Madan Lal vs State of Punjab

P.K. Jain, J.

This appeal is directed against the judgment/order dated June 4, 1996, passed by the Additional Sessions Judge, Amritsar, whereby the appellant has been convicted for the offences under Sections 366/376 Indian Penal Code, and sentenced to undergo rigorous imprisonment for a period of 5 years and to pay a fine of Rs. 2000/ or in default of payment of fine to undergo rigorous imprisonment for 4 months for the offence under Section 366, Indian Penal Code, and to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs. 3000/ or in default of payment of fine to undergo rigorous imprisonment for a period of five months for the offence under Section 376, Indian Penal Code. The substantive sentences have been ordered to run concurrently.

The necessary facts for the disposal of this appeal which can be gathered from the record of the trial Court are that the prosecutrix Jatinder Kaur used to go to the house of the appellant, which is situated on the rear side to bring milk. During her said visits she developed intimacy with the appellant. Several times she went to the house of the appellant to see him on the pretext that she was going to the brother''s wife of the appellant. She met the appellant several times in the fields also. These affairs continued for about 4 to 5 months.

The appellant was employed in the Railway Department. On 7.1.1995, he disclosed to the prosecutrix that he was going to Allahabad for training. The prosecutrix expressed her desire to accompany him. On 8.1.1995 at about 6.30 p.m. the prosecutrix left her house on an excuse of easing out and taking secretly a suit case. When she did not come back, her mother Surinder Kaur made enquiries from the neighbouring houses but in vain. Ultimately, Surinder Kaur lodged a report (Exhibit PD) with the police on 14.1.1995, on the basis of which formal F.I.R. (Exhibit PD/2) was registered for the offences under Sections 363/366, Indian Penal Code.

Jatinder Kaur accompanied the appellant to Allahabad via Amritsar and Delhi and lived with him for 5/6 days in one room of a Railway quarter. During this period, the appellant committed sexual intercourse with her forcibly every night. On 15.1.1995, the appellant sent the prosecutrix by train to her village.

On 18.1.1995, A.S.I. Sukhjinder Singh (PW 6) went to the house of the prosecutrix and recorded her statement (Exhibit PW6/A). She was got medically examined. Her ossification test was conducted to ascertain her age which was found to be between 151/2 to 161/2 years. Her clothes were taken into possession and were sent to the office of the Forensic Science Laboratory. After completing the investigations, a charge sheet under Sections 363/366/376, Indian Penal Code was submitted to the Court.

A charge under Sections 366/376, Indian Penal Code, was framed against the appellant to which he pleaded not guilty and claimed trial.

In support of its case, the prosecution examined 8 witnesses. Smt. Jatinder Kaur (PW 4) is the prosecutrix, and Smt. Surinder Kaur (PW 3) is her mother and the complainant. Dr. Amritpal Kaur (PW 1) had examined the prosecutrix on 18.1.1995 at the request of the police and had prepared the medicolegal report, copy of which is Exhibit PA. During her examination, the prosecutrix gave her age to be between 16 to 17 years. Dr. S.K. Nain (PW 2) is the Radiologist. After conducting ossification test, he prepared the report (Exhibit PC) on the basis of the skiagrams (Exhibits PC/14). According to him, age of the prosecutrix as on 19.1.1995 was between 151/2 to 161/2 years. In his crossexamination, he admitted the variation in the stated age could be two years on either side. SPC Rachpal Singh (PW 5) had taken a sealed parcel containing the clothes of the prosecutrix and had deposited the same in the office of the Chemical Examiner, Patiala. Rajinder Parshad (PW 7) is the Second Head Master of Government High School, Bham, wherein the prosecutrix had studied upto 6th class. According to the school record, the date of birth of the prosecutrix is 12.11.1978. Shri Jagir Singh (PW 8) is a resident of village Bham. According to his testimony, the father''s name of the prosecutrix was Balraj alias Baldev Singh. ASI Sukhjinder Singh (PW 6) is the Investigating Officer.

