Satish S/O Pandurang Sayam vs State Of Maharashtra, Through The ...
2017 Latest Caselaw 9481 Bom

 apeal580of2014.odt                        1



          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    NAGPUR BENCH, NAGPUR.



                    CRIMINAL APPEAL NO. 580 OF 2014


 Satish S/o. Pandurang Sayam,
 aged 31 years, Occ. Service,
 Resident of Ghanoti Tukum,
 Tahsil Pombhurna, District Chandrapur                                  ...APPELLANT


          ...V E R S U S...


 The State of Maharashtra,
 Through Police Station Officer,
 Umari Potdar, District Chandrapur                                   ...RESPONDENT

 -------------------------------------------------------------------------------------------
 Mr. Rajnish Vyas, counsel for the appellant.
 Mr. A.V.Palshikar, Additional Public Prosecutor for the respondent.
 -------------------------------------------------------------------------------------------

                                            CORAM       
                                                       :ROHIT B. DEO, J. 

DATE :11.12.2017

ORAL JUDGMENT:

Exception is taken to the judgment and order dated

13.11.2014, passed by the Additional Sessions Judge, Chandrapur

in Sessions Case 15 of 2012, by and under which, the appellant

(hereinafter referred to as "the accused") is convicted of offence

punishable under section 363 of the Indian Penal Code ("IPC" for

short) and is sentenced to suffer rigorous imprisonment for three

years and to payment of fine of Rs. 5000/-. The accused is

however acquitted of offence punishable under section 366 of the

IPC.

2 Heard Shri Rajnish Vyas, the learned counsel for the

accused and Shri. A.V. Palshikar, the learned Additional Public

Prosecutor for the respondent / State.

3 At the very outset, the learned counsel for the accused

Shri. Rajnish Vyas invites my attention to an affidavit dated

6.11.2017 sworn by Mrs. Rekha Satish Sayam whom the accused

allegedly kidnapped from lawful guardianship, to the effect that

the deponent and the accused solemnized marriage on 14.1.2014

and are residing happily as husband and wife. The affidavit is

accompanied by certificate of marriage dated 14.1.2014 issued by

Teli Samaj Seva Samiti and photographs evidencing the exchange

of marital vows. The affidavit states that she was in love with the

accused and has entered into matrimonial alliance against the will

of the parents. The deponent states that the continuation of

criminal proceeding would not be in the interest of the deponent

and the matrimonial life and prays that this Court exonerate the

accused from the charges.

The accused and the deponent are present before me and

are duly identified by the learned counsel Shri Rajnish Vyas.

4 I have however, heard the appeal on merits, and

having given due consideration to the evidence on record and the

judgment of the learned Sessions Judge, I have no hesitation in

holding that the prosecution has failed to prove the offence

punishable under section 363 of the IPC.

5 The Hon'ble Supreme Court of India has

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 1st, 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."

6 I may now consider the evidence on record on the

anvil of the enunciation of law supra. Rekha, who is examined as

PW 2 admits that she was in love with the accused and that she

accompanied the accused willingly. She has deposed that her

parents were not in favour of she marrying the accused and that

the statement which she gave to the police was only due to the

fear of the mother.

7 The prosecution has examined in all seven witnesses

including PW 2 Rekha. However, there is absolutely no evidence

on record to suggest that the accused committed any overt act to

influence the decision making process of PW 2 Rekha. It is true

that the prosecution has proved that Rekha was 17 years when the

incident occurred. But then, the fact that Rekha was a minor

would be of little significance unless the prosecution establishes

that the accused induced Rekha or otherwise played a role in the

intention formation process of leaving the custody of legal

guardian. The judgment of the Hon'ble Apex Court in

S. Varadrajan Vs. State of Madras was cited before the learned

Sessions Judge. Perusal of paragraph 21 of the judgment

impugned would reveal that the learned Sessions Judge has clearly

misread or misunderstood the ratio of the judgment. Paragraph

21 of the judgment impugned reads thus:-

"21. In S. Varadrajan -vs- State of Madras, [AIR 1965 SC 942], the Hon'ble Apex Court observed that even where the minor girl is kept by her fatehr at the house of his relative, she still continues to be in the lawful guardianship of the former. This ratio is not helpful to the accused. On the other hand, it supports the contentions of prosecution's case that the record show that at the time of incident the victim was residing with her parents. On that day, she had gone to the school for examination purpose. After solving paper, at 2.00 p.m. she alongwith her friend Asha (P.W.3) were coming back to the home and on the way accused met them on motorcycle and thereafter the victim sat on the

motorcycle of the accused and took her to various places. The accused nowhere disputed that he had taken P.W. 2 Rekha with him to various places and thereafter on 23.10.2011 he alongwith P.W. 2 Rekha came back to the house of the complainant Premila. During the course of argument, the learned counsel for accused tried to show that the victim, on her own accord, sat on the motorcycle of the accused and gone with him. But the submissions on behalf of accused found to be devoid of substance on the reason because at that time she was minor and, therefore, her consent has no value in the yes of law".

8 It would also be relevant to note the observations of

the learned Sessions Judge in paragraph 24 of the judgment which

reads thus:-

"24. So far as offence punishable under section 363 of the Indian Penal Code is concerned, the prosecution has led reliable and cogent evidence to prove that at the time of incident dated 18.10.2011, the prosecutrix was below age of 18 years and accused took the prosecutrix from the custody of her lawful guardian without the consent of such lawful guardian. Hence, I answer point no. 1 in the affirmative and point no.2 in the negative".

I am afraid the judgment impugned is manifestly erroneous.

It is not even the case of the prosecution that Rekha was induced

to leave the lawful custody of her guardian. It is not even an

allegation that the accused played any role at any point of time,

directly or indirectly, in the formation of the intention to leave the

lawful custody of the legal guardian. The conviction is on the

mistaken assumption that to bring home the charge under section

363 of the IPC, the only fact required to be proved is that the

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

Sessions Judge has recorded a finding that the offence punishable

under section 363 of the IPC is proved since Rekha is proved to be

minor and it is irrelevant and immaterial that Rekha left the lawful

custody of her guardian willingly. This finding is contrary to law.

9 The judgment impugned is unsustainable and is set aside.

10 The accused is acquitted of offence punishable under section

363 of the IPC.

11 The bail bond of the accused shall stand discharged and fine

paid by the accused, if any, shall be refunded.

 12       Appeal is allowed.

   

                                                            JUDGE



 RS Belkhede, PA