P (PLP)

ELLIS, J.‑

This is an appeal by four persons, Santosh Kumar Dhar, Surendra Das, Haripada Mitra and Moni Guha. They were all convicted of an offence under section 366 of the Pakistan Penal Code, Santosh and Surendra ware sentenced to rigorous imprisonment for four years and six months each. Haripada and Moni Guha, to rigorous imprisonment for three years each. The appeal will have to be allowed and the convictions and sentences set aside. The Central figure of this case is. a girl by name Ranibala whose age, according to the different estimates giver. in this case, is round about 16 years. Ranibala is the daughter of one Gogan bala, a woman 30 years of ages who in addition to Ranibala, has two other daughters living. Goganbala is the second wife of one Taraprasanna Dhar, a rich Kayestha Jotedar who died about 1940. Tarapiasanna's first wife is one Sakeshini and by her he had two sons, Santosh and Prantosh. Santosh is the Santosh Kumar Dhar who is the first appellant; he is the step‑son of Goganbala ; the second appellant Surendra Das is Goganbala's sister's husband and he is the uncle of Moni Guha, the fourth appellant. The third appellant Haripada is the husband of Goganbala's niece. The parties are thus all inter‑related. Taraprasanna died as we have already said, about the year 1940 leaving behind considerable properties, for he was a rich Kayestha Jotedar. After his death, Goganbala lived with her three daughters in his house along with her co‑wife Sukeshini, but relations between them were strained and Goganbala suffered oppression and ill treatment. In spite of the ill treatment, she remained in this house for some 6 or 7 years until after the partition of Bengal. On the prosecution case the appellant Santosh then proposed that they should sell off all their properties and go to Western Bengal. Goganbala's own brother Nanigopal Dutta also supported the proposal. Goganbala did not agree to sell their property and to migrate to Western Bengal and accord ingly,the oppression to which she had been subjected was increased and ultimately Santosh and Nani assaulted her and drove her and three minor children out of the but. She tried to take refuge with her mother but her mother did not dare to give her shelter against the will of her son Nani and so in. her helplessness Goganbala took refuge in the house of one Haripada whom she knew from before as she had been in the habit of visiting her brother's house. After she had taken shelter with Haripada, Surendra teas and Moni Guha came to her one day with the proposal that her daughter Ranibala should marry one Dinu Bandhu Mitra of the village, Gurdia. Dinu Bandhu was an oh' man, partially blind, with several children of his own and so, neither Goganbala nor Ranibala viewed the proposal with favour, whereupon Surendra and Moni Guba left the house threatening that they would teach her a lesson. After their visit, at the desire of her daughter Ranibala and with her full consent Goganbala married Ranibala to Haripada at the beginning of May, 1948. But on the 15th of May, 1948 the four appellants came to Haripada's house variously armed, carried off Ranibala in spite of the protest of Ranibala and her mother. Haripada was not at home at that time, and took her away with the intention of giving her in marriage against her will. The defence case denies that Ranibala ever accompanied her mother to the house of Haripada and so, it is said that the story that she was ever taken away by the four appellants was a deliberate falsehood. Substantively the defence came forward with the case that Goganbala is a woman of loose character who had contracted an illict intimacy with Haripada. As she became pregnant as a result of this intimacy she left Taraprasanna's house and went to live with Haripada. Ranibala remained behind. in the house of Taraprasanna Dhar and was married to one Amulya Dutta, the son of the appellant Surendra's sister, on the 22nd January, 1948, and consequently as she had been mariied to Amulya, Dutta and never went to the .house of Haripada, there was no question of her ever having been married to Haripada. The charges were framed against the appellants under section 366 of the Pakistan Penal Code, one to the effect that they kidnapped Ranibala arid the other to the effect that they abducted Ranibala with the, intention as stated therein. Mr. Prafulla Kumar Roy has appeared on behalf of the appellants and Mr. Afzal has appeared for 'the Crown. With regard to the charge of kidnapping, both Mr. Roy and‑. Mr. Afzal agree that this charge cannot be sustained, because the evidence on record does not establish that Ranibala was a female under the age of 16 at the material date, which is one of the requisites. of a charge of kidnapping. It may further be observed that the charge itself doe not state from whose lawful guardianship she had been kidnapped. With regard to the age of Ranibala, the Civil Surgeon on' an examination estimated her age at about

