Bombay High Court

Ashit S/O Adil Biswas & 2 Others vs The State Of Mah.Thr.Its ... on 9 August, 2017

Bench: R. B. Deo

   jcrapl82of02                                                                              1



    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  NAGPUR BENCH


                   CRIMINAL APPEAL NO. 82 OF 2002


  1 Ashit s/o. Adil Biswas,
    Aged about 21 years,
    Occ. Labour,

  2 Madhav s/o. Balram Gharami,
    Aged about 31 years,
    Occ. Business,

  3 Suresh s/o. Ramdas Bawankar, (abated as per Court's
    Aged 26 years,                order dtd.21.1.2016)
    Occ. Driver,

       All r/o. Ghot, Tah. Chamorshi,
       Dist. Gadchiroli                                     ... APPELLANTS


                               Versus


       The State of Maharashtra,
       through its P.S.O. Chamorshi,
       Dist. Gadchiroli                                     ...     RESPONDENT

        --------------------------------------------------------------------------------
                   Shri. Rajnish Vyas, Counsel for appellants.
              Smt. Mayuri Deshmukh, APP for respondent/state
       ---------------------------------------------------------------------------------


                                    CORAM :        ROHIT B. DEO, J.

AUGUST 09, 2017.

ORAL JUDGMENT :

The appellants seek to assail judgment dated

11.2.2002 delivered by the 1 st Adhoc Additional Session Judge,

Gadchiroli in Sessions Case No. 11/2001 by and under which the

appellants / accused have been convicted of offence punishable

under Section 363 of the Indian Penal Code.

2 More than half a century ago, the Hon'ble Supreme

Court of India enunciated the scope and ambit of Section 361

and 363 of the Indian Penal Code in S. Varadarajan Vs. State

of Madras, AIR 1965 SC 942 . The articulation of the Hon'ble

Supreme Court was in the backdrop of the prosecution

contention that although the minor girl accompanied the

accused of her freewill, an offence under Section 363 of Indian

Penal Code would be nonetheless made out and the minor

would be deemed to have been taken away from the lawful

custody of her guardian. Rejecting the said submission of the

prosecution, the Hon'ble Supreme Court observes thus:-

"7. The question whether a minor can abandon the guardianship of his or her own guardian and if so the further question whether Savitri could, in acting as she did, be said to have abandoned her father's guardianship may perhaps not be very easy to answer. Fortunately, however, it is not necessary for us to answer either of them upon the view which we take on the other question raised before us and that is that "taking" of Savitrri out of the keeping of her father has not been established. The offence of "kidnapping from lawful guardianship" is defined thus in the first paragraph of S. 361 of the Indian Penal Code:

"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 kidnap such minor or person from lawful guardianship."

It will thus be seen that taking or enticiting away a minor out of the keeping of a lawful guardian is an essential ingredient of the offence of kidnapping. Here, we are not concerned with enticement but what we have to find out is whether the part played by the appellant amounts to "taking" out of the keeping of the lawful guardian of Savitri. We have no doubt that though Savitri had been left by S. Natarajan at the house of his relative K. Natrajan she still continued to be in the lawful keeping of the former but then the question remains as to what is it which the appellant did that constitutes in law "taking". There is not a word in the deposition of Savitri from which an inference could be drawn that she left the house of K. Natarajan at the instance or even a suggestion of the appellant. In fact she candidly admits that on the morning of October 1 st, she herself telephoned to the appellant to meet her in his car at a certain place, went up to that place and finding him waiting in the car got into that car of her own accord. No doubt, she says that she did not tell the appellant where to go and that it was the appellant himself who drove the car to Guindy and then to Mylapore and other places. Further, Savitri has stated that she had decided to marry the appellant. There is no suggestion that the appellant took her to the Sub-Registrar's office and got the agreement of marriage registered there (thinking that this was sufficient in law to make them man and wife) by force or blandishments or anything like that. On the other hand the evidence of the girl leaves no doubt that the insistence of

