Banrjee and Sale, JJ.
1. This is an appeal by the Local Government under Section 417 of the Code of Criminal Procedure against an order of the Sessions Judge of Bankura acquitting on appeal the accused Karuna Baistobi, who had been convicted by the Deputy Magistrate of that district under Section 373, Indian Penal Code, for buying two minor girls for the purpose of prostitution: The undisputed facts of the case are that the accused Karuna Baistobi purchased the two girls from their father on two dates separated by a short interval, the first one for Rs. 9 and the second for Rs. 14; that the girls are twins about one year old; and that their father sold them, their mother being dead and he having found some difficulty in bringing them up. The question that really arises for determination in this case is whether the girls were bought with the guilty intention or knowledge which is requisite under Section 373 to constitute the offence made punishable by that section. The evidence adduced in proof of such guilty knowledge or intention consists of the confession of the accused, and of the deposition of certain witnesses who say that the accused is herself a prostitute, that she has brought up another girl from her in fancy, a girl named Amadini who is now living with her in her house and is leading the life of a prostitute, that it is the practice with prostitutes in that part of the country to buy girls for the purposes of prostitution, though sometimes such girls are married, and that even where they are married, it is rarely that they come to live with their husbands. There is also some evidence tending to show that the girl Amadini is leading the life of a prostitute of her own accord, and was never induced by the accused to do so, and, further, that the accused purchased the two girls in question with a view to bring them up, so that they might take care of her in her old age. Upon all this evidence the Deputy Magistrate, who tried the accused jointly with the father of the girls, Haradhan Mandal, on charges under Sections 372 and 373, Indian Penal Code, held that the guilty intention required by Sections 372, 373 had been made out, and he accordingly convicted both the accused Karuna Baistobi and Haradhan, the father of the girls, the former under Section 373 and the latter under Section 372, Indian Penal Code, and sentenced each to rigorous imprisonment for nine months. They preferred separate appeals to the Sessions Judge, and the learned Sessions Judge dismissed the appeal of Haradhan Mandal, but, on the appeal of Karuna Baistobi, reversed the finding and sentence and acquitted her. The ground upon which the judgment of the learned Sessions Judge in the case of Karuna Baistobi is based is not that upon the facts no guilty intention or knowledge that the girls would be employed for purposes of prostitution had been made out, but that, as a matter of law, no offence under Section 373 can be said to have been committed if the guilty intention or knowledge as to the employment of the girls purchased is not as to their present employment for the purpose of prostitution; and, as in the present case, considering the age of the girls, their present employment for purposes of prostitution was physically impossible, the learned Judge is of opinion that no offence under Section 373 has been committed. Against this judgment of acquittal the Local Government has preferred this appeal, and the Public Prosecutor has also obtained a rule, which we shall dispose of presently, calling upon the other accused, Haradhan Mandal, to show cause why the sentence passed upon him should not be enhanced,
2. We have given to this case all the anxious consideration that criminal cases, involving, as they do, interference with the liberty of the subject, generally, and appeals against orders of acquittal specially, demand. The law by limiting the right of appeal against judgments of acquittal to the Local Government, prevents personal vindictiveness from seeking to call in question judgments of acquittal by way of appeal, and evidently intends that such interference shall take place only in cases where there has been a miscarriage of justice so grave as would induce the Local Government to move in the matter. We think it is a most salutary principle, quite as necessary for the well being of society as the repression and punishment of crime, that interference with judgments of acquittal should take place only in cases where there has been a miscarriage of justice of a grave nature; and if in this case the learned Judge had found on the evidence that he could not safely rely upon the confession of the accused, and that the other evidence was not sufficient to warrant the conclusion that there existed guilty knowledge or intention on her part, we should have felt the greatest possible hesitation in interfering with his judgment. But as it is, that is not the ground of the acquittal in this case. The ground of the acquittal as I have stated above is that, as a matter of law, no offence under Section 373 can be said to have been committed unless the intention or knowledge of likelihood that the minor girl purchased shall be employed for purposes of prostitution is an intention or knowledge of likelihood that such employment is to be immediate. This is what the learned Judge says: 'It appears to me in this case that the appellant is entitled to be acquitted. The intention that the girls, who were less than a year old, should be employed or used as prostitutes cannot be said to have been sufficiently proved. Intention must be used with reference to some definite future time or contingency, and here it would be, I think, carrying the law too far to make it mean that the intention has reference to the time when some twelve or fourteen years later the girls may come to be of such an age as to be able to be employed or used as prostitutes. It is not indeed distinctly stated that the intention must be that the girl is to be immediately so employed, but I think that this is the only method of construing the section.' Now, if the learned Judge's view of the law were accepted, it would lead to great miscarriage