Calcutta High Court (Appellete Side)
Haradhan Dutta vs State Of West Bengal & Anr on 30 April, 2021
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE
PRESENT:
THE HON'BLE JUSTICE TIRTHANKAR GHOSH
CRA 672 of 2016
Haradhan Dutta
-vs.-
State of West Bengal & Anr.
For the Appellant : Mr. Jayanta Narayan Chatterjee,
Mr. Apalak Basu,
Mr. Nazir Ahmed,
Ms. Swagata Das,
Ms. Nandini Chatterjee,
Ms. Jayashree Patra,
Ms. Chandrima Roy Karmakar
For the State of West Bengal : Mr. Avik Ghatak
Heard on : 12.02.2021, 19.02.2021, 26.02.2021,
05.03.2021 & 12.03.2021
Judgment on : 30th April, 2021.
Tirthankar Ghosh, J:-
The present appeal has been preferred against the judgment and order
of conviction and sentence dated 27.09.2016 and 28.09.2016 passed by the
learned Additional District & Sessions Judge, F.T. Court No.II, Bichar
Bhawan, Calcutta, in connection with Sessions Trial No. 2(4)2013 arising
out of Sessions Case No. 05 of 2013 where the appellant was held guilty for
2
commission of offences punishable under Sections 363 and 366A of the
Indian Penal Code.
The learned Trial Court was thereafter pleased to sentence the
accused as under :
i. The convict Haradhan Dutta is sentenced to suffer
imprisonment for five (5) years and to pay fine of
Rs.10,000/- for the offence under Section 363 of I.P.C.
i.d. to suffer R.I. for six months.
ii. The convict Haradhan Dutta is also sentenced to suffer
R.I. for seven (7) years and to pay fine of Rs.10,000/- i.d.
to suffer R.I. for six months for the offence under Section
366A of I.P.C.
The genesis of the case relates to a statement of the victim girl
namely, Rangila Khatoon, recorded by Sub-Inspector of Police attached to
Detective Department on 06.08.2012 pursuant to which Burtolla Police case
No. 344/2012 dated 06.08.2012 was registered for investigation under
Section 366A/372/511/120B of the Indian Penal Code.
The statement of the victim which has been treated to be the First
Information Report of the instant case is as follows:
"My name is Rangila Khatoon. I am 14 years old. My residential
address is, Village : Nohalberia, Post- Batul, P.S. Bagnan,
District: Howrah. I have studied upto class V in Nohalberia
School. My father Taj Mohammad and mother Sabana Begam live
in Lucknow. My two younger brothers and a sister also live in
Lucknow with father and mother since long. I visited there 2/3
3
times. My father works in a hotel there. I live with my grand
mother Nurbanu Begum in our village. Our financial condition is
not stable. As my grandmother was unable to afford my studies, I
had to engage myself as a house maid (for washing utensils) for
sometimes. Almost 15/20 days back as I rang my father, he told
me to go to Lucknow to stay with them. Since our Eid festival is
ensuing, so I was been to visit my father and mother. Today
(6.8.12), in order to go to Lucknow, I set off from home, alone in
the morning. The train was scheduled to depart in the night, still I
left home well before. When I stepped down on platform no. 11 in
the Howrah Station, a man approached me and asked my where
abouts. I told him all. The man told me that I had enough time in
hand, before the schedule departure of my train to Lucknow. He
told me to accompany him to one of his friends house and after
spending some time there, he himself would come to back with
me to help me in boarding illegible train. The man introduced
himself as a police personnel and that is why I trusted him. After
that, he brought me to Kolkata at about 2.30 P.M. by availing the
ferry service from Howrah. After reaching Kolkata he hired an
autorickshaw and took me to a place which was very crowded
and where I saw something like rail tracks (later came to road as
tram car). He then told me that I am taking you to my friend's
house, but on the way, you don't walk beside me and keep some
distance. While we were approaching a narrow lane, I saw some
well-dressed girls waiting there. When I asked him about the
place, he told me nothing to be worried. But, I could realize that
the place was not safe. The man had taken me there with an aim
either to sell me or for any bad intention. I started shouting. The
girls who were there caught hold of the man. Thereafter, many
other girls came there. Police arrived. Rescued me. The police, in
front of those girls, questioned me. I told them everything, the
man, while we were travelling by Auto, told his name as
Haradhan Dutta. I have told everything before the police so that
4
the man gets punishment. After that police arrested that man
(Haradhan Dutta) and left the place."