marriage came from her side. The appellant, by complying with her wishes can by no stretch of imagination be said to have taken her out of the keeping of her lawful guardian. After the registration of the agreement both the appellant and Savitri lived as man and wife and visited different places. There is no suggestion in Savitri's evidence, who, it may be mentioned had attained the age of discretion and was on the verge of attaining majority that she was made by the appellant to accompany him by administering any threat to her or by any blandishments. The fact of her accompanying the appellant all along is quite consistent with Savitri's own desire to be the wife of the appellant in which the desire of accompanying him whereever he went was of course implicit. In these circumstances we find nothing from which an inference could be drawn that the appellant had been guilty of taking away Savitri out of the keeping of her father. She willingly accompanied him and the law did not cast upon him the duty of taking her back to her father's house or even of telling her not to accompany him. She was not a child of tender years who was unable to think for herself but, as already stated, was on the verge of attaining majority and was capable of knowing what was good and what was bad for her. She was no uneducated or unsophisticated village girl but a senior college student who had probably all her life lived in a modern city and was thus far more capable of thinking for herself and acting on her own than perhaps an unlettered girl hailing from a rural area. The learned Judge of the High Court has referred to the decision in Abdul Sathar v. Emperor, 54 Mad LJ 456: (AIR 1928 Mad 585) in which it was held that where the evidence disclosed that, but for something which the accused consented to do and ultimately did, a minor girl would not have left her husband's house, or would not have been able to leave her husband's house, there was sufficient

taking in law for the purpose of S. 363 and expressing agreement with this statement of the law observed: "In this case the minor, P.W. 4, would not have left the house but for the promise of the appellant that he would marry her." Quite apart from the question whether this amounts to blandishment we may point out that this is not based upon any evidence direct or otherwise. In 54 Mad LJ 456: (AIR 1928 Mad 585) Srinivasa Aiyangar J., found that the girl whom the accused was charged with having kidnapped was desperately anxious to leave her husband's house and even threatened to commit suicide if she was not taken away from there and observed:

"If a girl should have been wound up to such a pitch of hatred of her husband and of his house or household and she is found afterwards to have gone out of the keeping of her husband, her guardian, there must undoubtedly be clear and cogent evidence to show that she did not leave her husband's house herself and that her leaving was in some manner caused or brought about by something that the accused did."

In the light of this observation the learned Judge considered the evidence and came to the conclusion that there was some legal evidence upon which a court of fact could find against against the accused. This decision, therefore, is of little assistance in this case because, as already stated, every essential step was taken by Savitri herself; it was she who telephoned to the appellant and fixed the rendezvous she walked up to that place herself and found the appellant waiting in the car; she got into the car of her own accord without the appellant asking her to step in and permitted the appellant to take her wherever he liked. Apparently, her one and only intention was to become the appellant's wife and thus be in a position to be always with him."

"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 S. 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 of 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."

"10. 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 an 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 fulfilment 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".

"13. While, therefore, it may perhaps be argued on the basis of the two Madras decisions that the word "taking" occurring in Ss 497 and 498 of the Indian penal Code should be given a wide interpretation so as to effectuate the object underlying these provisions there is no reason for giving to that word a wide meaning in the context of the provisions of Section 361 and cognate sections."

"15. The view which we have taken accords with that expressed in two decisions reported in Cox's Criminal Cases. The first of them is Reg v. Christian Olifir, (1866) 10 Cox CC 402. In that case Baron Bramwell stated the law of the case to the jury thus:

"I am of opinion that if a young women leaves her father's house without any persuasion, inducement, or blandishment held out to her by a man, so that she has got fairly away form home, and then goes to him, although it may be his moral duty to return her to her parent's custody, yet his not doing so is no infringement of this Act of Parliament (24 and 25 Vict. C.100, S.

55) for the Act does not say he shall restore her, but only that he shall not take her away."

The jury returned a verdict of guilty in this case because the girl's evidence showed that the initial formation of her intention to leave her father's house was influenced by the solicitations of the accused and by his promise to marry her.

"16. The other case is Rex v. James Jarvis, (1903) 20 Cox CC

249. There Jelf J., has stated the law thus to the Jury:

"Although there must be a taking, yet it is quite clear that

an actual physical taking away of the girl is not necessary to render the prisoner liable to conviction; it is sufficient if he persuaded her to leave her home or go away with him by persuasion or blandishments. The question for you is whether the active part in the going away together was the act of the prisoner or of the girl; unless it was that the prisoner, he is entitled to your verdict. And, even if you do not believe that he did what he was morally bound to do - namely, tell her to return home - that fact is not by itself sufficient to warrant a conviction; for if she was determined to leave her home, and showed prisoner that that was her determination, and insisted on leaving with him - or even if she was so forward as to write and suggest to the prisoner that he should go away with her, and he yielded to her suggestion, taking no active part in the matter, you must acquit him. If, however, prisoner's conduct was such as to persuade the girl, by blandishment or otherwise, to leave her home either then or some future time, he ought to be found guilty of the offences of abduction." In this case there was no evidence of any solicitation by the accused at any time and the jury returned a verdict of 'not guilty'. Further, there was no suggestion that the girl was incapable of thinking for herself and making up her own mind."

