Rehmat Ali vs The State of Assam

K. Lahiri, J.—This revision is directed against the conviction of the accused u/s 363, Indian Penal Code sentencing him to suffer R.I. for 2 (two) months.

The prosecution case is that P.W. 4, Laxmi Prasad found his minor girl Sabitri missing since December 1,1976. Oa 3.12.76 the informant, after enquiry, could learn that one Mum. Sahina had enticed away the girl for espousing her marriage with some one, The accused was a truck driver at all relevant time. The police could gather information that the "missing girl was with the accused. The girl was recovered with the help of police on 10.12.76. The accused and the girl were brought to Nagaon, The girl was medical examined by P.W. 8, Dr. M. Rahman who found as follows:

Height- 16 inches

Weight- 42 kgs.

Teeth- 28 Nos.

Breast-. developed

Auxiliary Hair present

The physical features of the girl was such that the doctor opined that she was minor i.e., below 18 years of age. On production of the girl in Court she was allowed to go with her father. But again she escaped, met the accused, married him and in due course bad a child. They are at present living as husband and wife. The prosecution examined 9 (nine) witnesses. The defence of the accused was that the girl was not a minor, she had neither been taken nor enticed away by him from the lawful guardianship of Laxmi Prasad. The girl had undying love for him and she left the guardianship of her father being oppressed and depressed by ill-treatments meted out by her step mother. She had no home and no guardian. These are in short the pleas of the accused. The accused was convicted u/s 363 I.P.C. and sentenced. On appeal his conviction was maintained but the sentences was reduced to 2 months. The soft sentence was imposed in view of the peculiar facts and circumstances of the case.

Let me delve into the question whether the accused could be convicted u/s 363 I.P.C. The accused has been convicted u/s 363 Indian Penal Code, "the Code" for short, for kidnapping Sabitri from the lawful guardianship of her father Laxmi Prasad. The section provides punishment for the offence defined in Sees. 360 and 361 of "the Code''. There is no denial that to support the conviction of kidnapping from lawful guardianship the facts of the case must fall within the ambit of Section 361, that is to says the person in respect of whom the offence is committed must be a boy or a girl under the age of 16 years or 18 years respectively. The object of Section 361 is to protect children of tender age from being abducted or seduced for improper purposes as for the protection of the rights of the parents and guardian having the lawful charge of custody of minor or insane prsons.

The first and foremost factor which is not denied by learned Counsel for the parties is that the accused and Sabitri are now united as a married couple. They have a child as well. It is a fait accompli, Now, the conviction and sentence may snap or crack the marital tie. Should the court determine the culpability of the accused oblivious of this relevant factor? Is it the judicative law? In my opinion this is a very relevant factor which should be taken into consideration. In fact the answers to the questions are found in the law laid down by the Supreme Court in Ch. Laiq Singh and Others Vs. State of Uttar Pradesh, The factor was considered to be relevant, however, their Lordships reduced the sentence to the period already undergone by the accused but did not set aside the conviction. In S. Varadarajan Vs. State of Madras, their Lordships took similar factor into serious consideration and along with other factors found the accused not guilty of the offence u/s 363 I.P.C.

Let me therefore proceed to consider whether the accused committed any offence u/s 363 read with 361 of ''the Code''. The first factor which the prosecution was required to bring home beyond reasonable doubt was that the girl bad been taken or enticed away from the lawful guardianship of Laxmi Prasad. The on controverted evidence tells a morbid story. The girl had no home. Her mother had died but his father was quick to re-marry. Stepped in the step mother and the drama of torture by the step mother was enacted and the girl was the victim. She was tortured. She did not get any protection. She wanted to flee away from the house which was never her home. Her father was there in name but the house was ruled by her step mother. Situated thus, the girl wanted to get away from the house. Thereafter, she could be a street Arab, roam about in street or find a place in red light area. Instead she escaped to be sheltered and protected by a young man in whom she had faith and confidence. She, in her wisdom, found the Petitioner who cared her, loved her, bestowed affection and naturally she went to him. Was Laxmi Prasad really the lawful guardian of the girl in the strict sense of the term? Indeed he was her father but the facts and circumstances of the case disclose that he could not protect the girl from torture. It it, therefore difficult to hold that the girl bad left the lawful guardianship of Laxmi Prasad. In fact she escaped from the confinement to escape torture. It is therefore difficult to hold that she had a guardian. The term ''guardian'' means protector, defender, shepherd and benefactor. In the instant case, it is apparent that the father of the girl could not protect, defend and guard her. It is, therefore, difficult to say that her father was a ''guardian''. It is doubtful whether a custodian of a minor without the qualities of guardian can be strictly called guardian. The benefit of doubt, therefore, must go in favour of the accused.