The Investigating Authority on completion of the Investigation
submitted charge-sheet against the appellant (accused) under Sections
363/366A of the Indian Penal Code, consequently the case was committed
to the Court of Sessions by the ACMM, Calcutta. The learned Chief Judge,
City Sessions Court, Calcutta, thereafter transferred the case to the learned
Trial Court i.e., Additional District & Sessions Judge, F.T. Court No.II,
Bichar Bhawan, Calcutta, for enquiry, trial and disposal.
The learned Trial Court on or about 04.04.2013 after perusal of the
documents relied on by the prosecution and hearing the accused, was
pleased to frame charge under Sections 363 and 366A of the Indian Penal
Code. The contents of the charge was read over and explained to the
accused, to which he pleaded not guilty and claimed to be tried.
The prosecution in order to prove its case relied on 12 witnesses and
10 documents, which were marked as Exhibits. The accused, however, did
not tender any defence witness or relied upon any document in support of
its case. However, a plea was taken up regarding innocence at the stage of
Section 313 of the Code of Criminal Procedure (which will be dealt with at
the subsequent paragraphs).
PW1, victim, in her deposition before the Court stated that her
parents are residing at Lucknow and she was staying with her grand-
mother, as such for the purpose of visiting her parents she went to Howrah
Station. At Howrah Station she approached the ticket counter for
5
purchasing a ticket and on seeing a large gathering near the counter she
decided to sit at the station, after sometime she felt hungry and went
outside to purchase some food but she could not find her money which was
tucked at the waist of her salwar kameez. Finding no other option she came
back and sat at the Howrah Station and after sometime she observed a
person (accused) took the sit beside her and asked her name and where she
would be going. After knowing that she would be going to Lucknow the
person stated that the train was at night and whether she had any food. The
said person (accused) offered her food which she refused. The witness
further stated that the accused was constantly disturbing her and as such
she said that she would be informing the police authorities, when the
accused represented that he himself was a police and in order to convince
her he brought out a card from his pocket. As the accused was wearing
police like uniform the witness believed him to be a police and came outside
the station with him for food. The accused thereafter stated that the food
available at the station was not good and asked her to go towards the Ferry
Ghat (which is opposite to the Station). When the victim became afraid the
accused assured her not to worry as he himself is a police and with the help
of boat he took her at the other side of the river. After crossing the river the
accused stated that he has some urgent work to do and asked her to
accompany him. The victim/witness refused, however, the accused
convinced her by representing that she should not worry about anything as
he was a police. Thereafter, the accused boarded an auto-rickshaw and took
her near a road where she found that many girls were wearing short
dresses, smoking cigarettes and the accused took her to a room and
6
instructed her that if anyone asked her then the victim should represent
that in order to find a job the accused had brought her there. The victim
categorically stated that never had she requested the accused for any job
but under the circumstances she was forced to follow the accused. When he
was climbing the stairs she found an altercation was going on between the
accused and another person and after following the said person she went to
a room where she found a lady was eating guava who asked her name and
why she had been in this place then she stated that the accused had
brought her at this place at his friend's house. The victim narrated that the
lady told her that the accused had brought her to this place for selling her.
The victim described the whole incident and how the accused induced her
for coming to this place, when the lady assured her that she was in safe
hands and thereafter started beating the accused. The victim also stated in
her deposition that she along with the accused was brought to an Office
where her identity was clarified and thereafter taken to a police station
where she was interrogated. The victim/witness identified the accused in
Court by pointing her fingers and added that she had stated the facts to
another Judge. Victim also identified her signature in the statement which
she had narrated and was recorded by the Police Officer which was marked
as Exbt.4 series.
