Himachal Pradesh High Court
State Of Himachal Pradesh vs Of on 17 June, 2016
Author: Vivek Singh Thakur
Bench: Rajiv Sharma, Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Criminal Appeal No. 324 of 2010
Judgment Reserved on : 27.05.2016
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Date of Decision : 17.06.2016
____
State of Himachal Pradesh ...Appellant
Versus
of
Devu Rai ...Respondent
rt _______
Coram:
The Hon'ble Mr. Justice Rajiv Sharma, Judge.
The Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
Whether approved for reporting?1 _______
For the appellant : Mr. M.A.Khan Additional Advocate
General.
For the respondent : Mr. T.S. Chauhan, Advocate
_______
Vivek Singh Thakur, J.
This appeal has been filed by the State assailing judgment dated 29.12.2009, passed by learned Additional Sessions Judge, Ghumarwin, District Bilaspur, Himachal Pradesh (Camp at Bilaspur) in Sessions Trial No.5/7 of 2009 of 2010 in FIR No. 94/2006, dated 28.07.2006 under Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 20:36:20 :::HCHP 2Sections 363, 366 IPC, Police Station, Bharari, acquitting respondent-accused of charges under Sections 363, 366 .
and 376 of Indian Penal Code.
2. As per the prosecution, on 25.7.2006 at about 12.00 (noon) or 1.00 PM, prosecutrix had left her village Dangar informing her sister that she was going to another of house of family in village Dakhut. Prosecutrix did not return in evening. Next day, she was not found by her father in village rt Dakhut. After inquiring from other relatives, prosecutrix was not traceable, therefore, on 27.07.2006 complainant PW-1 Shamsher Singh, father of prosecutrix, had lodged a report Ex. PW-14/A stating therein that his daughter is not traceable and accused Devu Rai who was labourer with complainant is also absent from work since 25th July, 2006. It was suspected in the report that his daughter might have gone with accused.
3. On 28.07.2006, PW-6 Ashutosh Kapil, Contractor had informed complaint PW-1 Shamsher Singh that Devu Rai has telephonically informed him that prosecutrix was with him in Rajasthan. Thereafter complainant has lodged ::: Downloaded on - 15/04/2017 20:36:20 :::HCHP 3 FIR Ex. PA bearing No. 94/2006 under Sections 363 & 366 IPC.
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4. Police party headed by PW-10 Tilak Chand accompanied by PW-1 Shamsher Singh and PW-7 Harcharan Singh had recovered prosecutrix from Shishwabari in West Bengal native place of accused on of 08.09.2006. Prosecutrix was handed over to PW-1 Shamsher Singh and produced before JMIC Court No.2, rt Ghumarwin on 12.09.2006. Statement of Saroj Kumari was also recorded and she was medically examined by PW-9 Dr. Bharti Ranaut.
5. It was revealed in the statement of prosecutrix that she had been subjected to sexual intercourse 15 days prior to 25.07.2006 and also after solemnizing marriage with accused at Shishwabari. As per medical opinion rendered by PW-9 Dr. Bharti Ranaut vide MLC certificate Ex. PW-9/B there were signs of vaginal penetration but not of recent penetration and victim appeared to be habitual of vaginal penetration. As per chemical examiners' report Ex.PW-9/A received from State FSL Junga, there was no ::: Downloaded on - 15/04/2017 20:36:20 :::HCHP 4 semen or blood on post Carnic Slide, vaginal Smear slide and pubic hair of prosecutrix.
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6. After ascertaining age of prosecutrix, recoding her statement and receiving opinion of PW-9 Dr. Bharti Ranaut, offence under Section 376 was also added in the FIR.
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7. Accused was not traceable and was declared proclaimed offender and challan was put up in court under rt Section 299 of Code of Criminal Procedure on 09.05.2008.
8. Accused contacted prosecutrix on 23.01.2009 by calling her on mobile when she was alone in house and asked prosecutrix to come to Bilaspur to accompany him back to Shishwabari. Prosecutrix had informed her parents and on fixed date 25.01.2009 prosecutrix alongwith her father PW-1 Shamsher Singh and police went to Bilaspur at about 1.30 PM. Accused was apprehended by police on his arrival in a bus from Chandigarh side at Bus Stand, Bilaspur. Thereafter trial was conducted and accused has been acquitted of charges framed against respondent-
accused.
