1. The appellant Taki was convicted under Section 366, I.P.C., of kidnapping a minor girl named Puspalata in order that she might be forced or seduced to illicit intercourse, Kalan under Section 368 for wrongfully concealing or confining the girl and Sabbal under Section 368/109 for abetting him.
2. The case for the prosecution was that on 10th February 1932, Taki came to Puspalata's house in the evening when her parents were away from home, and on the pretext of taking her to her mother Matangini, who, he said, was ill, he induced her to accompany him. He put her into a motor car, and after going for some distance Sabbal and others got in. The girl grew suspicious, and was threatened by Taki with a knife. When they arrived at Shamnagar, she was taken to a house where she was kept for a month, during which time Taki cohabited with her on many occasions by threatening her with a knife and by gagging her. Next she was taken to Titagarh where she was kept for about 10 days and Taki cohabited with her as before. Next she was taken to Calcutta to Taki's sister and kept locked up for about ten days. Meanwhile her parents made inquiries and learnt from their younger children that Taki had taken Puspalata away. He was a neighbour and was on familiar terms with the family. Both the father Sudhir Biswas and Puspalata are Indian Christians. Sudhir reported the matter to the police on 13th February, saying that the girl had gone away with Taki 'over an illicit love.' Matangini questioned Taki and he promised to find the girl and restore her to her parents. After waiting a month without result Matangini filed a complaint before the Magistrate on 14th March saying that Taki had enticed the girl away either to marry her or for some other immoral purpose and a case under Sections 363 and 366 was started against him at Barrackpore.
3. About 23rd April the girl was taken from Taki's sister's house to Howrah Station in a motor-car by Taki, Sabbal and others. She was dressed in pyjamas and a borkha. Sabbal took her by train to Jaunpore Station and from there to Kallan's house, where she was kept confined until 9th August. Kallan is related to Taki. The kotwali police were searching for another girl and came to Kallan's house to make inquiries. At first Kallan denied that any girl was living in the house, but subsequently he produced Puspalata clothed in Mahomedan dress. She made a statement which was sent to the Noapara Police and by them to the Magistrate at Barrackpore. Subsequently Taki, Sabbal and Kallan were committed to the Court of Session. Puspalata was taken home and was found to be pregnant.
4. In her statement to the police, which was made in Bengali and translated into Urdu by a Bengali Babu, she said that there was 'asnai' between her and Taki for about a year, but her parents were not aware of it. After two months of the ''asnai' Taki asked her to elope with him and said that he could keep her in comfort and marry her. About two months after the elopement he told her that her parents had instituted a case against them and that she must go to Jaunpore or she would be detected by the police. She did not say anything about Taki having taken her away on the pretext that her mother was ill, nor did she mention anything about being threatened with a knife or being locked up anywhere. One of the witnesses from Jaunpore stated that Taki said that he had married a second wife in Calcutta, and that he had brought her to Jaunpore to live in Kallan's house. Another said that he used to see Puspalata on the terrace, and in other parts of Kallan's house. She used to visit his house and other neighbours' houses.
5. The defence was a simple denial. On behalf of Sabbal and Kallan it has been urged that there was no evidence to show that either of them knew that the girl had been kidnapped, or that Kallan concealed her and that the Judge failed to direct the jury adequately about the separate cases of these two accused. These criticisms are in my opinion justified. There is no direct evidence on the points mentioned. The circumstantial evidence depends upon whether the girl's story about being threatened with a knife during the journey and about being concealed at Kallan's house can be relied upon. Her original statement to the police and the evidence of the witnesses from Jaunpore suggest that this part of her story at the trial was not true, and was invented, very naturally in order to assist her to regain the estimation of her parents and friends. Kallan's first denial of her presence in his house is not surprising, confronted, as he was, suddenly, by police officers and being taken unawares. The Judge failed altogether to direct the jury upon these points, which were so important to both Sabbal and Kallan, nor did he make any attempt to deal with their cases separately, beyond a general direction and he misdirected the jury by telling them that by merely delivering the girl to Kallan, Sabbal abetted him without pointing out to them that it was necessary to be satisfied that Sabbal had a guilty mind. In these circumstances the convictions and sentences imposed upon Sabbal and Kallan must be set aside and they must be acquitted.
6. The main argument which has been raised in favour of Taki is that illicit intercourse had taken place for some time prior to the kidnapping, and that in such circumstances the girl cannot be said to have been kidnapped in order that she might be seduced to illicit intercourse. In deciding this point the reported cases are not very helpful. R v. Moon (1910) 1 KB 818 was a case under Section 17, Children's Act, 1908, which provides that if any person having the custody of a girl under sixteen causes or encourages her seduction or prostitution, he is guilty of a misdemeanour. It was decided by the Court of Criminal Appeal that the word 'seduction' in that section means inducing a girl to surrender her chastity for the first time, 'which is the usual and ordinary sense' of the word. If mere carnal knowledge was intended, there was no object in using the words 'seduction or prostitution:'
To encourage the seduction of a girl means to encourage her to surrender her chastity for the first time.