PW2, Babli Bhattacharya, deposed before the Court that she was
working with Durbar Mahila Samanay Committee. She stated that the
Committee was working with the sex workers and her duty was to make
arrangements for the treatment of sex workers and also to see that no girl
7
below the age of 18 years are engaged as sex worker. She also stated that
they were in control of 13 houses in the area of Rabindra Sarani and for the
said purpose they visited all those houses on a regular basis. According to
her on 06.08.2012 at about 4.00 PM she saw the accused roaming with
Rangila Khatoon and seeing this they caught hold of Rangila Khatoon along
with accused in front of 38/A, Rabindra Sarani and on inquiry, the accused
stated that she had brought PW1 as she was known to him. During such
inquiry she stated that people assembled there and as such both the
accused and PW1 were taken to a clinic and the accused stated over there
that he cannot be detained as he was holding a card but such card was
never produced before them. The accused also represented that he was a
guard of a house, when he along with PW1 was taken to the Office situated
at 12, Nilmony Mitra Lane wherefrom police was informed. The witness also
stated that along with her one Sumita and Tarun were present during the
incident. According to the witness PW1 was aged about 10/12 years and the
accused disclosed his identity as Haradhan Babu. This witness also
identified the accused in Court.
PW3, Sumita Das stated that she was working in Durbar Mahila
Samanay Committee and on 06.08.2012 when she was on her duty she saw
that the accused was about to enter a house being No. 38/A, Rabindra
Sarani with PW1 who was about 13/14 years old. In inquiry PW1 revealed
that the accused had brought her there on the plea of giving her job. Both of
them were thereafter brought to the clinic when the accused threatened the
members of the Committee by representing that he cannot be detained as he
8
was a Police Officer, however, PW1 reiterated that the accused brought her
from Howrah Station on the plea of giving her job. According to the witness
after thorough questioning no parity could be found between the statement
of the accused and the victim and as such the matter was informed to one
Mitra Di who informed the police over phone. Police, thereafter, arrived and
interrogated the witness and other persons who narrated the incident and
arrested the accused. The witness also stated that along with her one Tarun
Mukherjee and Babli Bhattacharya witnessed the incident. The accused was
identified by the witness in Court as Haradhan Babu.
PW4, Nurbanu, deposed that she is the grand-mother of the victim
(PW1) who used to reside with her at Goalberia under P.S. - Bagnan.
According to the witness, the parents of PW1 used to reside at Lucknow. She
also stated that she has submitted documents to the Police Authorities and
would be able to identify the same as her L.T.I. was affixed on it. The
witness further narrated that in the month of August on Monday when Roza
was going on PW1 was going to her parent's house at Lucknow, when a
person representing himself as a Police Officer offered to escort her up to a
train but she was taken to a different place. She categorically stated that
PW1 was induced by the accused and the accused tried to sell her, however,
she was rescued by local people who informed the Police Station.
Additionally, she received information from Bagnan Police Station and
thereafter went to Lalbazar and also the Home where the victim (PW1) has
been kept.
9
PW5, Baby Agarwal, deposed that she knew PW1 who is aged about
12/13 years and on 06.08.2012 which was a Monday she went to Mandir
and after returning back when she was sitting in front of her house she saw
the accused along with PW1 entering in a room and immediately returning
from there. The witness further stated that she somehow caught hold of the
hand of PW1 and pulled the accused by back collar of the shirt. At that time
the accused told her to leave him as he was a Police Officer when the
witness called the Members of Durbar Mahila Samity situated at the
opposite side of her house. The witness narrated whole of the incident to the
Members of the Samity and handed over both the accused and the victim
(PW1) to them.
PW6, Cornelius Gomes, is a seizure list witness, who signed in the
seizure list of the school certificate and his signature was marked as Exb.1
by the Court.
