Himachal Pradesh High Court
State Of Himachal Pradesh vs Ramesh Kumar on 11 September, 2023
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH AT
SHIMLA
Cr.MP(M) No.1796 of 2023
Decided on: 11.09.2023
State of Himachal Pradesh
.
........Appellant.
Versus
Ramesh Kumar
.......Respondent
Coram
HON'BLE MR. JUSTICE TARLOK SINGH CHAUHAN, JUDGE
HON'BLE MR. JUSTICE RANJAN SHARMA, JUDGE
of
WHETHER APPROVED FOR REPORTING? Yes
For the Appellant : Mr. Anup Rattan, Advocate
General with Mr. Y.W. Chauhan,
rt Senior Additional Advocate
General and Mr. J.S. Guleria,
Deputy Advocate General..
For the respondent: Nemo
Tarlok Singh Chauhan, Judge (Oral)
Aggrieved by the acquittal of the respondent for the offence punishable under Section 368 of Indian Penal Code, the State has filed the instant appeal.
2. The respondent was charge-sheeted under Section 368 of Indian Penal Code on the ground that the prosecutrix (minor girl) was kidnapped by the other co-
accused Kehar Singh, S/o Sh. Hakam Singh, Sana wife of Kehar Singh, Ram @ Ram Shah, S/o Sh. Daulat Ram and one Sonia, wife of Ram Shah, in furtherance of common ::: Downloaded on - 12/09/2023 20:35:33 :::CIS 2 intention that prosecutrix may be compelled or knowingly it to be likely that she may be compelled to marry someone against her will or in order that she may be forced or .
seduced to illicit intercourse or knowing it likely that she will be forced or seduced to such illicit intercourse.
3. Mulmi Ram, father of the prosecutrix, lodged FIR in police Station Chirgaon on 27.10.2007 to the effect of that on 21.10.2007, prosecutrix was sent by him to Chirgaon market to bring household items, but in the rt evening she did not return back. After inquiry, he came to know that the prosecutrix was last seen in Chirgaon Bazar with another girl Sonia, daughter of Surat Ram.
4. On the basis of such information, FIR under Sections 363, 366, 368 and 120-B of Indian Penal Code came to be registered and the police investigated the matter.
5. During the course of the investigation, Birth Certificate of the prosecutrix was obtained. Abstract of visitor register pertaining to room Nos. 107, 114 and 105 was obtained from Sh. Devinder Singh, Manager Anupam Hotel Rohru, regarding stay of the aforesaid accused persons from 18.10.2007 to 21.10.2007. Investigating ::: Downloaded on - 12/09/2023 20:35:33 :::CIS 3 Officer alongwith other police officials visited village Garshankar Punjab in search of accused and on 02.11.2007, they visited the house of accused Kehar Singh .
at village Hamra, where his wife Sana was found, Kehar Singh was searched but was not found. It was then revealed that accused Kehar Singh and Sana had kept both the girls i.e. minor prosecutrix and Sana in their house. It of was also found that the prosecutrix had got married with the respondent. The Investigating Officer thereafter visited rt the house of respondent Ramesh Kumar alongwith Mulmi Ram and in the presence of Sadhu Ram and Tak Ram, search of house of respondent was conducted and prosecutrix was got recovered and was identified by her father Mulmi Ram, vide Ext.PW-3/B. Prosecutrix was got medically examined by Dr. Madhu Maintan, Medical Officer, Civil Hospital Chirgaon, who issued MLC and thereafter, prosecutrix was handed over to her father Sh. Mulmi Ram. Mobile call details were also obtained and Investigating Officer also recorded statements of the witnesses. Chemical examiner report was received and after completion of the investigation, challan was presented against the accused persons except Sonia.
::: Downloaded on - 12/09/2023 20:35:33 :::CIS 46. On finding sufficient grounds to proceed against all the accused, copies of challan and other documents were supplied to them and as against the present .
respondent, charge against him was framed only under Section 368 of the IPC on 18.3.2009, to which he pleaded not guilty and claimed to be tried.
