1. The appellant has been convicted under Section 373, Indian Penal Code, and sentenced to undergo one year's rigorous imprisonment. The girl in this case is Ranibala Dasi, who, according to the Police Surgeon, was about sixteen years old on December 2, 1921, when he gave evidence.
2. The first question that arises is, whether the appellant obtained, possession of her. It is suggested that she bought her, but there is no evidence of this. It is conceded, however, that the girl has been with the appellant for several years. In cross-examination some questions, were, put suggesting that the appellant was the mother of the girl, but the appellant in the course of her very lengthy written statement, made no such assertion. The, only possible conclusion is, that the girl is not the daughter of the appellant, and that the appellant obtained possession of her some ten years ago, as set out in the charge.
3. The next and most important question is the intention or knowledge of the appellant. Here I may mention that the learned Magistrate does not appear, to have made the mistake of thinking. that the proposed explanation was ever added to the section, whatever mat have been his impression when he framed the charge. He recognised that the onus lay on the prosecution, and, therefore, his reasoning is not vitiated by any fundamental misconception. Proof of intention or knowledge, such as are mentioned in the section, must be almost entirely a matter of inference from circumstances.
4. The appellant is admittedly a prostitute herself. Evidence is given that she has been in the habit of keeping chukries, and appropriating their earnings. One of these girls is Gouribala Dasi, prosecution witness No. 11. The fourth witness, Norendra Nath Mandal, who is not at all hostile to the appellant, says that her house was a brothel, and he had visited it twice within eighteen months of giving evidence. Until about the end of 1918, when Ranibala was a girl of thirteen, she habitually lived with the appellant in such surroundings, and it is clear from the evidence that she knew quite well what was going on. During this time Ranibala received practically no literary education: the Sarkar pf another bariwali was employed to teach her for a few months before she was hurried out of Calcutta at the end of 1918. She did, however, receive training from an ostad: she mentions this herself and the Sarkar says he saw the ostad. It is not denied that an ostad teaches accomplishments that enhance a girl's attractiveness.
5. If we look at this chapter of the girl's life, it seems to me that everything goes to show that the appellant intended the girl to practise prostitution, or knew that she would be likely to do so.
6. The second chapter begins about the end of 1918, when the appellant became alarmed by the action of the Police in regard to the young girls kept in brothels. She hurried Ranibala to Sodepur and left her with Norendra Haiti, the Post-Master, and there she passed as the sister of Norendra's wife. She formed the acquaintance of Nanda Iyal Datta, a Veterinary Surgeon, and his family, and through them of Nirmal Kumar Mitter, a Christian youth; and between her and the latter an attachment grew up. To these witnesses she told her story, and there can be no doubt that she told them very definitely that, in her view, the appellant intended her to be a prostitute, and that she begged them to help her. T think that the importance of this part of the evidence lies in this fact that when Ranibala was for the first time in her life removed from the poisoned environment in which she lived to the clean atmosphere of a respectable Hindu household she realized at once where the life she was living in the Upper Chitpore Road would lead her, and I attach much more importance to what she said about the appellant's intentions at Sodepur than to what she said after the case had been taken up by the Police.