PW7, Tarun Mukherjee, deposed that on 06.08.2012 when he had
been for field work, he found a crowd in front of 438/A Rabindra Sarani
where he also found that a minor girl and a gentleman were standing. In
order to save the aforesaid two persons from public assault they were
brought to the clinic. On inquiry the minor girl stated that she was at a
platform at Howrah Station and she was brought by that man on the
promise that she would be offered a job at somebody's house. The witness
also stated that the accused on inquiry replied that he was employed at
Howrah Police, when his Identity Card was demanded initially he refused
but subsequently he showed the same to some of the office staff. The
witness also stated that from the I.D. Card, it was reflected that the same
10
was issued by Rail Civil Defence. The accused also represented to each of
them that whenever any minister came to inaugurate any foundation stone,
he accompanied him. The name of the accused is Haradhan Dutta. The
witness identified the accused in Court and further stated that Babli
Bhattacharjee, Sunita Das and Arati Biswas were also present there.
Additionally, the witness stated that the incident was informed to Mita
Mukherjee who contacted the Police Authorities and also asked them to take
the minor (PW1) and the accused to their office situated at Nilmoni Mitra
Street. Thereafter, Police Officers from Lalbazar I.T. Section arrived and
interrogated both of them and they were taken to the Police Station. The
witness was asked to sign on the rescue memo and memo of arrest which
were marked as Exbt.2 and Exbt.3 respectively. The witness identified his
signature on the documents.
PW8, Nabanita Adhikary, stated that she was posted at Calcutta
Medical College & Hospital as demonstrator. According to her, on
14.08.2012
Rangila Khatoon (PW1) was brought and identified by lady
constable (314 of I.T Section D.D.), Mamata Ghosh and PW1 was examined
in presence of Mrs. Soma Guha Roy. She further stated that "On
examination, I found that multiple tear at 3 and 5 O'clock position and it
was healed up on hymen. After examination I gave my detailed finding in my
report. I also gave finding that she had no sex experience before clinically
she was not pregnant. There was no injury in her body on private parts.
Considering the physical finding, dental data and data of radiological
examination together, I am of the opinion that victim was aged between 12-
14 years at the date of her radiological examination i.e. on 23.08.2012. This
is the said report bearing my signature with official seal." The report was
marked as Exbt.5 and the witness also stated that the signature of the
victim (PW1) as well as Soma Guha Roy and lady constable (314 of I.T.
Section D.D), Mamata Ghosh is bearing on the said report.
PW9, Chandraprabha Chakraborty, Metropolitan Magistrate 16th
Court, Calcutta, deposed that on 18.08.2012 as per order of Ld. A.C.M.M.,
Calcutta, she recorded the statement of the victim (PW1) under Section 164
of the Code of Criminal Procedure in connection with C (D.D.), C/No.344
dated 06.08.2012 under Sections 366A/372/511/120B of I.P.C. She
categorically deposed that the statement was recorded in her chamber after
observance of legal formalities and before recording such statement the
victim (PW1) was examined as to whether, she could give rational answer
and being satisfied she proceeded to record the statement. After recording
the statement she appended necessary certificate and obtained the
signature of the victim (PW1) on each and every page. She also signed on
every page of the statement. The witness identified the statement recorded
by her in handwriting which bears her signature and same was marked as
Exbt.6.
PW10, Mamata Ghosh, lady constable No. 314 attached to I.T.
Section, D.D., Lalbazar. The witness stated that on 06.08.2012 a raiding
team proceeded from her department wherein she was member and at about
4/4.30 p.m. as per direction of O.C all the members went to 438A, Bidhan
Sarani/Rabindra Sarani. According to her, the premise was a brothel
situated at Sonagachi area where a girl aged about 13/14 years along with
one person aged 50 years was surrounded by the local persons. The witness
also stated that some Members of Durbar Mahila Samity were also present
at the place. The O.C. asked the girl about her name, the girl stated her
name to be Rangila Khatoon and on being asked how she arrived at this
place, the girl stated she was waiting at Howrah Station to go to Lucknow to
meet her parents and the aged person told her that the train to Lucknow
will come at night and induced the girl by stating that he had a friend's
house nearby and told her to accompany him. The witness also stated that
instead of taking her to the friend's house, the accused brought her to
Sonagachi. On inquiry the accused stated his name to be Haradhan Dutta.
The witness identified the accused in court and stated that the girl was
thereafter taken to a home.