7. On the other hand Channell, J., who tried the case, told the jury that though the popular sense of the word was as stated, he thought, though with considerable doubt, that in that section it was not intended to be so restricted, but applied to any fornication or continual connexion between unmarried persons. In Emperor v. Nga Ni Ta (1903) 10 Bur LR 196, Adamson, J., considered that:
it was a monstrous proposition, and one that would strike at the very roots of social and moral rectitude to hold that, because a man induced a girl, while in the custody of her parents, to surrender her chastity, he committed no further act o seducing to illicit intercourse, when he persuaded her to live with him in a condition of concubinage not sanctioned by marriage.
8. This statement however is not of much assistance, because it must be remembered that we are not here considering any question of social and moral rectitude, but one of law. Nevertheless this view was followed in Emperor v. Pessumal AIR 1927 Sind 97 where it was held (one Judge being doubtful) that the word 'seduction,' as used in Section 366, is not to be confined to the first connexion with an unmarried girl:
When a man has induced a girl, while in the custody of her parents, to surrender her chastity to him and there after induces her to leave the protection of her parents and live with him in a condition of concubinage not sanctioned by law, he commits an offence under Section 366. Every time a woman surrenders herself to a lover, whether it is the first or the twentieth time, there is seduction.
9. This interpretation of 'seduction' would allow no special meaning to the word, but would treat it as equivalent simply to having or persuading to have sexual connexion. This view was again accepted in Emperor v. Premnarain : AIR1929All270 where it was held that previous intimacy was wholly immaterial, and in Emperor v. Krishna Maharana AIR 1929 Pat 651. In Emperor v. Prafulla Kumar Basu : AIR1930Cal209 the accused had ravished a married minor girl in his own house which he had persuaded her to visit at a time when she was living in the custody of her parents. Subsequently he enticed her away from her home by deceit and cohabited with her at various places. It 'was held that 'seduction' in the section is not used in the narrow sense of inducing a girl to part with her virtue for the first time, but includes subsequent seduction for further acts of illicit inter-course. In Emperor v. Baijnath : AIR1932All409 it was held that the term 'seduction' can only properly be held applicable to the first act of illicit intercourse, unless there be proof of a return to chastity on the part of the girl meanwhile, or unless possibly there is an intention on the accused's part that the girl should be seduced by some different man:
Section 366 cannot apply where the accused has been carrying on an intrigue with a girl under sixteen while in the custody of her guardian and goes away with her because obstacles are put in the way of the intrigue, even though he goes away with her with the intention of carrying on that intrigue, that is to say, continuing the illicit intercourse already begun. 'Kidnapping a woman in order that she may be seduced to illicit intercourse is manifestly different from kidnapping a woman whom he had already seduced to illicit intercourse.
10. It is clear therefore that two opposing views upon the point are disclosed in these and other decisions which have been collected at pp. 1865, 1866 and 1867 of Gour's Penal Law of India (Edn. 4), 'Vol. 2. Thus in Emperor v. Nga Nge (1905) UBR 17 it was stated that:
the extra three years prescribed by Section 366 are most appropriate for the intention to bring force or persuasion to bear on the girl after she has been removed from the shelter of her home... it is contrary to the well-known rule of construction of penal statutes to say that an intention to seduce to illicit intercourse can be presumed when the girl has already consented to illicit intercourse.
11. In the first place it is necessary to observe that 'seduced to illicit intercourse' may be, and probably is, intended to indicate something different from 'seduction,' otherwise the latter well-known word would have been used in the section. 'Seduction' in the usual, ordinary or popular sense of the word, means inducing a girl to surrender her chastity for the first time: R v. Moon (1910) 1 KB 818. On the other hand 'seduced to illicit intercourse' must be intended to mean something more than merely 'persuaded' or 'induced,' otherwise one of the latter more general and more ordinary expressions would have been used. Most women, and even prostitutes, need or pretend to need to be persuaded or induced by one means or another to indulge in sexual intercourse, however often the intercourse takes place, and though their companion is the same every time.
