1. This appeal is directed against an order of Sri Matilal Das, Additional Sessions Judge, 24 Parganas, convicting the appellant Gopal Chandra Das, Under Section 366, I. P. O. and the appellant Aswini Kumar Roy, Under Section 366/109, I. P. C. and sentencing each of them to suffer R. I. for 4 years on the unanimous verdict of guilty returned by the Jury. The prosecution case was as follows :
2. On 15-4-1952, a minor girl named Arati Eose alias Baby, daughter of Nirapada Bose was taken away from a busteehouse at 9/1, Gouri Sankar Ghosal Lane within the jurisdiction of Beliaghat Police Station by Gopal Chandra Das. Gopal took her out on the plea that he would take her to Chandmari to witness a musical performance, but he took her to Sealdah Railway Station and then by train to Ranaghat where the other accused Aswini was standing on the platform.
Aswini took the girl and boarded a train due for Pakistan. Gopal after taking Rs. 10/- from Aswini returned from Ranaghat. Aswini took the girl to Pangsa and thence by bullock cart to his own house where he detained her for about a month and a half and during that time he had sexual intercourse with her. After a time the elder brother of Aswini left the girl at Ranaghat and from there she returned alone to Calcutta.
3. On these allegations a charge was framed Under Section 366, I. P. C. against Gopal who actually' took her away from her house and Under Section 366/109 I. P. C. against Aswini, the prosecution case being that Gopal had taken away the girl at the instigation of Aswini. Though the girl was kid-napped from her father's house on 15-4-1952, the charge of abetment against Aswini states that on or about 9 or 10-2-1952, Aswini abetted Gopal in the commission of the offence of kidnapping of Arati. There is no material in the evidence of the girl Arati or in the evidence of any of the prosecution witnesses to justify the allegation that on 9 or 10-2-1952, Aswini had abetted Gopal in the commission of the offence of kidnapping. The proper charge against Aswini would have been one of abetment on or about 15-4-1952, when the girl was actually kidnapped. In view of the prosecution case the charge as framed against Aswini must be regarded as wholly bad.
4. In the circumstances the conviction and sentence of Aswini Under Section 366/109, I. P. C. cannot be sustained and must be set aside,
5. Mr. Das Gupta appearing for the accused says that in this case except the uncorroborated testimony of the girl Arati herself, there is no corroborative evidence against either of the accused and that in view of the defects in the trial the accused should be acquitted altogether. It appears however that though the fact was pointed out to the Jury that there was only the uncorroborated testimony of the girl against the accused, the Jury returned a unanimous verdict of guilty. In the circumstances we consider it proper that the case so far as Aswini is concerned should go back for retrial.
6. As regards Gopal also Mr. Das Gupta has urged that there are illegalities vitiating the trial. In this case the evidence revealed that the girl was already pregnant at the time when she is alleged to have been taken away from her father's house because she delivered a child on 3-10-1952, less than six months after the date of kidnapping. It is clear therefore that there was some sort of intrigue between the girl and somebody before the kidnapping, the prosecution case being that this intrigue was with Aswini.
In this connection Mr. Das Gupta has relied on the case -- 'Taki Mia v. Emperor : AIR1933Cal718 , where it was held that the word 'seduced to illicit intercourse' means 'induced to surrender or abandon a condition of purity from unlawful sexual intercourse' though it is not restricted to inducing a girl to surrender her chastity for the first time but covers the case in which the girl having surrendered her virtue in the past, had returned to a life of purity at the time of the kidnapping; but if the girl was already leading a life of indulgence in unlawful sexual intercourse at the time of the kidnapping, the accused cannot be said to have kidnapped her in order that she might be seduced to illicit intercourse. We agree respectfully that this is the correct position.
7. In this case the learned Judge omitted to place this aspect of the case before the Jury, though he did point out to the Jury that the girl had delivered a child on 3-10-1952 and must have been in intrigue with somebody else from before the kidnapping. Though he also stated at the end of his charge that if they did not find Gopal guilty Under Section 366, I. P. C. they might find him guilty of the lesser charge Under Section 363, I. P. C., the learned Judge did not explain clearly underwhat circumstances a charge would be reduced from one Under Section 366 to one under Section 363, I. P. C.
'The only place where he appears to have dealtwith the clause 'forced or seduced to illicit intercourse' is in the 4th paragraph of Section V of his charge: 'the summing up of evidence'. There he only explained the ordinary meaning of 'forced or seduced to illicit intercourse' and did not deal with the aspect of the girl having been in intrigue from before and did not explain in this connection that if this intention to force or seduce to illicit intercourse failed but if the jury still found that the girl was under 18 and had been taken away from her father's house, the charge would come Under Section 363.
The bare direction at the end that if the Jury found the accused not guilty Under Section 366 they might find him guilty Under Section 363, I. P. C. was not sufficient explanation and it must be held to be a material misdirection. In the circumstances the conviction of Gopal Under Section 366, I. P. C. and the sentence passed thereunder must be set aside: but in his case too, there must be a retrial.
8. We accordingly allow the appeal, set aside the conviction of Aswini Under Section 366/109, I. P. C. and the sentence passed thereunder, and also the conviction of Gopal Under Section 366, I. P. C. and the sentence passed thereunder, and direct that they be retried Under Sections 366/109 and 366, I. P. C. after amending this former charge.
9. Pending re-trial they will be on the name bail.
10. I agree.