PW11, Brojendra Nath Kayal, is a Plan Maker, attached to D.D.,
Lalbazar, who prepared rough sketch map which was marked as Exbt.7 and
also the computerised final sketch map which was marked as Exbt.8.
Learned Advocate for the appellant challenged the charges which were
framed under Sections 363/366A of the Indian Penal Code and submitted
that none of the charges are applicable in respect of the evidence which were
adduced by the prosecution. In order to substantiate his arguments, he has
filed a written notes of argument wherein the points canvassed are.
i) Taking away the minor from the lawful guardianship.
ii) Inducement of the victim to accompany the petitioner to a
brothel, recovery of the petitioner from a brothel.
iii) Recovery of the petitioner from a brothel.
iv) The appellant having the intent/reason to believe that the victim
may be forced to indulge in sexual inter-course with other
person against her will.
Apart from canvassing the aforesaid points, the Learned Advocate also
submitted that the Learned Trial Court failed to take into account the
defence version which was answered by the appellant in reference to
question No. 9 of Section 313 of the Code of Criminal Procedure. Learned
Advocate argued that the prosecution by way of evidence adopted to
establish that the offence was initiated at Howrah Railway Station, the same
continued till the appellant was nabbed at or around Rabindra Sarani. He
emphasised that from the deposition of the victim girl (PW1) it is seen that
she intended to board a train to Lucknow and learnt that the same is at
night, so she was waiting at the platform when the appellant introduced
himself to be a police and offered food to her. In view of such evidence on
record, it has been submitted that there is hardly any material to show that
there was any inducement/force upon the victim on the part of the
appellant for taking her away from the lawful guardianship of her
grandmother. To substantiate the second point, the appellant argued that
the evidence of the prosecution witnesses taken as a whole do not establish
any iota of material that the victim girl was taken to a brothel. The evidence
which has been canvassed by the prosecution according to the appellant
show that the victim was passing through a narrow lane where she saw well
dressed girls standing there. As such, the place of occurrence raises a doubt
regarding the version of PW2, PW3 and PW7 to introduce themselves as
Members of Durbar Mahila Samanay Committee or clinic attendant of the
said organization. To address the third point, the appellant has questioned
the place from where the victim was recovered. According to him, the
prosecution has constantly changed the place of occurrence or varied the
same from a road, a shop room, brothel and the Office of the particular
NGO. It has also been submitted that non-examination of witnesses have
prejudiced the appellant as the prosecution witnesses were bent upon to see
the accused convicted as there is a lack of truth in their version and the
evidence as narrated by different witnesses do not raise a reasonable
suspicion for convicting the appellant. Learned Advocate further submits
that the provisions of Sub-section 363 and Section 366A of the Indian Penal
Code are hardly applicable in the background of the evidence which is
appearing on record and the Learned Trial Court erroneously arrived at such
conclusion without taking into account the defence which has been
canvassed by the appellant in his examination under Section 313 of the
Code of Criminal Procedure. Learned Advocate for the appellant also relied
upon the following judgments: Iqbal -Vs. - State of Kerala, (2007) 12 SCC
724; Sannaia Subba Rao and Ors. -Vs. - State of Andhra Pradesh, (2008) 17
SCC 225; Veerasamy -Vs. - State Equivalent Citation : 2019 (2) MLJ
(Crl)472; Golapi Bibi & Anr. -VS. - State of Assam, 2004 CriLJ 2209, (2004)