12. According to the Oxford Dictionary seduce is derived from the Latin word 'seducere,' meaning to lead aside or away. Thus (1)to persuade a servant to leave his service. This is the foundation of the Common law action for seduction, i.e. for seducing a virgin: (2) in a wider sense to lead (a person) astray in conduct, to draw (a person) away from the right course of action to or into a wrong one; and (3) to induce (a woman) to surrender her chastity. Now said only of the man with whom the act of unchastity is committed (not e.g. of a pander). It is stated that (3) is now the prevailing sense and it is necessary therefore to ascertain the meaning of 'surrendering her chastity.' According to the same authority 'chastity' means (1) purity from unlawful sexual inter-course; continence. Thus 'the first degree of chastity is pure virginity, and the second' faithful matrimony.' (2) Abstinence from all sexual intercourse; virginity; celibacy. 'Chaste' means (1) pure from unlawful sexual intercourse; continent, virtuous; (2) celibate, single. Thus it is clear that a wife may be chaste and may be seduced, that is to say, induced to surrender her chastity, by some man other than her husband. Therefore 'seduced to illicit intercourse' in Section 366 cannot be intended to be restricted to inducing a girl to surrender her chastity for the first time. At first sight the expression appears to be tautological, but on further consideration it seems to have been used deliberately to indicate a distinction between seduction in the popular, usual or ordinary sense, described in R. v. Moon (1910) 1 KB 818 and that which Section 366 was intended to cover. Illicit intercourse 'seems to be intended to be synonymous with' unlawful sexual intercourse.' It follows from the definitions given that 'seduced to illicit intercourse' means 'induced to surrender or abandon a condition of purity from unlawful sexual intercourse.'
13. Therefore an accused cannot be convicted of this offence unless it is proved that the girl was leading a life pure from unlawful sexual intercourse at the time when the kidnapping took place. This does not mean that it is necessary to prove that the girl has never at any time surrendered her condition of purity from unlawful sexual intercourse. She may have surrendered it in the past, and thereafter have resumed a life of purity. On the other hand if she is already leading a life of indulgence in unlawful sexual intercourse at the time of the kidnapping, it cannot be said with any reason or sense that she was kidnapped 'in order that she might be seduced to illicit intercourse' within the meaning of the section. In such a case the accused could not have kidnapped her in order that she might be led astray in conduct, or drawn away from the right course of action into a wrong one, because she was already astray, and was pursuing a wrong course at the time of the kidnapping. The learned Judge therefore misdirected the jury on this point, because he told them that the fact of previous intimacy with the girl was wholly immaterial. It remains to be decided whether Puspalata was living a life of indulgence in unlawful sexual intercourse with Taki at the time when he kidnapped her. Two main points have been argued on behalf of the accused to show that she was. She told the police on 9th August that there was 'asnai' between her and Taki for about a year, and that after two months of the 'asnai' Taki asked her to elope with him.
14. It is argued that asnai means illicit intercourse, but there is no direct evidence on the point. No one seems to have thought it necessary to ask any of the witnesses what the word meant, or the girl or the police what she or they meant when they used that expression or whether she used that word at all, or some Bengali equivalent. According to Shakespeare's Hindusthani Dictionary (Edn. 4, 1849) 'ashna' means an acquaintance, lover, friend. 'Asnai' means friendship, acquaintance. 'Ashnai Kama' means to associate, to be familiar, to unite. 'Ashnai lagna' means to become intimate, to be united in friendship. It is clear that the girl used it to describe her relationship with Taki not only during the two months or more which elapsed before the elopement, but during the six months which followed, and during the latter period there is no doubt that she was cohabiting with the accused. It is a reasonable inference therefore that the girl used the word to describe in a modest way a relationship of illicit intercourse with Taki, which began two months at least before she left home. Moreover on 9th August she was found to be pregnant, and she stated that while at Calcutta her belly became larger. She said also that while she was at Calcutta she felt the foetus moving a little in her womb, and then, that she did not understand the question; also that at Calcutta her belly was not so high (apparently with reference to some measurement suggested to her). She gave birth to a child on 20th October, that is to say about eight months and 10 days after the date when she left home. She stayed a month at Shamnagar, 10 days at Titagarh and 10 days at Calcutta. If these dates may be accepted as substantially accurate, the enlargement of her abdomen must have begun one month and 10 to 20 days after she left home.
15. But according to Lyon's Medical Juris-prudence for India by Waddell, Edn. 7, at p. 277, up to the end of the third month no enlargement of the abdomen is perceptible. Quickening may be felt as early as the 12th week, but generally between the l4th and 24th week. The reasonable inferences to be drawn from, these facts are that Puspalata was pregnant before she left home, and that illicit intercourse was going on between her and Taki immediately prior to the kidnapping, and probably had been going on for sometime before that. Consequently it cannot be said that he kidnapped her, in order that she might be seduced to illicit intercourse, and his conviction under Section 366 must be set aside, and he must be acquitted.
16. I agree, for the reasons which have been given by my learned brother.