In his examination recorded under Section 313 of the Code of Criminal Procedure, the appellant denied the allegations of the prosecution and pleaded false implication. He did not produce any evidence in his defence.

On an appraisal of evidence produced before him, the Additional Sessions Judge convicted and sentenced the appellant as stated above. Hence this appeal.

I have heard the learned counsel for the parties and have gone through the record of the trial Court.

While assailing the order of conviction, Shri V.K. Chaudhary, Advocate, learned counsel for the appellant, has argued that the trial Court has not adverted itself to the question as to whether the necessary ingredients to constitute an offence of kidnaping as defined in Section 361, Indian Penal Code, have been made out or not. The learned counsel has argued that assuming the age of the prosecutrix to be below 18 years on the date of occurrence, there is no evidence on the record to prove that it was the appellant who had enticed or taken away the prosecutrix from the lawful guardianship of her mother. While reading out the testimony of the prosecutrix and her mother, the learned counsel had laid great stress on the fact that the prosecutrix had illicit intimacy with the appellant for about 4 to 5 months before this occurrence and the same was within the knowledge of her mother, and that according to the prosecutrix herself, she left her house of her own accord without any invitation from the appellant. Accordingly, the learned counsel has argued that the offence of kidnapping is not made out and the conviction of the appellant under Section 366, Indian Penal Code, is bad in law. In support of this argument, the learned counsel has placed reliance upon a wellknown judgment of the apex Court rendered in S. Varadarajan v. State of Madras, A.I.R. 1965 Supreme Court 942.

On the other hand, Shri Ramanjit Singh, AAG, while appearing on behalf of the State of Punjab, has argued that it has been established on the record that the prosecutrix was below the age of 18 years on the day of occurrence and that she was taken away by the appellant with him to Allahabad. It is, thus, argued that these two facts are enough to constitute an offence of kidnapping and the conviction of the appellant under Section 366, Indian Penal Code, is fully justified on the evidence produced on the record.

I have given my careful though to the respective arguments advanced at the Bar.

The offence of "kidnapping from lawful guardianship" is defined in Section 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 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."

From a bare perusal of this definition, it is evident that taking or enticing away a minor out of the keeping of a lawful guardianship is an essential ingredient of the offence of kidnapping. In the present case, the question of enticing away the prosecutrix does not arise. It is to be seen as to whether the part played by the appellant amounts to ''taking'' the prosecutrix out of the keeping of her lawful guardian. It cannot be disputed that the best and the only evidence on this record relating to this question is the sole testimony of the prosecutrix (PW 4) herself.

In her statement on oath, the prosecutrix has categorically admitted her close intimacy with the appellant for about 3/4 months before this occurrence. Then she has deposed as under :

"On 7.1.1995, the accused told me that he is to go to Allahabad in connection with training as he is an employee in the Railway department. On 8.1.1995, I left my house by pretending that I have to go out to attend the call of nature and I went to Sangrana Railway Station where Madan Lal accused met me. From that railway station, we got into the train and reached Amritsar. From Amritsar, we went to Delhi by train. We purchased a bag from Delhi. From Delhi, we went to Allahabad by train."

In her crossexamination, she has deposed as follows :

"I had not got recorded in my police statement that I had also asked the accused to take me with him to Allahabad. (confronted with her statement Mark ''A'' wherein it has been recorded that she had asked the accused to take her along to Allahabad) It is correct that I took my wearing suit with me from the house stealthily so that my mother may not come to know about it and I went to Sangrana Sahib Railway Station. It is correct that I had gone with the accused of my own accord."

