Full Judgment Text
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PETITIONER:
STATE OF HARYANA
Vs.
RESPONDENT:
RAJA RAM
DATE OF JUDGMENT27/10/1972
BENCH:
DUA, I.D.
BENCH:
DUA, I.D.
SHELAT, J.M.
CHANDRACHUD, Y.V.
CITATION:
1973 AIR 819 1973 SCR (2) 728
1973 SCC (1) 544
CITATOR INFO :
R 1973 SC2313 (9)
ACT:
Indian Penal Code (Act 45 of 1860), Ss. 361 and 366--Scope
of.
HEADNOTE:
One J, the coaccused in the case, had tried to become
intimate with the prosecutrix, a girl of fourteen, and to
seduce her to go and live with him. When her father forbade
J to visit his house, J started sending messages to the
prosecutrix through the respondent. On the day of the
occurrence, the respondent went to see the prosecutrix and
asked her to visit his house, and later, on the same day,
sent his daughter to fetch the prosecutrix. When she came
the respondent informed her that she should come to his
house at about midnight when she would be taken to J. That
night, when the prosecutrix came to his house, the
respondent took her with him and handed her over to J.
On the question, whether the respondent was guilty under S.
361, I.P.C., of the offence of kidnaping from lawful
guardianship, the trial Court convicted him, but the High
Court set aside the conviction,
In appeal to this Court,
HELD : The acquittal of the respondent by the High Court was
clearly erroneous both on facts and in law and considering
the nature of the offence there was clear failure of justice
justifying interference by this Court under Art. 136. [737
A-B]
The object of S. 361, I.P.C., is to protect minor children
from being seduced for improper purposes and to protect the
rights and privileges of guardians having lawful charge or
custody of their minor wards. The gravamen of this offence
lies in the taking or enticing of a minor under the ages
specified in the section, out of the keeping of the lawful
guardian without the consent of such guardian. The use of
the word ’keeping’ connotes the idea of charge, protection,
maintenance and control; further, the guardian’s charge and
control are compatible with the independence of action and
movement in the minor, the guardian’s protection and control
of the minor being available, whenever necessity arises.
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The consent of the minor who is taken or enticed is wholly
immaterial; it is only the guardian’s consent, that would
take a case out of the purview of the section. It is not
necessary that the taking or enticing must be- shown to have
been by means of force or fraud. Persuasion by the accused
person which creates willingness on the part of the minor to
be taken out of the keeping of the lawful guardian would be
sufficient to attract the section. [734D-E]
In the present case, the respondent’s action was the
proximate cause, of the prosecutrix going out of the keeping
of her father, and, but for his persuasive offer to take her
to J, the prosecutrix would not have gone out of the keeping
of her father who was her lawful guardian, as she actually
did. The respondent actively participated in the formation
of the intention of the prosecutrix to leave her father’s
house, and the facts that the respondent did not go to her
house to ’bring her and that she was easily persuaded to go
with him would not prevent the respondent from
729
being guilty of the offence. Her consent or willingness to
accompany the, respondent would be immaterial and it would
be equally so even if the proposal to go with the respondent
had emanated from her. There is a distinction between
taking and allowing a minor to accompany a person, but the
instant case is not one of the prosecutrix herself leaving
her father’s house without any inducement by the respondent
who merely allowed her to accompany him. [734E-H; 735A-G]
Reg. v. Job Timming; 169 E. R. 1260, Reg. v. Handley & anr.,
175 E.R. 890, Reg. v. Robb. 176 E.R. 466, Reg. v.
Manketeloy, 6 Cox Crim, Cases 143 and Shantiranjan Majumdar
v. Abhoyandanda Brahamachari & Ors. Cr. A. No. 21 of 1960
decided on the 14th September 1964, referred to.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Cr. A. No. 21.4 of 1969.
Appeal by special leave from the judgment and order dated
March 18. 1969 of the Punjab & Haryana High Court at Chandi-
garh in Criminal Appeal No. 951 of 1968.
Harbans Singh and R. N. Sachthey, for the appellant.
Ram Sarup and J. C. Talwar, for the respondent.
The Judgment of the Court was delivered by
DUA, J.-In this appeal by special leave the State of Haryana
has assailed the judgment of a learned single Judge of the
High, Court of Punjab & Haryana at Chandigarh acquitting the
respondent Raja Ram on appeal from his conviction by the
Additional Sessions Judge, Karnal, under S. 366, I.P.C. and
sentence of’ rigorous imprisonment of 1-1/2 years with fine
of Rs. 500/- and in default rigorous imprisonment for two
months.
