Nanhak Sao vs King-Emperor

Kulwant Sahay, J.—The petitioner was convicted by a First Class Magistrate of Patna for an offence u/s 363/114 of the Indian Penal Code and sentenced to nine months'' rigorous imprisonment. The conviction and sentence have been upheld by the learned Sessions Judge on appeal.

The only question of law raised in the case is as to whether the accused abetted the commission of the offence or whether he was merely an accessory after the act. The girl Sudamia, a minor of eleven years of age, was kidnapped from the lawful custody of Bazari Sao, who was appointed her guardian by the District Judge, on the 29th of June 1925, at about 5 A.M. The actual kidnapping of the girl was made by Sri Bhagawan, a nephew of Bazari Sao, who took the girl from Bazari''s house. Sri Bhagwan was tried of an offence u/s 363, I.P.C., and convicted and sentenced to one year''s rigorous imprisonment. In the course of the trial it appeared from the evidence that the present petitioner Nanhak also took part in the removal of the girl. He was therefore placed upon his trial and convicted and sentenced as stated above.

The evidence as found by the learned Sessions Judge is that Sri Bhagwan, who was a nephew of Bazari Sao, took the girl out of the house of Bazari Sao. They went to a place near the house of the petitioner where an ekka was standing. Nanhak and Sri Bhagwan helped the girl on to the ekka and Sri Bhagwan took her away. The petitioner Nanhak followed them sometime after on a bicycle. The petitioner was found near the Patna Junction Railway Station at the time when Sri Bhagwan and the girl were getting down from the ekka. The learned Sessions Judge finds upon the evidence that the ekka was kept at Nanhak''s door, that Nannak was standing near the ekka from before the arrival of Sri Bhagwan and Sudamia, that he helped Sudamia on the ekka, that he followed on a bicycle, and that he was seen with the eloping party near Patna junction Railway Station. The question is whether the act of kidnapping was complete the moment the girl was brought out of the house of Sri Bhagwan, or it was continuing when the petitioner helped the girl on the ekka.

A number of cases have been cited by the learned advocate for the petitioner to show that the offence of kidnapping is not a continuing offence and that it is complete the moment the minor is removed from the keeping of the lawful guardian. In Rakhal Nikari v. Queen Empress (1897) 2 CWN 81 it was held that the offence of kidnapping a person is complete when he is actually taken out of the custody of the lawful guardian. In Nemai Chatto raj v. Queen-Empress (1900) 27 Cal 1041 the Pull Bench of the Calcutta High Court held that the offence of kidnapping from lawful guardianship is complete when the minor is actually taken from the lawful guardianship. It is not an offence continuing so long as he is kept out of such guardianship. The same view was taken in Chekutti v. Emperor (1903) 26 Mad 454. There can therefore be no doubt that the act of kidnapping would be complete as soon as the minor was taken out of the keeping of the lawful guardianship. The question is whether the act of taking the girl Sudamia out of the keeping of her lawful guardian was complete before she was taken to the place where the ekka was standing in front of the petitioner''s house. In the case of Nemai Chattoraj v. Queen-Empress (1900) 27 Cal 1041 just referred to the learned Chief Justice observed that the question is one of fact and must in each case be decided upon the particular evidence of each case. In all the cases cited on behalf of the petitioner there was an interval of time and distance, so far as the place was concerned, between the actual removal of the girl and the abetment by the accused persons, or taking part in the offence by the accused persons in those cases: In the present case the finding is that the accused took part in the actual removal of the girl immediately after she was taken out of the house of her guardian.

It appears from the evidence that the place where the ekka was standing was a short distance from the house of Bazari Sao, only a few houses intervening between that place and Bazari''s house. As I have said, the question is one of fact and the learned Sessions Judge as well as the Magistrate have both come to the finding on a consideration of the evidence, that the act of kidnapping was not complete at the time when the petitioner helped the girl on to the ekka. Under these circumstances, the conviction u/s 363/114, I.P.C., appears to be correct.

The question however remains as to whether a sentence of nine months'' rigorous imprisonment is an appropriate sentence. The actual culprit Sri Bhagawan, was given one year''s rigorous imprisonment. The present petitioner Nanhak does not; appear to have had any sinister motive so far as the girl was concerned. It appears, from the evidence that Bazari Sao wanted to give the girl in marriage to a certain person which was objected to by the near relations of the girl. Nanhak appears to be one of party who objected to the marriage proposed by Bazari Sao. Under the circumstances, I think a sentence of three months'' rigorous imprisonment would meet the ends of justice. The conviction is therefore upheld and the sentence passed on the petitioner is reduced to one of three months'' rigorous imprisonment.

Ross, J.

I agree.