7. After three months at Sodepur, a third chapter was begun by the removal of the girl to a village in the interior of Midnapur. It is on this part of the case that the learned Pleader for the appellant has dwelt at greatest length, lie urges that the appellant put the girl in a good home, made arrangements for her education which were so successful that she won a scholarship, and laid plans for building a home for herself where she could live out her old age with Ranibala married to some villager. He has also laid great stress on Nirmal's intervention, and to Ranibala's supposed infatuation for Nirmal. Ranibala stayed at Asthwapur for a little over two years and undoubtedly she was well treated there and the expenditure was borne by the appellant. Nothing, however, seems to have been done to arrange a marriage for the girl. The appellant does not say in her written statement that she opened negotiations with any one: she only refers to a letter from Ranibala objecting to two men who had been proposed, and in cross-examination of Ranibala all that was elicited was that Norendra Jana had proposed three names. Norendra, however, says that he made no efforts to find a bridegroom, because he knew that no one would marry a prostitute's girl. He does bear out the case that the appellant was trying to make a home for herself, but Kshetramani's desire for a homestead and paddy land has nothing to do with her intentions regarding Ranibala. Nothing, I think, but genuine efforts to secure a suitable husband for Ranibala would prove that Kshetramani wanted her to live as a respectable woman. The only positive statement that the appellant makes about marriage is that she actually went to Asthwapur in February 1921 and gave her in marriage to Kshetra Maiti but this allegation is denied by both Ranibala and Norendra and no evidence is offered in support of it. My conclusion is that there never was any genuine attempt to arrange a marriage for the girl; and I think the explanation of the visit to Asthwapur is that Kshetramani was afraid that Nirmal would carry the girl off and frustrate her plans, while she hoped that Ranibala, finding marriage to be out of the question, would realize that she had no choice but to follow her patron's calling. I have dwelt on the evidence about. Ranibala's life at Asthwapur because it was argued before us that if the appellant had at one time intended to bring up the girl for a life of prostitution, her conduct during those years shows that she had altered her plans and was trying to establish the girl in a decent home. There is a double difficulty in the way of this argument: one is that the appellant herself does not make out such a case: the other is that, as I have tried to show, the facts do not support the view.
8. Then it appears that Ranibala was brought back to Calcutta after about two years in Asthwapur, she was taken for one night to the Upper Chitpur Road and then to the house of Norendra. The explanation offered is that Ranibala was restless. The more probable explanation is that Kshetramani thought that she had reached tan age at which her employment as a prostitute involved no risk.
9. Turning to the other branch of the argument, I cannot understand what bearing Nirmal's conduct has on the question of Kshetramani's intention. Granting that he had formed an attachment for the girl, and that the girl wrote to him with unmaidenly warmth, I fail to see how he prevented Kshetramani from carrying out the honourable intentions that, it is said, she cherished. Certainly, with the first chapter of her life he had nothing to do; and with the girl buried in the heart of Midnapur he did not prevent Kshetramani from finding a suitable husband.
10. In my opinion the only possible conclusion is that Kshetramani intended from the outset that Ranibala should be brought up to follow an immoral calling: and I do not think that there is any reason for crediting her with a change of purpose.
11. Now, I come to the legal point involved in the case. The learned Magistrate has inserted in the charge the words 'at any age.' It was proposed in 1913 to add those words to the section, but the proposal did not become law. A well-known textbook, however, printed them as part of the section. The Magistrate evidently consulted that text-book, and he has fallen into a mistake thereby. The proposed alteration was intended to meet the difficulties created by the construction put on the words 'such minor' in three reported decisions: Queen-Empress v. Ramanna 12 M. 273 : 1 Weir 375 : 4 Ind. Dec. (N.S.) 540, Deputy Legal Remembrancer v. Karuna Baistobi 22 C. 164 : 11 Ind. Dec. (N.S.) 110 and Queen-Empress v. Chanda 18 A. 24 : A.W.N. (1895) 141 : 8 Ind. Dec. (N.S.) 720. Personally, I think, with all deference to the learned Judges who decided those cases, that the construction is unreasonable, and if it were necessary to decide the point I should make a reference to the Full Bench.
12. In the present case, however, the question need not be decided. As was said in the Calcutta decision, Illustration (a) to Section 106 of the Evidence Act has an important bearing on the case. '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.' Here, in my opinion, all the circumstances go to show that the intention of the appellant was to employ the girl as a prostitute as soon as she was physically ready for the purpose, and the burden lay upon her of proving that she intended to wait until the age of majority had been reached. I do not think that she has discharged that burden by showing that Ranibala has reached the age of sixteen without ceasing to be a virgin. That is a position imposed upon the appellant by circumstances outside her own control.
13. I think therefore, that all the elements of an offence under Section 373, Indian Penal Code, have been established, and that the appellant has been rightly convicted.
14. The appeal is accordingly dismissed.
15. I agree.