The main legal point established in the judgment is the requirement of proving a positive act of taking away a minor from the lawful guardian without consent, and the challenges of determining the age of the minor in cases of kidnapping and enticement.

R.P. Mookerjee, J

[1] This is an appeal by Debaprosad Bose who had been found by a majority of jury guilty Under Section 366, Penal Code, and accepting the said majority verdict, the Additional Sessions Judge, 24 Parganas, convicted him and sentenced to two years rigorous imprisonment.

[2] The prosecution case is that a certain family of Banerjees lived in the Park Circus area and subsequently shifted to Hazra Road, to a house belonging to a relation. The owner of the house occupied the second floor and the ground floor was occupied partly by Banerjee and another portion of the same floor by the accused Debaprosad Bose and his family. The two families occupying the ground floor were on friendly terms. It is alleged that taking advantage of the friendly relationship, the Accused Debaprosad had enticed the youngest daughter of Banerjee. It is stated that on 10th September 1947, the daughter had left the house on the plea of going to school but instead of going there, went to Deshapriya Park nearby in accordance with previous arrangements with the accused. From there she was taken to the Lakes and then to Kalighat and some form of marriage ceremony was alleged to have been gone through. Later on she was taken by the accused to Jogbani in the district of Pa men to the house of one Dr. Dhar, a brother-in-law of the accused. The accused and the girl were arrested by the police at Jogbani on 14th September 1947 and were brought down to Calcutta. After investigation Debaprosad was committed to the Court of Session, charged with offence Under Section 366, Penal Code. The accused pleaded not guilty but the defence as may be ascertained from the trend of the cross-examination of the prosecution witnesses was that the girl was above 16 years at the time of the occurrence and that further she had not been enticed away by the accused but she had voluntarily left her father's house and had married him.

[3] On behalf of the appellant it is argued that there are serious mis-directions in the Judge's address to the Jury.

[4] In the first place, the learned Judge while placing the evidence as to the age of the girl stated-

"if the accused comes out with a positive version of his own it is for him to prove it. This does not necessarily mean that he himself lead the defence witnesses. The accused may prove his case from cross-examination of the prosecution witnesses or from the surrounding circumstances of the case and the failure to prove the version of his case will not relieve the prosecution of the burden of proving the guilt of the accused and the prosecution will have to succeed on the strength of his own case."

The conclusion arrived at in the first sentence quoted above that the onus is on the accused if he comes out with a positive version of his own is wholly misconceived. Though towards the end of that paragraph reference is made to the onus on the prosecution to prove the guilt, there was a clear misdirection as in the beginning as the learned Judge had rested the onus on the accused. In any view, this introduced a confusion which a lay Jury could not very well appreciate.

[5] While referring to the elements necessary for attracting the provisions of Section 366, Penal Code, the learned Judge did not clearly indicate the effect of the girl leaving her father's place with the intent not to return again and thereafter meeting the accused at Dashapriya Park from where she was taken away by the accused. It is urged that the Jury was not given any indication of the legal position that to make out an offence Under Section 366, Penal Code, kidnapping must be from lawful guardianship and if the girl had already left the protection of her guardian it was for consideration whether the person taking her away subsequently from another place was sufficient to make out an offence of kidnapping.

[6] There are other items in the charge which also had been commented upon but it is not necessary for our present purpose to enter into greater detail at t