7. The prosecution examined as many as 23 of witnesses. Thereafter, the entire incriminating evidence appearing against the respondent was put to him in his rt statement recorded under Section 313 of Cr.P.C. The respondent has denied entire prosecution case and opted to lead evidence in his defence, but despite availing sufficient opportunity, he failed to lead evidence constraining the Court to close his evidence vide order dated 30.12.2022.
8. At this stage, it is pertinent to observe that so far as Kehar Singh and Sana are concerned, both these accused were acquitted by the Additional Sessions Judge-I, Shimla, vide judgment dated 15.03.2016 and thereafter even Ram @ Ram Shah initially declared as proclaimed offender also came to be acquitted vide judgment dated 15.3.2021. As regards the respondent, he too was declared ::: Downloaded on - 12/09/2023 20:35:33 :::CIS 5 as proclaimed offender and was subsequently arrested on 22.08.2022. After completion of the trial, statement of respondent under Section 313 Cr.P.C was recorded.
.
9. Since the respondent has been charged with the offence under Section 368 of Indian Penal Code, it would be appropriate to refer to the said provisions which reads as under:-
of "368. Kidnapping or abducting in order to subject person to grievous hurt, slavery, rt etc.-Whoever kidnaps or abducts any person in order that such person may be subjected, or may be so disposed of as to be put in danger of being subject to grievous hurt, or slavery, or to the unnatural lust of any person, or knowing it to be likely that such person will be so subjected or disposed of, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."
10. A perusal of Section 368 of IPC reveals that only when the offence of kidnapping is committed can there emerge a knowledge of kidnapping or such knowledge could be wrongfully concealed by someone. Thus,, the first essential of Section 368 is the commission of the offence of kidnapping by someone. The second element for the ::: Downloaded on - 12/09/2023 20:35:33 :::CIS 6 commission of offence would be the knowledge, "to the accused about kidnapping of a person" and the third element would be wrongful concealment or confinement of .
the person concerned.
11. The Hon'ble Supreme Court in Saroj Kumari vs. State of U.P. 1973 3 SCC 669 has laid down the following ingredients in para 10 of the judgment, which are of essential to constitute an offence under Section 368 of Indian Penal Code.
rt "10. To constitute an offence under Section 368, it is necessary that the prosecution must establish the following ingredients:
(1) The person in question has been kidnapped.
(2) The accused knew that the said person had been kidnapped.
(3) The accused having such knowledge, wrongfully conceals or confines the person concerned."
12. The aforesaid judgment has thereafter been reiterated and followed by the Hon'ble Supreme Court in Om Prakash vs. State of Haryana, (2011) 14 SCC 309.
13. As observed above, the co-accused who were charged with the offences of kidnapping under Sections ::: Downloaded on - 12/09/2023 20:35:33 :::CIS 7 366 and 368 IPC have already been acquitted and the judgment so passed have attained finality.
14. Thus, what remains now to be considered is .
whether the respondent had wrongfully confined or concealed, the prosecutrix knowing that she had been kidnapped or abducted and thereby committed an offence punishable under Section 368 IPC.
of
15. There could be no better evidence to sustain this charge, than the statement of the prosecutrix herself rt who appeared as PWW-2 and stated that at the time of incident she was 11 years of age and on 21.07.2007, her father had send her to Chirgaon to buy household articles and she went to Chirgaon alongwith Sonia who had come to her house on that day. In the evening, they went to the house of grandparents of Sonia at Chirgaon where co-
accused Kehar Singh, Ram and Shyam Lal had come for the purpose of engagement of Sonia. Kehar Singh and Shyam Lal had gone to the house of Surat Ram and Ram stayed in the house of grandparents of Sonia. On the next day, at about 4:00 AM, she was made to board the Dhamwari-Palampur bus and came to Rohru. At Rohru, Ram, Shyam and Charan Dassi had told that if you go to ::: Downloaded on - 12/09/2023 20:35:33 :::CIS 8 Punjab you will enjoy the life and would always travel in vehicles. Thereafter, she alongwith Sonia, Ram, Shyam and Kehar Singh went to Hatkoti in a light vehicle with co-
.
accused Kehar Singh, Ram and Shyam and from Hatkoti, she was taken by accused Kehar Singh and thereafter taken to Punjab and stayed in the house of accused Ram.