Did the accused take or entice the girl? It was the girl who had fallen in love with the accused. There is no material to show that there was any conspiracy between Musst. Sabina, to whose house the girl went, and the accused. The girl was not taken or enticed away by the accused. She came to the accused and wanted to marry him. This is the factual matrix of the entire scenario. This is the sum and substance of the prosecution story. Under these circumstances it is doubtful as to whether the accused took or enticed the girl. Rather, one can say that the girl charmed the boy and came to him. When a girl falls in love with a boy and takes a dominant role and elopes, it is very difficult to hold that the boy is guilty of the offence u/s 363 of the Code. Their Lordship had to deal with the question in Yaradarajan (supra) and held that under such situation the boy can not be convicted u/s 363 of the Code''. The time has come to reassess the offence from a new angle in the progressing society when women lib has come to stay, as the rule of law runs close to the rule of life. The time has come to scrutinise in most of the cases whether the boy abducts or kidnap the girl or it happens the other way round. From the facts and circumstances of the case it is very difficult to hold that the boy is guilty of kidnapping in view of the role of the girl. Even after she had been left in the custody of her father by the court, she escaped and went to the boy and married him. Situated thus, it is very difficult to hold that the accused was guilty of the offence of kidnapping in u/s 363 of ''the Code''.

There is another aspect of the matter. Had the accused the ''mens rea'' or guilty knowledge? The girl met the boy. Could the boy reasonably comprehend that the girl was a minor? It is apparent from the physical descriptions of the girl stated above that any reasonable or prudent young man could not have taken the girl weighing 43 kgs. having developed breasts to be below 18 years. No boy in love with a girl counts her teeth to ascertain her correct age. From the features that has been pictured above it is very clear that the girl was well developed female and any reasonable and prudent person would have taken her to be aged 18 years or more. The accused was a young person and it is not possible to hold that be bad committed the offence knowing or basing reason to believe, that is to say, having the necessary ''mens rea'' that the girl was a minor. Unless it is proved by the prosecution that the accused committed the offence with requisite ''mens rea", namely, that the enticed or took away the girl knowing or having reason to believe her to be under 18 years of age, the accused cannot be convicted u/s 363 of the Code. The expert could form his opinion, after skygram or X-ray examinations are done and that the girl was below 18 years. However, in the instant case the question is whether the accused had the knowledge or reason to believe that Sabitri was a minor? Under the facts and circumstances of the case from the features described by the Doctor it creates a reasonable doubt whether the accused had the requisite knowledge or belief that the girl was under 18 years at all relevant time. In any view of the matter the prosecution has failed to show that the accused had enticed or taken away the girl knowing her to be minor aged under 18 years. The poor girl had attained the age of discretion, might have been on the verge of attaining majority but she was ripe and capable enough of knowing what was good and what was bad for her. She had a discretion. She exerciscd her discretion. In Varadarsajan (supra) the girl had attained the age of discretion on the age of attaining majority, left the house conversed with the accused over telephone, met the accused at several places, went to the Sub-Registrars office where they, jot a marriage agreement registered and there was no suggestion that all those were done by force or any blandishments on the part of the accused. Their Lordships held on those facts that the accused did not take the girl but it was the girl who was me willing partner to the entire episode. In the instant case as well it is clear from the evidence that the insistence of marriage cams from the girl. The accused merely complied with the request. Under similar circumstances in (Varadarajan (supra), their Lordships have held that the conduct of the accused did not amount to taking or enticing away the girl. The facts situations are almost similar and the law enunciated by the Supreme Court is squarely applicable in the instant case as well.

With the march of time parents remain fully pre-occupied and engaged and cannot afford to take appropriate care and attention to their children. In the present socio-economic setting the parents are impelled or compelled to grant more discretion or liberties to the children. The children do deserve certain degree of independence and freedom to equip themselves to survive and fight out their struggle for existence. Now, the questions are: Whether the children are getting adequate care and attention of their parents? Are the parents taking the needed care and attention of the children or the minors? When minors are granted liberty or discretion, should we penalise them for exercising their discretion which we may not fully approve? It is a social problem. If a minor does not have a warm home appropriate care and attention, be is bound to turn to others who care for him. In the context of the changing society and social values the acts of taking away minors, attaining the age of discretions with their consent and assent need a deep consideration. It is perhaps the common concern of the society, men of law and other think tanks. However, the questions shall be considered in depth in an appropriate case.

For the foregoing reasons I hold that the prosecution bas failed to establish that the girl was taken or enticed away by the accused. The prosecution has failed to establish that the girl was taken or enticed away from the lawful guardian, rather she bad no guardian in the teal sense of the term. I hold that the prosecution has failed to establish that case against the accused beyond reasonable doubt.

These relevant factors were totally overlooked by the Courts below and in my opinion the concurrent findings reached by the courts below can be set aside by the High Court in exercise of its revisional power. If the crucial and relevant factors are left out of was consideration resulting in failure of Justice the impugned judgment and orders cavities the accused are merely "purported orders" and not "real "orders". As such the impugned judgment and orders are set aside .

In the result the petition it accepted and the conviction and sentence of the accused are set aside.