Authored By : Banerjee, S.G. Sale

Banerjee and S.G. Sale, JJ.

1. This is an appeal by the Local Government under Section417 of the Code of Criminal Procedure against an order of the Sessions Judge ofBankura acquitting on appeal the accused Karuna Baistobi, who had beenconvicted by the Deputy Magistrate of that district under Section 373, IndianPenal Code, for buying two minor girls for the purpose of prostitution: Theundisputed facts of the case are that the accused Karuna Baistobi purchased thetwo girls from their father on two dates separated by a short interval, thefirst one for Rs. 9 and the second for Rs. 14; that the girls are twins aboutone year old; and that their father sold them, their mother being dead and hehaving found some difficulty in bringing them up. The question that reallyarises for determination in this case is whether the girls were bought with theguilty intention or knowledge which is requisite under Section 373 toconstitute the offence made punishable by that section. The evidence adduced inproof of such guilty knowledge or intention consists of the confession of theaccused, and of the deposition of certain witnesses who say that the accused isherself a prostitute, that she has brought up another girl from her in fancy, agirl named Amadini who is now living with her in her house and is leading thelife of a prostitute, that it is the practice with prostitutes in that part ofthe country to buy girls for the purposes of prostitution, though sometimes suchgirls are married, and that even where they are married, it is rarely that theycome to live with their husbands. There is also some evidence tending to showthat the girl Amadini is leading the life of a prostitute of her own accord,and was never induced by the accused to do so, and, further, that the accusedpurchased the two girls in question with a view to bring them up, so that theymight take care of her in her old age. Upon all this evidence the DeputyMagistrate, who tried the accused jointly with the father of the girls,Haradhan Mandal, on charges under Sections 372 and 373, Indian Penal Code, heldthat the guilty intention required by Sections 372, 373 had been made out, andhe accordingly convicted both the accused Karuna Baistobi and Haradhan, thefather of the girls, the former under Section 373 and the latter under Section372, Indian Penal Code, and sentenced each to rigorous imprisonment for ninemonths. They preferred separate appeals to the Sessions Judge, and the learnedSessions Judge dismissed the appeal of Haradhan Mandal, but, on the appeal ofKaruna Baistobi, reversed the finding and sentence and acquitted her. Theground upon which the judgment of the learned Sessions Judge in the case ofKaruna Baistobi is based is not that upon the facts no guilty intention orknowledge that the girls would be employed for purposes of prostitution hadbeen made out, but that, as a matter of law, no offence under Section 373 canbe said to have been committed if the guilty intention or knowledge as to theemployment of the girls purchased is not as to their present employment for thepurpose of prostitution; and, as in the present case, considering the age ofthe girls, their present employment for purposes of prostitution was physicallyimpossible, the learned Judge is of opinion that no offence under Section 373has been committed. Against this judgment of acquittal the Local Government haspreferred this appeal, and the Public Prosecutor has also obtained a rule,which we shall dispose of presently, calling upon the other accused, HaradhanMandal, to show cause why the sentence passed upon him should not be enhanced,

2. We have given to this case all the anxious considerationthat criminal cases, involving, as they do, interference with the liberty ofthe subject, generally, and appeals against orders of acquittal specially,demand. The law by limiting the right of appeal against judgments of acquittalto the Local Government, prevents personal vindictiveness from seeking to callin question judgments of acquittal by way of appeal, and evidently intends thatsuch interference shall take place only in cases where there has been amiscarriage of justice so grave as would induce the Local Government to move inthe matter. We think it is a most salutary principle, quite as necessary forthe well being of society as the repression and punishment of crime, thatinterference with judgments of acquittal should take place only in cases wherethere has been a miscarriage of justice of a grave nature; and if in this casethe learned Judge had found on the evidence that he could not safely rely uponthe confession of the accused, and that the other evidence was not sufficientto warrant the conclusion that there existed guilty knowledge or intention onher part, we should have felt the greatest possible hesitation in interferingwith his judgment. But as it is, that is not the ground of the acquittal inthis case. The ground of the acquittal as I have stated above is that, as amatter of law, no offence under Section 373 can be said to have been committedunless the intention or knowledge of likelihood that the minor girl purchasedshall be employed for purposes of prostitution is an intention or knowledge oflikelihood that such employment is to be immediate. This is what the learnedJudge says: "It appears to me in this case that the appellant is entitledto be acquitted. The intention that the girls, who were less than a year old,should be employed or used as prostitutes cannot be said to have been sufficientlyproved. Intention must be used with reference to some definite future time orcontingency, and here it would be, I think, carrying the law too far to make itmean that the intention has reference to the time when some twelve or fourteenyears later the girls may come to be of such an age as to be able to beemployed or used as prostitutes. It is not indeed distinctly stated that theintention must be that the girl is to be immediately so employed, but I thinkthat this is the only method of construing the section." Now, if thelearned Judges view of the law were accepted, it would lead to greatmiscarriage of justice; for, in that case, the protection from vice, so far asthe Criminal Law affords it to the infant, would be denied in the case of thosefor whom it is most needed and evidently intended. Though in the case of a girlpurchased for the purpose of prostitution who has attained physical maturitysufficient for the purposes of vice, the evil day is near at hand, and so farher fate is to be pitied more than that of one in whose case the evil day ismore distant, yet with the physical maturity attained, there is a certainamount of mental capacity acquired which would enable her to resist vice if sheis so minded. But in the case of infants of tender years, like the two littlechildren in this case, considering the surroundings under which they would bebrought up, it would be practically impossible for them to exercise any moraljudgment when the time comes for them to choose their course of life. It would,therefore, in our opinion be a most unreasonable construction to put uponSection 373, to say that an offence under that section is not complete unlessthe intention or knowledge of likelihood as to employment for the purpose ofprostitution is with reference to employment either immediate or at somedefinite and not very remote future period. We think that an offence under thatsection would be complete as soon as a girl is purchased with the guiltyintention or knowledge of likelihood that she shall be employed for the purposeof prostitution, although the point of time for such employment may be remoteby reason of her physical incapacity for the purpose. The main question in thecase then, as we have stated above, is whether the purchase of the two minorgirls was with the intention that they should be employed for the purpose ofprostitution or with the knowledge of likelihood that they should be soemployed. Upon that question, which is really a question of fact, the judgmentof the learned Sessions Judge does not afford us any assistance. We here feelit our duty to add that we have derived most material assistance in this casefrom the exhaustive, yet concise, and the cogent, yet temperate, argumentsadvanced by the learned Deputy Legal Remembrancer and by Baboo Baidya NathDutt, who respectively represented the Crown and the accused.