Santosh Rani, the prosecutrix, aged about 14 years, daughter
of one Narain Dass, a resident of village Jor Majra, in the
district of Karnal was the victim of the offence. According
to the prosecution story one Jai Narain, a resident of
village Muradgarh, close to the village Jor Majra, once
visited the house of Narain Dass for treating his ailing
sons, Subhas Chander and Jagjit Singh. When the two boys
were cured by Jai Narain, Narain Dass began to have great
faith in him and indeed started treating him as his Guru.
Jai Narain started paying frequent visits to Narain Dass’s
house and apparently began to cast an evil eye on the
prosecutrix. He persuaded her to accompany him by inducing
her to believe that though she was made to work in her
parents’ house she was not even given proper food and
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clothes by her parents who were poor. He promised to keep
her like a queen, having nice clothes to wear, good food to
eat and also a servant at her disposal. On one occasion
Narain Dass happened to see Jai Narain talking to the
prosecutrix and felt
730
suspicious with the result that he requested Jai Narain not
to visit his house any more. He also reprimanded his
daughter and directed her not to be free with Jai Narain.
Having been prohibited from visiting Narain Dass’s house,
Jai Narain started sending messages to the prosecutrix
through Raja Ram, respondent, who is a jheewar and has his
house about 5 or 6 karams away from that of Narain Dass. As
desired by Jai Narain, Raja Ram persuaded the prosecutrix to
go with him to the house of Jai Narain. On April 4, 1968
Raja Ram contacted the prosecutrix for the purpose of
accompanying him to Jai Narain’s house. Raja Ram’s daughter
Sona by name, who apparently was somewhat friendly with the
prosecutrix went to the latter’s house and conveyed a
message that she (prosecutrix) should come to the house of
Raja Ram at midnight. The prosecutrix as desired, went to
Raja Ram’s house on the night between April 4 and 5, 1968,
when Raja Ram took her to Bhishamwala well. Jai Narain was
not present at the well at that time. Leaving the
prosecutrix there, Raja Ram went to bring Jai Narain, whom
he brought after some time, and handing over the prosecutrix
to Jai Narain, Raja Ram returned to his own house. On the
fateful night it appears that Narain Das was not in the
village, having gone to Karnal and his wife was sleeping in
the kitchen. The prosecutrix, along with her two younger
sisters was sleeping in the court-yard, her elder brother
(who was the eldest child) was in the field. It was in
these circumstances that the prosecutrix had gone to the
house of Raja Ram from where she was taken to Bhishamwala
well.
On the following morning, when Abinash Kumar, who is also
sometimes described as Abinash Chander Singh, brother of the
prosecutrix, returned from the field to feed the cattle, the
prosecutrix was found missing from her bed. Abinash had
returned to the house at about 4 a.m. He woke up his mother
and enquired about Santosh Rani’s whereabouts. The mother
replied that the prosecutrix might have gone to ease
herself. After waiting for about half an hour Abinash Kumar
went to his grandfather who used to reside in a separate
adjoining house and informed him about this fact. After
having searched for her unsuccessfully, Abinash went to
Karnal to inform his father about it. The father and the son
returned from Karnal by about 10 a.m. The search went on
till afternoon but the prosecutrix was not found. The
father, after having failed in his search for the missing
daughter, lodged the first information report (Ex. PW 1/3)
with the officer in charge of the Police Station, Indri.
"Confirmed suspicion" was cast in this report on Jai Narain
Bawa Moti Ram, resident of Sambli, who was stated to be a
bad character and absent from the village. It was added in
the F.I.R. that about 5 or 6 months earlier Narain Dass had
prevented Jai Narain from
731
visiting the former’s house as a result of which the latter
had held out a threat to the former. On April 13, 1968 at
about 7 a.m. Ram Shah, S.H.O., Police Station Indri, along
with three other persons and Narain Dass, saw Jai Narain and
Santosh Rani coming from the side of Dera Waswa Ram. As
they reached near Dera Ganga Singh, Narain Dass identified
his daughter and Jai Narain, accused, was taken into
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custody. The prosecutrix had a jhola (ex. P-16) which
contained one suit. and a shawl and two chunis which were
taken into possession. The salwar of the, prosecutrix
appeared to have on it stains of semen.
After investigation Jai Narain, aged 32 years and Raja
Ram,,. the respondent, were both sent up for trial, the
former under ss. 366 and 376 I.P.C. and the latter under ss.
366 and 376/109, I.P.C. They were both committed to the
court of Sessions. The learned Second Additional Sessions
Judge, Karnal, who tried them, convicted Jai Narain alias
Bawa under s. 378, I.P.C. and sentenced him to rigorous
imprisonment for six years and fine of Rs. 500/- or in
default to further rigorous imprisonment for six months.