Sonia was married to Ram. The prosecutrix was taken to of Sultanpur and married to the respondent by Kehar Singh.
After one week, her father and police came to Sultanpur rt and took her to Rohru-Chirgaon. Initially she was kept in the house of accused Ram for two days, thereafter in the house of Kehar Singh for three days and thereafter in the house of the respondent for three-four days and was taken back by the police and her father. She was got medically examined at CHC Chirgaon, where her clothes were taken by the doctor and MLC is Mark-W-X.
16. The statement of the witness was deferred for want of case property. In further examination-in-chief, the prosecutrix identified her Salwar, Kamiz and undergarments etc. In her cross-examination, prosecutrix stated that she knew Sonia, as she was belonged to the same village and was her Taya's daughter. It was she who ::: Downloaded on - 12/09/2023 20:35:33 :::CIS 9 told her to accompany at the time of marriage in her in-
laws house and she has denied the suggestion that she had gone to many other places at Punjab with her after her .
marriage. She admitted that after half an hour of the marriage of Sonia with Ram Shah they had gone to the house of Kehar Singh. She further stated that she knew Kehar Singh who had come to the house of Sonia at of Punjab. She stated that she married with Ramesh but denied the suggestion that she did not want to go to the rt house of Ramesh. She has categorically stated that she remained in the house of the respondent willingly and has stated that she did not know where to go and that is why she accompanied her father on seeing him.
17. In case the testimony of the prosecutrix is scrutinized, it would be noticed that the prosecutrix has nowhere stated that the respondent had wrongly confined or concealed her. As regarding the charge of kidnapping or abduction, it has already been observed above, that the prosecution had failed to prove its charge against co-
accused resulting in acquittal which judgment otherwise has attained finality. It would further be noticed that the prosecutrix has specifically stated that she ::: Downloaded on - 12/09/2023 20:35:33 :::CIS 10 accompanied the co-accused (who have been acquitted) of her own volition. What is still more important is the fact that the prosecutrix has nowhere stated that the .
respondent has established physical relation with her.
15. In AIR 1965 Supreme Court 942, titled S. Varadarajan vs. State of Madras, it has been observed by the Hon'ble Supreme Court that if a minor willingly of accompanied a person, the law did not cast upon him the duty of taking her back to the father's house or even of rt telling her not to accompany him. It is relevant to reproduce observation contained in paras 7 to 20 which reads as under:-
"7. The question whether a minor can abandon the guardianship of his or her own guardian and if so the further question whether Savitri could, in acting as she did, be said to have abandoned her father's guardianship may perhaps not be very easy to answer. Fortunately, however, it is not necessary for us to answer either of them upon the view which we take on the other question raised before us and that is that "taking" of Savitri out of the keeping of her father has not been established. The offence of "kidnapping from lawful guardianship" is defined thus in the first paragraph of S.361 of the Indian Penal Code.
"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 ::: Downloaded on - 12/09/2023 20:35:33 :::CIS 11 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."
