Dhiran Bhayyalal Nagle vs State Of Maharashtra Thr. Pso ...
2018 Latest Caselaw 399 Bom

 apeal131of04.odt                          1




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


                         CRIMINAL APPEAL 131  O
                                                F 2004
                                                       


 Dhiran s/o. Bhayyalal Nagle,
 aged about 25 years,
 Occupation - Labourer,
 R/o. Gawhankund, 
 Taluka and District Amravati.                                       ...APPELLANT


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


 The State of Maharashtra,
 Through Police Station Officer
 Warud, Taluka Warud, 
 District Amravati                                                    ...RESPONDENT
 -------------------------------------------------------------------------------------------
 Mr. Someshwar Thengri, counsel for the appellant.
 Mr. N.R. Patil, Additional Public Prosecutor for respondent.
 -------------------------------------------------------------------------------------------

                                            CORAM:      
                                                       ROHIT B. DEO
                                                                         , J.

DATE OF DECISION : 1 5 . 01 . 201 8

ORAL JUDGMENT:

The appellant is aggrieved by the judgment and order

dated 31.12.2003, delivered by the 3rd Adhoc Additional Sessions

Judge, Amravati, in Sessions Trial 74 of 1999, by and under which

the appellant (hereinafter referred as "the accused") is convicted

for offence punishable under section 363 of the Indian Penal Code

("IPC" for short) and is sentenced to suffer rigorous imprisonment

for five years and to payment of fine of Rs. 1,000/-. The accused

is, however, acquitted of offences punishable under section 366

and 376 of IPC.

2 Heard Shri Someshwar Thengri, the learned counsel

for the accused and Shri. N.R. Patil, the learned Additional Public

Prosecutor for the respondent / State.

3 The learned counsel Shri. Someshwar Thengri, makes

a two fold submission in support of the appeal. The learned

counsel contends that even if the entire evidence of the

prosecution is taken at face value, offence punishable under

section 363 of IPC is not established beyond reasonable doubt.

Inviting my attention to the enunciation of law in S. Varadarajan

Vs. State of Madras, AIR 1965 SC 942, the learned counsel

submits that the victim was either a major or on the verge of

majority. The victim was certainly of an age of understanding the

implication and consequences of her actions. An assertion by the

victim who is examined as PW 2 that she was forcibly taken to the

residence of the sister of the accused in Madhya Pradesh and

subjected to sexual intercourse, is wholly unreliable and

unbelievable. The version is a proved omission, is the submission.

The learned counsel contends that the evidence on record would

suggest that the victim and the accused were in love and that the

victim accompanied the accused to Madhya Pradesh, if at all, of

her free will without the accused doing any overt act to induce the

victim or to play any role in the intention formation process of the

victim to leave the custody of her guardian.

4 Per contra, Shri N.R. Patil, the learned Additional

Public Prosecutor would support the judgment and order

impugned. The learned Additional Public Prosecutor would

submit that the prosecution has established by cogent evidence

that the victim was a minor and that she was forced to accompany

the accused. There is no reason not to believe the testimony of the

victim, is the submission of the learned Additional Public

Prosecutor.

5 The victim is examined as PW 2. In the examination

in chief she does not disclose her age. However, a suggestion is

given to her that at the time of the incident her age was more than

18 years, which suggestion is denied. The victim states that on the

day of the incident she had gone to the house of her neighbour

Gadbail for watching television. She stepped out of the

neighbour's house at 10.00 p.m. to answer nature's call. The

accused caught hold of the victim, pressed her mouth and took her

towards forest. The accused then took the victim to his sister's

house at village Mangona in Madhya Pradesh and committed

sexual intercourse with the victim in the house of his sister. The

victim and the accused stayed in the house of the sister of the

accused for 2 to 3 days till the Warud police brought them back, is

the deposition.