::: Downloaded on - 15/04/2017 20:36:20 :::HCHP 59. Mr. M.A. Khan, learned Additional Advocate General has argued that there are sufficient grounds and .
evidence on record to punish respondent-accused under Sections 363, 366 and 376 of Indian Penal Code and learned trial Court has failed to appreciate and consider evidence on record in its right perspective.
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10. On the contrary, learned counsel defending respondent-accused has supported the Judgment passed by rt learned Additional Sessions Judge, Ghumarwin (Camp at Bilaspur) and has argued that no grounds have been made out in appeal warranting interference of this court and prayed for dismissal of the appeal.
11. Prosecution has examined 14 witnesses and thereafter statement of accused under Section 313 of Code of Criminal Procedure was recorded. No defence witness has been examined, however, photographs of marriage Ex.
DA to DF were placed on record during cross-examination of prosecution witnesses.
12. PW-2 Ramesh Chand, Panchayat Secretary has proved Ex. PC date of birth certificate of prosecutrix on the basis of birth register maintained by Panchayat under Birth ::: Downloaded on - 15/04/2017 20:36:20 :::HCHP 6 and Death Registration Act, 1969. As per this certificate, date of birth of prosecutrix is 12.07.1990. This witness has .
not been cross examined despite opportunity to do so. PW-
5 Subhash Chand, Senior Assistant G.S.S.S., Dangar has issued certificate Ex.PD on the basis of admission and withdrawal register of Government Senior Secondary of School, Dangar. In this certificate also date of birth of prosecutrix is 12.07.1990. Though this witness has been rt cross examined on behalf of respondent, however, nothing has been extracted to discredit certificate issued by him.
Therefore, it is duly proved on record that date of Birth of prosecutrix is 12.07.1990. She had completed 16 years on 12.07.2006.
13. PW-9 Dr. Bharti Ranaut has proved MLC Ex. PW-
9/B establishing that prosecutrix was subjected to vaginal penetration. PW-11 Dr. Sunil Kumar has examined respondent-accused and has proved medical certificate Ex.
PW-1/A opining that on examination of patient, there was nothing to suggest that person was incapable of doing intercourse meaning thereby, he was capable of doing sexual intercourse.
::: Downloaded on - 15/04/2017 20:36:20 :::HCHP 714. PW-1 Shamsher Singh has corroborated report Ex. PW-14/A and FIR Ex. PA and has further stated that he .
had accompanied police to bring his daughter from native place of accused Shishwabari (West Bengal) with the help of local police of West Bengal. Prosecutrix was taken into custody from house of accused and was handed over to him of vide Memo Ex. PB. He has further stated that on inquiry, his daughter informed him that accused had come to his house rt 15 days prior to incident and had violated her and had threatened with dire consequences on revealing incident to any body. It has further stated that accused had threatened to kill prosecutrix and to commit suicide on disclosure of incident. As per his statement in the month of July 2009 his daughter (prosecutrix) had informed him that accused has contacted her on mobile for calling her to Bilaspur so as to take prosecutrix alongwith him. This fact was informed to police and thereafter accused was called on fixed date at Bilaspur to trap him and was apprehended at Bus stand Bilaspur when he reached from Chandīgarh side. This witness has stated that accused stayed for a night at his house on two or three occasions. He had denied that ::: Downloaded on - 15/04/2017 20:36:20 :::HCHP 8 accused used to talk his daughter frequently and used to meet her outside house. He has also denied that he had .
beaten his daughter on 25.07.2006 due to suspicion of relationship with accused. He has admitted that photographs mark DA to mark DF is of his daughter. It is denied by him that prosecutrix after returning from of Shishwabari was having frequent telephonic conversation with accused and observing frequent talks of daughter rt with the accused, his daughter was forced to call accused at Bilaspur and on her refusal to do so she was beaten many times and thereafter accused Devu Rai was called at Bilaspur at their instance through his daughter.
15. PW-3 Satya Kumari mother of prosecutrix in her statement has supported prosecution case. She has stated in her cross examination that whenever accused had stayed for night in her house he was given room in ground floor and their three daughters also used to sleep in ground floor. She has denied that prosecutrix had threatened family to run away with accused in case she was not allowed to marry with accused. She has stated that after four-five days of incident prosecutrix had called them and ::: Downloaded on - 15/04/2017 20:36:20 :::HCHP 9 had informed that she had been taken by accused and has reached at the house of accused. She has stated that .
accused had challenged to dare to take prosecutrix back.