3. Before proceeding to discuss the evidence, we think itproper to observe that, in order to constitute an offence under Section 373,Indian Penal Code, there must be the buying of a minor girl under the age of 16years with intent that such minor shall be employed for the purpose ofprostitution or with the knowledge of likelihood that she shall be so employed,while yet a minor under the age of 16. The offence will not be constituted if,notwithstanding the existence of such intention or guilty knowledge, theemployment that is intended or known to be likely is to take place after thecompletion of the sixteenth year by the minor. This is clear from the language ofthe section; and if any authority were needed in support of this view, we mightrefer to the observation of Muttusami Iyer, J., in the case of theQueen-Empress v. Ramanna I.L.R. Mad. 273. That then being the kind of intentionor knowledge which must be shown to exist before an offence under Section 373can be said to have been committed, let us now see how far such intention orknowledge is proved to have existed in this case by the evidence adduced. Theconfession of the accused no doubt affords the most direct evidence of theexistence of such an intention; but considering the circumstances under whichthe confession was made and subsequently retracted, we do not think it would besafe to find the existence of guilty knowledge or intention solely upon thebasis of that. The confession was made on the 16th of July in the eveningbetween the hours of 6 and 8 P.M., the arrest having been made at 6, and theorder directing her to be taken to hajat being made at 8. The order for takingthe accused to hajat directs her detention there for seven days, and sheappeared again before the Deputy Magistrate to take her trial on the 23rd July.On that very day she retracted her confession. A confession so made andretracted must always be open to suspicion; and I would repeat what I hadoccasion to observe more than once that I feel considerable force in what Cave,J., says in the case of The Queen v. Thompson IL.R. 1893 Q.B. 12 where heremarks: "I would add that for my part I always suspect these confessions,which are supposed to be the off-spring of penitence and remorse, and which,nevertheless, are repudiated by the prisoner at the trial."

4. It was argued by the learned Deputy Legal Remembrancer173] that, conceding that there was any ground for suspicion regarding thegenuineness and voluntary nature of the confession of the accused KarunaBaistobi, there was the confession of the other accused, Haradhan Mandal, whowas tried jointly with her, and which was never retracted, which might be usedas evidence under Section 30 of the Indian Evidence Act; and it would go toshow that the intention was such as Section 373 requires. We are of opinionthat that confession is not legally admissible in evidence against KarunaBaistobi. Section 30 provides that when more persons than one are being triedjointly for the same offence, and a confession made by one of such personsaffecting himself and some other of such persons is proved, the Court may takeinto consideration such confession as against such other person as well asagainst the person who makes such confession, and the explanation appended tothat section by Act III of 1891 says: "Offence as used in this sectionincludes the abetment of, or attempt to commit, the offence." Upon this itis argued that as the offence for which Haradhan Mandal was tried, viz., theselling of the minors whom Karuna Baistobi bought, was in reality an abetmentof Karuna Baistobis offence, the confession of Haradhan was legally admissibleas evidence against her. We do not consider this contention sound. PerhapsHaradhan might have been tried for the abetment of the offence with whichKaruna was charged; but, as a matter of fact, he was not so tried. He was triedfor a substantive offence under the Indian Penal Code, viz., an offence madepunishable under Section 372, and we do not think it would be right to extendthe explanation in the way we have been asked to do.

