BHUPENDRA NATH GHOSHAL Vs. DULAL DEY

JUDGEMENT

(1.) ON behalf of the defacto complainant the legality of a judgment of acquittal in a sessions trial under section 368 read with section 34 I. P. C. is being challenged in this rev. case under Sec. 401 read with sec. 482 Cr. P. C. 1973. It is contended that a bare outline of the facts, the learned Judge's manner of framing charge and discussion of evidence adduced show that there has been a gross miscarriage of justice necessitating a retrial.

(2.) DEFACTO complainant examined as p. W. 2. has a daughter who was examined as P. W. 1, P. W. 3 is a qualified medical practitioner. Having passed her madyamik Examination P. W. 1 was reading in class XI in a College. On 3. 8. 78 she went out of house avowedly for the purpose of attending her classes but aid not return. P. W. 2, the father, made anxious enquires with friends and relations in whose house P. W. 1 might have gone, but could not trace her out. On 4. 8. 78 P. W. 4 an acquaintance informed rv. W. 2 that he had seen P. W. 1 on 3. 8. 78 with some friends in front of a sweet-meat shop standing close to an important road crossing. P. W. 5, another acquaintance, told P. W. 2 on 5. 8. 78 that he had seen P. W. 1 along with accused No. 1 ana others walking along a lane near the shop earlier referred to. On the basis of the information so gathered P. W. 2; went to ihe house of accused No, 2 on the said lane and found P. W. 1 there. The three accused however, did not allow P. W. 1 to come along with her father. P. W. 2 and gave, out that accused no. 1 had married her. On 6. 8. 78 at about 8 A. M. P. W. 2 lodged information with local thana alleging commission of offence under section 363 and 3651 i. P. C. by the accused. After usual investigation police submitted charge sheet and the accused were committed to the court of Sessions thereafter. Eventually the Sessions Case was transferred to arc. Assistant Sessions Judge. The learned judge after taking into consideration evidence of 17 witnesses examined by the prosecution, a number of documents exhibited both by prosecution and defence and the statements of the accused recorded under Sec. 313 Cr. P. C. has found the accused not guilty and has acquitted them by the judgment under attack. . I

(3.) SINCE the principal offence alleged is under Sec. 363 I. P. C. it is necessary to recall the important elements of the offence of kidnapping from lawful guardianship " as denned in section 361 I. P. C in the instant case a girl was allegedly kidnapped. So it was the duty or the prosecution to prove amramatively that P. W. 1 on 3. 8. 78 was under eighteen years 01 age. The second important element the prosecution was required to prove, was that P. W. I was either taken away or enuced away by the accused, act or taking away implies use of actual or constructive, or in other words, close physical association of me accused with tne victim at tne tune of commission of crime. "enticement'- on the otherhand involves the idea of inducement as allurment given by the accused from a distance to the victim. For proper appreciation of what constitutes enticement relerence may be made to the decision of the Supreme Court in the case of Thakorelal vs Yadgma reported in A. I. R. 1973 S. C. 2313. To prove the age of P. W. 1, the victim in this case prosecution led three fold evidence. First of all both parents of hers, namely, P. W. 2 and 3 were examined and they deposed that P. W. 1 was born on 20. 12. 62 at Bally, Howrah, at the residential house of P. W. 3's father. P. W. 1 also deposed in the same vein regarding her age. Secondly prosecution adduced documentary evidence in the shape of school admission Register Ext. 6/1 conjointly proved by P. W. 1, 11 and 16 showing that on 15. 1. 70, more than eight years before the occurrence, P. W. 1 was admitted in school with 20. 12. 62 declared as her date of birth. College admission register Ex. 3/1 proved by P. W. 12 indicated the identical date, namely, 20. 12. 62 as the date of birth of P. W. 1. P. W. 1 explained nonproduction of the admit card issued to her at the time of her Madhyamik examination and deposed that the accused had obtained custody of the same from her. The point to note is that if the Judge required reassurance he could lake resort to Section 311 oi the Cr. P. C. , summon any officer of the Board of Secondary Education, west Bengal, requiring production of relevant papers, necessary details regarding roll No. School etc. of P. W. 1 were easily obtainable from Ext. 3/l and P. W. 12 deposed that she had only verified them with reference to admit card. The learned Judge, however, omitted to proceed in the way indicated above. Thirdly, prosecution also led evidence in the shape of medical opinion regarding the age of P. W. 1, namely Ex. 2 (1) a report prepared on the basis of X Ray plates. The doctor preparing the report' on 3. 11. 78 clearly opined that P. W. 1 was approaching 17 years of age. The doctor opining as above as however, after dead at the time of trial and his report was proved by another doctor, namely P. W. 9. Police had referred P. W. 1 to another doctor also for ossification test, namely, p. W. 13 on 10. 8. 78. P. W. 13 opined that p. W. 1 seemed to be 18 to 19 years of age. The point to note is that P. W. 13 was declared hostile by the prosecution while he was in the witness box. The letters of accused No. 1 addressed to P. W. 1 marked Ext. 5 series revealed his anxiety regarding the medical report.