16. PW-4 prosecutrix has stated that she is eldest amongst three sisters and studying in +1 in Government Senior Secondary School Dangar. Her father is a of contractor. In the year 2006, accused was labourer with her father and used to visit their house with her father.
rt Accused has expressed his love with her but she had not accepted his proposal. Upon this, accused had threatened to consume poison putting entire blame on her. She has further stated that about fifteen days prior to 25.07.2006 accused had stayed in their house and during night accused had called her with the help of stick when she was sleeping alongwith her sisters. Accused had asked her to come out side with threat to consume poison for not acceding to his request. She had come out side and accused had forcibly taken her to room where he was staying and had sexual intercourse with her without her consent. She returned back to her room but could not tell incident to anybody due to shame. On 22.07.2006, ::: Downloaded on - 15/04/2017 20:36:20 :::HCHP 10 accused had come to her house and offered Rs.20/- to elope with him with threatening of consuming poison for .
not accepting the proposal. The accused had told her that he was owner of big house and have landed property and prosecutrix will remain happy with him. She had not accepted Rs.20/- but accused had thrown Rs.20/- on her of bed and went away. On 25.07.2006 accused had called her asking to come at Dangar, failing which he had threatened rt to consume poison. Upon this, prosecutrix put her clothes in polythene bag and informed her sisters that she was going to Dakhyut. When she reached Dangar accused was already there and from Dangar they went to Ghumarwin, Bilaspur and Rajasthan via Chandigarh. Thereafter they went to Silliguri via Kanpur and on 30.07.2006 stayed in house of maternal grandmother of accused. As per prosecutrix, she had insisted to make a call to her home but the accused did not allow to her. From Silliguri they went to native place of accused Shishbawari from where accused had rung parents of prosecutrix and had informed that prosecutrix has been kidnapped by him and they may take her back if dared to do so. The prosecutrix was not ::: Downloaded on - 15/04/2017 20:36:20 :::HCHP 11 allowed to speak her father despite her requests. The accused has forcibly married her and on her refusal to .
marry she was threatened to be killed by evils. Thereafter accused had violated her six-seven times at Shishwabari against her will. Both of them stayed together at Shishwabari for one month and on 02.09.2006 the accused of went to Sikkim with assurance to take her there after arranging house. On 7th September, 2006 police alongwith rt her father had reached Shishwabari and she was brought back. She has stated that as and when she tried to contact her family from Shishwabari, accused had threatened her with dire consequences. She had stated that accused was in her contact and was asking to come to Bilaspur to accompanying him to Shishwabari and was also threatening that he will not allow anybody to marry her. She had informed her parents and consequently on fixed date i.e. 25.01.2009, the respondent was apprehended at Bilaspur.
In cross examination, she has admitted solemnization of marriage with accused. She has stated that she did not disclose to her parents that accused was in deep love with her. She has stated that accused pushed her with Danda in ::: Downloaded on - 15/04/2017 20:36:20 :::HCHP 12 such a manner that only she was waken up and her sisters were sleeping. She has further stated that she had come .
out of room without talking with accused to avoid waking up of her sisters. She has stated that she did not cry because of threatening of committing suicide already extended by accused. She admitted that no injury was of caused to her in room but she has denied that sexual intercourse was with her consent. She has stated that call rt of accused asking her to come to Dangar was received by her only and her sisters were watching television in another room. After reaching at Dangar, accused had signaled her to sit in a bus without talking to her. She has stated that accused had not threatened or beaten her in Dangar. She has admitted that there are many shops in Dangar. She has also stated that she was weeping at the time of her marriage but not frequently, however, she was not happy with her marriage. She stated that she did not try to make a call to her house at Dangar because she was living at unknown place and was not allowed to go out side. She has denied that she deposed under pressure of her parents ::: Downloaded on - 15/04/2017 20:36:20 :::HCHP 13 and still wanted to go alongwith accused. She admitted her photographs Mark-DA to Mark-DF.
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17. PW-6 Ashutosh Kapil has deposed that on 25.07.2006, on contacting accused telephonically, he had informed that he had committed a blunder by running away with daughter of PW-1 Shamsher Singh. He has of further stated that Devu Rai had refused to come back on his advice and had informed him that he was going to his rt home. This information was transmitted by this witness to PW-1 Shamsher Singh.
18. PW-7 Harcharan Singh had accompanied police party and father of prosecutrix to Shishwabari (West Bengal) to bring prosecutrix back.