2 GLR 338.
Learned Advocate for the State opposed the contention on behalf of
the appellant and submitted his written notes of argument. Learned
Advocate emphasised that there are ample materials on record which would
be evident from the deposition of PW1 and PW4 that the victim was minor
on the date of incident and she was allured/induced and diverted from her
lawful guardianship. According to the Learned Advocate, the evidence of
PW1, PW2, PW3, PW5 and PW7 and the statement of the victim under
Section 164 of the Code of Criminal Procedure taken together would
irresistibly reach to one conclusion that the appellant allured the victim,
while introducing himself as a police personnel and on the garb of providing
food/job, forced her to cross the river which is opposite to the Railway
Station and with the aid of Auto-rickshaw took her to an area, whose
introduction is evident from the statement of the victim. It is also evident in
the evidence of these 5 witnesses that the appellant had taken her to a
building and thereafter came down and was intercepted by the members of
the said Durbar Mahila Samanay Committee. It has also been submitted
that the evidence of the case must be taken as a whole and minor
contradictions which has been emphasised by the appellant cannot be made
the foundation of a case for arriving at its conclusion. The Learned Advocate
also stated that the appellant has failed to show that there was any previous
enmity between the victim, who is 15 years old and the appellant, for falsely
implicating him in the instant case, neither any enmity has been shown in
respect of the members of the Durbar Mahila Samanay Committee who
intercepted the accused initially and followed him while he was entering the
house at Rabindra Sarani and coming down thereafter. In order to
substantiate his case, the Learned Advocate for the State relied upon the
following judgments: State of Haryana -Vs. - Raja Ram, AIR 1973 SC 819;
Taru Das -Vs. - State of Tripura, 2008 Cri LJ 3143; Kailash Laxman
Khambar -Vs. - State of Maharashtra, 2010 Cri LJ 3255; Sakina Bibi -Vs. -
State of West Bengal, (2017) 4 Cal LT 517; Ramesh -Vs. - State of
Maharashtra, AIR 1962 SC 1908; State of Rajasthan -Vs. - Smt. Kalki &
Anr., (1981) 2 SCC 752 and State of Himachal Pradesh -Vs. - Lekh Raj &
Anr., (2000) 1 SCC 247.
Before dealing with the rival contentions, this Court feels that the
reply of the accused while he was examined under Section 313 of the Code
of Criminal Procedure (which has been referred to earlier) in question No. 9
is required to be referred:
"9.Q. This witness further stated that when she became afraid he
assured her that he was a police and after crossing the river, he took her by a
auto on the pretext of doing some urgent work and stopped near a road where
she found many girls wearing short dresses, smoking cigarettes and she felt
very bad. What you have to say?
Answer: I was going along the road and stopped to purchase cigarette
and then some persons apprehended and detained me."
Such plea of the appellant was never taken up during the
examination of any of the witnesses and this defence was first time
introduced by the appellant in his examination under Section 313 of the
Code of Criminal Procedure. As to whether such type of plea can be accepted
by this Court or not would be dealt with subsequently.
An assessment of the prosecution witnesses would reveal that apart
from the victim being PW1, Babli Bhattacharya (PW2), Sunita Das (PW3),
Baby Agarwal (PW5) and Tarun Mukherjee (PW7) are all witnesses who were
present at the time when the accused was intercepted. The evidence of PW2,
PW3 and PW5 reflect that the place where the accused along with PW1 was
intercepted is a red light area. The spirit/tenor of evidence of all these
witnesses unerringly lead to one conclusion that the accused and the PW1
were intercepted in the area and the accused being questioned could not
provide any satisfactory answer rather he tried to establish himself as a
police and by such representation attempted to hoodwink the witnesses who
believed that the minor PW1 was brought in the area for an illegal purpose.
