Nanga and Shankar vs State of Rajasthan

N.C. Sharma, J.—Appellants Shankar and Nanga, by the judgment of the Additional Sessions Judge, Dausa dated August 27, 1982, have been found guilty for offence u/s 363, IPC and they have respectively been sentenced to rigorous imprisonment for one year and rigorous imprisonment for three months and also with a fine of Rs. 200/- each and in default of payment of fine to rigorous imprisonment for three months. Both of them have come in appeal to this Court. Smt. Bheri (PW/1) wife of Panchu (PW/2) is alleged to have been taken or enticed by the appellants out of keeping of the lawful guardianshinp of Panchu without his consent. Bheri (PW/1) herself narrates her taking away or being enticed by the appellants out of keeping of her husband. Unfortunately, Panchu (PW/2) husband of Bheri is a blind person and is hard of hearing as well. Bheri was married, to Panchu near about the year 1976. As to the age of Bheri on the date of the incident, X-ray was conducted of wrist, elbow and pelvis According to the report of the Radiologist, Ex. P/12, epiphysis, of lower end of ulna and radius had appeared but not united. All the carpal bones had, appeased Epiphysis of base of 1st metacarpal had not united. Medial epicondyle had not united Epiphysis of upper end of radius had appeared but not united Epiphysis of iliac crests and isohia lubesosities had not appeared. Epiphysis of head and greater trachter had not united. On the basis, of this X-ray report, it was opined by Dr. M.H. Vyas that the approximate age of Bheri as on August XL 1980 was about 12 years and below 14 years. Bheri in her statement recorded before the Court on Jan. 7, 1982 stated her age as 16 years. Medical opinion about age is approximate and it can be two years this side or that side. Giving longest latitude, to the appellants, the age of Bheri can at the most be 16 years on the date of the incident. She was, thus under 18 years-of age when the offence of kidnapping is alleged to haken have place.

The most material question, therefore, now remains is whether the appellants had taken or enticed Bheri out of the keeping of the lawful guardianship of her husband. The whole incident appears to have taken place in an interesting manner. Both Bheri and her husband had gone to Sambhar to meet the sister of her husband'' and they had stayed at Sambhar for five-six days. She had gone to market in Sambhar with her blind husband to purchase ''loogadi'' and ''kanchali for her husband''s sister. She purchased ''odhani'' and then started back to go to the. house of her husband''s sister. At that time, it is stated by her that the two appellants and Ramchandra and Parsa met her in Subzi Mandi market, Bheri after handing over the ''odhani'' and ''loogadi'' purchased by her to bar husband, left that place to ease herself. When she was going for that purpose, the appellants, met her and they told her that her mother was ill at Jaipur and, her father was calling her at the bus stand. Accordingly, she, accompanied the appellants, Ram Chandra and Parsa to, the bus-stand. How ever, her father, was not there at the bus-stand. She inquired, fro Shankar appellant about her. She states that there upon Shanker appellant told her that hen mother was ill at Jaipur and she may start-foe Jaipur. Then Bheri along with Shanker, Nanga and Ram Chandra came to Jaipur. She inquired about her mother, but she was told that her mother was at Sanganer. Then she was taken to Sanganer at the house of Shanker appellant. Her parents, were not there. She lived in the house of Shanker for 25 days and, it is said by her, that Shankar committed sexual intercourse with her. Then after 25 days, bee father came in search for her and when she was found, she was taken by tier father to Sardarpura. She lived with her father for a month She has also stated that when she went along with the appellants, she had told her husband that he may go and she was just coming. She did net raise any cry in the way. It is admitted by her in cross-examination that as there was crowd at the bus stand, she had herself purchased ticket and gave it to Shanker. She was following Shanker in the way and did not have any talk, with him At Jaipur railway station also, it was she who purchased the ticket She admits that she did not know Shanker and- Nanga from before,

How this interesting lady can, be believed who having attained, the age of 10 years and not knowing, the appellants from before, belived that they knew her parents. Seeing them, she left her husband, and even, asked her husband to go to his sister''s house and she was coming. She follows; the appellants, purchases ticket at the bus-stand, Sambhar and also at the railway station at Jaipur, goes to Sauganer and lives with Shankar, without murmur for 25 days. This cannot be said to be taking away or enticing It only amounts to following by Bheri to Shankar with whom she wanted to go. There was no initiation on the part of Shanker to take her or entice her. She herself very much wanted to go with Shankar and left her blind husband on her own accord. Her theory that Shankar and Nanga misled her that her father was at the bus-stand or her mother was ill has no legs to stand, especially when she did not know the appellants from before and further when she feels contented by living at the house of Shankar for 25 days without any worry for her patents. If a girl aged 16 year herself fellows a person With whom she wanted to go, it cannot be said that person took her or enticed her. The taking must be at the instance of the accused and not at the instance of the girl. So far as appellant Nanga is concerned, he did not play any part. I, therefore, hold that the offence u/s 363, IPC has not been brought home against the appellants and they deserve acquittal.

I allow this appeal, set aside the conviction and sentence awarded to the appellats by the Additional Sessions Judge, Dausa and acquit both the appellants from the offence u/s 363, IPC. The appellants are on bail. Their bail and bonds are cancelled and they need not surrender.