19. PW-10 Tilak Chand had conducted investigation and has recovered prosecutrix from Shishwabari and after completion of investigation accused was declared as proclaimed offender and challan was presented in the court under Section 299 of the Code of Criminal procedure. PW-
13 SI Iqwal Mohammad was SHO at Police Station Bharari from 2007 to 2008 and during his tenure, accused was not traceable and was declared as a proclaimed offender.
::: Downloaded on - 15/04/2017 20:36:20 :::HCHP 14PW-14/A HC Hem Raj has recorded Ex. PW-14/A missing report dated 27.07.2006. PW-12 SI Mool Raj has .
apprehended accused on Bus Station, Bilaspur.
20. After prosecution evidence, statement of accused under Section 313 of the Code of Criminal Procedure was recorded. It would be relevant to refer questions No. 5, 7, of 9, 15, 25, 26, 32, 42 and 43.
"Q. No.5. It has further come in prosecution rt evidence against you that you accused were having acquaintance with Shamsher Singh having worked him with labour and some time you used to visit his house and occasionally stayed for night. What have you to say about this?
Ans. It is correct.
Q. No.7. It has further come in prosecution evidence against you that on 3.9.2006 the police alongwith Shamsher Singh and Harcharan Singh went to your native place Shishwabari in District Jalpaiguri, West Bengal, where Saroj Kumari was found in your house and you were reported to have gone to Sikkim. What have you to say about this?::: Downloaded on - 15/04/2017 20:36:20 :::HCHP 15
Ans. It is correct. However, I was not present in my house.
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Q. No.9. It has further come in prosecution evidence against you that on inquiry from Saroj Kumari by her father she disclosed to him that the accused had come to their house 15 days prior to 25.07.2006 and raped of her. What have you to say about this.
Ans. It is correct. However, the girl came rt willingly to my room.
Q. No.15. It has further come in prosecution evidence against you accused used to have talk with the prosecutrix and expressed your love feeling towards her. What have you to say about this?
Ans. It is correct.
Q. No.25. It has further come in prosecution evidence against you that at Dangar you accused met the prosecutrix and from Dangar you went to Silliguri on 30.7.2006 via Ghumarwin, Bilaspur, Rajasthan and Kanpur. What have you to say about this?
Ans. It is wrong. However, she called me at Ghumarwin.::: Downloaded on - 15/04/2017 20:36:20 :::HCHP 16
Q. No.26. It has further come in prosecution evidence against you that at Saleuguri you accused .
had stayed in the house of her maternal grand mother alongwith the prosecutrix. What have you to say about this?
Ans. It is correct.
of Q. No.32. It has further come in prosecution evidence against you that you accused were working rt as a labourer with PW-6 Ashutosh Kapil, Contractor, What have you to say about this?
Ans. It is correct Q. No.42. Why the witnesses have deposed against you?
Ans. I don't know. The girl used to come willingly in my room. She forced me to elope with me and then asked to marry me. She telephoned me 10-12 times from Ghumarwin to come so that we can go together.::: Downloaded on - 15/04/2017 20:36:20 :::HCHP 17
Q. No.43. Do you to say anything more in this Case?
Ans. I am innocent. She developed sexual .
relation and then forced to marry. I did not play any active role.
21. On the basis of evidence, it can be safely held that learned trial Court has rightly concluded that offence of under Sections 366 and 376 is not made out against accused. However, for the reasons stated hereinafter rt coupled with ratio laid down by the Apex Court, accused is certainly guilty of kidnapping prosecutrix as defined under Section 361 IPC and liable to be convicted under Section 363 of Indian Penal Code.
22. It is evident from statement of prosecutrix that she had submitted herself with her consent to accused to accompany him to visit his room, to travel alongwith him from Dangar to Ghumarwin, to Bilaspur, to Chandigarh, to Rajasthan, to Silliguri and to Shishwabari and to marry with him and thereafter she was waiting arrangement of house at Silliguri by accused to accompany accused to Silliguri. From the conduct of prosecutrix it is evident that on calling of accused from her room she did not inform her ::: Downloaded on - 15/04/2017 20:36:20 :::HCHP 18 sisters and parents and came out from her room, went to room of accused and submitted herself to him and came .
back quietly and during this episode, prosecutrix had ensured that her sisters should not wake up and she had not disclosed this fact to any one. Rather, she remained in contact with accused and on his calling left her house taking of spare clothes and accompanied accused to his native place Shishwabari. She was well conversant with mobile numbers, user of rt mobile phones but she did not make any efforts at any point of time till her recovery from house of accused to inform police or her parents or someone else.
