JUDGMENT 1. THIS is an appeal from jail against an order of conviction and sentence passed by the learned Additional sessions Judge, Midnapore in Sessions trial No. VIII of July 1979. The appellant and one Sk. Selim faced trial on twofold charges under Sec. 366a/34 and 372/34 of the Indian Penal Code. The other accused Sk. Selim has been acquitted. The appellant was found guilty under both the charges and a sentence of 7 years' rigorous imprisonment was passed under sec. 366a and in view of the sentence passed therein, no separate sentence under Sec. 372 was passed. 2. THE prosecution case briefly is as follows. Sometime in the month of Ashar 1383 B. S. the appellant Santosh alias bachu approached the complainant (P. W. 1) with an offer that he might secure some employment for her minor daughter Arati elsewhere. P. W. 1, the mother who was living with her brother P. W. 4 along with her two minor daughters and earning her livelihood by working as a maid-servant, agreed to the proposal of the accused. Thereafter the accused took away the girl arati and another girl (P. W. 6) named jhuna. Sometime later the appellant assured P. W. 1 that Arati was well and that she would return home during the Puja holidays but Arati did not return. On being confronted after the Puja the accused gave out that Arati was living happily elsewhere and might not return. Thereafter p. W. 1 came to learn that Arati has been sold away to a certain chamar somewhere near Delhi. On getting such information she lodged a written complaint with the nandigram Police Station on 6.11.1976, the complaint being written by P. W. 16, the dafadar of the anchal (Ext. 4). Thereafter the investigation was taken up. The victim girl Arati was recovered from the house of one Surja Singh in village Dariyapur in the district of Saharanpur in U. P. The girl was medically examined at Roorkee Female hospital and thereafter on being transmitted to the court of the S. D. J. M. at Tamluk, she was further examined clinically as well as radio logically by different doctors. She was found to be below the age of 18 at the relevant time, i.e., in July 1976. After completion of investigation charge-sheet was submitted against the two accused persons under Sees. 366a and 372 of the Indian Penal Code. She was found to be below the age of 18 at the relevant time, i.e., in July 1976. After completion of investigation charge-sheet was submitted against the two accused persons under Sees. 366a and 372 of the Indian Penal Code. The appellant did not take up any specific plea except a bare deniaj of the allegations. As many as 21 witnesses were examined for the prosecution. The defence adduced no evidence. 3. THE learned Additional Sessions judge found that the victim girl Arati was a minor below the age of 18 years at the relevant time. Relying on the evidence of the mother (P. W. 1), the maternal uncle (P. W. 4) and some other villagers, viz, P. Ws. 2 and 3 to whom the accused appellant is alleged to have confessed having taking the girl and having left her somewhere near Delhi and the other evidence forthcoming in the case, the learned Additional Sessions judge found that the charges both under sees. 366a and 372 have been established against the appellant. As regards the other accused, evidence was found insufficient and hence he was acquitted. The appellant was sentence to suffer R. I. for J years as already indicated under Sec. 366a and no separate sentence under Sec. 372 was passed. 4. MR. Mukherjee appearing on behalf of the appellant contended that there was no evidence to bring home a charge under Sec. 366a of the Code the most essential ingredient of which is inducement of a girl below the age of 18 years. He also contended that the evidence that the appellant sold the girl to Surja Singh has not been established by cogent and reliable evidence. In order to see whether any offence under sec. 366a has been committed or not the first thing to be ascertained is the age of the girl. If she was above the age of 18 years the case would at once go out of the ambit of either Sec. 366a or Sec. 372 of the Penal Code. On the question of age the evidence comes from the mother (P. W. 1), the maternal uncle (P. W. 4) and the result of medical/examination-clinical as well as radiological. The mother had said that the girl was aged about 15-years at the relevant time. The maternal uncle too has said so. Mr. On the question of age the evidence comes from the mother (P. W. 1), the maternal uncle (P. W. 4) and the result of medical/examination-clinical as well as radiological. The mother had said that the girl was aged about 15-years at the relevant time. The maternal uncle too has said so. Mr. Mukherjee contended that the evidence of the mother as to the age of the girl ought not to be relied upon in view of her inability to say the year of her birth. Keeping in mind the strata of the society she is coming from, viz., an illiterate rustic village woman earning her livelihood by working as a maid-servant and living 6m the charity of her brother (P. W. 4) at 'the latter's house, it is not expected that she would be able to give the year of birth with any amount of accuracy or precision, but nonetheless she was capable of saying how old was the daughter and she has said that she was about 15 years old. Her inability to give the year of birth does not render her