Calcutta High Court (Appellete Side)
Nemai Das & Anr vs The State Of West Bengal on 21 June, 2019
Author: Rajasekhar Mantha
Bench: Rajasekhar Mantha
IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
APPELLATE SIDE
Before:-
THE HON'BLE JUSTICE RAJASEKHAR MANTHA
C.R.A. 593 of 2008
NEMAI DAS & ANR.
VERSUS
THE STATE OF WEST BENGAL
For the Appellants : Mr. Sabir Ahmed, Adv.
Mr. Srijan Chakraborty, Adv.
Mr. Subhra Jyoti Dey, Adv.
Mr. Amal Kr. Saha, Adv.
Mr. Sujan Chakraborty, Adv.
For the State : Mr. Binoy Panda, Adv.
Ms. Puspita Saha, Adv.
Hearing concluded on : 18.06.2019
Judgment On : 21.06.2019
Rajasekhar Mantha, J.
1. The instant appeal is directed against the judgment and order dated 26th August, 2008 passed by the Learned Additional Sessions Judge, Fast Track, 3rd Court, Tamluk, Purba Midnapore in Sessions Trial No.1 (10) of 2007 arising out Sessions Case No.12(6) of 2007 (D.J.). The appellants were convicted under Section 363 of the Indian Penal Code, for two years simple imprisonment and to pay fine of Rs.500/- each.
2. The prosecution case in brief is that on the 27th of April, 2007 at about 10.00 am the Victim Girls (VGs) Yasminara Khatun @ Sathi, stated to be aged about 16 years and Sarmila Khatun @ Mina stated to be aged about 13 years left their home and their parents Jainal Abedin Bhuinya (PW1) and Ismat Ara Begum (PW4), for collecting the results of their annual examination from Kola Union Jogendra Girls' High School, at Barisha under Kolaghat P.S. The said two girls did not return home and the parents after searching for them in the house of relatives and friends lodged a complaint (by the mother) on the 2nd of May, 2007 with the Kolaghat Police Station in that regard.
3. After being informed by one Gopinath Ghorai (PW 5) on 5th May, 2007 at about 9.00 am, that the two VGs were taken away by the appellants Saikat Kurmi (Deo) and Nemai Das by enticement and may have sold them or forced them into illicit intercourse, the complainant informed the police, as such. The said two appellants were admittedly employees of the businesses of the said Gopinath Ghorai from whom their addresses were received.
4. VG, Sarmila was taken to Delhi by the appellant Nemai Das and Yasminara is stated to have been kept confined in a room at Amta, Howrah. The Journey from the School at Barisha to Amta was completed by car, where the appellants and the two girls are stated to have been taken to the place of one Samar Meyur @ 'Kalu' for dinner and night stay. They travelled the next day from Amta to Howrah.
5. Appellant no. 2 took VG, Yasminara, to Kalighat temple at Kolkata where he is stated to have forcefully married her. After marrying her and having forced her to wear bangles made out of conch shell and vermilion (Worn by married women in Bengal), VG Yasminara and Saikat Kurmi lived in Howrah in a rented accommodation for 5 days.
6. Yasminara was rescued on 8th May, 2007 by the police. Sarmila was brought back by the appellant Nemai Das from Delhi on the same day and was also rescued. The appellants were arrested along with 2 other persons. The two other accused were Ashish Kumar Tripathi @ 'Babun' and Samar Meyur @ 'Kalu'.
7. The said two girls, and 4 accused were produced before the Ld. Magistrate on the 9th of May 2007, when the accused were remanded into custody. On an application being made by the father of the VGs for custody on that same day, the victim girls refused to go with their father and were hence directed to be kept in a Child Welfare Home.
8. It is only on the 22nd of May, 2007 on a further application by the father (PW1) that the girls agreed to accompany and were given in custody of their father. The two girls as well as the accused refused to undergo medical examination or even an ossification test, when asked by the police.
9. In the statement under 164 of the Cr.P.C the two girls admitted that they had a love affair with the appellants respectively. Yasminara stated that once she met Saikat outside the school at Barisha he summoned a Tata Sumo vehicle, that was brought by Samar Meyur @ Kalu, and Asish Kumar Thripaty, (the other two accused) in which they left for Howrah after staying the night at Amta at Kalu's house.They proceeded along with Sarmila and Nemai to Howrah.