From this testimony of the prosecutrix it becomes evident that she had left her house of her own accord, without any invitation from the appellant, joined him at Sangrana Railway Station and accompanied him to Allahabad by train. It is also evident from her crossexamination that it was she who had expressed her desire and asked the appellant to take her with him to Allahabad. There is not a word in the deposition of the prosecutrix from which an inference could be drawn that she left the house of her mother at the instance or even on a suggestion of the appellant. In fact, she candidly admits that she left her house taking the suitcase stealthily, joined the appellant and accompanied him to Allahabad of her own accord. The appellant, 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. The prosecutrix was 16 to 17 years of age and was fully capable of knowing what was good and what was bad for her. Since she left her house of her own accord and willingly accompanied the appellant the law did not cast upon him the duty of taking her back to her mother''s house or even of telling her not to accompany him.

In somewhat similar circumstances, in S. Varadarajan''s case (supra) the apex Court laid down the following law :

"There is a distinction between "taking" and allowing a minor to accompany a person. The two expressions are not synonymous though it cannot be laid down that in no conceivable circumstances can the two be regarded as meaning the same thing for the purposes of Section 361. Where the minor leaves her father''s protection knowing and having capacity to know the full import of what she is doing, voluntarily joins the accused person, the accused cannot 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."

In para 10 of the judgment, their Lordships further observed as under :

"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. 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 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 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 facilitating the fulfilment of the intention of the girl. But that part falls short of an inducement to the minor to slip out of the keeping of her lawful guardian and is, therefore, not tantamount to "taking".

The present case if fully covered by the law laid down by their Lordships of the Supreme Court in the above case.

There is absolutely no evidence to prove any persuasion, inducement or blandishment alleged to have been held out by the appellant to the prosecutrix to leave the custody of her guardian. The prosecutrix has no where stated in her statement on oath (As PW 4) that the appellant had ever asked, solicited or persuaded her to accompany him to Allahabad. No doubt, the part played by the appellant could be regarded as the facilitating the fulfilment of the desire of the prosecutrix, but that part falls short of an inducement to the prosecutrix to slip out of the keeping of her lawful guardian and is, therefore, not tantamount to ''taking'' within the meaning of the definition of the term kidnapping as contained in Section 361 of the Indian Penal Code. The trial Court in its impugned judgment did not advert to this aspect of the case at all and fell in error by being impressed with the fact that the prosecutrix was a minor and that she accompanied the appellant to Allahabad and the same constituted an offence of kidnapping. Therefore, the conviction of the appellant under Section 366 of the Indian Penal Code cannot be sustained at all.

Then the learned counsel for the appellant has argued that as per admissions of the prosecutrix herself, she had developed intimacy with the appellant for about 3 to 4 months earlier to this occasion and she used to meet the appellant even in fields secretly. This fact was also within the knowledge of Smt. Surinder Kaur (PW 3), the mother of the prosecutrix. Coupled with this background, the factum of accompanying the appellant to Allahabad and living with him in one room alone would be enough to infer that the prosecutrix was a consenting party to the sexual intercourse stated to have been committed by the appellant upon her. To repeat, the prosecutrix has admitted her close intimacy with the appellant for a considerable period as well as the factum of secret meeting with him. She has also admitted that she lived with the appellant for 5 to 6 days in one room all alone. In these circumstances, the only inference which can be drawn is that the prosecutrix was consenting party to the sexual intercourse which the appellant used to have with her. In the facts and circumstances of this case, it cannot be said by any stretch of imagination that the appellant used to commit sexual intercourse forcibly against her wishes twice or thrice every night with the prosecutrix. The trial Court fell in error in just placing reliance on the statement of the prosecutrix without analysing the same in the facts and circumstances of the case, discussed above. Consequently, I have no hesitation in holding that the prosecution has miserably failed to prove even an offence under Section 376, Indian Penal Code, against the appellant.

As a result of the above discussion, this appeal succeeds. The conviction and sentence of the appellant are set aside and he is acquitted of the charge under Sections 366 and 376 of the Indian Penal Code. The appellant shall be released forthwith if not wanted in any other case.