evidence unreliable on that score alone. This apart, there is evidence that the ginl was recovered from the house of one Surja Singh at village Dariyapur by P.W. 21. Thereafter she was produced, before P. W. 18, Dr. Paramila Arrena, attached to the civil Hospital, Roorkee, Dist. Saharanpur. On clinical examination she opined that the approximate age of the victim girl on the date of examination, viz., 26.5.1977 was 17 years with variation of one year on either side. The relevant date for our purposes is July 1976. Therefore in the opinion of this witness she was around 16 years in 1976, with possibility of variation of one year on either side. Next this victim girl was produced at Tamluk and there she was examined by P.W. 9 Dr. Hirendra Kumar Roy on 16.7.1977. Upon clinical examination she was of the opinion that she was about 16 years of age. Incidentally it may be mentioned that both P. W. 18 and P. W. 9 found that the girl was pregnant. P. W. 8, Dr. Ghose, a radiologist attached to Tamluk sub divisional Hospital, examined the girl on 8.9.1977. X'rays of the wrist joints, elbow joints and pelvis were taken. Incidentally it may be mentioned that both P. W. 18 and P. W. 9 found that the girl was pregnant. P. W. 8, Dr. Ghose, a radiologist attached to Tamluk sub divisional Hospital, examined the girl on 8.9.1977. X'rays of the wrist joints, elbow joints and pelvis were taken. Upon radiological examination and on the basis oil ossification of bones this witness opined that the girl was aged between 17 and 1si years on the date of her examination. If the matter had remained there then according to this witness the age of the girl in july 1976 could be taken to be somewhere between 16 years and 18 years, it is significant that a specific suggestion was put to, P. W. 8 that the girl was aged 18 years 6 months on the date of examination. If we go by that suggestion she was obviously less than 18 years at the relevant time. Even independently of that suggestion and making all possible allowances for variations and errors we find that the evidence of the mother stands amply corroborated by the medical evidence coming from P. Ws. 8, 9 and 18. We, therefore, agree with the finding of the learned Judge in the court below that the girl was below the age of 18 years at the time when she was taken away by the accused. But in order to constitute an offence under Sec. 366a the most essential ingredient beside the age is the inducement to the girl to go from one place or to do any act with a particular intent. Therefore the next element that the prosecution was required to prove was that the girl was induced to go from the village or to do any particular act. On that point really there is no adequate evidence. The prosecution could not produce the I girl herself at the trial. After her medical examination at tamluk she was released on a bond of Rs. 1000/- with one surety. The learned judge, upon a reference to the order sheet of court of the learned Magistrate, observed that one Shyamapada Dias stated to be a lawyer of Tamluk furnished a bail-bond as her surety and in spite of summons upon the surety the girl did not appear in court nor did the surety produce or otherwise explain his conduct. The learned judge, upon a reference to the order sheet of court of the learned Magistrate, observed that one Shyamapada Dias stated to be a lawyer of Tamluk furnished a bail-bond as her surety and in spite of summons upon the surety the girl did not appear in court nor did the surety produce or otherwise explain his conduct. Such being the position the learned Judge observed and we think lightly that it is not a case where the prosecution was withholding the victim girl with an oblique motive. The fact is that she could not be produced and it would be unsafe to make any speculation as to what she might have said had she been examined. We have to go by the evidence on record to see if there was any inducement at all to the girl. The mother (P. W. 1) in her evidence has stated that sometime in the month of Ashar about 5 years age the appellant told her that he would keep Arati in a house and in return she would receive remuneration month by month. Thereafter the accused took away Arati and another girl named Jhuna (P. W. 6). She did not, however, get any information about Arati thereafter and on being confronted the appellant told her that Arati was happy and well and that she, might not return. It is also her evidence that sometime after the accused took away Arati and Jhuna, Jhuna returned and reported something to the witness. What Jhuna stated, however, could not be available to the prosecution because Jhuna though examined was declared hostile and therefore anything allegedly said by Jhuna would not be strictly available for any useful purpose. It is also her evidence, "i would not have allowed my daughter to go away with Bachu unless he had promised a work for her". In cross examination she has further conceded that there was no witness present when the accused promised to secure a job for Arati nor was there any witness when the accused told her in the month of Aswin that arati was living happily elsewhere. On the question of inducement the only other evidence is that of P. W. 4, the maternal unple of Arati. On the question of inducement the only other evidence is that of P. W. 4, the maternal unple of Arati. He