"17. The relevant provisions of the Penal Code are similar to the provisions of the Act of Parliament referred to in that case."

"18. Relying upon both these decisions and two other decisions, the law in England is stated thus in Halbury's Law of England, third edition, vol. 10, at p. 758:

"The defendant may be convicted although he took no part in the actual removal of the girl, if he previously solicited her to leave her father, and afterwards received and harboured

her when she did so. If a girl leaves her father of her own accord, the defendant taking no active part in the matter and not persuading or advising her to leave, he can not be convicted of this offence, even though he failed to advise her not to come, or to return, and afterwards harboured her." On behalf of the appellant reliance was placed before us upon the decisions in Rajappan v. State of Kerala, ILR (1960) Kerla 481 and Chathu v. Govindan Kutty, ILR (1957) Kerla, 591: (AIR 1958 Kerala 121). In both the cases the learned Judges have held that the expression "taking out of the keeping of the lawful guardian" must signify some act done by the accused which may be regarded as the proximate cause of the person going out of the keeping of the guardian; or, in other wards an act but for which the person would not have gone out of the keeping of the guardian as he or she did. In taking this view the learned Judge followed, amongst other decisions, the two English decisions to which we have adverted. More or less to the same effect is the decision in Nura v. Rex, AIR 1949 all 710. We do not agree with everything that has been said in these decisions and would make it clear that the mere circumstance that the act of the accused was not the immediate cause of the girl leaving her father's protection would not absolve him if he had at an earlier stage solicited her or induced her in any manner to take this step."

In view of the indisputable factual position that the minor

girl Vanita not only willingly left the custody of her natural

guardian to be with appellant 1 / accused 1 and indeed, she

implored and insisted that accused 2 and 3 should take her to

appellant 1 / accused 1, the defence invited the attention of the

learned Sessions Judge to the exposition of law in

S. Varadarajan Vs. State of Madras, AIR 1965 SC 942 .

The defence invited the attention of the learned Sessions Judge

to the fact that it was not even the case of the prosecution that

any of the accused induced the minor girl to leave the custody

of her natural guardian / father nor is there any allegation much

less proof that any of the accused did any over act or played

any role of any nature in the formation of the intention of the

minor girl to leave the custody of her father to be with appellant

/ accused 1. The learned Sessions Judge has, in paragraph 18 of

the judgment impugned, noticed the exposition of law by the

Hon'ble Supreme Court. However, for reasons inexplicable, the

learned Sessions Judge has neither followed nor applied the

ratio in S. Varadarajan Vs. State of Madras, AIR 1965 SC

942 which is the law of the land under Article 141 of

Constitution of India. The learned Sessions judge has relied

upon a judgment of the Hon'ble Apex Court Kuldip K. Mahato

Vs. State of Bihar, AIR 1998 SC 2694, as would be revealed

from a perusal of paragraph 30 of the judgment impugned, to

hold that once it is proved that Vanita is a minor, it is absolutely

immaterial and irrelevant that she willingly left the custody of

her legal guardian / father to be with accused 1. I am afraid the

learned Sessions Judge has misread or misunderstood the ratio

of the judgment Kuldip K. Mahato Vs. State of Bihar, AIR

1998 SC 2694. It would be apposite to make a brief reference

to the factual scenario which fell for consideration in Kuldip K.

Mahato Vs. State of Bihar, AIR 1998 SC 2694. It was the

prosecution case that Kiran Kumari who was a minor was

forcibly made to sit in a tempo by the accused who was

brandishing a knife. It was in his factual backdrop that the

Hon'ble Supreme Court observes thus in paragraph 10 of the

judgment:

"10. Coming to the conviction under Section 363, I.P.C. in our opinion, having regard to the age of the prosecutrix on the date of occurrence being below 18 years as deposed to by Dr. Maya Shankar Thakur - (P.W. 2), it will have to be held that the prosecutrix was a minor on the date of occurrence. If this be so, we will have to examine whether Kiran Kumari (P.W. 1) was taken away from the lawful guardianship. Kiran Kumari (P.W.1) has stated that the appellant had forced her to sit in the tempo and thereafter at the point of dagger made her to keep quiet. She was very much scared and lost senses for some time. In the meantime, tempo reached Ramgarh. On this issue, the defence of the appellant is that she herself came and sat in the tempo but the fact remains that the appellant carried her to Ramgarh out of the lawful guardianship. There is no serious dispute that the prosecutrix was taken in tempo to Ramgarh by the appellant. If this be so, then offence of kidnapping under Section 363 is clearly made out against the appellant for which he has been rightly convicted for the said offence. There is no error in the judgments of the Courts below in convicting the appellant under Section 363, I.P.C."