10. Yasminara married Saikat at Kalighat Temple and lived at a rented flat at Howrah. VG Sarmila also admitted that she was in love with Nemai and went with him to Delhi voluntarily. Nemai brought Sarmila back to Barisha from Delhi on the 8th after coming to know of the FIR registered by the Kolaghat police station.
11. A chargesheet was submitted on 8th October, 2007 under Section 363/366/372 read with Section 120B of the Penal Code against four accused persons. Charges were framed by the Court under 363/366/372 read with Section 120B of the Penal Code.
12. The prosecution examined 17 witnesses.
Evidence of PW 1
13. PW 1 is Jainal Abedin Bhuinya, father of the two girls. He deposed that the age of the two VGs was 13 (Sarmila) and 15 plus (Yasminara) respectively but could not produce any document in support thereof. He knew one Gopinath Ghorai, owner of a petrol pump and a mobile shop as also a battery run motorcycle sales agency. The said Gopinath Ghorai's Petrol station was at a distance of 300 ft. from the house of the PW 1. Admittedly PW 1 did not have good relations with Gopinath Ghorai due to a land dispute. He stated that on the 27th April, 2007 when his daughters did not return from school he went searching for them on a bicycle at the houses of different relatives in the village and Kolkata and Durgapur but in vain. He could not recollect the name of his wife but stated that his wife lodged a complaint with the police station only on the 5th of May, 2007. He also stated that he was informed by the said Gopinath Ghorai only on 5th May, 2007 that two of his employees namely the appellants herein who also went missing after the PW 1 informed him that his daughters were missing. The said Gopinath Ghorai was stated to have informed the PW 1 that the appellants may have taken away his two daughters. The said Gopinath Ghorai also furnished him with the addresses of the appellants. He also stated that he found Yasminara, the older daughter, at an address in Howrah of Saikat Kurmi (Deo) with the help of the C.I. of Kolaghat Police Station as also the local police on the 8th of May 2007. The second daughter, Sarmila, who was taken to Delhi was brought back to Barisha on the 8th of May, 2007, when they were picked up by the police.
14. The four accused persons and the two girls were produced in court on the 9th of May, 2007 when PW 1 stated that he made an application for custody of his daughters. He could not get such custody as the two girls refused to go with him. Thereafter, he got custody only on the 22nd of May, 2007 when the two girls accompanied their father to their residence. After discussing with their father, the two girls are stated to have narrated that they had been forcibly taken away by the accused persons on the 27th of April, 2007 into a car outside the school.
15. He stated in cross-examination that he cannot remember the date of birth of his children. He also stated that the Nemai used to eat in a hotel located in the ground floor of his house. PW1 could not explain as to why he did not file an application before any court on 22nd May, 2007 when he came to know from his daughters that the accused forcibly took them away in their car. He also admitted that his daughters refused to undergo any medical examination.
Evidence of PW 2
16. PW 2 was Dipali Das, a constable of the Kolaghat Police Station, who brought the two girls to the hospital for medical tests. She deposed that Sarmila and Yasminara refused to undergo the medical test. Evidence of PW 3
17. PW 3 who is also a constable in the Kolaghat Police Station took the appellants to the hospital for medical examination who also declined to undergo the same.
Evidence of PW 4
18. PW 4 is Ismat Ara Begum, mother of the two girls and wife of the PW
1. She deposed in repitition of what PW 1 deposed that her daughters Sarmila studied in Class VI and Yasminara in Class VIII. She stated that on the 27th of April, 2007 the girls did not return home even until 2.00 pm and were wearing their school uniforms. She also stated that she informed her husband of the same who went to look for them at the school premises but returned without any information. She also stated that they enquired of the whereabouts of their daughters from a lot of relatives in vain and finally informed the Kolaghat Police Station only on the 2nd of May, 2007.
19. She further stated that on the 5th of May, 2007 the said Gopinath Ghorai came to her house and informed that two of his employees i.e the two appellants herein were also not traceable since the 27th of April, 2007 and gave her the address of the accused. She further stated that the said Gopinath Ghorai and some villagers informed her that the said two accused kidnapped her two daughters in a small car. She further stated that on 8th May, 2007 at about 8.00 pm they received information that the older daughter was traced out at Howrah with two other boys. She further deposed that Sarmila, the younger daughter, was brought back from Delhi to Barisha and the two VGs were recovered as found in front of Gopinath Ghorai's petrol pump. The two daughters are stated to have told her that Saikat Kurmi (Deo) and Nemai Das enticed them and took them away in a small car on the promise of marrying them. She could not recollect the date of birth of her children but stated that she had documents in this regard. She stated that she obtained the birth certificate of the said children when they were taken for polio vaccination. She also stated that she had informed the Anchal Panchayat as to the date of birth of the elder daughter. It is based on her information, that the said birth certificate was issued by the said Anchal Panchayat. She admitted that there was a land dispute between her husband and Gopinath Ghorai and hence they were not on talking on terms.