says that the accused told arati that he would secure a good job for her and keep her at some place and there after the accused took away Arati with the permission of the witness and of P. W. 1. Therefore the evidence of P. W. 4 indicates as if the proposal was to Arati and that he was then present but the evidence of P. W. 1 does not support the evidence. In view of the conflict in the evidence between P. Ws. 1 and 4, it is difficult to say that there wee any inducement to the girl herself although we are satisfied that the mother and the maternal uncle gave their consent on a certain representation made by the accused to them that a good job would be secured for the girl. This may amount to some other offence under the penal Code, but cannot be construed as an inducement to the minor girl. Consequently we are unable to hold on the evidence as it is that the charge under Sec. 368a has been established. 5. AS regards the charge under Sec. 372 of the Indian Penal Code, in our view, there is adequate evidence. Sec. 372 is in the following terms: "372. Whoever sells, lets to hire, or otherwise disposes of arty person under the age of eighteen years with intent that such person shall at any age be employed or used for the purpose of prostitution or illicit intercourse with any person or for any unlawful and v immoral purpose, or knowing it to be likely that such person will at any age be employed or used for any such purpose, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine." The positive case for the prosecution is that the victim girl Arati was sold and the charge also enumerates the person to whom she was sold, viz., one Surja Prosad alias Singh of Dariyapur, P. S. Bhagabanpur, Dist. Saharanpur with the intent that Arati would be used for the purpose of illicit intercourse. 6. Saharanpur with the intent that Arati would be used for the purpose of illicit intercourse. 6. ON this point P. W. 1's evidence is that arati did not return home at all and latter she got some information from P. W. 6 as also from one Bibi of Erasakmeaning thereby P. W. 15 that Arati was living at Delhi. P. W. 2 Bhusan Majhi is a resident of the village to whom P. W. 1 narrated the incident. This witness says that he made certain enquiries from Jhuna and also interrogated the accused. The accused confessed to him that he had given Arati over to a place near Delhi. In cross-examination it was not suggested that the accused had not made any such confession to the witness. P. W. 3 likewise says that after hearing from Jhuna he interrogated the accused who made a similar confession to him. It was only suggested that the witness had some dispute with the accused and that he was deposing falsely. It was specifically suggested that the accused had not made. any such confession to him. P.W 5 Sk. Raoshan is a resident of naraghat within P. S. Nandigram. His evidence in short is that he saw the accused in the company of Jhuna. and another girl named Arati. They were going by train to a place near Hardwar. It is also his evidence that he found those two girls at village Dariyapuj' and subsequently came to learn from the accused that Jhuna Was pregnant and living in the house of a muslim and the other girl Arati whom the accused described as his sister-in-law was living in the house of one chamar named Surja. He stayed at the place for about 15 days but did not visit the house of the muslim or the chamar nor did he report the occurrence to the police station. 7. P. W. 6 is Jhuna. From the very start she appears to have turned hostile to the prosecution. She claims to be living with her husband and not to know the accused even although it was taken that. her statement before the I. O. under Sec. 161 Cr. P. C. was different. This renders her evidence that she does hot know the accused unreliable. From the very start she appears to have turned hostile to the prosecution. She claims to be living with her husband and not to know the accused even although it was taken that. her statement before the I. O. under Sec. 161 Cr. P. C. was different. This renders her evidence that she does hot know the accused unreliable. In view of the enormous extent to which she denied having made statements to the I. O. and which statements were duly proved by the I. O. to have been made, we consider P. W. 6 to be a thoroughly untrustworthy witness. 8. P. W. 7 is a judicial magistrate who recorded the statement; of P. W. 5 under sec. 164 Cr. P. C. P. W. 10 is another judicial magistrate who recorded the statement of the victim girl Arati at Saharanpur. The girl not having been examined, the statement so recorded Can not be used in evidence as substantive evidence in the trial. P. W. 11, P. W. 12, P. W. 13, P. W. 14, P. W. 17 and P. W. 21 are police officers who held investigation at different stages. Of the remaining witnesses more important are P. W. 15 and P. W. 19 Kalma bibi is a resident of village Erasole. She is the lady referred to by P. W. 1 in her evidence. The evidence of P. W. 15 is that her daughter was given in marriage at Dariyapur, that she went to Dariyapur and met arati there who was staying in a house near the house of the daughter of the witness. What Arati stated to her may not be good evidence for reasons already stated, but the fact that this witness saw Arati at dariyapur stands well established. It is also her evidence