State vs Tarachand

Shivdayal, J.—Dillobai alias Kadoribai (P. W. 1), a minor of 15 years, resided with her parents at village Badkheda. Tarachand (Respondent) was on visiting terms with this family. He was accused, of having kidnapped Dillobai on the night between the 26th and the 27th November 1961. Badriprasad (P. W. 2), father of Dillobai, lodged a report on the 29th informing that the girl was missing and that he suspected Tarachand. On the 5th January 1962, she was recovered from Raja Gokuldas Dharamshala, Jabalpur. Her statement, which she made soon after her rescue, was that Tarachand used to give her all kinds of temptations when he visited her house and on the night of the 26th November, be took her away on a bicycle. One after another, she was taken to different places by Tarachand, his father, Bhaiyalal, and Cbampibai, a cousin of Bhaiyalal. She was kept in the said Dharamshala of Jabalpur for three days before she was rescued and during those three days Tarachand had carnal knowledge of her. Tarachand was prosecuted for the offences u/s 366 and 376 of the Penal Code; Bhaiyalal and Champibai both under Sections 366 and 376, read with Section 109 of the same Code. The 2nd Additional Sessions Judge, Jabalpur, acquitted them. The State has preferred this appeal against the acquittal of Tarachand.

The trial Judge has found that Dillobai is below the age of 18 years. That finding has not been challenged before us. Dr. K. D. Gupta (P. W. 13), who X-rayed Dillobai, was of the opinion that she was above 14 years and below 161/2 years in age. Whether or not she was below 16 years is material only for the offence u/s 376 of the Penal Code.

The most important evidence is that of Dillobai herself. She has given a graphic description of how she was kidnapped and taken from place to place. She says that Tarachand used to come to her house and often induced her to accompany him, saying that she had to work, at her father''s house, while he would give her ornaments and money and would keep her well. On Sunday noon (26th November) Tarachand came to her house when her parents were out. In the house were her two younger sisters and a brother. He gave them Paans (beetles) to eat. He induced her to go with him, but she kept quite. During the night when she came out in the lane to ease, herself, the accused asked her to accompany him. She at first refused, but the accused succeeded in persuading her. He seated her on his bicycle and took her away. First he took her to Madan Mahal Station where they boarded a train. They went to the village of the accused (Sunwara) where she saw his father Bhaiyalal. There she stayed for five or six days. Tarachand kept her in the house and did not allow her to go out. Then Tarachand again brought her to Jabalpur and she was kept for 7 or 8 days in ''Killa quarters'' where one of his relations resided. Bhaiyalal came there and took her to village Gadha to the house of his mother''s sister. Tarachand a so reached there She lived at Gadha for three days. Then Bhaiyalal took her to Madan Mahal Station from where they boarded a train for Sihora Station He then took her to village Sagolia. They stayed in a Bagiya on the outskirts of the village. There she stayed for 7 days with Champibai who then brought her to Jabalpur. At the Jabalpur railway station she met Tarachand and his uncle She was then taken to a Dharamshala near the railway Station. Bhaiyalal was already there. She stayed there for three days and then she was rescued by the police.

The learned trial Judge has found himself unable to believe that Tarachand took the girl out of the lawful guardianship of her father. It is remarked by him that she made one statement at one stage of the proceedings and a different statement at another stage. To the police her version was that when she came out of her house on that night, the accused Tarachand forcibly took her away on a bicycle by gagging her mouth and tying her hands. (We do not find in her police statement, Ex. D-2, marked A, anything about tying her hands as the trial Judge says). In the trial Court she said that she willingly accompanied him on his bicycle because of his inducements and not because of force or compulsion:

Turning to the legal aspect, the trial Judge has said:

All that the evidence on record shows is that she was found with the accused persons on 5-1-62 at the Dharamshala and, therefore, from the mere fact that the girl was found in company of accused, offence u/s 366, I. P. C. is not made out.

He has relied on the following passage in Noora and Ors. v. Rex, AIR 1949 All. 170.

Where the girl had gone out of her father''s house and went with the accused willingly without any body having exercised any compulsion on her, no charge u/s 366 I. P. C. can be made out against the accused...... The most essential ingredient of the offence defined in Section 361 I. P. C. is that the minor should have been ''taken'' by the accused ''out of the keeping'' of his lawful guardian. Where a minor girl voluntarily leaves the roof of her guardian and when out of his house, come across another, who treats her with kindness, or at least without employing any force or practising any fraud on her, he cannot be guilty under sect on 361, I. P. C.