20. She stated that Nemai Das resided at a 20 minute walking distance from their house. She denied that there was any love affair between her daughters and the appellants. She further stated that the daughters did not come to her house on the 9th of May 2007 when asked by the Magistrate, due to mental pressure and that she was present in Court alongwith her husband. She also stated that Nemai did not visit their house or ever spoke to her daughters. She further deposed that her daughters were unmarried and virgins.
Evidence of PW 5
21. PW 5, Gopinath Ghorai was declared hostile after initial examination-in-chief. He deposed that the accused were employees in his mobile business and identified them. He further deposed that one of his other employees, namely Suniti Baran Maity informed him that Saikat Kurmi had informed the employee that the two victim girls and the accused went to Amta in Howrah District. Except as above the said PW 5 denied everything else in cross examination.
Evidence of PW 6
22. PW 6 is Yasminara Khatun the older victim girl. She deposed that she knew Gopinath Ghorai. She also deposed that Nemai Das was an employee of Gopinath Ghorai's mobile shop. Saikat Kurmi was Gopinath Ghorai's driver. She stated that on 27th April, 2007 she and her sister were going to school for obtaining their progress reports of the final examination at 10.30 am and were wearing their school uniforms. They walked to school. She stated that she was about 16 years old on that day and her sister Sarmila was 13 years old. One Saibalini Barman was the Headmistress of the school on the day of the incident as well as the trial. She further stated that as they reached the school the accused called them by their names and asked where they were going. While they answered the two girls were forcibly pushed into an ambassador car by the appellants. The said girls started to shout and cry. She deposed that her sister and she was threatened with dire consequences if they did not stop shouting or crying.
23. She stated that she was told by Saikat that he would take her house but took her to Kalighat temple in Kolkata and put vermilion on her head and was forced to wear a conch shell bangle. She stayed at Howrah in a house for 5 days when the police caught hold of Saikat, her and Kalu. She was brought to KTPP Police Station on 8th May, 2007 and thereafter taken to Paikpari Health Centre for medical examination. After sometime the police brought her sister Sarmila and Nemai Das. Her sister was also sent to Paikpari Public Health Centre for medical examination.
24. The police thereafter seized her school uniform and one printed nightie and a pair of conch made and red bangles. She identified her signature on the seizure list and the articles seized. The two girls were taken to Tamluk hospital for medical examination and for Ossification test. She refused to undergo the said examination or the test. She stated that on the 9th of May, 2007 they were brought to Tamluk Court alongwith appellants when their father also present. She stated that she did not agree to go with her father due to mental pressure and confusion. She stated that she was sent by Judicial Magistrate to Midnapore Welfare Home and stayed there for 10 days. Yasminara said that the Midnapore Home sent a letter to her father whereupon they were produced before the Court on the next date.
25. She thereafter stated that her statement was recorded before the Judicial Magistrate, 1st Class where she put her signature at five places on four pages and the same were identified by her. She stated in cross- examination that neither she nor her sister got married to any one at any point of time. She denied having any love affair with Saikat. She also denied that she informed the police that she met Saikat Kurmi on an occasion prior to the incident. She did not raise any voice at the Kalighat Temple as she was threatened with dire consequences. She found one married woman in the house at Howrah. On being shown a letter dated 19th May, 2007, (addressed to Saikat) she denied that the letter was written by her. She also fell ill in the Welfare Home on 20th may 2007. She stated that on the day of the alleged kidnapping by the accused there were 200- 300 students were entering and/or come out of the school gate and that the teachers of the school were also present.
26. None of such persons were examined by the prosecution. Evidence of PW 7
27. PW 7 Nasiruddin Bhuina, younger brother of PW 1. He stated that he put a signature on a seizure list as witness, all the articles seized by the police from Yasminara. His evidence is hearsay and he is not an eyewitness.
