Shajahan vs State of Kerala

R. Basant, J.—Are there elements of "taking or enticing" in the facts of the case to attract culpability u/s 361 I.P.C.? Under any circumstances, can the accused be attributed with contumacious intent to bring the case within the sweep of Section 366 I. P. C.? These are the questions that arise for consideration in this Crl. R. P.

The challenge is against a concurrent verdict of guilty, conviction and sentence in a prosecution u/s 366 I. P. C. The revision Petitioner/accused faces a sentence of R. I. for a period of 4 years and to pay a fine of Rs. 5,000/-. In default he is sentenced to undergo S. I. for a period of six months.

The crux of the allegations against the Petitioner/accused is that on 30-7-1996 at 1 p.m., he "took or enticed" PW-11, a minor girl at that time (date of birth 27-6-1979), out of the keeping of her lawful guardian PW-10. This was allegedly done by the accused, a neighbour, aged about 25 years, who had by then secured divorce from his wife PW-5. PW-5 and the accused are Muslims by religion, whereas P Ws-10 and 11 are Hindus by religion.

A crime was registered on the basis of a complaint by PW-10, the father of PW-11. Investigation was completed. Final report was filed. Cognizance was taken. The accused denied the charges levelled against him. Thereupon the prosecution examined P Ws 1 to 12.

It appears to me to be unnecessary to refer to the evidence in detail. Suffice it to say that PW1 is the father of PW5, the divorced wife of the Petitioner/accused. They (P Ws 1 and 5) speak only about the previous marriage and divorce. PW-2 is the autorickshaw driver in whose the Petitioner allegedly travelled on the relevant date along with a girl. PW-2 did not specifically identify PW-11 as the girl who travelled along with the Petitioner/ accused. PW-3, a doctor was given up.P Ws 4, 6, 8 arid 9 are officials of the police, who had various roles to play in the registration of the crime, investigation and filing of charge-sheet. PW-7, a Panchayat Secretary, proved the date of birth of PW-11 as entered in the Birth Register. PW-10, as stated earlier, is the father of PW-11. He had lodged Ext. P3(a) complaint. PW-11 is the victim girl and PW-12 is the father of the accused. He turned hostile to the prosecution. No defence evidence was adduced.

When the accused was examined u/s 313 Code of Criminal Procedure, he denied all circumstances which appeared in evidence against him. Primarily we have only the oral evidence of P Ws-10 and 11, which is relevant on the crucial question. I am satisfied mat the following findings of fact can safely be entered.

Accused and PW-11 were neighbours. Accused was married to PW-5. They had a child in the wedlock. Prior to the incident in this case, he had divorced PW-5. The accused and PW-11 used to meet each other even when the matrimony of the accused with PW-5 was in force. They interacted with each other. They had such opportunities for interaction as they were neighbours. The accused stated to PW-11, and showed her the document to show that his matrimony with PW-5 had come to an end. Accused told PW-11 that they could both go away to some other place and settle down. He stated so, a couple of times. PW-11 did not reveal this to anyone else. On 30-7-1996, PW-11 went away from her house carrying wearing apparel with her. She and the accused travelled in the autorickshaw of PW-2 till a place called Cheruthoni. From there, they went by bus to a place called Perumbavoor. In the meantime they had spent some time together. There is nothing to show that there was any illicit sexual inter course performed by them during this time. On the complaint of PW-10 (Ext. P3(a)), Ext. P3 F. I. R. has been registered. At Perumbavoor, PW-12, the father of the accused, who evidently was going around in search of his son - the Petitioner herein, located the Petitioner/accused and PW-11. The accused ran away in fear. PW-11 stood there and explained the facts to PW-12. PW-12 informed the police. PW-11 was taken to the police station and was restored to PW-10. These findings of fact are absolutely safe and certain from the evidence adduced. Both the trial Court and the appellate Court accepted the above facts.

The Courts below came to the conclusion evidently, though we do not find detailed discussions on that aspect, that the accused had taken or enticed PW-11 from the lawful custody of PW-10 her father. The mother of PW-11 and her father PW-10 had a strained relationship and the mother of PW-11 was residing separately. PW-10 had developed intimacy with an actress and he was living with her along with his children including PW-11. The Courts below appear to have come to the conclusion that the Petitioner/ accused had taken or enticed PW-11 out of the keeping of PW-10. The Courts below appear to have come to the further conclusion that such kidnapping was with the contumacious intent of compelling PW-11 to marry the Petitioner or to have illicit sexual relationship with him. Accordingly the Courts below proceeded to pass the impugned concurrent verdict of guilty, conviction and sentence.

