Cri. Writ No.376 of 1976

6th March, 1991.

Petitioner Counsel: T. L. Garg, s
Respondent Counsel: R. N. Kapoor, .

Cases Cited:
1973 Cri LJ 651,AIR 1973 SC 819 [Para 15]
1973 Cri LJ 1541,AIR 1973 SC 2313 [Para 15]
1965 (2) Cri LJ 33,AIR 1965 SC 942 [Para 17]
1957 Cri LJ 353,AIR 1957 Assam 39 [Para 18]

JUDGMENT

JUDGMENT : -This appeal was filed by Raghbir Singh and Bhuro against their conviction and sentence u/S.376 and S.366, IPC respectively by a judgment and order dated 21st of October, 1976 of Shri Joginder Nath, Addl. District and Sessions Judge, Delhi. During the pendency of the appeal, Raghbir died on 8th of October, 1982. So, the appeal survives only in respect of Bhuro. I would, therefore, deal with such facts as may have a bearing upon Bhuro's case.

2. On 24th of May, 1971 at 9.25 p.m., Asha Ram PW-2 reported to the police station Rajinder Nagar, that while he and his wife were away to work, their minor daughter Urmila, aged about 15 years, went out to the jungle at about 1-30 p.m. to ease herself. From there, without his consent, she was enticed away by Raghbir, who was living in the neighbourhood. He and his wife Kirpe Devi, P.W. 5 learnt about this from some ladies living near-by. They searched for Urmila, but could not find her. On this information, FIR Ex. PW-D/ A was registered against Raghbir u/ S.363, IPC. Ultimately, Urmila and Raghbir were spotted at Meerut and were brought to Delhi on 28th of May, 1971.

3. According to the prosecution, accused Bhuro met Urmila on the way when she was returning home. She took Urmila inside a hut (in common parlance called a jhuggi). Raghbir was already there. Bhuro went out. Raghbir overpowered Urmila. She raised hue and cry. Raghbir flashed out a knife, threatened to kill her, gagged her, and committed

sexual intercourse without her consent. Then, at the point of the knife, he brought her out of the jhuggi, stopped a scooter rickshaw and forced her to sit in it. He took her to his uncle's shop at Connaught Place, borrowed Rs. 10/- from him and then proceeded to Kashmere Gate Bus Stand. From there, he carried her off by bus to Meerut. At Meerut, he took her to the house of his father's sister. He told his 'bhua' that Urmila was his cousin sister and that they had come after taking a dip in river Ganges. Next morning, he took her to his sister's house, and on the next day to the house of his second sister. At each place, at night, Raghbir threatened Urmila with the knife and raped her. From Meerut, Raghbir brought Urmila to the house of his maternal uncle at Delhi. Malkhan, father of Raghbir, and two other persons came there. Urmila begged of them to take her to her home. Malkhan told her to stay out. They discussed about solemnization of their marriage in Court. After this discussion, Malkhan gave Rs. 150/- to Raghbir. He brought her to Paharganj Railway Station. They spent the night out there. Next morning, they boarded a train and returned to Meerut. Further, according to the prosecution, Kanhaya Lal P.W.3 Uday Bhan P.W. 10 and Harpal, who also were residing in the neighbourhood, knew that Urmila was missing. They came to know that she had come to Sat Nagar in Delhi. They went there to look for her and learnt that Raghbir and Urmila had left for Meerut. So they also rushed to Meerut. There, they spotted the two of them going together in a cyclerickshaw towards the Courts. They persuaded the duo to accompany them to Delhi on the pretext that they would ask Urmila's father to marry her to Raghbir. At Delhi, they reached Rajinder Nagar police station. Asha Ram was called. He took away Urmila. Raghbir was arrested.

4. Raghbir, his father Malkhan and Bhuro were prosecuted. Raghbir was charged u/S. 376, IPC for raping Urmila. Malkhan and Bhuro were charged u/S. 366, IPC for kidnapping her with intent or knowledge that she may be forced or seduced to have illicit intercourse with Raghbir.