of justice; for, in that case, the protection from vice, so far as the Criminal Law affords it to the infant, would be denied in the case of those for whom it is most needed and evidently intended. Though in the case of a girl purchased for the purpose of prostitution who has attained physical maturity sufficient for the purposes of vice, the evil day is near at hand, and so far her fate is to be pitied more than that of one in whose case the evil day is more distant, yet with the physical maturity attained, there is a certain amount of mental capacity acquired which would enable her to resist vice if she is so minded. But in the case of infants of tender years, like the two little children in this case, considering the surroundings under which they would be brought up, it would be practically impossible for them to exercise any moral judgment when the time comes for them to choose their course of life. It would, therefore, in our opinion be a most unreasonable construction to put upon Section 373, to say that an offence under that section is not complete unless the intention or knowledge of likelihood as to employment for the purpose of prostitution is with reference to employment either immediate or at some definite and not very remote future period. We think that an offence under that section would be complete as soon as a girl is purchased with the guilty intention or knowledge of likelihood that she shall be employed for the purpose of prostitution, although the point of time for such employment may be remote by reason of her physical incapacity for the purpose. The main question in the case then, as we have stated above, is whether the purchase of the two minor girls was with the intention that they should be employed for the purpose of prostitution or with the knowledge of likelihood that they should be so employed. Upon that question, which is really a question of fact, the judgment of the learned Sessions Judge does not afford us any assistance. We here feel it our duty to add that we have derived most material assistance in this case from the exhaustive, yet concise, and the cogent, yet temperate, arguments advanced by the learned Deputy Legal Remembrancer and by Baboo Baidya Nath Dutt, who respectively represented the Crown and the accused.
3. Before proceeding to discuss the evidence, we think it proper to observe that, in order to constitute an offence under Section 373, Indian Penal Code, there must be the buying of a minor girl under the age of 16 years with intent that such minor shall be employed for the purpose of prostitution or with the knowledge of likelihood that she shall be so employed, while yet a minor under the age of 16. The offence will not be constituted if, notwithstanding the existence of such intention or guilty knowledge, the employment that is intended or known to be likely is to take place after the completion of the sixteenth year by the minor. This is clear from the language of the section; and if any authority were needed in support of this view, we might refer to the observation of Muttusami Iyer, J., in the case of the Queen-Empress v. Ramanna I.L.R. 12 Mad. 273. That then being the kind of intention or knowledge which must be shown to exist before an offence under Section 373 can be said to have been committed, let us now see how far such intention or knowledge is proved to have existed in this case by the evidence adduced. The confession of the accused no doubt affords the most direct evidence of the existence of such an intention; but considering the circumstances under which the confession was made and subsequently retracted, we do not think it would be safe to find the existence of guilty knowledge or intention solely upon the basis of that. The confession was made on the 16th of July in the evening between the hours of 6 and 8 P.M., the arrest having been made at 6, and the order directing her to be taken to hajat being made at 8. The order for taking the accused to hajat directs her detention there for seven days, and she appeared again before the Deputy Magistrate to take her trial on the 23rd July. On that very day she retracted her confession. A confession so made and retracted must always be open to suspicion; and I would repeat what I had occasion to observe more than once that I feel considerable force in what Cave, J., says in the case of The Queen v. Thompson L.R. 1893, 2 Q.B. 12 where he remarks: 'I would add that for my part I always suspect these confessions, which are supposed to be the off-spring of penitence and remorse, and which, nevertheless, are repudiated by the prisoner at the trial.'
4. It was argued by the learned Deputy Legal Remembrancer 173] that, conceding that there was any ground for suspicion regarding the genuineness and voluntary nature of the confession of the accused Karuna Baistobi, there was the confession of the other accused, Haradhan Mandal, who was tried jointly with her, and which was never retracted, which might be used as evidence under Section 30 of the Indian Evidence Act; and it would go to show that the intention was such as Section 373 requires. We are of opinion that that confession is not legally admissible in evidence against Karuna Baistobi. Section 30 provides that when more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession, and the explanation appended to that section by Act III of 1891 says: 'Offence as used in this section includes the abetment of, or attempt to commit, the offence.' Upon this it is argued that as the offence for which Haradhan Mandal was tried, viz., the selling of the minors whom Karuna Baistobi bought, was in reality an abetment of Karuna Baistobi's offence, the confession of Haradhan was legally admissible as evidence against her. We do not consider this contention sound. Perhaps Haradhan might have been tried for the abetment of the offence with which Karuna was charged; but, as a matter of fact, he was not so tried. He was tried for a substantive offence under the Indian Penal Code, viz., an offence made punishable under Section 372, and we do not think it would be right to extend the explanation in the way we have been asked to do.