Arguments have been advanced before us. The learned Counsel for the Petitioner assails the impugned concurrent findings primarily on the two grounds referred above. The ingredients of Section 366 I. P. C. have not, at any rate, been established. Even the ingredients of Section 361 I. P. C. have not been established. At any rate, the sentence imposed is excessive. These are the contentions raised by the learned Counsel for the Petitioner.

I shall straightway deal with the challenge against the conviction and sentence u/s 366 I. P. C. For this purpose, I assume that the offence of kidnapping as defined u/s 361, I. P. C. has been established. I extract Section 366 I. P. C. be low:

366: Kidnapping, abducting or inducing woman to compel her marriage etc.-- Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled. to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; (and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable as aforesaid)

(Emphasis supplied)

In order to establish an offence u/s 366 I. P. C., it must first be established that the offence of kidnapping u/s 361 I. P. C. has been proved. It must then be shown that such kidnapping was with the contumacious intent referred to u/s 366 I. P. C.

I shall accept the case of the prosecution in toto. There is not a semblance of material to even remotely indicate that the intention of the Petitioner was to compel PW-11 to marry him against her will. The materials available suggest clearly that PW-11 was not unwilling to marry him. She had not objected to going with him. Her own evidence shows that prior to leaving her father, she was assured by the accused by showing documents that he had divorced his earlier wife and was eligible to marry her. In these circumstances, I am unable to perceive any indications to suggest the contumacious intent contemplated u/s 366 I.P.C. Intention to force or compel her to marry the accused against her will or to compel or force her to have illicit sexual relationship with him cannot be assumed or inferred from the totality of circumstances available. The obvious intent of PW-11 and the accused was that they must get married as desired by both of them and lead a marital life. I am, in these circumstances, convinced that the offence u/s 366 I. P. C. is not, at any rate, made out. The challenge on that ground must necessarily succeed The mere fact that they may have got married and they may have thereafter engaged in sexual relationship, with absolutely no reason to assume that PW-11 was unwilling to these courses, cannot expose the Petitioner to conviction and punishment u/s 366 I. P. C. The challenge on this ground succeeds.

That takes us to the next question whether the offence u/s 361 I. P. C. has been made out. Section 361 I. P. C. is extracted below for a clear understanding of the ingredients.

Section 361 I. P. C.: Kidnapping 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 kid nap 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.

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.

(Emphasis supplied)

It appears to me to be well settled that before the charge of kidnapping is held to be proved, the following ingredients must be established:

(i) that PW-1 is a girl below the age of 18 years;

(ii) that she was in the keeping of her guardian PW-10;

(iii) that she had gone out of the keeping of the lawful guardian without the consent of the guardian;

(iv) the accused must have "taken or enticed" her out of the keeping of her lawful guardian.

Except the last, all other ingredients are indisputably present in this case. The short question is Whether the accused has "taken or enticed" PW-11. That alone is the question raised for consideration.

My attention has been drawn to two decisions of 3 Judge Benches of the Supreme Court on the play of the expression "takes or entices". They are S. Varadarajan Vs. State of Madras, and State of Haryana Vs. Raja Ram, . Both decisions are by 3 Judge Benches. But unfortunately Rajaram (supra) (the later decision) does not refer to the earlier 3 Bench decision in Varadarajan. My attention has been drawn to a later 2 Judge Bench decisions of the Supreme Court. The first is Thakorlal D. Vadgama Vs. The State of Gujarat, which decision refers to both Varadarajan and Rajaram (supra). My attention has also been drawn to the later 2 Judge decision in Parkash Vs. State of Haryana, .