5. The trial Court acquitted Malkhan. The Court convicted Raghbir and Bhuro on the charges against them, and sentenced them to undergo rigorous imprisonment for two years and one year respectively.

6. In the impugned judgment, the trial Court has narrated the first part of the episode as under :

"Urmila Devil prosecutrix, in the month of May, 1971 was residing with her parents at Ambedkar Nagar, New Rajinder Nagar. She knew Raghbir Singh accused. He was residing in the same Mohalla. Accused Bhuro and Malkhan Singh were residing in her neighbourhood. On 24-5-71 at about 1-30 p.m. Urmila Devi was going to her house after easing herself. Bhuro accused met her on her way. She took her to a Jhuggi of her accomplice Raghbir Singh accused. There Raghbir Singh accused committed rape upon her after showing a knife to her. When she tried to raise an alarm she was threatened to death."(Emphasis added)

7. One of the pleas taken in defence on behalf of the accused was that the prosecutrix was major and that she was a willing party to all that hapened. On the first aspect, the trial Court noticed the ossification test report Ex. PW-7/B which indicated that she was between 17 and 18 years of age. On the basis of the birth register, however, the Court held that she was born on 25th of February, 1956 and that on the day of occurrence she was below the age of 16 years.

8. The trial Court, after discussing the evidence on record, came to the conclusion that it could not be said that there was use of any force in the part played by Bhuro and even Raghbir; and that Urmila's conduct suggested that she was a willing party to it all. But, as the prosecutrix was a minor at the time of occurrence, it held that her consent was immaterial, and that Raghbir was guilty u/S.376, IPC. No doubt, in these circumstances, the case against Raghbir squarely falls under the VIth description u/S. 375, IPC.

9. Now, we are concerned only with the case against Bhuro. For this purpose, it would

be necessary to advert to paragraph 18 and a part of paragraph 22 of the impugned judgment. The text thereof is set out below :

"18. Though from the testimony of the prosecutrix the element of force in her taking by Bhuro accused and in the commission of rape upon her by Raghbir Singh accused cannot be taken to be there and her not raising an alarm at any stage would suggest her consent, but this would not take out these accused from the clutches of the offences charged, as the prosecutrix was minor under the age of 16 years at the time of occurrence and this being so her consent would be immaterial.

"22.................The prosecutrix implicated Bhuro accused as according to her she had initially taken her and brought her to a Jhuggi where she was raped by Raghbir Singh accused after she had made her exist from there".

10. Learned counsel for the appellant has contended that no case is made out against Bhuro under S.366, IPC. According to him, the trial Court proceeded on a misconceived assuption that Bhuro had taken Urmila "to a jhuggi of her accomplice Raghbir Singh accused". Further, he has asserted that there is no evidence on record to show use of force, promise or inducement in any form by Bhuro, to constitute 'kidnapping', and, much less, to show that she did so with intent or knowledge that Urmila would be forced or seduced to have illicit intercourse with Raghbir. Against this, learned counsel for the State has urged that the charge against Bhuro has been established as it has been proved that she had taken Urmila inside a secluded jhuggi, where Raghbir was present; and that she left Urmila in the exclusive control of Raghbir, who ravished her.

11. Section 361, IPC applies when a person takes or entices any minor out of the keeping of the lawful guardian of such minor without the consent of the guardian. If these ingredients are fulfilled, the accused is said to kidnap the minor. In a case under S.366, IPC, it must be established that the accused kidnapped the minor, and that the accused did so knowing it to be likely that she would be forced or seduced to illicit intercourse.

12. In the FIR, no allegation was made against Bhuro. It was alleged that Raghbir had taken and enticed away Urmila, and that several women living in the neighbourhood saw this. No role at all was attributed to her. At the trial also, except P.W. 6 Urmila herself, no one said a word involving Bhuro. So, we have the statement of only the prosecutrix to go by.