Kuldip K. Mahato Vs. State of Bihar, AIR 1998 SC

2694, is clearly not an authority for the proposition that the

moment a minor is taken away from lawful custody of her

guardian, an offence of kidnapping punishable under section

363 of the Indian penal Code is made out. It is unfortunate and

is a matter of serious concern, that an eloquently unambiguous

articulation of the Hon'ble Supreme Court could have been so

easily misread and misunderstood by the learned Sessions

judge. The ultimate sufferers are the appellants, who have

languished in jail and have faced an agonizing trial and years of

uncertainty during the pendency of the appeal before this Court.

The casualty is also the justice dispensation system as such

judgments have the tendency to shake the confidence of the

public in the justice dispensation system.

3 At this stage, it may be stated in order to keep the

record straight, that appellants / accused 1 to 3 were charged

with offence punishable under Section 363 of the Indian Penal

Code. The accused 2 was additionally charged with offence

punishable under Section 366(A) and 376 read with section 34

of the Indian Penal Code and accused 3, who has expired during

pendency of the appeal was additionally charged with Section

366(A) of the Indian Penal Code. The learned Sessions Judge

was pleased to acquit the accused 2 of offence punishable

under Section 366(A) and 376 of the Indian Penal Code and the

accused 3 of offence punishable under Section 366(A) of the

Indian Penal Code. All the accused were however convicted for

offence punishable under Section 363 of the Indian Penal Code.

It would suffice to make a reference to the prosecution version

and the material on record which would be relevant to the

charge under Section 363 of the Indian Penal Code.

4 It is the case of the prosecution unfolded through

the oral testimony of PW 1, who is the father of the minor girl

Vanita, that on 19.9.2000 Vanita who had left her house to fetch

vegetable from the house of a relative, went missing. A search

ensued during the course of which accused 2 Madhav informed

him that Vanita was with accused 1. Accused 2 Madhav fetched

the father of accused 1, who incidentally is examined as P.W.2,

and in the presence of Vanita's father, brother and brother in

law asked the father of accused 1 to fetch the accused 1 and

Vanita. According to prosecution case, Vanita and accused 1

accordingly arrived at the shop of the father of accused 1 at

village Ghot and from there P.W. 1 took her home. It is the case

of the prosecution that within ½ hour of P.W. 1 and Vanita

reaching their house, accused 2 and 3 arrived on motorcycle at

the house of P.W. 1 and asked him to host a party to show the

gratitude for the efforts taken by the accused 2 to reunite Vanita

with her father. It is alleged that P.W. 1 readily agreed to host

the party and while he and his wife were busy in kitchen,

accused 2 and 3 left the house with Vanita. It is alleged that

P.W.1 again confronted accused 2 and asked him as to whether

Vanita would return to her parental house. It is alleged that

since accused 2 threatened P.W. 1, a complaint (Exh. 17) was

lodged. These are the basic facts which are relevant in the

context of the charge of kidnapping and the conviction recorded

by the learned Sessions Judge under Section 363 of the Indian

penal Code.

5 It is not the prosecution case that Vanita was

induced to leave the lawful custody of P.W.1. It is not even an

allegation that any of the accused directly or indirectly at any

point of time played any role in the formation of the intention to

leave the lawful custody of P.W.1. The conviction is only on the

assumption that to bring home charge under Section 363 of the

Indian penal Code, the only fact required to be proved is that

the person leaving the lawful custody, is a minor. The learned

Sessions Judge has recorded the conviction labouring under a

misconception that the moment Vanita is proved to be a minor,

it becomes irrelevant and immaterial that she left the lawful

custody of her father willingly. Indeed, it has come on record

and, is accepted even by the learned Sessions Judge as a

proved fact, that Vanita was not only willing, she insisted that

accused 2 and 3 should take her to accused 1 and that the

accused 2 and 3 were reluctant to do so. The relevant

observations in the judgment impugned read thus:

