BISESWAR MISRA Vs. KING

JUDGEMENT

(1.) THE accused in this case who is the appellant before ua has been convicted of an offence under Section 366, Penal Code, and has been sentenced to 4 years rigorous imprisonment and a fine of Es. be O and in default to another six months rigorous imprisonment. The case against him is that he kidnapped a minor girl, Asli by name who was below 16 in age and who is the married wife of one Gulthu Singh with the in-tantion of seducing her for sexual intercourse. The prosecution case is as follows:

(2.) ASLI, P. W. 13, is the married wife of one Gulthu Singh, P. W. 1. She is below 16 years of age and was living with her husband at a place called Dhandatopa, There was a quarrel between them on a certain Friday, 17th January 1947 and as a result of that quarrel the girl left her husband's house on the morning of the next day 18th January 1947, when her husband was away from the house'. having gone to his work. He found her missing when he returned back to his house at 12 noon. The girl herself be arded the service Bus operating between Athmallick Garb, and be inda. She be arded the Bus that morning at a place called Similia near to her place of residence, Dhandatopa. It may be mentioned for clearer understanding of facts that this service Bus, as has been explained to as at the Bar, starts in the morning at Athmallick Garh, passes Via Dhandatopa and a place called Thakurgarh and goes to be inda, and returns back from be inda to Athmallick Garh by the same route at about evening time, The girl left her husband's house with a few belongings with the idea of seeking temporary shelter with her uncle at a place called Gurujang which is said to be about 12 miles from the bus terminus at be inda. She reached be inda terminus, but did not get down there. The accused is the conductor of the Bus who was in charge of the Bus for the to and fro journey on that date. When the girl did not get down at the Bus terminus, the accused is said to have got into touch with her and found out that she had come away on account of a quarrel with her husband and with a view to go to her uncle's place 12 miles away. He is said to have suggested to her that the uncle's place was far away and that it was difficult for her to reach that place and that she might return back by the same Bus and go back to her husband's place at Dhandatopa or to the place of her brother, ia-law at Athmallick Garh, The girl fell in with the idea and came back with the return journey of the Bus, At Thakurgarh, the A. 8. 1, of Police, P. W. who was also a relation of her husband, P. W. 1, and who had re-ceived information by phone from P. W. 1 that his wife was missing saw her and told her that her husband was anxiously searching for her and that she should go back to her husband's place and instructed the accused who wa3 the Bua conductor to get her down at her husband's place, Dhandatopa. It is said that at Dhandatopa the bus was about to be stopped by the Bus driver, P. W. 11, but the acoused told the drives not to stop but to drive away telling the driver that the girl would go to her mother at Athmal. liok Garh. It may be mentioned that her mother was living at Athmallick, but it is said that this mother had left the girl even when she was a small child of about three years and wab living not a respectable life at Athmallick and it is also said that during her childhood the girl was actually brought up by her brother-in-law, p. w. 3, who was a Havildar in servioe at Athmallick and who had also got the girl married to P. W. 1. When the Bus reached at Athmallick Bus ter. minus, which is near a Hotel, it is said that the girl was thinking of getting down in order to come away to her brother-in-law's place. But the accused suggested that if she came up to the Bus garage, he would arrange to escort her to her brother-in-law's houee. It is further said that the girl accordingly went up to the garage in the Bus and alighted there and the accused is said to have suggested to her there that she might go to his house which is near-by and Btay there so that he might meanwhile explain her situation to her brother-in-law and take her to him so that she may not be scolded by the brother-in-law for having run away from her husband's house. The acoused is said to have asked the cleaner of the Bus, F. W. 12, to take her to his house and he himself also accom-panied them. The girl was thus taken to the house of the accused on the evening of the 18th. She was kept there until about 20th evening when she was taken from his house by her husband, P. W. 1, on a search warrant, Ex. 1, issued by the local Magistrate on the application of the husband. It is also a part of the prosecution case that during the stay of the girl in the ao-, oused's house from the evening of the 18th to the evening of 20th, he made an attempt on the night of the 19th to seduce the girl by immoral overtures, but that the girl did not agree. It may be mentioned at the outset that the accused was also charged under Section 343, Penal Code, for wrongful confinement for three days or more, but he has been acquitted on that charge. With, reference to the charge under Section 366, the prose-cution case as above set out, has been spoken to in full by the girl herself as P. w. 13 and has been fully supported by various witnesses at every stage, (His Lordship reviewed the evideoce and continued:) On this evidence which there is no reason to doubt, the guilt of the accused appears to be reasonably clear. The learned Counsel for the appellant has, however, urged a number of arguments to the effect that even accepting this evidence, the accused cannot be found to be guilty under Section 363 or Section 366, Penal Code. Before noticing these arguments, it would be convenient to dispose of two other preliminary matters.

(3.) IN the Courts below, some argument was raised that the girl was not the lawfully married wife of P. W. 1 and that, therefore, he was not her legal guardian. The Court below has found on the evidence that she was the married wife of P. W. 1 and this is supported by the evidence of p. w. 1, the husband, P. W. 3, the brother-in-law and P. W, 1, the father of the girl and this point has not been pressed before us. The other question that has been raised is about the age of the girl. It is said that there is no clear and definite evidence of the girl below 16 years of age. The birth certificate, Ex. 2, has been produced and the entry, ex, 2a, has been marked therein and is spoken to by P. W. 14, but it is urged that this birth certificate is not evidence of the age of the girl since there is no evidence connecting the entry therein with this particular girl. This no doubt is so. The birth certificate does not prove itself and is no proof of age of any particular person unless the person connected with that entry either by making the entry or giving information comes forward and speaks to the entry and connects the entry with the individual concerned. There ia, however, ample other evidence in the case about the age of the girl. (Reviewing the evidence in this respect, his Lordship continued ;)