The respondent was convicted under s. 366, I.P.C. and
sentenced to rigorous imprisonment for 1-1/2 years and fine
of Rs. 501’ or in default to rigorous imprisonment for two
months. Jai Narain was acquitted of the charge under s.
366, I.P.C. and the respondent of the charge under ss.
376/109, I.P.C.
Both the convicts appealed to the High Court of Punjab &
Haryana. A learned single Judge of that Court dismissed the
appeal of Jai Narain maintaining his conviction and sentence
but acquitted the respondent Raja Ram of the charge under s.
366. I.P.C. It is against the order of the respondent’s
acquittals that the State of Haryana has appealed to this
Court.
It appears that the respondent had not entered appearance in
this Court within 30 days of the service on him of the
notice of lodgement of the petition of appeal. He applied
for condonation of the delay though according to him no such
application was necessary. The permission to enter
appearance was granted’ by this Court at the time of the
hearing.
In the High Court Shri K. S. Keer, the learned counsel
appearing for Raja Ram contended that even if the case of
the prosecution as made out from the evidence of the
prosecutrix herself and supported by the testimony of her
father Narain Dass her mother Tara Wanti and her brother
Abinash Kumar is admitted to be correct, no offence could be
said to have been committed by Raja Ram under s. 366, I.P.C.
Apparently it was this argument which prevailed with the
High Court. The learned single
732
Judge, after briefly stating the facts on which the
prosecution charge was founded accepted the only contention
raised before him, expressing himself thus :
"The question which arises, is whether in the
face of these facts stated by the prosecutrix
Raja Ram could be held to be guilty of offence
under section 366, Indian Penal Code. In
order that an accused person may be guilty of
offence under section 366, Indian Penal Code,
prosecution has to show that the woman was
kidnaped or abducted in order that she might
be forced or seduced to illicit intercourse or
knowing it to be likely that she would be so
forced or seduced. In other words, the
prosecution must show that there was either
kidnaping or abduction. Section 361, Indian
Penal Code, which defines ’kidnaping’ says
that when any person takes or entices any
minor under the age of 18 if a female out of
the keeping of law guardianship of such minor
without the consent of such guardian, commits
kidnaping. The girl left the house of her
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father at midnight of her free will. Raja
Ram, appellant, did not go to her house to
persuade her and to bring her from there. She
chose the dead of night when other members of
the family were, according to her own state-
ment fast asleep. Soon after reaching the
house of Raja Ram, who she says was waiting
for her and that suggests that she had on her
visit during the day so settled with him, that
she agreed to accompany him to Bhishamwala
well. These facts leave no doubt that she was
neither enticed nor taken by Raja Ram from the
lawful guardianship of her parents. She has
herself chosen to accompany Raja Ram and to be
with Jai Narain, appellant. It could not be
said that the girl went with Raja Ram either
by use of force or on account of any kind of
persuasion on the part of Raja Ram. Under the
circumstances’, it could not be held that the
girl had been taken or seduced from the cus-
tody of her parents. The girl reached at that
odd hour to carry into effect her own wish of
being in the company of Jai Narain, appellant.
In view of these facts, it could not be held
that Raja Ram was guilty of the act of either
taking away the girl or seducing her out of
the ’keeping of her parents. The word ’take’
implies want of wish and absence of desire of
the person taken. Once the act of going on
the part of the girl is voluntary and
conformable to her own wishes and the conduct
of the :girl leaves no doubt that it is so,
Raja Ram appellant
733
could not be held to have either taken or
seduced the girl".
The learned single Judge also excluded the offence of
abduction by observing that Raja Ram had neither compelled
the prosecutrix by force nor had he adopted any deceitful
means to entice her to go from her house to that of Jai
Narain.