The purpose and object of Section 361 I. P. C. appears to be in dispute. In S. Varadarajan Vs. State of Madras, , the Supreme Court had occasion to consider this. In Section 498 I. P. C., we find identical expression "takes or entices" employed by the legislature. That was of course for a totally different offence. While considering the object of Section 361 I. P. C., the Supreme Court in S. Varadarajan Vs. State of Madras, , took the view that the interpretation of the expression "takes or entices" in Section 498 I. P. C. cannot be blindly and mechanically imported while considering the interpretation of the same expression in Section 361 I. P. C. The Supreme Court took the view that Section 498 I. P. C. is meant essentially for protection of the rights of the husband, whereas Section 361 I. P. C. and other cognate sections of the I. P. C. are intended more for the protection of minors and persons of unsound mind than the rights of the guardians of such persons. Varadarajan had referred to the decision of the Bombay High Court in State Vs. Harbansing Kisansing, , where it was held that "the mischief intended to be punished (by Section 361 I. P. C.) partly consists in the violation or the infringement of the guardians'' rights to keep their wards under their care and custody; but the more important object of this provision is undoubtedly to afford security and protection to the wards themselves". Varadarajan following Harbansing appears to take the view that both purposes are there -i.e. protection of the vulnerable minors as also protection of the rights of the guardian; but emphasis appears to have been located in the former reason/purpose.

We find discussion on this aspect in the latter 3 Judge Bench decision in Thakorlal D. Vadgama Vs. The State of Gujarat, in para 8. It is observed so by the Court.

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 con sent of such guardian. The words "takes or entices any minor...out of the keeping of the lawful guardian of such minor" in Section 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 willing ness on the part of the minor to be taken out of the keeping of the lawful guardian would be sufficient to attract the section.

Later in Parkash Vs. State of Haryana, , a two Judge Bench of the Supreme Court held that Section 361 I. P. C. is de signed to protect the sacred right of the guardians with respect to their minor wards. That Bench had observed earlier that the object of Section 361 I. P. C., it seems, is as much to protect the minor children from being seduced for improper purpose as to protect the rights and privileges of guardians having the lawful custody of their minor wards.

Be that as it may, there can be absolutely no doubt on the position of law that to decide whether the minor has been "taken or enticed" out of the keeping of the lawful guardian, the consent of the minor is irrelevant. Similarly it is well settled and trite that it is not necessary that such taking or enticing of the minor out of the lawful keeping of the guardian must be by means of force, fraud or deceit. With the consent of the minor, with out any element of fraud, force or deceit, the minor can be moved out of the custody of the guardian and that would perfectly answer the expression "takes or entices" u/s 361 I.P.C. All the decisions referred above do not lay down any contrary position of law.

There is and can be difference between the expressions "takes" and "entices" in Section 361 I. P. C. In certain cases, the meaning may overlap also. The expression "takes" may ordinarily refer to the gross physical act of taking away manually. But the expression must cover not merely the gross overt act of physically carrying away a minor. Subtle variants of the act of taking must also fall within the sweep of the expression ''takes'' in Section 361 I. P. C. It would be incorrect to assume that ''taking'' is a culpable act which can take place only without the consent of the minor. A rule of the thumb that if the consent of the minor is there, the contumacious act of "taking" can never take place would be too unrealistic and impermissible. The distinction between "take" and "entice" cannot certainly be consent and absence of consent of the minor. Several subtle varieties of taking may take place with the con sent of the minor and without the actual physical act of moving the minor. ''Enticing'' a minor in language simply means luring or tempting or prompting a minor to move out of the custody of the guardian. Here also no gross physical act is necessary. Assurance given to a minor that if she comes out of the keeping of the guardian, the minor shall be protected and patronised must also necessarily fall within the range of contumacious conduct u/s 361. In short to me it appears that the expressions "takes" and "entices" must together cover all acts by which it is ensured by the offender that the minor moves out of the keeping of the lawful guardian. To give true effect to the purpose or rationale of the penal provision in Section 361 I. P. C. those expressions must be given such a comprehensive and exhaustive sweep.

It is in this context that the purpose of the statutory provisions becomes important. S. Varadarajan Vs. State of Madras, and Thakorlal D. Vadgama Vs. The State of Gujarat, become important in this context. Protection of the rights of the guardian and protection of the rights of the minor are not contradictory themes/ purposes. They are different dimensions of the same concept. It would be myopic to assume that the two purposes conflict. The law assumes that in the Indian context the true interest of the minor and the interest of the parent/guardian concur. That is the basic plank of parental (guardians) authority and right. Consent of the minor is hence irrelevant. In a case where the true interest of the minor and the interest of the guardian conflict and the guardian acts against the interest of the minor, the expression ''takes'' or ''entices'' may not cover a good Samaritan who acts in the true and genuine interests of the minor and saves the child from the guardian. But except in such a rare and exceptional situation, it will have to be assumed that the right of the guardian and the true interest of the minor concur and any invasion into the right of the guardian even with the consent of the minor will have to be frowned upon by law by invoking Section 361 I.P.C.