17. Goganbala and Ranibala on calculation put her age at the material time at 15 years and a few months. But as the calculation is based on the date of Goganbala's marriage and that date is, not given with an accuracy beyond six months, it is obvious that if there has been a six months' error in the initial date, that would make Ranibala over 16 at the material date. In these circumstances no conviction, can be sustained on the charge of kidnapping. With regard to the charge of abduction, we think there is no room for doubt on the evidence that Ranibala actually did accompany her mother Goganbala to the house of Haripada. Mr. Roy does not contest the fact that Goganbala actually did go to live with Haripada We think that on the record there is no reason to entertain any doubt at all as to the reason which governed her conduct when she went to live with Haripada. Mr. Roy at first was inclined to argue that Ranibala did not accompany he mother to Haripada's. house; but when asked to explain in that case why there has ever been a case at all; he was constrained to admit that Rsnibala did actually accompany Goganbala to Haripanda's house. On he evidence there is no . room for doubt at all that the four appellants actually did take Ranibala away from Haripada s house. Mr. Roy argues that as near relatives of Ranibala they felt it an insult to the family and to the community that Ranibla was living in such an atmosphere of contagion and in all probabi lities the four appellants removed her in order to take her away from this unwholesome environment. It appears that after Goganbala and Ranibala had left the house of Taraprasanna and gone to live with Haripada, the appellants took no steps for some 20 days and it appears to us on a reading of the evidence that the appellants were not concerned with Goganbala who had house to the house of Haripada. Obviously she had lost whatever character she possessed and they were not particularly concerned to rescue her from the house of her lover. But what precipitated their action was either the proposal of Ranibala's marriage with Haripada or her actual marriage with him. Goganbala was a widow with three daughters and it seems to us to be not impossible that Haripada would look with greater favour on the daughter Ranibala than on the widowed mother with her family and we think that on the record there is no reason to doubt that Ranibala actually did go through a forte of marriage with Haripada while she was staying in. his house. Whether that was a valid marriage or not, we do not propose to express any opinion. But we think it is quite clear that the appellants‑ having got scent of the fact that Ranibala had gone through a form of marriage with Haripada and remembering that as the daughter of the rich Kayestha Jotedar considerable property might be involved, they decided to rescue her from what Mr. Roy says was, hot unwholesome environment. That we think is the reason why on the 15th May, 1948 they went together in a band and took her away from Haripada's house by force. The question now arises whether in so doing s they committed an offence under section 366 of the Code. The answer to this argument must be that on the charge as framed they committed no offence. The charge recites that they abducted Ranibala with the intention that she might be compelled or knowing it to be likely that she would be‑compelled to marry some person against her will, or in order that she might he forced or seduced to illicit intercourse, or knowing it to be likely that she would be forced or seduced to illicit intercourse. With the second part of the case' we are not concerned because on, the prosecution case the intention with which she was abducted was that she might be compelled to marry against her wail, the marriage obviously being with one Amulya Dutta. Ranibala herself now states that she married Amulya on the 8th Magh 1354 B. S., a date which corres ponds to the 22nd January, 1948. This statement .is, at variance with the first statement she ever made which says that she married Amulya on a date which corresponds to a date in May or the begining of June, 1948. We think that is far more likely to be the date of her marriage if there was a marriage with Amulya. The fact that Ranibala gives that first of all as being the date of marriage with Amulya is itself a strong argument that that was the real date, for she would not then be likely to give a wrong date. Subsequently the date of her marriage was put back from. May June 1948, to January 1948 in order to make out that she was actually married to Amulya at a date prior to that when she went to Haripada's house. However, that may be, on the charge as framed, the prosecu tion has not been able to establish affirmatively by evidence that she was abducted with the intention that she might be compelled or that the appellants knew it to be likely that she would be compelled to marry some person against her will. They only person so competent to give evidence on this point is Ranibala and Ranibala definitely states in her evidence that the marriage with Amulya was not a marriage to which she was compelled and it was not one which she was forced against her free will. When Ranibala says that she herself married Amulya of her own' free will, then the prosecution case that she was forced to marry Amulya, breaks down and the charge under section 369 must fail. In the result then, this appeal is allowed and the conviction and sentence are set aside and we direct that the four appellants be discharged from their bail bonds. ISPAHANI, J.

I agree. A.H Appeal allowed,