that on return home she informed P. W. 1 of the occurrence. P. W. 19 santu Singh is a witness in whose presence the police arrested the victim girl and suraj from the house at Dariyapur. His evidence is "suraj had purchased that giri at a price of Rs. 1200/-. Suraj then married the girl. Tungal Singh was also present at the time of arrest". In cross examination he has stated that the purchase took place in his presence but he could not recollect if he told the police that Suraj had purchased the giri. His evidence is "suraj had purchased that giri at a price of Rs. 1200/-. Suraj then married the girl. Tungal Singh was also present at the time of arrest". In cross examination he has stated that the purchase took place in his presence but he could not recollect if he told the police that Suraj had purchased the giri. It was taken from P. W, 21 "it is not in the statement, of Saturam Singh recorded by me that he was present when surja Singh purchased Arati Jana for Rs. 1200/-". In view of the statement of P. W. 21 as referred to above it was argued by Mr. Mukherjee on behalf of the appellant that the evidence of P. W. 19 as to the sale of the girl to Surya could not be believed. Therefore, it was contended that there being no other witness to the sale, the most essential ingredient constituting an offence under Section 372 1. P. C. was not proved at all. It may be mentioned here that P. W. 19 Santu and P. W. 20 Tungan are both residents of village Dariapur and neighbours of Surya Singh. It was in that capacity that they were picked up by P. W. 21 at the time of arrest of Arati and Surya singh. They were really witnesses to the arrest. Therefore, the omission, if any, in the statement recorded by the police under section 161 Cr. P. C. does not seem to us to be very material on the question whether there was the sale of the victim girl or not. On that question the positive evidence of p. W. 19 is that Surya purchased the girl in his presence and that then he married the girl. In chief he stated that the purchase price was Rs. 1200/ -. The omission in the form in which it has been taken may at best indicate a contradiction as to the amount of senile puce but not the factum of sale itself. Therefore, we are unable to agree with Mr. Mukherjee that the evidence of P. W. 19 should be discarded in view of the omission referred to above. 9. FROM the evidence of P. Ws. Therefore, we are unable to agree with Mr. Mukherjee that the evidence of P. W. 19 should be discarded in view of the omission referred to above. 9. FROM the evidence of P. Ws. 1-4 it is clear that the accused taking advantage of the distressed condition of P. W. 1 took away the girl on an assurance of securing a job for her and on further assurance that sine would be making regular monthly remittances to P. W. 1. It further appears from the evidence of P. Ws. 2 and 3 that when the girl did neither send the money nor send any intimation as to her whereabouts, the accused on being confronted confessed having left her at a place near Delhi. P. W. 15 had seen the girl at that place namely dariapur. P. W. 21 repovered the girl from the house of one Surya Singh of Dariapur in presence of P. W. 19. In the context of these facts let us now see whether the offence contemplated by section 372 has been established or not. The essential ingredients of the section are: 1) Selling or letting to hire, or other disposal of a person; 2) Such person should be under the age of 18 years; 3) Selling, letting to hire or other disposal must be with intent or knowledge of likelihood that the person shall at any age be employed or used for the purpose of prostitution or illicit intercourse with any person or any unlawful and immoral purpose. 10. IN view of the specific charge framed against the appellant we need not consider the question of letting to hire or other form of disposal nor should we go into the question whether it was, for the purpose of prostitution or any unlawful and immoral purpose. The specific charge is of selling the victim girl Arati with the intent that she could be used for illicit intercourse with a named person, namely, Surya, of Dariapur. We have already found that the girl was below the age of 18 years. We have further found that she was sold to Surya Prosad. What remains to be found is the intent, namely, whether the sale was with intent or knowledge that she shall be used for illicit intercourse. We have already found that the girl was below the age of 18 years. We have further found that she was sold to Surya Prosad. What remains to be found is the intent, namely, whether the sale was with intent or knowledge that she shall be used for illicit intercourse. Having considered the facts antecedent, namely, the taking away of a minor girl from the custody of the lawful guardian on false pretences to a far-off place in the district of Saharanpur we may safely hold that the intention of the accused was far from benevolent. It was not oufl of a sense of philanthropy that he took: all the pains and incurred all the expenses; of taking the minor girl from a remote village in the district of Midnapore to a village in U. P. Presumably he had contacts there even though there is no direct evidence on the point. Therefore, we can safely hold on the facts found what the intention of the accused could be when he took her away. Intention