13. P.W.6 Urmila's statement was recorded in vernacular (Urdu) and was also typed out in English language. Since a doubt was cast on the correctness of the English translation, her statement in vernacular also has been read. In her examination-in-chief, she said that she was going towards her house. Bhuro called her. She took her inside a Jhuggi. In the jhuggi, Raghbir was present. Bhuro then went away and Raghbir gagged and raped her. In her cross-examination, with regard to the Jhuggi, she explained : "The first Jhuggi of Bhuro accused had burnt and it was the second Jhuggi in which she was residing. The rape was committed in the Jhuggi which was burnt. The Jhuggi where Bhuro was residing adjoins that Jhuggi. Only the roof of the Jhuggi had been burnt".

14. From the above statement of Urmila, it appears that the alleged act was committed inside Bhuro's burnt Jhuggi. It was not the Jhuggi "of her accomplice Raghbir Singh accused" as mistaken by the trial Court. Thus, it is obvious that the trial Court viewed the case against Bhuro on this erroneous assumption.

15. The law with regard to the relevant ingredients necessary to test applicability of Section 366, IPC to the present case clearly emerges on a conspectus of a series of three judgments of the Supreme Court, namely, S. Varadarajan v. State of Madras, AIR 1965 SC 942 : (1965 (2) Cri LJ 33); State of Haryana v. Raja Ram, AIR 1973 SC 819 : (1973 Cri LJ 651) and Thakorlal D. Vadgama v. State of Gujarat, AIR 1 973 SC 2313 : (1973 Cri LJ 1541).

16. In the case of S. Vardharajan (1965(2) Cri LJ 33) (SC), to explain the notion of kidnapping. Mudholkar, J. pointed out that it must be borne in mind that there is a distinction between taking and allowing a minor to accompany a person. Where the minor alleged to have been taken by the accused person leaves her guardian's protection knowing and having capacity to know the full import of what she was doing voluntarily joins the accused person, the accused cannot 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 that person in the formation of the intention of the minor to leave the house of the guardian.

17. In the case of Raja Ram (1973 Cri LJ 1541) (SC), it was established on the record that the prosecutrix had been solicited and persuaded by the accused to leave her father's house. With regard to kidnapping, in view of S. 361, IPC, Dua, J. observed (Para 9) :

"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 willingness on the part of the minor to be taken out of the keeping of the lawful guardian would be sufficient to attract the section".

18. In Thakarlal D. Vadgama case (1973 Cri LJ 1541) (SC), these ingredients of S. 361 cropped up for consideration in the context of S. 366, IPC. Again, Dua, J. expressed the view of the Court in the following terms (Para 9) :

".........The expression used in Section 361, I.P.C. is "whoever takes or entices any minor". The word "takes" does not necessarily connote taking by force and it is not confined only to use of force, actual or constructive. This word merely means, "to cause to go", "to escort" or "to get into possession". No doubt it does mean physical taking, but not necessarily by use of force or fraud. The word "entice" seems to involve the idea of inducement or allurement by giving rise to hope or desire in the other. This can take many forms, difficult to visualise and describe exhaustively; some of them may be quite subtle, depending for their success on the mental state of the person at the time when the inducement is intended to operate. This may work immediately or it may create continuous and gradual but imperceptible impression culminating after some time, in achieving its ultimate purposes of successful inducement. The two words "takes" and ''entices", as used in Section 361, I.P. C. are, in our opinion, intended to be read together so that each takes to some extent its colour and content from the other............."

19. Learned counsel for the State has tried to support the impugned judgment on the basis of Kamakhya Prasad Agarwala v. The State, AIR 1957 Assam 39 : (1957 Cri LJ 353). He has relied upon the following observation made in that case (Para 13) :

"It has further been held in several cases that where a minor girl is kidnapped, and later on it is found that the accused had illicit intercourse with her, the accused is liable to be punished under Section 366, IPC".