Evidence of PW 8
28. PW 8, Suniti Baran Maity who is an employee of the said Gopinath Ghorai's mobile shop. The witness was declared hostile as he denied the entire incident. He admitted in cross-examination that he had not seen the incident at all.
Evidence of PW 9
29. PW 9 is Inti Ali Bhuina, a resident of Babua village who was also declared hostile.
Evidence of PW 11
30. PW 11 is Pallab Kr. Sahoo, Officer In-Charge of Kolaghat Police Station who received the complaint of PW1 registered an FIR on 6thMay 2007. He identified the FIR but admitted that he did not investigate the case.
Evidence of PW 12
31. PW 12, is Swarup Nandi, a resident of 34/2, Madhusudan Biswas Lane, Howrah-I, Police Station Howrah. He was a co-tenant in the house at Amta, Howrah, where Yasminara lived for 5 days with the accused Saikat. He was declared hostile. He denied any part and portion of the incident or the marriage between Saikat and Yasminara. Evidence of PW 13
32. PW 13, Saibalini Barman, Headmistress of the Kala Union Jogendra Balika Vidyalaya. She deposed that the date of birth of Yasminara Khatun was recorded and available in the records of the school. The record was prepared by Swarupa Dey, ex-clerk in the school. Based on the entries available in the school records PW 13 stated that she issued a transfer certificate and a birth certificate to Yasminara and Sarmila respectively. Sarmila's date of birth is recorded 8th October, 1994. The register and date of birth entrees in the school were counter-signed by Ismat Ara Begum PW 4 and the said PW 13. She also stated that Yasminara, unlike Sarmila did not possess any transfer certificate from her earlier school when she joined in Class V. She admitted that she had no personal knowledge of the date of birth of Sarmila. The school records do not contain the residential address of the mother of the two girls. The date of birth in the case of Sarmila was recorded in the school on the basis of transfer certificate issued by another school.
Evidence of PW 14
33. PW 14 is Swarupa Dey who was a clerk in the school on 1st September, 1977. The date of birth of Yasminara in the records of the school is stated to be 8th January, 1991. She stated that in the case of first admission in the school, birth certificate or certificate issued by the gram panchayat or the date of birth recorded in the transfer certificate issued by the primary school is taken as proof of date of birth. She identified the signature of one Bani Chakraborty, teacher in-charge who put signature, date and seal against the date of birth of Yasminara. She stated that she issued the certificate of birth of Sarmila and Yasminara on the basis of the records of the school. Evidence of PW 15
34. PW 15 was S. Patra who was the Superintendent Doctor of the Tamluk District Hospital. He deposed that he was asked by Kolaghat Police to record the date of birth. He also deposed that the Medical Officer, Paikpari BPHC referred the matter of Saikat Kurmi with the endorsement no abnormality detected. He deposed that he received request for medical examination of Saikat Kurmi and Nemai Das from Kolaghat Police Station and endorsement from the Paikpari BPHC.
Evidence of PW 16
35. PW16 is Sarmila Khatun the younger victim girl. She admitted that she knew all the accused persons. She stated that she knew Nemai Das as he was a resident of the village Barisha and they used to go school together. She stated that Saikat Kurmi and Nemai Das were standing in front of a Santro car at the school when she and her sister responded to the former's call. While talking to them, she stated that, she was pushed into a Santro car along with her sister and she started weeping. She also stated that she was threatened by the appellants with dire consequences if she either wept or shouted. They were taken to Amta where they were kept in a house. One of the accused namely Kalu and a woman were present who gave them food which they did not eat out of fear.
36. She stated that one of the residents of the house kept instructing the accused to take her to Delhi and the accused started driving towards Howrah along with Sarmila and Yasminara. Nemai Das sent the driver of the car to book tickets while waiting and guarding the two girls at Howrah Station. Saikat and Yasminara left for Delhi on the morning of the 28th April, 2007 by train and reached on the 30th of April. At Delhi, Nemai is stated to have taken her to house and where stayed for 5 days.
37. She deposed that her sister was pushed into the car first when she cried and shouted thereafter she also pushed into the car by Saikat and Nemai when she cried aloud. She stated that nobody come to help them. She further stated that on the way to Amta both the sister raised hue and cry for rescue. She also stated while they were entering the house at Amta she shouted but nobody came to rescue. She also stated that she shouted at Howrah station while getting into the car but nobody came to rescue. She thereafter did not shout on the platform as Nemai Das threatened her that he would kill Yasminara if Sarmila shouted.