being a matter relating to the state of mind direct and positive evidence can hardly be expected. The intention has to be gathered from the "attending facts and circumstances of the case. In the present case we have already indicated that the accused took away the girl on false pretence to a very distant place and we are unable to presume that he did all this for nothing. Read in that context, the evidence of P. W. 19 that the girl was sold to Surya becomes quite plausible and we find no reason to discard such evidence. We have already stated that the victim girl after recovery was clinically examined by two doctors-once at Rooki and again at Tamluk. She was found pregnant. Obviously she had sexual intercourse which resulted in the conception. Therefore, we find that the accused sold a girl below the age of 18 years with intention that she might be employed or used for illicit intercourse with Surya Prosad. " Mrs. Moitra appearing on behalf of the State while conceding that the evidence was insufficient to prove inducement to the girl within the meaning of Section 366a of the Code, posed a question whether in view of explanation (II) to section 372 the accused could be found guilty under section 372 at all or not. " Mrs. Moitra appearing on behalf of the State while conceding that the evidence was insufficient to prove inducement to the girl within the meaning of Section 366a of the Code, posed a question whether in view of explanation (II) to section 372 the accused could be found guilty under section 372 at all or not. She argued that in view of the explanation, illicit intercourse means sexual intercourse between persons not united by marriage or any union or tie, which, though not amounting to a marriage, is recognised by the personal law or custom of the community to which they belong, and since there is evidence that Surya married the victim girl, the intercourse between them was not illicit intercourse within the meaning of the substantive part of section 372 I. P. C. and hence Mrs. Moitra suggested that in the facts of the case it could not perhaps be said that the sale, if any, was with the particular intent referred to in the charge. We are unable to agree with the point thus raised by Mrs. Moitra. We are of the view that a subsequent marriage between a victim girl and the purchaser will not relieve the seller of his liability if the initial intention was not to give the girl in marriage to the buyer. If the initial intention was otherwise and culpable in nature the subsequent conduct of the buyer would not relieve him of his liability. What the section intends is to punish the particular intent with which the sale is effected. The object of the explanation is not to exonerate a person who, but for subsequent events, would otherwise come clearly within the meaning and mischief of the section. Therefore, the mere fact that the sexual intercourse subsequent to the marriage was not illicit, it does not necessarily follow that the initial intent of the seller namely the accused was bonafide. Had he really intended to sell the gill to a person on the understanding that the buyer would marry the girl, the matter might have been different. But the positive case for the prosecution is that the accused took away the girl on an entirely different pretext and then made her over to Surya obviously for money. Such being the position, we do not think that explanation (II) has any application in this case. But the positive case for the prosecution is that the accused took away the girl on an entirely different pretext and then made her over to Surya obviously for money. Such being the position, we do not think that explanation (II) has any application in this case. The offence is complete as soon as the sale of the girl is made with the particular intent or knowledge that she would be used for the purpose of illicit intercourse. We find, therefore, that the case against the appellant on the charge under section 372 IPC has been sufficiently established. 11. THE learned Judge in the court below found the accused guilty on both the char-gas and convicted him to suffer imprisonment for 7 years on the charge under section 366a IPC. No separate sentence however was passed under section 372 IPC even though the accused was found guilty thereunder. We treat the sentence as a composite sentence passed under sections 366a and 372 IPC. Even though we have found the accused not guilty of the charge under section 366a IPC and since we are upholding the conviction on the other charge under section 372 IPC the sentence of 7 years rigorous imprisonment passed by the learned Judge in the court below in a composite fashion is affirmed. Mr. Mukherjee on behalf of the appellant made a submission for reduction of the sentence. Considering the nature of the offence we do not think that this is a fit case where a lesser sentence would meet the ends of justice. The offence of which the accused had been found guilty, namely, the offence of trading in flesh and trafficking in women is not merely an offence against any particular individual; it is an offence against public morality and the society at large. Viewed in that context, we think that an offender of this class should be deterrently delay with and there is no question of reduction of sentence in the present case. The appeal accordingly fails and is dismissed.