23. The allegation of violating prosecutrix 15 days prior to 25.07.2006 means that the said incident had occurred probably on 10.07.2006. Prosecutrix has categorically stated that prior to that day accused has not committed any sexual intercourse with her. Prosecutrix has attained age of 16 years on 12.07.2006. From the statement of prosecutrix and answers of certain questions put to accused under Section 313 of Code of Criminal Procedure, it can be easily inferred that this incident was result of their mutual consent. Having sexual intercourse ::: Downloaded on - 15/04/2017 20:36:20 :::HCHP 19 with prosecutrix with her consent two days prior to attaining age of 16 years in such circumstances cannot be .
made basis for convicting accused under Section 376 of Indian Penal Code. No specific dates or time have been assigned to other alleged 6-7 incidents of violating prosecutrix. It is not clear that whether these incidents are of of prior to solemnization of marriage or after solemnization of marriage on the basis of evidence it can be said with rt certainty that these incidents are of after 25.07.2006. If these incidents are after solemnization of marriage. then Sections 376 and 375 IPC are not attracted. Exception (ii) of Section 375 IPC provides that 'Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape'. In case these incidents are of prior to solemnization of marriage and after 25.07.2006 then also Sections 375 and 376 IPC is not attracted as by that time prosecutrix had attained age of 16 years and at the time of alleged sexual intercourse, age of consent for woman under Section 375 IPC was 16 years. In the present case consent of prosecutrix is writ large. In these circumstances, offence under Section 375 IPC is not made ::: Downloaded on - 15/04/2017 20:36:20 :::HCHP 20 out against accused and accused is not liable to be punished under Section 376 IPC.
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24. For committing offence under Section 366 IPC, there must be kidnapping or abduction of prosecutrix with intent that she may be compelled or knowing it to be illegal that she will be compelled to marry any person against her of will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced rt or seduced to illicit intercourse. In the present case prosecutrix was not forced or seduced to illicit intercourse after kidnapping her, she was not compelled to marry any person against her will. As discussed hereinabove, she had left her house accompanying accused and married him and her consent is explicit from her conduct. Therefore, accused has rightly been acquitted under Section 366 IPC.
However, in our opinion trial court has committed mistake by acquitting accused under Section 363 IPC.
25. Hon'ble Supreme Court in case S. Varadarajan Versus State of Madras AIR (1965) Supreme Court 942 has held as under:
::: Downloaded on - 15/04/2017 20:36:20 :::HCHP 21"9. It must, however, be borne in mind that there is a distinction between "taking" and 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 circumstance 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 of 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 rt 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 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 ::: Downloaded on - 15/04/2017 20:36:20 :::HCHP 22 infer that the accused is guilty of taking the minor out of the keeping of the lawful guardian merely because after she has 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. No doubt, the part played by the accused could be regarded as of facilitating the fulfillment of the intention of the girl. That part, in our opinion, falls short of an inducement to the minor to slip out of the keeping of her lawful rt guardian and is, therefore, not tantamount to "taking".
26. Hon'ble Supreme Court in case Thakorlal D. Vadgama Versus the State of Gujarat 1973) 2 Supreme Court Cases 413 has held as under:
"10. The legal, position with respect to an offence under s. 366, I.P.C. is not in doubt. In State of Haryana v. Raja Ram (1), this Court considered the meaning and scope of s. 361, I.P.C. It was said there:
"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 ::: Downloaded on - 15/04/2017 20:36:20 :::HCHP 23 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 of word "keeping" in the context connotes the idea of charge, protection, maintenance and control : further rt 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 case cited reference has been made to some English decisions in which it has been ::: Downloaded on - 15/04/2017 20:36:20 :::HCHP 24 stated that forwardness on the part of the girl would not avail the person taking her away from being guilty of the offence in question and that if .
by moral force a willingness is created in the girl to go away with the former, the offence would be committed unless her going away is entirely voluntary. Inducement by previous promise or persuasion was held in some' English decision to of be sufficient to bring the case within the mischief of the statute. Broadly, the same seems to us to be the position under our law. The expression rt used in s. 361, I.P.C. is "whoever takes or entices any minor The word "takes" does not necessarily connote taking by force and'-it is not confined only to use of force, actual or constructive. 'This word merely means, "to cause to go9", "to escorts' or "to get into possession'.