"22. There is the further evidence on this point of taking away the victim from the house of her father and that evidence is of victim Vanita (P.W.8) herself. What she has deposed in her evidence is that she was in love with the accused no.1 and he used to visit at the house of her father and the family members were knowing the accused no.1, but her family members were giving her harassment. She has deposed that she had gone to the house of accused no.1, but her father and brother brought her back from the house of accused no.1. She has deposed further that she was knowing the accused no.2, Madhav Gharami and she was calling him as her uncle. Her further evidence is that the accused no.2, Madhav and the accused no. 3, Suresh came to the house of her father on motorcycle. She went alongwith them on their motorcycle by insisting them, as they were not taking her. So her evidence also to the extent of taking her by the accused nos. 2 and 3 is not disputed to her. The only fact which she had said that she herself went on her own accord by insisting the accused nos. 2 and 3". (extracted from paragraph 22)

"23 It means, after the victim was taken away, she was in the company of accused no.1 may be that she was willing to go with the accused no.1. So, it is fully

established by the prosecution in view of the versions of these witnesses that the accused nos. 2 and 3 in the evening of incident took the victim from the house of her father on their motorcycle."(extracted from paragraph

23)

"24. Similarly, Suresh, the accused no. 3 in his statement stated that the victim was standing on the road, she went inside the house and came back and told him and the accused no. 2 to take her upto village Ghot. So, even in the statement also, the accused nos. 1 to 3 admitted that victim was taken away by the accused nos 2 and 3 from the house of her father. So, the ingredients of Section 363, I.P.C. of taking the victim from her lawful guardianship is well established by the aforesaid oral evidence". (extracted from paragraph 24)

"31. So, in the present case before me, even as per the version of the victim (P.W.8), so also as per the say of the accused in their statements, the victim insisted the accused nos. 2 and 3 to take her back to village Ghot where she joined the company of accused no.1, but even then the fact remains that she being below 18 years of age, it is immaterial, whether she herself went out of the keeping of her parents or not. Once it is established that she is below 18 years of age, her taking away by the accused even with her consent is immaterial, as she was taken from the lawful guardianship and so taking away by the accused is an offence made out in this case under section 363, I.P.C. against the accused nos. 1 to 3, because there is clear evidence that the accused no1. alongwith the victim came to the police station after the

complaint was lodged by P.W. 1 and the accused no.2 was arrested. So all this goes to show that the accused nos. 1 to 3 with their common intention committed the offence of kidnapping under Section 363 R/w 34 of the Indian Penal Code and the accused nos. 1 to 3 are liable to be convicted for this offence. I, therefore, answer the point no.1 in the affirmative." (extracted from paragraph

31)

6 The learned counsel for the appellants has invited

my attention to the deposition of Vanita who is examined as P.W.

2. She has naturally not supported the prosecution and is

declared hostile and cross examined. During the course of her

cross examination Vanita deposes that she was in love with

accused 1 which was not acceptable to her family members.

She states that she was harassed by her family members which

impelled her to leave the house of her father. She has deposed

that after she was taken back to her parental house, she took

the opportunity of the presence of accused 2 and 3 at her house

and insisted that accused 2 and 3 should take her away. She

states that accused 2 and 3 were reluctant to accede to her

request and it was only on her insistence that accused 2 and 3

took her to village Ghot to meet accused 1 Ashwin. She further

deposes that she and accused 1 performed marriage at Saibaba

Mandir at Allapalli. She speaks of having informed the police

that she was not willing to reunite with her parents. She has

been extensively cross examined. However, her testimony

stands unshakened.

  7                 It is not necessary to burden the record by

  consideration of the other ocular evidence.               Such scrutiny is

  neither necessary nor relevant.            The finding recorded by the

learned Sessions Judge is that Vanita left the lawful custody of

her father willingly. It is neither the case of the prosecution nor

a finding recorded by the learned Sessions Judge that she was

persuaded to do so by an inducement. Learned Sessions Judge

does not attribute any over act to any of the accused tending to

influence the intention formation process of the minor Vanita to

leave the lawful custody of her father.

8 For reasons spelt out supra, the judgment impugned

is not only manifestly erroneous, the same dangerously borders

on perversity. It is disturbing to note that the accused, one of

whom has died during pendency of the appeal, have suffered

the misfortune of an agonizing trial, deprivation of liberty and