1969 PLP 491 (SCMR)

CORNELIUS, J.‑This appeal is brought before this Court by Hassain Ali Shah and Jumo, from an order of a Division Bench of the Sind Chief Court upholding their conviction by the Additional Sessions Judge of Hyderabad under section 366, P. P. C., and the sentences awarded there under, which were two years' rigorous imprisonment and a fine of Rs. 500 to Hussain Ali Shah and 15 months' rigorous imprisonment and a fine of Rs. 100 to Jumo. The abducted girl is a prostitute named Mst. Kaniz, and inmate of a brothel house in Hyderabad Sind, who was apparently the sole support of at least five other adults to whom her relationship is of the most doubtful kind. Her alleged mother Mst. Mumtaz and the latter's sister Mst. Imtiaz were also prostitutes, who had ceased to practise their profession in a gainful sense, and there had been living with them also their mother Mst. Qadri and two male parasites each named Imam Din. The first of these, Imam Din (P. W. 3) gave his occupation as "labour" but was honest enough to admit that he had been living for about six years with this group of prostitutes. The other Imam Din gave his occupation as "oil expeller" but he had to admit that he was maintained by Mst. Imtiaz and Mst. Mumtaz. Both these men appear to have "adopted" the prostitutes as their sisters, and each was candid enough to admit that, immediately after the girls' abduction, he expressed to certain persons, as his first re‑action, that unless the return of the girl could be procured, all of them would starve. These facts are of importance for the reason that the girl herself, giving evidence as P. W. 4, declared that she left the house on her own accord, because the others were obliging her to continue the profession of prostitution, which she detested. Mst. Kaniz's evidence contradicted the prosecution case completely, and yet she was not repudiated by the prosecution as a witness of the truth, by any request for permission to cross‑examine, or otherwise. The evidence of the inmates of this brothel house supporting the prosecution case, which carried at least the possibility of procuring the return of Mst. Kaniz to the brothel, must necessarily be viewed in the light of these circumstances, which do not appear to have been borne sufficiently in mind by the learned Judges of the Courts below. Special leave to appeal was granted to the appellants principally on the point that the prosecution had failed to establish the intention necessary to constitute an offence under section 366, a P. P. C. That is to say, in order to obtain a conviction under that section it is not sufficient to show that the woman has been abducted, i. e. that she had been obliged by the use of force or induced by the practice of deceit to go from any place. It is necessary also that this should have been done with one of certain specific intentions, and that which is ralevant to the present case is the intention that she should be subjected to illicit intercourse, that is to say intercourse outside wedlock, by the use of either force or seduction. The Courts below appear to have directed their attention mainly to the question of the manner in which the girl was taken away from the brothel‑house. The prosecution story, as contained in the initial report made at the thana a short time after the occurrence by Mst. Mumtaz, received its best support from the four inmates of the brothel, namely, Mst. Mumtaz (P. W. 1), Mst. Imtiaz (P. W. 2), Imam Din (P. W. 3). and Imam Din (P. W. 4). It was to the effect that four persons came in namely, Hussain Ali Shah with a gun and Jumo with a pistol accompanied by one Usman who had a knife and one Hamzo who was carrying a hockey stick (Usman and Hamzo were acquitted). It was stated that Mst. Kaniz was seized by the arm and dragged away raising cries. The inmates of the brothel also cried out and ran after them and remained at a distance out of fear. Within their sight, the girl was placed in a car and the party drove away, watched by a Head Constable Muhammad Shah who happened to be in the street. All these persons admitted that Hussain Ali Shah and Jumo had been visiting Mst. Kaniz at the brothel house previously. It is true that they attempt to give the impression that Hussain Ali Shah never co‑habited with Kaniz, but then Mst. Mumtaz who has claimed to be the mother of Kaniz (a claim which is flatly repudiated by the latter) went to the length of saying that the girl had not yet attained puberty when she was abducted. The medical evidence of Dr. Siddique (P. W. 8) who examined the girl for age on the 28th October 1948, shows that she was about 17 years of age, and the girl herself gives her age as 20 years. As regards the use of force in taking her away, the evidence of the Head Constable Muhammad Shah (P. W. 5) is significant. Declaring in examination‑in‑chief that the girl was raising cries when the car was driven away, he admitted in cross‑examination that he had stated in the Committing Court that he did not hear any cries from Mst. Kaniz and further