State of Haryana Vs. Raja Ram [1972] INSC
265 (27 October 1972)
DUA, I.D.
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 co accused 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.
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 beshown 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.
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 Chandigarh
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 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 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 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 statement 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 custody 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 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 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 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 createdbut 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 Additional 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.
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