5. But though the confession of Karuna Baistobi may not besafe to be relied upon, if it had stood alone, and though the confession of theother accused is not admissible in evidence against her, we think there isplenty of other evidence to show that the purchase of the two girls by KarunaBaistobi was with intent that they should be employed for the purpose ofprostitution. We quite agree with the learned Vakil for the accused that it isfor the prosecution to show the existence of such intention, and that theexistence of such intention must be proved by strong evidence. But the evidenceto prove the existence of an intention need not be limited to statements by theaccused herself, admitting the existence of such an intention in her own mind,or to the evidence of some person who can come forward and swear that he heardthe accused say that that was his or her intention. The existence of anintention, like any other fact, may be proved by evidence of conduct andcircumstances, and here we think there is ample evidence afforded by theconduct of the accused, and the circumstances of the case, to show that herintention in buying these girls was that they should be employed for thepurpose of prostitution. No doubt there is some evidence to show that prostitutesin this part of the country do sometimes bring up girls for the purpose ofhaving them married, but the weight of evidence is altogether the other way,viz., that, as a rule, they buy girls for the purpose of making them live thelife of a prostitute. If a prostitute advanced in life were to adopt a girl, itmight be that, moved by remorse, she might do so with the object of having someone to take care of her in her old age, who was leading an honest life and wasnot like one of her ordinary fallen sisters. Possibly there might have beenroom for such a contention if the purchase in this case had been confined toone girl only. As it is, we find that within a week of one another twopurchases were made by the accused, one for Rs. 9 and the other for Rs. 14; andit is incredible that she intended to bring up both these girls for the purposeof disposing of them in marriage, and having as her adopted daughters two youngwomen leading honest lives. We are quite free to own that, apart from theevidence, the presumption mast always be in favour of innocence. But here thecircumstances all tend the other way. Then, again, we have it clearly inevidence that the accused is not altogether a stranger to this line of conduct,viz., of buying girls to be employed for the purpose of prostitution. It isproved that she did buy another girl, then an infant, whom she brought up andto whom she has bequeathed all her property, who is still living with her andis leading the life of a prostitute. Illustration (a) to Section 106 of theEvidence Act, to which the learned Deputy Legal Remembrancer called ourattention, has an important bearing upon the question we are now considering.That illustration is to this effect: "When a person does an act with someintention other than that which the character and circumstances of the actsuggest the burden of proving that intention is upon him." Ifnotwithstanding the act of purchase of these two girls successively, theintention was something other than that which would evidently be suggested bythe character and circumstances of the act, it was for the accused to haveshown that, but no such thing has been shown on the part of the accused. Afurther argument was raised that, although all this may go to show that theintention was that the girls should be employed for the purpose ofprostitution, still they did not sufficiently show that the employment intendedwas to be before the completion of the sixteenth year by the girls. Here,again, the provisions of the Evidence Act referred to above would show that itwas for the accused to prove that she intended to put off the employment untilthe completion of the sixteenth year. The age of maturity for the purpose ofprostitution is attained before the completion of the sixteenth year, and thereis nothing shown why it should be held that, though the intention was that thegirls should be employed for the purpose of prostitution, the intention wasnevertheless qualified to the extent that the employment was not to take placeuntil the sixteenth year was completed. We must view the matter as one ofordinary common sense; and we think it would be refining too much to say thatthe intention, though it existed generally, was yet qualified to this extentthat the employment intended was to be deferred till some considerable periodafter the attainment of physical capacity for the purpose. The result then isthat the judgment of acquittal must be reversed and the accused convicted ofthe offence punishable under Section 373, Penal Code.

6. The next question is the question of sentence. We wereasked to treat the offence lightly, considering that it has been committed by aprostitute of low class. No doubt if the offence had been committed by anotherperson with better education or better surroundings its enormity would havebeen greater; hut the mere fact of its having been committed by a low classprostitute would not be sufficient to induce us to treat the offence lightlyand to visit it with a nominal punishment. Considering all the circumstances ofthe case, we think the punishment that was inflicted on the accused by theDeputy Magistrate who convicted her would be sufficient to meet the ends ofjustice; and we accordingly sentence her to nine months rigorous imprisonment.

7. In the rule that was obtained against Haradhan Mandal, noone has appeared to show cause. His offence is of a more aggravated nature. Hewas the natural guardian of these infants. It was his duty to protect them, notonly against physical evils, but also, so far as it was in his power, againstmoral evils. Instead of doing anything of the kind he sold them for the purposeof prostitution as he himself admits, for money, and on the second occasionthere was a regular haggling for the price. All this, in our opinion, greatlyaggravates his offence; and though we are, as a rule, extremely disinclined toenhance sentences, in the present case, we think the ends of justice requirethat we should exercise this exceptional power. We accordingly enhance thesentence in this case to rigorous imprisonment for eighteen months.

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The Deputy Legal Remembrancer vs. Karuna Baistobi and Ors.(19.10.1894 - CALHC)