The approach and reasoning of the learned single Judge is
quite manifestly insupportable both on facts and in law. It
clearly ignores important evidence on the record which
establishes beyond doubt that the prosecutrix had been
solicited and persuaded by Raja Ram to leave her father’s
house for being taken to the Bhishamwala well. Indeed,
earlier in his judgment the learned single Judge has himself
observed that according to the statement of the prosecutrix,
on receipt of Raja Ram’s message as conveyed through his
daughter Sona, she contacted Raja Ram during day time in his
house and agreed with him that she (the prosecutrix would
accompany him (Raja Ram) to go to Bhishamwala well at
midnight to meet Jai Narain, as the other members of her
family would be sleeping at that time. If, according to the
learned single Judge, it was in this background that the
prosecutrix had left her father’s house at midnight and had
gone to the house of Raja Ram from where she accompanied
Raja Ram to the Bhishamwala well, it is difficult to
appreciate how Raja Ram could be absolved of his complicity
in taking the prosecutrix out of the keeping of her father,
her lawful guardian, without his consent. It was in our
opinion, not at all necessary for Raja Ram, himself to go to
the house of the prosecutrix at midnight to bring her from
there. Nor does the fact that the prosecutrix had agreed to
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accompany Raja Ram to Bhishamwala well take the case out of
the purview of the offence of kidnaping from lawful
guardianship as contemplated by s. 361, I.P.C. This is not a
case of merely allowing the prosecutrix to accompany Raja
Ram without any inducement whatsoever on his part from her
house to Bhishamwala well. Section 361, I.P.C. reads:
"361. Kidnaping from lawful guardianship:
Whoever takes or entices any minor under
sixteen years of age if a male, or under
eighteen years of age if a female, or any
person of unsound mind, out of the keeping of
the lawful guardian of such minor or person
of unsound mind, without the consent of such
guardian, is said to kidnap such minor or
person from lawful guardianship.
Explanation.--The words ’lawful guardian’ in
this section include any ’person lawfully
entrusted with the care or custody of such
minor or other person.
734
Exception.-This section does not extend to the
act of any person who in good faith believes
himself to be the father of an illegitimate
child, or who in good faith believes himself
to be entitled to the lawful custody of such
child, unless such act is committed for an
immoral or unlawful purpose."
The object of this section seems as much to protect the
minor children from being seduced for improper purposes as
to protect the rights and privileges of guardians having the
lawful charge or custody of their minor wards. The gravamen
of this offence lies in the taking or enticing of a minor
under the ages specified in this section, out of the keeping
of the lawful guardian without the consent of such guardian.
The words "takes or entices any minor out of the keeping of
the lawful, guardian of such minor" in s. 361, are
significant. The use of the word "keeping" in the context
connotes the idea of charge, protection, maintenance and
control, further the guardian’s charge and control-appears
to be compatible with the independence of action and
movement in the minor, the guardian’s protection and control
of the minor being available, whenever necessity arises. On
plain reading of this section the consent of the minor who
is taken or enticed is wholly immaterial : it is only the
guardian’s consent which takes the case out of its purview.
Nor is it necessary that the taking or enticing must be
shown to have, been by means of force, or fraud. Persuasion
by the accused person which creates willingness on the part
of the minor to be taken out of the keeping of the lawful
guardian would be sufficient to attract the section.
In the present case the evidence of the prosecutrix as
corroborated by the evidence of Narain Das, P.W. 1 (her
father) Abinash Chander P.W. 3 (her brother) and Smt.
Tarawanti P.W 4 (her mother) convincingly establishes beyond
reasonable doubt : (1) that Jai Narain had tried to become
intimate with the prosecutrix and to seduce her to go and
live with him and on objection having been raised by her
father who asked Jai Narain not to visit his house, Jai
Narain started sending messages to the prosecutrix through
Raja Ram, respondent; (2) that Raja Ram, respondent, had
been asking the prosecutrix to be ready to accompany Jai
Narain; (3) that at about 12 noon on April 4, Raja Ram went
to see the prosecutrix at her house and asked her to visit
his house when he would convey Jai Narain’s message to her;
(4) that on the same day after some time Sona was sent by
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her father to the house of the prosecutrix to fetch her to
his house where the prosecutrix was informed that Jai Narain
would come that night and would take the prosecutrix away;
’and (5) that Raja Ram accordingly asked the prosecutrix to
visit his house at about midnight so that she may be
entrusted to Jai
735
Narain. This evidence was believed by the learned
Additional Sessions Judge who convicted the respondent, as
already noticed. The learned single Judge also did not
disbelieve her statement. Indeed, in the High Court the
learned counsel for Raja Ram had proceeded on the assumption
that the evidence, of the prosecutrix is acceptable, the
argument being that even accepting her statement to be
correct no offence was made out against Raja Ram. Once the
evidence of the prosecutrix is accepted, in our opinion,
Raja Ram cannot escape conviction for the offence of
kidnapping her from her father’s lawful guardianship. It
was not at all necessary for Raja Ram to have himself gone
to the house of the prosecutrix to bring her from there on
the midnight in question. It was sufficient if he had
earlier been soliciting or persuading her to leave her
father’s house to go with him to Jai Narain. It is fully
established on the record that he had been conveying me&
sages from Jai Narain to the prosecutrix and had himself
been persuading her to accompany him to Jai Narain’s Place
where he would hand her over to him. Indisputably the last
message was conveyed by him to the prosecutrix when she was
brought by his daughter Sona from her own house to his and
it was pursuant to this message that the prosecutrix decided
to leave her father’s house on the midnight in question for
going to Raja Ram’s house for the purpose of being taken to
Jai Narain’s place. On these facts it is difficult to hold
that Raja Ram was not guilty of taking or enticing the
prosecutrix out of the keeping of her father’s lawful
guardianship. Raja Ram’s action was the proximate cause of
the prosecutrix going out of the keeping of her father and
indeed but for Raja Ram’s persuasive offer to take her to
Jai Narain the prosecutrix would not have gone out of the
keeping of her father who was her lawful guardian, as she
actually did. Raja Ram actively participated in the
formation of the intention of the prosecutrix to leave her
father’s house. The fact that the prosecutrix was easily
persuaded to go with Raja Ram would not prevent him from
being guilty of the offence of kidnapping her. Her consent
or willingness to accompany Raja Ram would be immaterial and
it would be equally so even if the proposal to go with Raja
Ram had emanated from her. There is no doubt a distinction
between taking and allowing a minor to accompany a person.