In the cross-examination, she is confronted with her

statement recorded under section 161 in which she states that she

and the accused were in love since two years. She has however,

denied having made such a statement before the police. It is

brought on record that the statement in examination in chief that

the accused caught hold of the victim, pressed her mouth and took

her towards the forest is an omission. PW 2 admits that there

were inimical relations between her relatives including her mother

and the accused. She volunteers that due to inimical relations, the

accused took revenge by kidnapping and raping her. She has

denied the suggestion that the accused is falsely implicated.

6 Indubitably, other than the ocular evidence of the

victim PW 2, there is no evidence whatsoever to connect the

accused with the crime. The version of the victim vital aspects of

which are shown to be an omission, is not believable much less

confidence inspiring. The bald statement that the accused caught

hold of her, pressed her mouth, took her towards forest and then

to his sister's house at village Mangona in Madhya Pradesh, is

neither implicitly reliable nor even probable. Au contraire, the

evidence on record would suggest that the victim accompanied the

accused willingly. Nothing is forthcoming from the prosecution to

suggest that the victim was forcibly restrained or confined in

village Mangona in Madhya Pradesh. It is extremely difficult to

believe the victim who states that she was taken towards forest

and then to Madhya Pradesh against her will.

7 The report is lodged by PW 3 Kamalabai on

20.3.1999. The report states that the accused and one Madan

Jharkhande may have enticed the victim and kidnapped her. PW 3

Kamlabai states that the victim was then aged 15 years, which

evidence is challenged by the accused in the cross examination. In

the examination in chief she admits that she had stated in the

complaint that the victim had ran away with the accused. In

paragraph 3 of the examination in chief PW 3 states that it was 8

days after the report was lodged that the Warud police brought the

accused and the victim back to Warud.

In the cross examination, she denies the suggestion that the

victim was aged 18 years.

8 The elder sister of the victim Sunita is examined as

PW 4. She states that victim was 15 years old as on the date of the

incident. She states that her mother, her husband and police had

gone to village Mangona and found the accused and the victim in

the house of the sister of the accused and they were brought back

to Police Station Warud. She states that according to the victim

accused committed forcible sexual intercourse with her in village

Mangona.

The statement that the victim disclosed that she was

subjected forcible sexual intercourse, is an omission. She denies

the suggestion that the age of victim was above 18 years.

9 Shri. Sahebrao Lokhande, Head Master of Zilla

Parishad Pre Middle School, Gawhan Kund, is examined as PW 7

to prove the date of birth of the victim. However, as a matter of

some concern that the prosecution did not bother to prove the

birth certificate, the photocopy of which was placed was placed on

record. PW 7 states that the date of birth recorded in the school

register is 10.6.1984, which is recorded on the basis of

information given by the mother of the victim on solemn

affirmation. Neither the school register in its entirety nor the

relevant extract thereof is however proved in evidence. It is trite

law that unless the age of the victim is admitted, the prosecution is

duty bound to prove that she was less than 18 years old. I am

afraid that there is no cogent evidence on record to prove that the

victim was aged less than 18 years.

10 Even if arguendo, it is assumed that the victim was on

the verge of majority, I have already observed, that there is

absolutely no evidence on record to suggest that the accused

induced her or lured her into leaving the lawful custody of her

mother. The prosecution has not proved any overt act showing

that the accused played any role in the intention formation process

of the victim. It would be apposite to refer to the following

observations of the Hon'ble Supreme Court in S. Varadarajan Vs.

State of Madras:-

"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."

On a holistic appreciation of evidence on record, I have no

hesitation in holding that the prosecution has not proved the

offence punishable under section 363 of IPC much less beyond

reasonable doubt and the accused is entitled to be acquitted.

11 The accused is acquitted of offence punishable under

section 363 of IPC.

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

13 The accused is in custody in view of the execution of the

non-bailable warrant. The accused be released from custody

forthwith, if not required in any other offence.

   14       Appeal is allowed.    

                                                             JUDGE




RS Belkhede