It will thus be seen that taking or enticiting .
away a minor out of the keeping of a lawful guardian is an essential ingredient of the offence of kidnapping. Here, we are not concerned with enticement but what we have to find out is whether the part played by the appellant amounts to "taking" out of the keeping of the lawful guardian of Savitri. We of have no doubt that though Savitri had been left by S. Natarajan at the house of his relative K. Natarajan she still continued to be in the lawful keeping of the former but then the question remains as to what is it which the rt appellant did that constitutes in law "taking". There is not a word in the deposition of Savitri from which an inference could be drawn that she left the house of K. Natarajan at the instance or even a suggestion of the appellant. In fact she candidly admits that on the morning of October 1st, she herself telephoned to the appellant to meet her in his car at a certain place, went up to that place and finding him waiting in the car got into that car of her own accord. No doubt, she says that she did not tell the appellant where to go and that it was the appellant himself who drove the car to Guindy and then to Mylapore and other places. Further, Savitiri has stated that she had decided to marry the appellant. There is no suggestion that the appellant took her to the Sub-registrar's office and got the agreement of marriage registered there (thinking that this was sufficient in law to make them man and wife) by force or blandishments or anything like that. On the other hand the evidence of the girl leaves no doubt that the insistence of marriage came from her side. The appellant ::: Downloaded on - 12/09/2023 20:35:33 :::CIS 12 by, by complying with her wishes can by no stretch of imagination be said to have taken her out of the keeping of her lawful guardian. After the registration of the agreement both the appellant and Savitri lived as man and wife .
and visited different places. There is no suggestion in Savitri's evidence, who, it may be mentioned had attained the age of discretion and was on the verge of attaining majority that she was made by the appellant to accompany him by administering any threat to her or by any blandishments. The fact of her accompanying the appellant all along is quite of consistent with Savitri's own desire to be the wife of the appellant in which the desire of accompanying him wherever he went was of course implicit. In these circumstances we find rt nothing from which an inference could be drawn that the appellant had been guilty of taking away Savitri out of the keeping of her father. She willingly accompanied him and the law did not cast upon him the duty of taking her back to her father's house or even of telling her not to accompany him. She was not a child of tender years who was unable to think for herself but, as already stated, was on the verge of attaining majority and was capable of knowing what was good and what was bad for her. She was no uneducated or unsophisticated village girl but a senior college student who had probably all her life lived in a modern city and was thus far more capable of thinking for herself and acting on her own than perhaps an unlettered girl hailing from a rural area. The learned Judge of the High Court has referred to the decision in Abdul Sathar v. Emperor, 54 Mad LJ 456; (AIR 1928 Mad 585) in which it was held that where the evidence disclosed that, but for something which the accused consented to do and ultimately did, a minor girl would not have left her husband's ::: Downloaded on - 12/09/2023 20:35:33 :::CIS 13 house, or would not have been able to leave her husband's house, there was sufficient taking in law for the purpose of S.363 and expressing agreement with this statement of the law observed: "In this case the minor, .
P.W.4, would not have left the house but for the promise of the appellant that he would marry her." Quite apart from the question whether this amounts to blandishment we may point out that this is not based upon any evidence direct or otherwise. In 54 Mad LJ 456: (AIR 1928 Mad 585) Srinivasa Aiyangar J., found that the girl whom the accused was of charged with having kidnapped was desperately anxious to leave her husband's house and even threatened to commit suicide if she was not taken away from there and rt observed:
"If a girl should have been wound up to such a pitch of hatred of her husband and of his house or household and she is found afterwards to have gone out of the keeping of her husband, her guardian, there must undoubtedly be clear and cogent evidence to show that she did not leave her husband's house herself and that her leaving was in some manner caused or brought about by something that the accused did."
In the light of this observation the learned Judge considered the evidence and came to the conclusion that there was some legal evidence upon which a court of fact could find against the accused. This decision, therefore, is of little assistance in this case because, as already stated, every essential step was taken by Savitri herself; it was she who telephoned to the appellant and fixed the rendezvous she walked up to that place herself and found the appellant waiting in the car; she got into the car of her own accord without the appellant asking her to step in and permitted the ::: Downloaded on - 12/09/2023 20:35:33 :::CIS 14 appellant to take her wherever he liked. Apparently, her one and only intention was to become to appellant's wife and thus be in a position to be always with him.
.