38. Yasminara deposed that on the 4th or 5th May Nemai Das received a phone call while at Delhi and told her that he would take her back to her parents' house at Barisha. During the days at Delhi she said that Nemai scolded and threatened her with dire consequences if she raised any alarm. On the 6th May 2007 Nemai and Sarmila boarded a train at Delhi and reached Howrah. Thereafter Nemai took Sarmila to the petrol pump of Gopinath Ghorai, at Barisha, by bus. The police took Nemai and Sarmila into custody and brought them to KPTT Police Station where she found her elder sister Yasminara and Saikat and also the driver Kalu.
39. She also stated that police seized her school uniform and journey tickets. She identified school uniform and the tickets and signed the seizure list. She admitted that she refused to undergo the medical examination in the hospital. She also admitted that she refused to go with her father on the first day before the ACJM due to mental pressure.
40. She produced her birth certificate issued by Sub-Register births and death, Kolaghat-I Gram Panchayet showing that she was 13 years old. The birth certificate of Yasminara was also produced by her and issued by the Pradhan Kala-I Gram Panchayat on 4th May, 2003. The Certificates were exhibited. She did not go the toilet on the train but admitted that she ate food. She also stated that Nemai kept one person to guard her while he went to the toilet. She did not shout or inform any passenger in the compartment that she was being forcefully taken away by Nemai to Delhi due to fear her sister would be killed. She stated that she was taken by a bus to a place where she was kept for 5 days from New Delhi. She stated that she did not raise any alarm at New Delhi due to fear that her sister would be killed. She also stated that from Delhi she was taken to Haryana by Nemai by a bus. She did not raise any alarm while returning from Haryana since she was going to home.
41. She stated that she knew how to read and write in English and Bengali and put a signature in the statement recorded before the Magistrate. She did not state before the Magistrate that she was forcefully pushed into the Santro car by Nemai and Saikat. She also admitted that she did not inform Magistrate that she was threatened with dire consequences if she raised alarm. She also stated that what she stated in the evidence before the Court was not stated before the Magistrate. She admitted that she had a love affair with Nemai Das. She admitted that she did not inform the Magistrate on the 9th of May 2007 that she was in a depressed condition. It is for depression that she did not want to go to her father's house. She deposed that she was asked to produce her birth certificate and that of Yasminara, by the Court. However, in cross- examination she denied that she had love affair with Nemai Das or Saikat Kurmi.
Evidence of PW 17
42. PW17 is S.I. Sk. Rafiqul Islam who was the Investigating Officer. He admitted that he received the complaint from PW1 and recorded the statements of PW4, Gopinath Ghorai (PW 5), Suniti Baran Maity (PW8), Inti Ali Bhuniya (PW 9) and Nasiruddin Bhuinya (PW 7). He stated that he also visited Amta, Howrah and recovered Yasminara Khatun from premises No. 34 Nilmoni Mallick Lane, P.S. and District Howrah and also arrested the accused Saikat Kurmi and Samar Mayur. He also stated that he interrogated one Swarup Nandi (PW 12) and seized articles from the accused and the victim girl and prepared a seizure list. He recorded the statement of Yasminara under Section 161 of the Cr.P.C. He seized a steel coloured Santro Car bearing registration No. WB-20B 4984, and RC took and driving license of the driver of the car and prepared a seizure list. He admitted that he sent Yasminara and Saikat to Paikpari BPHC for their medical treatment and produced the medical document. He also stated that he recovered Sarmila from Haldia intersection and arrested Nemai Das on the same date. He also stated that he seized school uniform and tickets. He stated that he had examined all the witnesses and found most of the facts that come on record. He stated that he recorded the statement of both the victim girls.
43. Yasminara had stated before him that she was taken away in an ambassador car before him. He also stated that under Section 161 of the Cr.P.C. victim girls did not say that the accused persons married them by force or had sexual intercourse with them without their consent or made any arrangement for selling them. He also stated that Yasminara did not say that she was forcefully taken to Kalighat temple where vermilion was put on her. He stated that the victim girls did not state that there was a love affair between Saikat and Yasminara and Nemai and Sarmila. He recorded the statements of the VGs that Saikat gave money to Yasminara from time to time before the incident. He thereafter stated that Yasminara and Sarmila admitted that they had love affairs with Nemai and Saikat.