S. Varadarajan Vs. State of Madras, , according to me, does not lay down any contrary position of law. It would be myopic to understand Varadarajan as laying down a proposition that the consent of a minor even of a minor who "knows and has the capacity to know the full import of what she is doing" and perilously close to the Rubicon of 18 years, is relevant when she is "taken or enticed" out of the keeping of her lawful guardian. The crucial observations appear in para 9 which I extract:

Para 9: It must, however, be borne in mind that there is a distinction between "taking" and allowing a minor to accompany a person. The two expressions are not synonymous though we would like to guard ourselves from laying down that in no conceivable circumstances can the two be regarded as meaning the same thing for the purposes of Section 361 of the Indian Penal Code. We would limit ourselves to a case like the present where the minor alleged to have been taken by the accused person left her father''s protection knowing and having capacity to know the full import of what she was doing voluntarily joins the accused person. In such a case we do not think that the accused can be said to have taken her away from the keeping 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.

The Supreme Court in S. Varadarajan Vs. State of Madras, had come to the positive conclusion that the minor had gone out of the keeping of her guardian voluntarily and the accused had no role whatsoever in such minor walking out of the keeping of her guardian. A person whip allows such a minor who is already out of the keeping of the guardian t6 accompany him commits no offence u/s 361 I.P.C. That alone is the dictum in Varadarajan. It is no authority on the question whether consent of a minor (even a knowledgeable minor close to 18 years) is relevant or crucial in a prosecution u/s 361 I.P.C. Varadarajan is really authority only on the question as to when a minor can be said to be in the "keeping" and when she can be said to be "out of the keeping" of the lawful guardian. If it were proved that the accused had anything to do with the minor walking out of the keeping of the guardian, the final conclusion in Varadarajan, I have to assume, would have been different.

According to the learned Counsel for the Petitioner, the dictum in S. Varadarajan Vs. State of Madras, would apply squarely. This according to him is a case where PW-11 had gone out of the custody of her father PW-10 and she was later joined by the accused. The. counsel argues that in these circumstances, the offence u/s 361 I. P. C. is not made out.

I am afraid the said contention cannot be accepted. In order to understand the dictum in Varadarajan correctly one has to care fully go through the facts of that case in de tail. In Varadarajan, a minor girl close to the Rubicon on the verge of attaining majority, and the accused were neighbours. Cupid appears to have played its role and they wanted to get married. Her father came to know of the affair and he was not willing to accept the same. He therefore transported his daughter to the house of a friend/relative and wanted to keep her beyond the reach and contact of the Appellant. On the very next day, the ward went away from the custody of such person. After so coming out she allegedly contacted the accused. The accused later joined her and permitted her to accompany him. A careful reading of Varadarajan conveys eloquently that the fact that prior to her leaving the keeping of her guardian, there was no enticing or blandishment on the side of the accused was the factor that tilted the scale. The accused, the Court found on facts, could not have anticipated the conduct of the ward leaving the keeping of her lawful guardian before she actually came out of such keeping and solicited his help, support and patronage. That is the finding of fact on which the dictum is founded. The Courts which are to follow the dictum cannot differ on facts from the Court which propounded the dictum, proceed to re-appreciate the facts, come to different findings and thereafter at tempt to understand the dictum.

But the facts of the instant case are totally different. PW-11 and the Petitioner/ accused were neighbours. The Petitioner/accused had secured divorce. He had attempted to convince PW-11 that be has obtained divorce. This evidently was in an attempt to induce her to live with him. He had told her a number of time that they could leave, go somewhere else and reside together. The positive evidence of PW-11 is that 10 days prior to the date of such alleged kidnapping and later, a day or two prior to the date of the offence, this was repeated to PW-11. The showing of a document to convince PW-11 that the accused had obtained, divorce from PW-5 was also a prior act on the part of the accused to take, induce, allure and entice PW-11 to leave her guardian and live with him.

