prosecution.
9. It is important to note that in the course of investigation, the investigating agency had not placed implicit reliance on the victim girl for which steps had been taken for getting her statements recorded under Section 164 of the Code of Criminal Procedure. The statements made by her before the Magistrate under Section 164 would completely support the case of the defence and would demolish that of the prosecution and her evidence at the trial. These statements had been confronted to P. W. 3 in the course of her cross-examination and she had no option but to deny the statements made before the Magistrate as at the later stage, she had come forward with a story in the Court inconsistent with her previous statements in order to bolster up the case of the prosecution presented at the trial She had stated under Section 164 on September 13, 1979, that about a month prior to that, her father had driven her away from the house without giving her food and after assaulting her, she voluntarily came away and stayed with the appellant Lambodar. She wanted to com/nit suicide, but on the way, she met the appellant Lambodar before whom she narrated her story and thereafter she told Lambodar that she would go with him. The appellant Lambodar declined saying that she was a Brahmin girl and that she should not come with him. She save out that she would go by all means and in spite of the protest of the appellant Lambodar, she accompanied him and stayed with him voluntarily for about a month, She and Lambodar had decided for a registered marriage, but owing to intervention by her father and brother, it could not be effected. These statements before the Magistrate bad been recorded two days after she had been brought away from the house of Lambodar in pursuance of an order passed by the District Judge in the course of investigation while she was under the care and custody of the police authorities and not under the influence of the appellant Lambodar. There could be no doubt, therefor- , that she had made voluntary statements before a Magistrate which would militate against the story presented by her during the trial. The trial Court should not have placed reliance on her evidence given in the Court departing from her statements made under Section 164 of the Code of Criminal Procedure at the stage of investigation.
10. The photograph (M. O. II) of the appellant Lambodar with P. W. 3 taken by D. W. 1 at Balasore would be yet another circumstance demolishing the theory of the prosecution that P. W. 3 had been taken by the appellant Lambodar or by the other appellant against her will and without her consent. The learned Assistant Sessions Judge has unreasonably observed that a look of the photograph would show that the girl h id been compelled to go for the photograph and that she was in a stage of nervousness. On an examination of the photograph (M. O. II) one would clearly be of the opinion that the conjecture by the learned Assistant Sessions Judge is absolutely wrong. The learned counsel for both the sides, on an examination of the photograph, also subscribes to this view and have submitted that the learned Assistant Sessions Judge was not justified in drawing the inference be had drawn. There was no reason to discard the evidence of the photographer (D. W. 1) in this regard. Unfortunate as it might seem, an indication has been given in the judgment as if this photographer also had supported the cause of the defence at the instance of some top Government officials at Balasore and this the learned Assistant Sessions Judge should never have done without any basis.
11. There were in addition, some important statements made by the doctor (P. W. 6) who had examined P. W. 3. She had stated thus:
'...It is a fact that I collected the history of the case from the victim girl before I started to examine her. It is a fact that out of inquisitiveness I collected information from the victim girl before examining her. It is a fact that she appeared before me as a married girl with vermilion on her forehead and veil over her head. It is a fact that she told - me that she married a boy from whose house she was rescued in the temple at Remuna. It is true that she expressed before me that she fell in love with that boy and married him willingly. It is true that she also stated to me that she was not happy with her parents. It is a face that she stated to me that she is not happy for the rescue by the police.'
The learned Assistant Sessions Judge has observed that P. W. 6 was prepared to say 'yes' to whatever question had been put by the defence in the cross-examination. No such inference was warranted. If the defence was in the know of things and was aware of the fact that some statements had been made by the girl before the doctor (P. W. 6) which would support the defence, it was entitled to put suggestions to the doctor in her cross-examination and from the mere fact that the doctor accepted the suggestions made by the defence, it would not follow that she had been gained over by the defence. The evidence of a doctor is to be examined in the same manner as the evidence of any other witness, but unwarranted inference affecting the independence and integrity of public officers is not to be drawn by a Court without any basis.
12. Regard being had to the aforesaid features in the evidence and the inconsistent statements made by P. W. 3 at different stages, it would not be reasonable and proper to accept her evidence given in the Court implicating the two appellants while ignoring her self-contradictory statements made in the course of investigation under Section 164 of the Code of Criminal Procedure, before the Magistrate.
13. It was for the prosecution to establish that the two appellants had abducted P. W. 3 for the purpose of her marriage with the appellant Lambodar against her will and this the prosecution had failed to do. It is, therefore, unnecessary to go into the defence version and examine the evidence adduced in his support which, as observed by the trial Court, had come from interested sources and might not. be worthy of acceptance.
14. It has been brought to my notice that after the prosecution closed its case, it was found out by the learned defence Advocate that P. W. 3 had made similar statements to the Investigating Officer under Section 161 of the Code of Criminal Procedure as made by her under Section 164 and, therefore, an application was made by the defence for further cross-examination of P. W. 3. No doubt, when P. W. 3 was under cross-examination, the learned defence counsel ought to have fully prepared the case and confronted her with contradictory statement, if any, made by her in the course of investigation, but if on account of any omission on the part of the learned defence counsel, that had not been done, the Court ought to have done well in giving an opportunity to the defence to further cross-examine P. W. 3 in the interests of justice. This was disallowed by the Court and undoubtedly, this order had seriously prejudiced the defence.
15. In the result, therefore, the appeal succeeds and the same is allowed. The order of conviction and sentences passed against the appellant Lambodar under Sections 363 and 366 and against the appellant Purna Chandra under Section 363 read with Sections 114 and 366 read with Section 114 of the Indian Penal Code are set aside.