But the present is not a case of the prosecutrix herself
leaving her father’s house without any inducement by Raja
Ram who merely allowed her to accompany him.
On behalf of the appellant State our attention was drawn to
some of the English decisions for the purpose of
illustrating the scope of the protection of minor children
and of the sacred right of their parents and guardians to
the possession of minor children under the English law. The
learned counsel cited Reg. v. Job
12-L499Sup.C. I./73
736
Timmins(1); Reg. v. Handley & Anr.(2) and Reg v. Robb(3).
In the first case Job Timmins was convicted of an indictment
framed upon 9 Geo. IV, c. 31, s. 20 for taking an unmarried
girl under sixteen out of the possession of her father, and
against his will. It was observed by Erle C.J. that the
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Statute was passed for the protection of parents and for
preventing unmarried girls from being taken out of
possession of their parents against their will. Limiting
the judgment to the facts of that case it was said that no
deception or forwardness on the part of the girl in such
cases could prevent the person taking her away from being
guilty of the offence in question. The second decision is
authority for the view that in order to constitute an
offence under 9 Geo. IV, c. 3 1, s. 20 it is sufficient if
by moral force a willingness on the part of the girl to go
away with the prisoner is created- but if her going away
with the-prisoner is entirely voluntary, no offence is
committed. The last case was of a conviction under the
Statute (24 & 25 Vict. c. 100, s. 55). There inducement by
previous promise or persuasion was held sufficient to bring
the case within the mischief of the Statute. In the English
Statutes the expression used was "take out of the
possession" and not "out of the keeping" as used in s. 361,
I.P.C. But that expression was construed in the English
decisions not to require actual manual possession. It was
enough if at the time of the taking the girl continued under
the care, charge and control of the parent : see Reg. v.
Manketelow.(4) These decisions only serve to confirm our
view that s. 361 is designed also to protect the sacred
right of the guardians with respect to their minor-wards.
On behalf of the respondent it was contended as a last-
resort that this Court should be slow to interfere with the
conclusions of the High Court on appeal from an order of
acquittal and drew our attention to an unreported decision
of this Court in Shantiranjan Majumdar v. A bhoyananda
Brahmachari & Ors. (5). The decision cited was given by
this Court on appeal by the complainant. In any event it
was observed there that the complainant appellant had not
been able to satisfy the court that any grave miscarriage of
justice had been caused with the result that he could not be
permitted to urge grounds other than those which are fit to
be urged at this time of obtaining special leave to appeal.
’Me decision of the High Court there could not "even
remotely be characterized as unreasonably", to use the
language of this Court, though it might have been possible
to take the view that the circumstances found by the High
Court were not adequate for
(1) 169English Reports 1260.
(2) 175 English Reports 890.
(3) 176 English Reports 466.
(4) 6 Cox. Crim. cases 143.
(5)Crl. A. No. 21 of 1960 decided on 14th September, 1964.
737
enabling it to set aside the verdict of the jury and examine
the evidence for itself. In the present case the, acquittal
by the High Court is clearly erroneous both on facts and in
law and keeping in view the nature of the offence committed
we consider that there is clearly failure of justice
justifying interference by this Court under Art. 136 of the
Constitution. The result is that the appeal is allowed and
setting aside the order of the High Court acquitting Raja
Ram, respondent, we restore the order of the Second Addi-
tional Sessions Judge affirming both the conviction and
sentence as imposed by the trial court. Raja Ram,
respondent should surrender to his bail bond to serve out
the sentence.
V.P.S. Appeal allowed.
738
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