8. The learned Judge also referred to a decision of Queen v. Kumarasami, 2 Mad HCR 331 which was a case under S. 498 of the Indian Penal Code. It was held there that if whilst the wife was living with her husband, a man knowingly went away with her in such a way as to deprive the husband of his control over her with the intent stated in the section, it of would be a taking from the husband within the meaning of the section.
9. It must, however, be borne in mind that there is a distinction between "taking" and rt allowing a minor to accompany a person. The two expressions are not synonymous though we would like to guard ourselves from laying down that in no conceivable circumstances can the two be regarded as meaning the same thing for the purposes of S.361 of the Indian Penal Code. We would limit ourselves to a case like the present where the minor alleged to have been taken by the accused person left her father's protection knowing and having capacity to know the full import of what she was doing voluntarily joins the accused person. In such a case we do not think that the accused can be said to have taken her away from the keeping of her lawful guardian.
Something more has to be shown in a case of this kind and that is some kind of inducement held out by the accused person or an active participation by him in the formation of the intention of the minor to leave the house of the guardian.
10. It would, however, be sufficient, if the prosecution establishes that though immediately prior to the minor leaving the ::: Downloaded on - 12/09/2023 20:35:33 :::CIS 15 father's protection no active part was played by the accused, he had at some earlier stage solicited or persuaded the minor to do so. In our opinion, if evidence to establish one of those things is lacking it would not be .
legitimate to infer that the accused is guilty of taking the minor out of the keeping of the lawful guardian merely because after she was actually left her guardian's house or a house where her guardian had kept her, joined the accused and the accused helped her in her design not to return to her guardian's house by taking her along with him from place to place.
of No doubt, the part played by the accused could be regarded as facilitating the fulfillment of the intention of the girl. That part, in our opinion, falls short of an inducement to the minor to slip rt out of the keeping of her lawful guardian and is, therefore, not tantamount to "taking."
11. The case before us is not a kind considered by Srinivasa Aiyangar J., in that the facts established do not show that Savitri would not have left K. Nataranjan's house in which her father had left her without the active help of the appellant.
12. In the next decision, that is, that in Kumarasami's case, 2 Mad HCR 331 upon which the High Court has relied, it was observed that the fact that a married woman whom the accused was alleged to have taken or enticed away for certain purposes was a temptress, would make no difference and the accused who yielded to her solicitations would be guilty of an offence under S. 498(b) of the Penal Code. This decision was approved of in In Re, Sundara Dass Tevan, 4 Mad HCR 20 a case to which also the High Court has referred. The basis of both these decisions appears to be that depriving the husband of his proper control over his wife, for the purpose of illicit ::: Downloaded on - 12/09/2023 20:35:33 :::CIS 16 intercourse is the gist of the offence of taking away a wife under the same section and that detention occasioning such deprivation may be brought about simply by the influence of allurement and blandishment. It must be borne .
in mind that while Ss. 497 and 498, I.P.C are meant essentially for the protection of the rights of the husband, S.361 and other cognate sections of the Indian Penal Code are intended more for the protection of the minors and persons of unsound mind themselves than of the rights of the guardians of such persons. In this connection we may refer to the decision in of State v. Harbansing Kisansing, ILR (1954) Bom 784: (AIR 1954 Bom 339). In that case Gajenderagadkar J., (as he then was) has, after pointing out what we have said above, rt observed:
"It may be that the mischief intended to be punished partly consists in the violation or the infringement of the guardians' right to keep their wards under their care and custody; but the more important object of these provisions undoubtedly is to afford security and protection to the wards themselves."
13. While, therefore, it may perhaps be argued on the basis of the two Madras decisions that the word "taking" occurring in Ss. 497 and 498 of the Indian Penal Code should be given a wide interpretation so as to effectuate the object underlying these provisions there is no reason for giving to that word a wide meaning in the context of the provisions of Section 361 and cognate sections.