No doubt it does mean physical taking, but not necessarily by use of force or fraud. The word "entice" seems to involve the idea of inducement or allurement, by giving rise to hope or desire in the other. This can take many forms, difficult to visualise and describe exhaustively; some of them may be quite subtle, depending for their success on the mental state of the person at the time when the inducement is intended to ,operate. This may work immediately or it may create continuous and gradual but imperceptible ::: Downloaded on - 15/04/2017 20:36:20 :::HCHP 25 impression culminating after some time, in achieving its ultimate purposes of successful inducement. The two words "takes" and .
"entices', as 'used in s. 361, I.P.C. are, in our opinion, intended to be read together so that each takes to some extent its colour ,and content from the other. The statutory language suggests that if the minor leaves her parental of home, completely uninfluenced by any promise, offer or inducement emanating from the guilty party, then the latter cannot be considered to rt have committed the offence as defined in s. 3 6 1, I.P.C. But if the, 'guilty party has laid a foundation by inducement, allurement or threat, etc. and if this can be considered to have influenced the minor or weighed: with her in leaving her guardian's custody or keeping and going to the guilty party, then prima facie it would be, difficult for him to plead innocence on the ground that the minor had voluntarily come to him. If he had at an earlier stage solicited or induced her in any manner to leave her father's protection, by conveying or indicating an encouraging suggestion that he would give her shelter, then the mere circumstance that his act was not the immediate cause of her leaving her parental home or guardian's custody would constitute no valid defence and would not ::: Downloaded on - 15/04/2017 20:36:20 :::HCHP 26 absolve him. The question truly falls for determination on the facts and circumstances of each case. In the case before us, we cannot .
ignore the circumstances in which the appellant and Mohini came close to each other and the manner in which he is stated to have given her presents and tried to be intimate with her. The letters written by her to the appellant mainly in of November, 1966 (Exhibit p. 20) and in December, 1966 (Exhibit p. 16) and- also the letter written by Mohini's mother to the appellant rt in September, 1966 (Exhibit p. 27) furnish very important and essential background in which the culminating incident of January 16th and 17th, 1967 has to be examined. These letters were taken into consideration by the High Court and in our opinion rightly. The suspicion entertained by Mohini's mother is also, in our opinion, relevant in considering the truth of the story as narrated by the prosecutrix. In fact, this letter indicates how the mother of the girl belonging to a comparatively poorer family felt when confronted with a rich man's dishonourable behaviour towards her young, impressionable, immature daughter; a man who also suggested to render financial help to her husband in time of need. These circumstances, among others, show that the main substratum of the story as revealed by ::: Downloaded on - 15/04/2017 20:36:20 :::HCHP 27 Mohini in her evidence, is probable and trustworthy and it admits of no reasonable doubt as to its truthfulness. We have, therefore, no .
hesitation in holding that the conclusions of the two courts below with respect to the offence under s. 3 66, 1. P.C. are unexceptionable.
There is absolutely no ground for interference under Article 136 of the Constitution".
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27. Hon'ble Supreme Court in case Maniram Hazarika Versus State of Assam(2004) 5 Supreme Court rt Cases 120 after considering case S. Varadarajan V. State of Madras, Paramjit Singh V. State of H.P. AIR 1965, SC 942 (1965) 2 Cri LJ 33, Paramjit Singh V. State of H.P 1987 and Sachindra Nath Mazumder vs. Bistupada Das Cri LJ 1266 (H) 1978 Cri. LJ 1494(Cal) has held as under:
"7. It is on the basis of the said finding that the minor in that case walked out of the house of her guardian without any inducement from the accused, this Court came to the conclusion that the accused in that case was not guilty of the offence. It is also worthwhile to notice what this Court said about the act of accused in such cases which amounts to enticement which is found in ::: Downloaded on - 15/04/2017 20:36:20 :::HCHP 28 paragraph 10 of the said judgment and which reads thus:
"It would, however, be sufficient if the .
prosecution establishes that though immediately prior to the minor leaving the father's protection no active part was played by the accused, he had at some earlier stage solicited or persuaded of the minor to do so."
"8. It is clear from the above observations of this Court that if the accused played some role rt at any stage by which he either solicited or persuaded the minor to abandon the legal guardianship, it would be sufficient to hold such person guilty of kidnapping".
"9. In the instant case, we have noticed rom the evidence that appellant who was a regular visitor to the house of PW-1, took undue advantage of his friendship and persuaded the minor to abandon the guardianship with a promise of marriage which on facts of this case is sufficient to uphold the judgments of the courts below".