44. Though Yasminara stated under 164 of the Cr.P.C. that she and her sister were taken into Tata Sumo vehicle, no such vehicle was seized by him except the Santro car.
45. The appellant No.1 is represented before this Court by counsel. Appellant No. 2 is not. Learned Counsel for the appellant has made detailed submissions on various Contradictions / loopholes comparing the evidence in the trial and that the statements under 161 and 164 of the Cr.P.C., wherein both the victim girls admitted that they were having love affair with the appellants respectively.
46. He argued that Yasminara, the older sister admitted that she voluntarily went with the Saikat Kurmi to his relative's place at Amta and thereafter proceeded to Kolkata and Kalighat temple where she got married to Saikat. They spent 5 days at a rented accommodation at Howrah where there were two other couples. The volition and participation of Yasminara to go with Saikat clearly establishes a case of eloping.
47. He argued that similarly Sarmila in her Statement u/s. 164 of the Cr.P.C. admitted that she was in love with Nemai and proceeded with him to Delhi. They stayed at Delhi for 5 days with Nemai's brother and sister- in-law. Throughout the journey from Barisha to Amta, Howrah and up to Delhi there was no hue and cry raised by the VGs. It is a fact that the two victim girls deposed that they did not raise hue and cry or alert anybody due to the threat and intimidation by the accused persons. This story according to the Counsel for the appellant, is not believable if seen in the chain of events of the case.
48. Learned counsel for the appellant relied upon the following decisions:- Amal Talukder Vs. State of West Bengal reported in (2010) 2 C Cr LR (Cal) 539; Tahsildar Singh & Anr. Vs. State of U.P. reported in1959 Supp (2) SCR 875; and Saroj Mondal & Ors. Vs. State of West Bengal reported in 2007) 1 C Cr LR (Cal) 249.
49. The said judgements are distinguishable in the facts of the case and hence not applicable.
50. Per contra ld. Counsel for the State in support of the judgment made detailed arguments.
Findings of this Court :-
51. After being apprehended by the police and produced before the Magistrate, the Victim Girls refused to go back with their father. This may presumably be out of fear of being punished. The new story of being taken away and enticed by the appellants deposed in evidence by the VGs and their parents, appears to this Court to be a story concocted at the instance of the parents and most likely to ensure a smoother new married life with a person of the parent's choice.
52. There is yet another fact that needs to be noticed. The two victim girls refused to undergo medical examination as well as ossification test. The refusal appears to this Court to conceal their age and other consequences arising out of voluntary cohabitation with the accused persons.
53. None of the 200 odd students going in and out of the school or the teachers present were brought to depose evidence to support the defense case or that of the prosecution. It is not possible that nobody would notice if 2 girls are being forcibly taken away in a car and raised alarm, at such a populated place. Similarly the VGs' deposition that nobody heard any protests by the VGs at Amta, Howrah Station, or even on a journey to Delhi and Haryana, cannot be believed.
54. The contradictions between the statement under 164 and the evidence in the Trial cannot be ignored.
55. Be that as it may, one must look at the facts of the case within the four corners of the ingredients of Section 361 of the Indian Penal Code. The three ingredients required to be proved for satisfying the commission of an offence under Section 361 are :-
a) The taking away or enticing of the victim.
b) The victim must be a minor. If a girl, below 18 years of age and if a boy under 16.
c) The taking away should be from lawful guardianship and without the consent of the guardian.
56. In Thakorlal Vadgama Vs. the State of Gujarat, reported in (1973) 2 SCC 413 at Paragraph 10, the Hon'ble Supreme Court has stated as follows:
"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 to 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."
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.
57. It, therefore, transpires from the above that volition, desire to elope a love affair and voluntary cohabitation by a victim girl who is a minor, are wholly irrelevant in a care where a minor is removed from the lawful guardianship/custody and without the consent of the latter. In the instant case the parents were the natural guardians having custody of the victim girls. While at school the guardianship is extended in trust to the School Authorities.
58. Admittedly neither PW 1 (father) nor PW 4 (mother) gave consent to such taking away On the contrary Yasminara has stated in her statement under Section 164 before the Magistrate that her father was planning to get her married of to a boy of his choice and she being in love with the appellant No. 2, went away with him. There is total absence of consent from the lawful custodians of Yasminara and she was wrongfully and illegally removed from the custody of the guardians. Hence any volition or consent cannot be relevant and hence the same cannot be a valid consent in law.