conceded that his statement in the Committing Court was true. Since the evidence to the effect that she showed by her conduct that she was not a consenting party comes exclusively from the highly interested inmates of the brothel, a material doubt thus appeared in favour of the accused. Any doubt whether force or deceit had to be practised in order to induce this practising prostitute to go away with a familiar and wealthy customer would necessarily re‑act upon the question whether it was within the contemplation of the customer in question that, having thus obtained complete possession of the person of the girl, he would yet have to use either force or seduction to be able to achieve intercourse. On the other hand, the natural presumption would be that the resistance factor in the case of such a woman would be of low order initially, and that even this slight resistance had been overcome already, although on a strictly business footing. The Courts below do not appear to have examined the question of intention from this point of view. The trial Judge has declared his belief that whenever "a young girl is taken away by force the presumption could be raised that she was taken away to satisfy the lust of the accused" and that in the present case the intention was that Mst. Kaniz "would be seduced to sexual intercourse by Hussain Ali Shah who was prime figure of the party." In the Chief Court, the point of intention was not independently examined, but the conclusion was reached that Mst. Kaniz was not a willing party to the abduction. The reasons given are firstly that there was no necessity for her to disappear (i. ' e., to run away) at that late hour of the night and that she could have easily found an opportunity to leave at some other time when nobody was observing her, and secondly that there was no necessity for the abductors to go as heavily armed as they did, if the girl was a willing party Each of these reasons relates to a matter which is purely one of choice in the person actively concerned. Only an exhaustive examination of the opportunities for escape which the girl enjoyed from day to day and during the twenty‑four hours of the day could enable the Court to declare whether the time alleged for the occurrence namely about 11‑30 p. m. was not the best time for her to get away from the brothel. No such thorough examination of the circumstances was in fact made. As to the extent of force necessary, it is obvious that the determining factor could not possibly be the resistance (if any) expected from the girl. The degree of preparation would be proportionate to the expected resistance by her custodians. This, as well as the time selected for the abduction were purely matters of the choice of those concerned. On general considerations, the time actually selected would not appear to be inappropriate. But indeed it was not necessary to rely on any such speculations for determining the attitude of the girl. The evidence clearly showed that her life in the brothel were such as would naturally induce an inclination to escape. The doubt whether she offered any resistance at the time of the abduction goes to support her willingness, in a general sense for all the purposes relevant to the section describing the offence. It would then require strong evidence indeed to establish that the principal abductor, Hussain Ali Shah entertained an intention to force or seduce her to illicit intercourse. Such evidence might have been proof that she was seen to be unhappily in his custody after the abduction, that she was kept in confinement, that she complained to persons of her treatment or that she made efforts to get away from him. Not only is there complete absence of proof of any of these facts, but there is proof to the contrary effect. The girl, herself has said that she left the house by herself, of her own accord, and that she had since married one Jan Muhammad. She admitted that she was medically examined by the Civil Surgeon. The latter stated that the girl was brought before him by a gentleman who stated that she was marrying a man and was giving up prostitution life", whereupon he carried out a complete medical examination. That was only 16 days after the alleged abduction. A clear indication is thus provided of the reaction of the girl towards the custody in which she was placed after leaving the brothel. When it was declared in her presence that "she was marrying a man and was giving up prostitution life" she did not by act or speech repudiate the statement. On the contrary, she confirmed that statement by submitting to a full medical examination, thus showing that she was a consenting party to the purpose of the examination. The indications thus furnished constitute, in our opinion, strong evidence to negative any inference regarding necessity for the use of force or seduction following the girl's departure from the brothel. The charge under section 366, P. P. C., against two appel lants clearly fails. We accordingly allow this appeal and acquit the appellants. Appeal accepted.