"10. We having considered two other judgments cited before us by the learned counsel for the appellant, are satisfied that it is ::: Downloaded on - 15/04/2017 20:36:20 :::HCHP 29 not necessary for us to deal with the same elaborately since on facts of this case it is established that the appellant had taken the .
minor by enticing her and hence had committed the offence of kidnapping which kidnapping was for the purpose of marrying the said minor. In our opinion, courts below were justified in convicting the appellant for an offence of punishable under Section 366 IPC.
28. Hon'ble Supreme Court in case Sajjan Kapar rt Versus State of Bihar(2005) 9 Supreme Court Cases 426 has held as under:
"4. Reverting now to the offences under Section 363 and Section 368 IPC, it was contended by learned counsel appearing as amicus curiae on behalf of the appellant that the evidence shows that PW 6 had on her own decided to abandon her parents and accompany the appellant. It is pointed out that they traveled for three days and covered a long distance from Samastipur in the State of Bihar and ultimately reached Dhubri in Assam after travelling through West Bengal and changing a number of buses. All through the journey, it is submitted that there were various persons in the bus. It may be so but at the same tune we cannot ignore the ::: Downloaded on - 15/04/2017 20:36:20 :::HCHP 30 statement of PW 6 that on realizing that she was not being taken to the hospital but elsewhere, she asked the appellant about it but .
he gave her a threat and on that account she did not raise any alarm. We, under these circumstances, are unable to accept the contention that on this count the offence of kidnapping against the appellant has not been of made out. Section 361 of the Indian Penal Code, inter alia, provides, whoever takes or entices any minor under eighteen years of age in rt case of a female, out of the keeping of the lawful guardian of such minor, without the consent of such guardian, is said to kidnap such minor from lawful guardianship. Explanation to Section361 provides that the words "lawful guardian" include any person lawfully entrusted with the care or custody of such minor or other person. From the testimony of PW 3, PW 6 and PW 8, the Court of Session and the High Court have reached a finding of fact that the appellant took away PW 6 from her school in the manner the prosecution alleges. The school had been lawfully entrusted with the care or custody of PW 6 and the appellant took her from that custody. We see no reason to disturb the finings of fact reached by two courts on appreciation of evidence. The offence of kidnapping was complete when the ::: Downloaded on - 15/04/2017 20:36:20 :::HCHP 31 appellant took away PW 6 from the school. The fact that the appellant gave food to PW 6 on the way to Assam or she was fairy well looked after .
in Assam will have no relevance insofar as the commission of offence of kidnapping is concerned. We may note that the case sought to be put forth by the appellant was that the two of them were in love. In cross-examination of of PW 6 some letters were sought to be put to her as also a diary. These documents were, however, denied by PW 6. Further, it cannot be rt ignored that she was a minor and could not be taken away from the custody of the school in the manner the appellant is found to have taken her away".
29. It is settled law that statement of accused recorded under Section 313 Cr.P.C. cannot be made basis of conviction of accused but the same can either be relied as a whole or in par to corroborate prosecution evidence and to take aid to lend credence to the evidence led by prosecution.
30. Hon'ble Apex Court in case Ashok Debbarma Alias Achak Debbarma Versus State of Tripura (2014)4 Supreme Court Cases 747 has held as under:
::: Downloaded on - 15/04/2017 20:36:20 :::HCHP 32"24 We are of the view that, under Section 313 statement, if the accused admits that, from the evidence of various witnesses, .
four persons sustained severe bullet injuries by the firing by the accused and his associates, that admission of guilt in Section 313 statement cannot be brushed aside. This Court in State of Maharashtra v. Sukhdev Singh and another of (1992) 3 SCC 700 held that since no oath is administered to the accused, the statement made by the accused under Section 313 CrPC rt will not be evidence stricto sensu and the accused, of course, shall not render himself liable to punishment merely on the basis of answers given while he was being examined under Section 313 CrPC. But, Sub-section (4) says that the answers given by the accused in response to his examination under Section 313 CrPC can be taken into consideration in such an inquiry or trial. This Court in Hate Singh Bhagat Singh (supra) held that the answers given by the accused under Section 313 examination can be used for proving his guilt as much as the evidence given by the prosecution witness. In Narain Singh v. State of Punjab (1963) 3 SCR 678, this Court held that when the accused confesses to the commission of the offence with ::: Downloaded on - 15/04/2017 20:36:20 :::HCHP 33 which he is charged, the Court may rely upon the confession and proceed to convict him".