14. The last case relied upon by the High Court is Ramaswami Udayar v. Raju Udayar, 1952 Mad WN 604: (AIR 1953 Mad 333) which is also a case under S. 498, I.P.C. In that case the High Court has followed the two earlier ::: Downloaded on - 12/09/2023 20:35:33 :::CIS 17 decisions of that court to which we have made reference but in the course of the judgment the learned Judge has observed that it is not open to a minor in law to abandon her guardian, and that, therefore, when the minor leaves the .
guardian of her own accord and when she comes into the custody of the accused person, it is not necessary that the latter should be shown to have committed an overt act before he could be convicted under S. 498. The learned Judge has further observed:
"A woman's free will, or her being of a free agent, or walking out her house of her own accord are absolutely irrelevant and immaterial for the offence under rt S.498."
Whatever may be the position with respect to an offence under that section and even assuming that a minor cannot in law abandon the guardianship of her lawful guardian, for the reason which we have already stated, the accused person in whose company she is later found cannot be held guilty of having taken her out of the keeping of her guardian unless something is more established.
15. The view which we have taken accords with that expressed in two decisions reported in Cox's Criminal Cases. The first of them is Reg v. Christian Olifir, (1866) 10 Cox CC 402. In that case Baron Bramwell stated the law of the case to the jury thus:
" I am of opinion that if a young woman leaves her father's house without any persuasion inducement, or blandishment held out to her by a man, so that she has got fairly away from home and then goes to him, although it may be his moral duty to return her to her parent's custody, yet his not doing so is no ::: Downloaded on - 12/09/2023 20:35:33 :::CIS 18 infringement of this Act of Parliament (24 and 25 Vict. C.100, S.55) for the Act does not say he shall restore her, but only that he shall not take her away."
The jury returned a verdict of guilty in this .
case because the girl's evidence showed that the initial formation of her intention to leave her father's house was influenced by the solicitations of the accused and by his promise to marry her.
The other case is Rex v. James Jarvis, (1903) 20 Cox CC 249. There Jelf J., has stated the of law thus to the jury :
"Although there must be a taking, yet it rt is quite clear that an actual physical taking away of the girl is not necessary to render the prisoner liable to conviction; it is sufficient if he persuaded her to leave her home or go away with him by persuasion or blandishments. The question for you is whether the active part in the going away together was the act of the prisoner or of the girl;
unless it was that the prisoner, he is entitled to your verdict. And, even if you do not believe that he did what he was morally bound to do-namely, tell her to return home- that fact is not by itself sufficient to warrant a conviction : for if she was determined to leave her home, and showed prisoner that that was her determination, and insisted on leaving with him-or even if she was so forward as to write and suggest to the prisoner that he should go away with her, and he yielded to her suggestion, taking no active part in the matter, you must acquit him. If, however, prisoner's conduct was such as to persuade the girl, by blandishments or otherwise, to leave her home either then or some future time, he ought to be found guilty of the offence of abduction."::: Downloaded on - 12/09/2023 20:35:33 :::CIS 19
In this case there was no evidence of any solicitation by the accused at any time and the jury returned a verdict of 'not guilty'. Further, there was no suggestion that the girl was incapable of thinking for herself and making up her own mind.
.
17. The relevant provisions of the Penal Code are similar to the provisions of the Act of Parliament referred to in that case.
18. Relying upon both these decisions and two other decisions, the law in England is stated thus in Halsbury's Laws of England, 3rd edition, Vol. 10, at p. 758 :
of "The defendant may be convicted, although he took no part in the actual removal of the girl, if he previously solicited her to leave her father, and rt afterwards received and har- boured her when she did so. If a girl leaves her father of her own accord, the defendant taking no active part in the matter and not persuading or advising her to leave, he cannot be convicted of this offence, even though he failed to advise her not to come, or to return, and afterwards harboured her."