Of course, we have no positive evidence to show that there was a specific un derstanding that on 30-7-1996, PW-11 was asked by the accused to leave the keeping of her father. But the fact remains that the various pieces of prior conduct cumulatively lead to the unmistakable inference that the Petitioner/ accused had prevailed upon PW-11 by offering her enticement/assurance to leave the keeping of her guardian. After she left the keeping of her guardian, the subsequent conduct of the indictee also confirms prior allurement/enticement. He took PW-11 in an autorickshaw driven by PW-2 for a long distance of about 22 k.m. to a place called Cheruthoni. From there, they together boarded a bus and reached a place called Perumbavoor. In between, they spent a long time together. PW-11 left the house at about 1 p.m. and they were traced at Perumbavoor at about 7 p.m.

In this context it will be apposite to refer to the following passage in S. Varadarajan Vs. State of Madras, which has been referred to by the later two Judge Bench in Thakorlal D. Vadgama Vs. The State of Gujarat, to ascertain the precise distinction in the dictum between the 3 Judge Benches in Varadarajan and Thakorlal D. Vadgama Vs. The State of Gujarat, . The dictum in Varadarajan turned on its own peculiar facts. The learned Judge said so in paragraph 10 as follows:

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. In our opinion, 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 not 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 fulfillment of the intention of the girl. That part, in our opinion, 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".

(Emphasis supplied)

The learned Counsel for the Petitioner argues that there are indications to suggest that PW-11 had taken a conscious decision to leave the keeping of her father PW-10. The counsel points out the particular fact that she had left her house taking clothes for her with her. S. Varadarajan Vs. State of Madras, cannot be reckoned as authority for the proposition that the voluntary consent of the minor would militate against the offence u/s 361 I. P. C. The maturity of the minor and her ability to comprehend her situation and react independently in Varadarajan were taken into reckoning by the learned Judges in Varadarajan not to hold that the minor''s consent is relevant, but only to satisfy themselves that the minor''s conduct was independent of any act on the part of the accused. In short their Lordships were only considering the question whether the minor was taken or enticed out of the keeping of the guardian by the accused or it was a case of the minor herself going out of the keeping of her guardian unrelated to any conduct on the part of the. accused which could be said to amount to "taking or enticing". It would be myopic to read the dictum in Varadarajan to sail to the conclusion that the consent or willingness of the minor is in any way relevant u/s 361 I. P. C.

It follows from the above discussions that the conduct of the accused prior to the date of kidnapping and his conduct on the date of kidnapping in this case clearly and satisfactorily must lead Courts to the conclusion that the minor left the keeping of her guardian PW-11 only because of the act of "taking or enticing" on the part of the accused.

The above discussions lead us to the conclusion that the offence of kidnapping defined u/s 361 I. P. C. punishable u/s 363 I. P. C. is established beyond doubt. I come to the further conclusion that the offence u/s 366 I. P. C. has not been established.

We now come to the nature of the sentence to be passed. R. I for a period of 4 years and fine of Rs. 5,000/- is the sentence imposed by the Courts below. I take note of the fact that there were no elements of deceit, fraud or force involved. The indications available unmistakably suggest that the minor had also consented to go with him and she was also willing to marry and live with the accused. He is not shown to have indulged in any premarital illicit sexual activity also. These may be no defences for a charge u/s 361 I. P. C. But to decide the quantum of punishment, certainly this aspect can be looked into. The deterrent substantive sentence of R. I. for 4 years, I am satisfied, has no penalogical purpose to achieve in a case like the instant one. What has happened subsequently is also not without relevance. She was returned to her father on the same evening. I take note of the elapse of time also. I am, in these circumstances, satisfied that the imposition of a sentence of S. I. for a period of 22 days, the period of imprisonment which the accused/revision Petitioner has already undergone, and fine of Rs. 5,000/- (Rupees Five thousand only) shall meet the ends of justice satisfactorily. The challenge on that aspect can succeed only to the above extent.

In the result:

(a) This revision petition is allowed in part;

(b) The verdict of guilty, conviction and sentence u/s 366 I. P. C. are set aside:

(c) The conviction is altered and the accused is found guilty, convicted and sentenced u/s 363 I. P. C. to undergo S. I. for a period of 22 days and to pay a fine of Rs. 5,000/- (Rupees Five thousand only) and in default to undergo S.I. for a period of one month:

(d) The learned Magistrate shall execute the modified sentence hereby imposed.