In the present case, according to him, it has been found that Bhuro had taken the 15 years old prosecutrix into a secluded Jhuggi, that she left the minor there at the mercy of Raghbir; and that eventually Raghbir raped her. Therefore, he has argued, that a case of kidnapping Urmila has been established against Bhuro; and further that it must be presumed that she did so knowing it to be likely that the minor would be forced or seduced to illicit intercourse by Raghbir. The stand taken by the learned counsel is fallacious. It is neither sustainable on the evidence on record nor in law.

20. The above-quoted observation made in the case of Kamakhya Prasad Agarwalla is wholly inapplicable to the present case. In that case, it was found that the four accused persons had dragged and carried away two minor girls by show of force and that they also

ravished them. On these facts, there could be no doubt that the accused had kidnapped the girls with the intent that they may be forced to illicit intercourse and were punishable under S. 366 as well as S. 376. IPC. But, no such inference can be drawn where one person is accused of kidnapping so as to culpable under S. 366, and another of committing rape convictable under S. 376, IPC.

21. In the present case, we are concerned with the intention and knowledge of Bhuro. The element of force has been ruled out by the trial Court itself. Not a word has been said by Urmila to suggest that Bhuro held out any inducement or allurement, or said or did anything to pursuade, or that the influenced Urmila, in any form, so as to cause her to leave the house of her guardian; or that she did so with the intention or knowledge that Urmila was likely to be forced or seduced to the acts that followed after she left the Jhuggi. There is no evidence at all on record to indicate any pre-concert between Bhuro and Raghbir. The prosecutrix and Raghbir were living in the same locality. They were known to each other. No go between was required to bring them together. It is not even the prosecution's case that Bhuro played this role. Assuming every word said by P.W. 6 to be correct, yet her testimony makes out no case against Bhuro under S. 366, IPC. What she said, falls short of the culpable act of taking or enticing the minor in the sense explained by the Supreme Court in the above-mentioned decisions to constitute kidnapping, and much less to establish the requisite intention or knowledge or the specific object to attract S. 366, IPC.

22. Although the trial Court has held, on the basis of birth record entry Ex. PW12/H, that the age of the prosecutrix was below 16 years, yet the ossification test report Ex. PW7/ B shows that she had a fairly well-formed and developed body as that of a girl around 18 years old. Keeping in mind the wilful participation of the prosecutrix in the high jinks for four days, knowing and having the capacity to know the full import of what she was doing, it appears that she had voluntarily joined Raghbir. In these circumstances, it cannot be said that she was taken in or was enticed by Bhuro to do what she did.

23. There is nothing on the record to indicate that the Jhuggi in which the real act was committed was at a secluded place. On the contrary, the FIR as well as the testimony of P.W.3, P.W.9 and P.W. 10, apart from that of P.W. 2, P.W. 5 and P.W. 6, shows that all of them were living in Jhuggis in the neighbourhood. The fact Bhuro left after Urmila came into the Jhuggi also cannot be viewed in the way suggested by learned counsel for the State. There is not even an iota of evidence on record to show that Bhuro knew or could know in advance of what Raghbir and Urmila eventually did with each other, much less that Urmila would be forced or seduced to do so. It would be too much to assume that when a young boy and girl get together, they would pander to illicit intercourse. In the ordinary course of human conduct, in the absence of proof, such a perverse thought cannot be entertained, much less to punish any one in the realm of criminal law. Indeed, finding of the trial Court itself that Urmila voluntarily participated in the frolic with Raghbir chops off the case of the prosecution against Bhuro.

24. In the facts and circumstances of the present case, Bhuro cannot be penalised for the elopment of Urmila with Raghbir.

25. As a result, the impugned judgment, in respect of Bhuro, and her conviction and sentence under S. 366, IPC are set aside. She is hereby acquitted. The bond furnished by her is cancelled.

26. Accordingly, the appeal is allowed. No costs.

Appeal Allowed