On behalf of the appellant reliance was placed before us upon the decisions in Rajappan v. State of Kerala, ILR 1960 Kerala 481 and Chathu v. Govindan Kutty ILR(1957) Kerala 591; (AIR 1958 Kerala 121). In both the cases the learned Judges have held that the expression "taking out of the keeping of the lawful guardian" must signify some act done by the accused which may be regarded as the proximate cause of the person going out of the keeping of the guardian; or, in other words an act but for which the person would not have gone out of the keeping of the guardian as he or she did. In taking this view the learned Judge followed, amongst other decisions, the two English decisions to which we have adverted. More or less to the same effect is the decision in Nura v. Rex, AIR 1949 ALL 710. We do ::: Downloaded on - 12/09/2023 20:35:33 :::CIS 20 not agree with everything that has been said in these decisions and would make it clear that the mere circumstance that the, act of the accused was not the immediate cause of the girl leaving her father's protection would not absolve him if he had at an .
earlier stage solicited her or induced her in any manner to take this step.
19. As against this Mr. Ranganadham Chetty appearing for the State has relied upon the, decisions in Bisweswar Misra v. The King ILR (1949) 1 Cut 194; (AIR 1949 Orissa 22) and In re : Khalandar Saheb, ILR 1955 Andhra 290. The first of these of decisions is distinguishable on the ground that it was found that the accused had induced the girl to leave the house of her lawful guardian. Further the learned Judges have made it clear that mere passive rt consent on the part of a person in giving shelter to the minor does not amount to taking or enticing of the minor but the active bringing about of the stay of the minor in the house of a person by playing upon the weak and hesitating mind of the minor would amount to "taking" within the meaning of s. 361. In the next case, the act of the accused, upon the facts of the case was held by the Court to fall under s. 366, I.P.C. and the decision in AIR 1949 All 710 on which reliance has been placed on behalf of the appellant is distinguished. Referring to that case it was observed by the Court :
"Reliance is placed upon the decision of Mustaq Ahmed J. in AIR 1949 All 710 wherein the learned Judge observed that where a minor girl voluntarily leaves the roof of her guardian and when out of his house, comes across another who treats her with kindness, he cannot be held guilty under section 361, Indian Penal Code. This decision cannot help the accused for, on the facts of that case, it was found that the girl went out of the protection of her parents of her own accord and thereafter went with the accused. In the present case it is not possible to hold that she is not under the guardianship of her father. In ::: Downloaded on - 12/09/2023 20:35:33 :::CIS 21 either contingency, namely, whether she went out to answer calls of nature, or whether she went to the house of the accused pursuant to a previous arrangement, she continued to be under the guardianship of her father. On the evidence, it is not possible to hold that she .
abandoned the guardianship of her father and, thereafter, the accused took her with him."
After pointing out that there is an essential distinction between the words "taking" and "enticing" it was no doubt observed that the mental attitude of the minor is not of relevance in the case of taking and that the word "take" means to cause to go, to escort or to get into possession. But these observations have to be of understood in the context of the facts found in that case. For, it had been found that the minor girl whom the accused was charged with having kidnapped had been persuaded rt by the accused when she had gone out of her house for answering the call of nature, to go along with him and was taken by him to another village and kept in his uncle's house until she was restored back to her father by the uncle later. Thus, here there was an element of persuasion by the accused person which brought about the willingness of the girl and this makes all the difference. In our opinion, therefore, neither of these decisions is of assistance to the State.
20. We are satisfied, upon the material on record, that no offence under S. 363 has been established against the appellant and that he is, therefore, entitled to acquittal. Accordingly we allow the appeal and set aside the conviction and sentence passed upon him.
::: Downloaded on - 12/09/2023 20:35:33 :::CIS 22In view of the aforesaid discussion, we find the view taken by the Court below is plausible one, so there is .
no reason to grant leave to appeal and accordingly the same is rejected.
(Tarlok Singh Chauhan)
Judge
of
rt (Ranjan Sharma)
Judge
11th September, 2023
(himani)
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