5. But though the confession of Karuna Baistobi may not be safe to be relied upon, if it had stood alone, and though the confession of the other accused is not admissible in evidence against her, we think there is plenty of other evidence to show that the purchase of the two girls by Karuna Baistobi was with intent that they should be employed for the purpose of prostitution. We quite agree with the learned Vakil for the accused that it is for the prosecution to show the existence of such intention, and that the existence of such intention must be proved by strong evidence. But the evidence to prove the existence of an intention need not be limited to statements by the accused herself, admitting the existence of such an intention in her own mind, or to the evidence of some person who can come forward and swear that he heard the accused say that that was his or her intention. The existence of an intention, like any other fact, may be proved by evidence of conduct and circumstances, and here we think there is ample evidence afforded by the conduct of the accused, and the circumstances of the case, to show that her intention in buying these girls was that they should be employed for the purpose of prostitution. No doubt there is some evidence to show that prostitutes in this part of the country do sometimes bring up girls for the purpose of having them married, but the weight of evidence is altogether the other way, viz., that, as a rule, they buy girls for the purpose of making them live the life of a prostitute. If a prostitute advanced in life were to adopt a girl, it might be that, moved by remorse, she might do so with the object of having some one to take care of her in her old age, who was leading an honest life and was not like one of her ordinary fallen sisters. Possibly there might have been room for such a contention if the purchase in this case had been confined to one girl only. As it is, we find that within a week of one another two purchases were made by the accused, one for Rs. 9 and the other for Rs. 14; and it is incredible that she intended to bring up both these girls for the purpose of disposing of them in marriage, and having as her adopted daughters two young women leading honest lives. We are quite free to own that, apart from the evidence, the presumption mast always be in favour of innocence. But here the circumstances all tend the other way. Then, again, we have it clearly in evidence that the accused is not altogether a stranger to this line of conduct, viz., of buying girls to be employed for the purpose of prostitution. It is proved that she did buy another girl, then an infant, whom she brought up and to whom she has bequeathed all her property, who is still living with her and is leading the life of a prostitute. Illustration (a) to Section 106 of the Evidence Act, to which the learned Deputy Legal Remembrancer called our attention, has an important bearing upon the question we are now considering. That illustration is to this effect: 'When a person does an act with some intention other than that which the character and circumstances of the act suggest the burden of proving that intention is upon him.' If notwithstanding the act of purchase of these two girls successively, the intention was something other than that which would evidently be suggested by the character and circumstances of the act, it was for the accused to have shown that, but no such thing has been shown on the part of the accused. A further argument was raised that, although all this may go to show that the intention was that the girls should be employed for the purpose of prostitution, still they did not sufficiently show that the employment intended was to be before the completion of the sixteenth year by the girls. Here, again, the provisions of the Evidence Act referred to above would show that it was for the accused to prove that she intended to put off the employment until the completion of the sixteenth year. The age of maturity for the purpose of prostitution is attained before the completion of the sixteenth year, and there is nothing shown why it should be held that, though the intention was that the girls should be employed for the purpose of prostitution, the intention was nevertheless qualified to the extent that the employment was not to take place until the sixteenth year was completed. We must view the matter as one of ordinary common sense; and we think it would be refining too much to say that the intention, though it existed generally, was yet qualified to this extent that the employment intended was to be deferred till some considerable period after the attainment of physical capacity for the purpose. The result then is that the judgment of acquittal must be reversed and the accused convicted of the offence punishable under Section 373, Penal Code.
6. The next question is the question of sentence. We were asked to treat the offence lightly, considering that it has been committed by a prostitute of low class. No doubt if the offence had been committed by another person with better education or better surroundings its enormity would have been greater; hut the mere fact of its having been committed by a low class prostitute would not be sufficient to induce us to treat the offence lightly and to visit it with a nominal punishment. Considering all the circumstances of the case, we think the punishment that was inflicted on the accused by the Deputy Magistrate who convicted her would be sufficient to meet the ends of justice; and we accordingly sentence her to nine months' rigorous imprisonment.
7. In the rule that was obtained against Haradhan Mandal, no one has appeared to show cause. His offence is of a more aggravated nature. He was the natural guardian of these infants. It was his duty to protect them, not only against physical evils, but also, so far as it was in his power, against moral evils. Instead of doing anything of the kind he sold them for the purpose of prostitution as he himself admits, for money, and on the second occasion there was a regular haggling for the price. All this, in our opinion, greatly aggravates his offence; and though we are, as a rule, extremely disinclined to enhance sentences, in the present case, we think the ends of justice require that we should exercise this exceptional power. We accordingly enhance the sentence in this case to rigorous imprisonment for eighteen months.