ASWINI KUMAR ROY Vs. STATE

JUDGEMENT

(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.