It is sufficient to say that the deposition of PW1 is inspiring confidence, so
far as the manner in which she has been brought in the area from the
railway station at Howrah. Here it would be pertinent to deal with the
argument advanced by the learned advocate for the appellant that there was
no evidence that the minor was taken away from the lawful guardianship or
there was no inducement of the victim to accompany the petitioner to a
brothel. The foundation of such submission requires reference to the
judgment of the Hon'ble Apex Court in Thakorlal D. Vadgama -Vs.- State of
Gujarat, (1973) 2 SCC 413 : 1973 SCC (Cri) 835 at page 420 wherein it has
been held that: "10. The legal position with respect to an offence under
Section 366 IPC is not in doubt, in State of Haryana v. Rajaram [(1973) 1 SCC
544 : 1973 SCC (Cri) 428] this Court considered the meaning and scope of
Section 361 IPC it was said there:
"The object of this section seems as much to protect the minor children from
being seduced for improper purpose as to protect the rights and privileges of
guardians having the lawful charge or custody of their minor wards. The
gravamen of this offence lies in the taking or enticing of a minor under the
ages specified in this section, out of the keeping of the lawful guardian
without the consent of such guardian. The words 'takes or entices any minor
... out of the keeping of the lawful guardian of such minor' in Section 361, are
significant. The use of the word 'keeping' in the context connotes the idea of
charge, protection, maintenance and control: further the guardian's charge
and control appears to be compatible with the independence of action and
movement in the minor, the guardian's protection and control of the minor
being available, whenever necessity arises. On plain reading of this section
the consent of the minor who is taken or enticed is wholly immaterial: it is
only the guardian's consent which takes the case out of its purview. Nor is it
necessary that the taking or enticing must be shown to have been by means
of force or fraud, persuasion by the accused person which creates willingness
on the part of the minor to be taken out of the keeping of the lawful guardian
would be sufficient to attract the section."
1.In the case cited reference has been made to some English decisions in
which it has been stated that forwardness on the part of the girl would not
avail the person taking her away from being guilty of the offence in question
and that if by moral force of a willingness is created in the girl to go away
with the former, the offence would be committed unless her going away is
entirely voluntary. Inducements by previous promise or persuasion was held
in some English decision to be sufficient to bring the case within the mischief
of the statute. Broadly, the same seems to us to be the position under our law.
The expression used in Section 361 IPC is "whoever takes or entices any
minor". The word "takes" does not necessarily connote taking by force and it
is not confined only to use of force, actual or constructive. This word merely
means, "to cause to go", "to escort" or "to get into possession". No doubt it
does mean physical taking, but not necessarily by use of force or fraud. The
word "entice" seems to involve the idea of inducement or allurement by giving
rise to hope or desire in the other. This can take many forms, difficult to
visualise and describe exhaustively; some of them may be quite subtle,
depending for their success on the mental state of the person at the time when
the inducement is intended to operate. This may work immediately or it may
create continuous and gradual but imperceptible impression culminating after
some time, in achieving its ultimate purposes of successful inducement. The
two words "takes" and "entices", as used in Section 361 IPC are in our
opinion, intended to be read together so that each takes to some extent its
colour and content from the other. The statutory language suggests that if the
minor leaves her parental home completely uninfluenced by any promise, offer
or inducement emanating from the guilty party, then the latter cannot be
considered to have committed the offence as defined in Section 361 IPC. But if
the guilty party has laid a foundation by inducement, allurement or threat,
etc. and if this can be considered to have influenced the minor or weighed
with her in leaving her guardian's custody or keeping and going to the guilty
party, then prima facie it would be difficult for him to plead innocence on the
ground that the minor had voluntarily come to him. If he had at an earlier
stage solicited or induced her in any manner to leave her father's protection,
by conveying or indicating or encouraging suggestion that he would give her
shelter, then the mere circumstance that his act was not the immediate cause
of her leaving her parental home or guardian's custody would constitute no
valid defence and would not absolve him. The question truely falls for
determination on the facts and circumstances of each case. In the case before
us, we cannot ignore the circumstances in which the appellant and Mohini
came close to each other and the manner in which he is stated to have given
her presents and tried to be intimate with her. The letters written by her to the
appellant mainly in November 1966 (Exhibit P-20) and in December 1966
(Exhibit P-16) and also the letter written by Mohini's mother to the appellant in
September 1966 (Exhibit P-27) furnish very important and essential
background in which the culminating incident of January 16 and 17, 1967
has to be examined. These letters were taken into consideration by the High
Court and in our opinion rightly. The suspicion entertained by Mohini's mother
is also in our opinion, relevant in considering the truth of the story as narrated
by the prosecutrix. In fact, this letter indicates how the mother of the girl
belonging to a comparatively poorer family felt when confronted with a rich
man's dishonourable behaviour towards her young, impressionable immature
daughter; a man who also suggested to render financial help to her husband
in time of need. These circumstances, among others, show that the main
substratum of the story as revealed by Mohini in her evidence, is probable
and trustworthy and it admits of no reasonable doubt as to its truthfulness.