He has sought to apply that decision to the facts of the present case and has observed:

It was the accused who took her away when she came out of her father''s house No force or persuasion was used and the girl was a willing party.

The conclusion he has reached is:

As for accused No. 1, looking to the fact that she voluntarily left her father''s house he (Tarachand) cannot be held guilty either u/s 363 or Section 366 I. P. C.

If according to the Allahabad decision, force or persuasion at the precise moment of the minor leaving the guardian''s house is necessary to ccnstitute the offence u/s 361 I. P. C., we respectfully differ. That the girl willingly accompanied the accused and that there was no element of force or violence are wholly immaterial for the offence punishable u/s 363, if it is found that the accused had excited some hope or desire for which she left her father''s house. It is matter of great regret that the learned Additional Sessions Judge paid no head to the reported decision of this Court in State v. Sundersingh 1961 JLJ 870. Nor did he notice the decision of this Court in Taj Mohammed v. State, 1960 JLJ 1071.

The true position of the law may once again be restated thus: (1) To constitute the offence of kidnapping, it is not necessary that brute force or fraud must be employed. The word Make'' means to cause to go, to escort or to get into possession; it is not confined to mere physical taking. The word ''entice'' involves an idea of enticement by exciting hope or desire in the other. It is inducing the minor to go to the kidnapper of her own accord. (2) Where a minor leases the house of her guardian willingly, still, if the state of mind that brought about the willingness must have been induced or brought about in some way by the accused, it is enticement. The words "takes" or "entices" are comprehensive enough and are of widest import so that no one who is responsible for removing a child from the keeping of his or her guardian, whether physically or by inducement nay escape from the penalty of the law. (3) It would be appropriate to ask whether the accused had a hand in preparing the girl''s mind to take that step by exciting in her any hope or desire. If the answer is in the affirmative he is liable for kidnapping, irrespective of his good intentions or sacred motives. (4) A sharp distinction must always be drawn between a case where a minor girl leaves her guardian''s roof because she finds it impossible or intolerable to continue to remain there, for instance, by reason of ill-treatment or other domestic circumstances, and a case where she leaves the home only to meet the accused in pursuance of a promise or pledge held out by him. In the former case, the primary object is to get away from the guardian''s keeping and it is secondary to find out such other shelter as may fall to her lot; in the latter, the primary aim is to meet the accused in the background of the hope or desire excited by him, and leaving the house is only consequential or incidental. The expression "abandonment of guardianship by the ward" may be permitted to be used in respect of the first category, but not in regard to the second. (5) The taking or enticing may not necessarily be by a single act, but may consist of a continuous process. It is not one particular fact isolated from others, but it is the totality of all the relevant facts to which regard must be had in determining whether a girl was enticed out of the keeping of her guardian within the meaning of Section 361 of the Penal Code. (6) For the purposes of Section 363, the intention of the offender, his motive, the means employed by him, and the consent of the girl are all irrelevant

In Sundersingh''s case (supra) a number of decided cases are reviewed in paragraphs 33 to 41, for instance, Purna Chandra Ghosh Vs. Chief Secretary, Government of West Bengal, ; Biseswar Misra Vs. The King, ; Sayyep Abdul Sattar v. The King AIR 1928 Mad 585, and Rashid v. State, AIR 1933 All. 412, so also R v. Robb, (1864) 4 F & F 59, and R. v. Chritian Olifer, Cox''s Criminal Lax Cases (1864 to 1867), Vol. 10 at pages 402 to 404. And in Tai Mohammad''s case (supra), case law was discussed by one of us (Golvalkar J.)

The Additional Sessions Judge is quite wrong when he says that Dillobai''s statement that the accused Tarachand used to offer her those inducements should be disbelieved because she made no complaint of this to her father, and that her omission to do so shows that no inducements were made as suggested, otherwise, she would have certainly told her ''father or mother because the accused was on visiting terms with them. It is, we think, in accord with the ordinary course of human conduct that a person who is under the influence of flattery and solicitations would not easily give out the matters to others, much less so in the case of a girl of immature age to whom promises and inducements are made. Flattery has a charm which generally hypnotises. The intensity of its effect varies in degree according to the moral and intellectual stature of the victim. Children and budding youth fall easy prey to flattery and to promises of a bright future.