"25. This Court in Mohan Singh v. Prem .
Singh held that the statement made in defence by accused under Section 313 CrPC can certainly be taken aid of to lend credence to the evidence led by the prosecution, but only a part of such of statement under Section 313 CrPC cannot be made the sole basis of his conviction". In this connection, reference may also be made to the rt judgment of this Court in Devender Kumar Singla v. Baldev Krishan Singla (2004) 9 SCC 15 and Bishnu Prasad Sinha and another v. State of Assam (2007) 11 SCC 467. The above- mentioned decisions would indicate that the statement of the accused under Section 313 CrPC for the admission of his guilt or confession as such cannot be made the sole basis for finding the accused guilty, the reason being he is not making the statement on oath, but all the same the confession or admission of guilt can be taken as a piece of evidence since the same lends credence to the evidence led by the prosecution".
31. In the light of aforesaid ratio laid down by the Hon'ble Supreme Court of India, evidence of prosecution is ::: Downloaded on - 15/04/2017 20:36:20 :::HCHP 34 to be considered to determine whether respondent has committed an offence under Section 363 IPC as defined .
under Section 361 IPC or not.
32. Section 361 IPC provides that taking away or enticing any minor under 18 years of age out of the keeping of the lawful guardian of such minor without the of consent of such guardian, is said to kidnap such minor or person from lawful guardianship. Section 363 IPC provides rt punishment for kidnapping.
33. It is admitted and duly proved on record that on the date of incident, prosecutrix was 16 years of age and she had left her house to accompany accused to his native place to marry him. Evidence of active role and participation of accused in persuading prosecutrix to leave her house is also corroborated by statement of accused recorded under Section 313 Cr.P.C.
34. On the basis of evidence on record, it can be easily inferred that respondent was known to and visiting terms with family of prosecutrix. His explanation that both of them were in love with each other and admission of sexual intercourse with prosecutrix at her home 15 days ::: Downloaded on - 15/04/2017 20:36:20 :::HCHP 35 prior to 25.07.2006 indicates that he had developed intimacy with prosecutrix and it is also in his explanation .
that prosecutrix had made 10 to 12 calls to him with request to take her away. Accused had taken prosecutrix to his native place with assurance to marry her and had married her. There is sufficient material on record showing of that respondent had allured and threatened prosecutrix and on account of such threatening and allurement, rt prosecutrix had left her house to elope with him. Accused had pressurized prosecutrix extending threatening to commit suicide to have her consent according to his wish and expressing his feeling of love so as to compel her to act accordingly which resulted into intimacy between respondent and prosecutrix.
35. It has come in evidence that respondent had also allured prosecutrix showing that he has a big landed property and also is having big house at his native place Shishbawari. It indicates active role of respondent to persuade or solicit minor prosecutrix to abandon legal guardianship.
::: Downloaded on - 15/04/2017 20:36:20 :::HCHP 3636. It is clear from evidence on record that respondent has played a vital role in either preparing or .
soliciting or persuading the minor to abandon her house illegally by taking undue advantage of his relations with promise to marry with her. Therefore, there is sufficient evidence to hold respondent guilty of kidnapping of prosecutrix.
37. Trial Court has failed to appreciate provisions of rt Section 361 IPC and ratio laid down by Hon'ble Supreme Court of India. Consent of female minor under 18 years of age is irrelevant for determining guilt of accused under Section 363 of Indian Penal Code. Therefore, impugned judgment deserves to be interfered on this count.
38. In view of above discussion, appeal filed by the State is partly allowed and judgment dated 29.12.2009, passed by Additional Sessions Judge, Ghumarwin, District Bilaspur, Himachal Pradesh (Camp at Bilaspur) in Sessions trial No. 5/7 of 2009 is modified to the extent that accused is liable to be punished under Section 363 of Indian penal Code.
::: Downloaded on - 15/04/2017 20:36:20 :::HCHP 3739. The incident is of the year 2006, respondent was arrested on 28.01.2008 and remained in judicial custody till .
decision of learned Additional Sessions Judge, Ghumarwin, District Bilaspur dated 29.12.2009. In peculiar facts and circumstances of present case, it would be sufficient to sentence respondent for a period of imprisonment already of undergone during trial.
rt (Rajiv Sharma),
Judge.
(Vivek Singh Thakur),
Judge.
June 17, 2016
(brb)
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