We have, therefore, no hesitation in holding that the conclusions of the two
courts below with respect to the offence under Section 366 IPC are
unexceptionable. There is absolutely no ground for interference under Article
136 of the Constitution."
In view of the law laid down by the Hon'ble Apex Court the submission
of the appellant so far as taking away from lawful guardianship or for the
purpose of inducing the victim from accompanying the appellant cannot be
sustained in the factual matrix of the present case. The evidence to that
extent is overwhelming as there was an enticement/allurement along with a
misrepresentation by the appellant of being a police personnel and thereby
building a confidence in the mind of the minor. Some minor contradictions
have been pointed out by the Learned Advocate for the appellant, but such
minor contradictions are bound to appear where the victim is illiterate,
ignorant and aged about 15 years. In Boya Gaganna -Vs. - State of A.P.,
(1976) 1 SCC 584 it has been observed : "Even in case of trained and
educated persons, memory sometimes plays false and this would be much
more so in case of ignorant and rustic women. It must also be remembered
that the evidence given by a witness would very much depend upon his power
of observation and it is possible that some aspects of an incident may be
observed by one witness while they may not be witnessed by another though
both are present at the scene of offence."
It is well settled that minor variations should not be taken into
consideration while assessing the reliability of testimony of a witness and
the consistency of the prosecution witness must be taken as a whole.
Minor inconsistencies in the version cannot outweigh the consistent
truth appearing from the version of the victim and to examine such evidence
with microscopic approach would be an insult to justice-oriented judicial
system. Thus, the charges of kidnapping in the instant case is to be
appreciated on the background of enticement, knowledge and capacity of the
minor to understand the consequences, the place of occurrence from where
the minor has been recovered along with accused as also the belated plea
taken up by the accused.
Needless to state that the victim apart from being a minor was
illiterate, below the poverty level (as the evidence reflects that she was
working as a maid servant) and the evidence was recorded after a
considerable period of time since the commission of the offence. So, the
contention of the appellant that the complainant being the victim has
consistently changed her stand is to be viewed with regard to her ability to
present all the facts in a chronological manner, which in fact, is impossible
if a true set of facts are to be placed before a Court of law. The veracity of
the evidence of the victim, PW1 so far as the core allegations are concerned
are consistent and minor contradictions in this case cannot suppress the
ring of truth in her version.
The other aspect which requires consideration in this appeal is
the belated plea taken up by appellant at the stage of Section 313 of the
Code of Criminal Procedure. It is a settled proposition of law that the
answers given by the accused in course of examination under Section 313 of
the Code of Criminal Procedure can be used as an aid to lend credence to
the evidence given by the prosecution. In this case, we find that throughout
the cross-examination the truthfulness of the prosecution version was
challenged to the limited extent of the veracity of the witnesses who had
been deposing before the Court and it is only for the first time while being
examined under Section 313 of Cr.P.C. the accused took a plea "I was going
along the road and stopped to purchase cigarette and then some other
persons apprehended and detained me." Such a plea at least fortifies the
presence of the accused at the place of occurrence and the same supports
the prosecution version of being present in the red light area as narrated by
the prosecution witness.
On an analysis of the evidence of the prosecution witnesses and the
examination under Section 313 of the Code of Criminal Procedure, this
Court finds that the judgment and order of conviction and sentence so
passed by the Ld. Trial Court do not suffer from any infirmity and as such
no interference is called for.
The judgment and order of conviction and sentence dated 27.09.2016
and 28.09.2016 passed by the learned Additional District & Sessions Judge,
F.T. Court No. II, Bichar Bhawan, Calcutta, in Sessions Trial No. 2(4) 2013
is hereby affirmed.
Accordingly, CRA 672 of 2016 is dismissed.
Department is directed to communicate this order to the Ld. Trial
Court and send the LCR forthwith to the Court below.
Urgent Xerox certified photocopies of this judgment, if applied for, be
given to the parties upon compliance of the requisite formalities.
(Tirthankar Ghosh, J.)