The fact remains that the learned trial Judge has believed this part of the prosecution case that Tarachand took her away when she came out of her father''s house That fact coupled with the unconsestable facet that the accused Tarachand knew that she was in the lawful guardianship of her father, is enough to constitute the offence u/s 363. The trial Judge has unwarrantedly thought that the girl might have left her father''s house to avoid going to her husband''s house and, finding the accused, accompanied him wherever he went. The foundation for this seems to have been laid in mere conjectures and surmises, because that was nobody''s case. He has cited the short note of Ghasita v. State, 1960 MPLJ SN 14. There, the girl made a statement that she had been turned out by her father. Moreover, her statements, in the Court of Sessions and before the committing Magistrate were disbelieved. That case is not apposite here. If the trial Judge had not found it convenient to ignore Taj Mohammad''s case and Sundersingh''s case (supra) he would have found that Ghasita was distinguished in Taj Mohammad and that Sharma J., who had earlier decided Ghasita, ultimately decided Sundersingh. The law in England, is no different, By the Sexual Offences Act, 1956, it is a misdemeanour without lawful authority or excuse to take out of the possession and against the will of any person having the lawful care of her unmarried girl being under the age of sixteen. By reference to that enactment, it is said in Kenny''s Outlines of Criminal Law, (17th Edition, para 147) thus:-

It has been held that this enactment must be strictly construed and therefore it is no defence that the Defendant honestly believed the girl to be over sixteen, or that she appeared to be, or had told him that she was, over that age. Furthermore it is not necessary that the girl should have been taken away for any immoral or improper purpose, so that it is no defence to prove that there was no such corrupt or improper intent or motive. Nor need the taking be by force or any kind of mental pressure: and it seems that it is immaterial that the girl may have consented or even herself have made the suggestion. But where, without any inducement by the man, the girl of her own initiative went to the man, the case is not within the statute.

The case of Chathoo v. P. Govindas Kutty, ADR 1958 Ker 121, is also clearly distinguishable on facts.

The trial Judge has laid unnecessary stress on the arithmetical cumulations of the various dates of her stay at different places as stated by Dillobai Without having regard to the age of the girl and that she was an illiterate rustic (her thumb impressions, not signatures, are found on the record.)

The trial Judge has also recorded a comment on the omission to produce official record to show that Tarachand, a forest guard, was absent from duty on the alleged dates. In the first place we do not see how that omission would demolish the prosecution case. Secondly we are told by the learned Counsel for the Respondent that the village of the accused is only about 15 or 6 miles from Jabalpur. Above all, the accused himself ltd evidence to show that he was at Jabalpur, on the 26th, 27th and 28th November for treatments of his wife, and the Vaidya Akhlesh (DW 1), whom he produced, also endeavoured to prove his presence at Jabalpur from the 2nd to the 6th January. It then becomes a common ground that Tarachand was away from his duty at least on those dates. The statement of Akhilesh who styles himself as a doctor is, firstly, unreliable. He says that he obtained a degree from the Mahakoshal Ayurvedic Vidyalaya. He professes to give both Ayurvedic and Allopathic medicines. He maintains no register. He admits that according to the regulations of the Medical Board the registration number of the medical practitioner ought to be written on every prescription, but he did not write it on the prescriptions that he ventured to produce regarding the treatment of Tarachand''s wife (Exs. D-4 and D-5). He had to admit in cross-examination that he did not write the names of persons who accompanied the patients. It is thus not believeable that this witness could remember on what dates Tarachand accompanied wife to his clinic. Secondly, the evidence of that witness proves Tarachand''s presence at Jabalpur at least his absence from duty on the crucial dates.

In our view, it is doubtless that Tarachand Respondent committed the offence of kindnapping in as much as it was he who took or enticed Dillobai out of her father''s keeping. Having regard to all the circumstances of this case, and particularly the statement of Dillobai, we consider it safe to find the accused guilty of she offence u/s 363, rather than 366, of the Penal Code.

As regards the offence u/s 376 of the Penal Code, giving the accused benefit of the doubt, we would not disturb his acquittal of that charge.

We say nothing about the other two accused as the State has not preferred an appeal against their acquittal.

15 The appeal is partly allowed. Acquintal of the Respondent of the offence u/s 376 of the Penal Code is maintained and that part of the appeal is dismissed He is held guilty of the offence u/s 363 of the Penal Code and is sentenced to three months rigorous imprisonment. His bail bonds are cancelled.