59. Similarly, in the case of Sarmila (VG 2) her volition and eloping with appellant No. 1 is wholly irrelevant. She was undisputedly a minor. The mere act of the appellant No. 1 being with Sarmila and proceeding to Amta, Howrah and Delhi with her without the consent of her parents would constitute, 'taking away' under Section 361 of the Penal Code.
60. The next and most vital ingredient of Section 361 would be the age of the victim girls. PW 1, the father, indicated the age or date of birth of his two daughters (victim girls). PW 4, the mother, could not recollect the exact age and date of birth of the two victim girls expect to say that she had records to show their age.
61. The evidence produced and exhibited is the certificate issued by the Headmistress of the school based on the school records and also the birth certificate of the Victim Girls issued by the Anchal Panchayatas produced by Sarmila and her mother. The Headmistress (PW 13) deposed that the certificates of age issued by her and her predecessor were based on entrees in the admission register of the school. Apart from, eliciting in questioning, that the entrees admission register are made on the basis of either gram panchayet certificates, birth certificate or certificate issued by the Kinder Garden School, and that PW 13could not substantiate the basis on which the entrees were made in the school records, the defense could not dislodge the fact that the VGs were aged16 and 13 at the time of the incident. PW 4 stated that she had the certificate of the Anchal Panchayat showing the Date of Birth of her daughters.
62. The Court below relied upon the case of State of Chhattisgarh Vs. Lekhram, reported in (2006) 5 SCC 736 at Paragraph 12, the Hon'ble Supreme Court has stated as follows:
"12. A register maintained in a school is admissible in evidence to prove date of birth of the person concerned in terms of Section 35 of the Evidence Act. Such dates of births are recorded in the school register by the authorities in discharge of their public duty. PW 5, who was an Assistant Teacher in the said school in the year 1977, categorically stated that the mother of the prosecutrix disclosed her date of birth. The father of the prosecutrix also deposed to the said effect."
63. It is, therefore, clear from the above that while school records are admissible as evidence, the same are not conclusive corroboration need corroboration. In the instant case there was corroboration of the date of birth of the VGs deposed by the father with the documents produced by the mother and the Sarmila.
64. While an Ossification test could have been undergone even after the victim girls decided to change their version in the evidence, the absence of Ossification test results would not be fatal in view of the evidence from the school records.
65. It is has been established that the girls were in Class VIII and VI respectively in the school. The victim girls and/or the parents were not cross-examined by the appellants as to why they refused to undergo the Ossification test or undergo the medical examination. While the exact age of the victim girls could have been clearly and conclusively established. There is credible evidence that the girls were not majors or above 18 years of age.
66. Given the evidence of the father , mother and the Head Mistress in the course of trial and the exhibits regarding the age of the girls this Court is of the view the victim girls were minors and the appellants have committed offence under Section 361 and hence liable to be punished under Section 363 of the IPC. The conviction of the accused is liable to be upheld.
67. On the question of the quantum of punishment however the mitigating factors must be considered. These are, the volition of the girls in eloping with the appellants, their admitted love affair with the appellants, contradiction between the statements under Section 164, 161 of the Cr.P.C. with the new story concocted in course of the Trial. These should have been borne in mind by the Court below. The other mitigating factors are, as to why the parents waited for 5 days before lodging the complaint with the Kolaghat Police Station, the circumstances under which Gopinath Ghorai (PW 5) is stated to have informed PW 4 as to the appellants, who were the missing employees and likely abduction of the victim girls despite the fact that there was a serious land dispute between PW 1 and the said Gopinath Ghorai, as also the other factors suggesting the case of eloping as already recorded hereinabove.
68. This Court is of therefore of the view that the sentence of two years imprisonment and fine may be rather excessive in the facts of the instant case. The appellants have suffered a custodial trial and were in jail for 15 months. Interest of justice would be served if the appellants are sentenced only for the period i.e. 15 months during which they have been in jail.
69. The appellants are hereby set at large however as sentenced hereinabove. The fine imposed by the Court below shall stand set aside. The impugned judgment and order shall stand modified to the extent indicated hereinabove.
70. No order as to costs.
71. Urgent Xerox certified copy of this judgment, if applied for, be supplied to the parties on urgent basis.
(Rajasekhar Mantha, J.)