http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 4  

CASE NO.: Appeal (crl.)  48 of 1998

PETITIONER: Moniram Hazarika

RESPONDENT: State of Assam   

DATE OF JUDGMENT: 13/04/2004

BENCH: N.Santosh Hegde & B.P. Singh.

JUDGMENT: J U D G M E N T

SANTOSH HEGDE,J.         The appellant before us was charged of an offence  punishable under Section 366 IPC before the Addl.Sessions  Judge, Jorhat who after trial sentenced him for an offence  punishable under the said section to undergo RI for three years  and a  fine  of  Rs.300/- in default in payment of fine to undergo  further RI for  three months. An appeal filed against the said  judgment and conviction before the High Court  of Gauhati came  to be dismissed by the impugned judgment and the appellant is  now before us  in this appeal.         Brief facts necessary for the disposal of this appeal are as  follows:-         On  30.3.1990 at about 8.30 p.m., PW-1 Paresh Saikia  lodged a complaint in Bebarapara police out post alleging that his   younger sister Bibi  Saikia who was a minor had been kidnapped  by the appellant herein who was also a resident of the same  village.  On the basis of the said complaint a case was registered   and investigation was initiated. In the course of the investigation,  the I.O. recorded the statement of   as many as six witnesses and  on completion  of the investigation a chargesheet under Section  366 IPC was filed before the trial court.  In the complaint filed by  PW-1, as also in his evidence before the court, PW-1 stated that  his sister (PW-2) was a student of VIII standard at that time and  was a minor and at about 6.30 p.m. on 30.3.1990 he came to  know from his brother that his sister was missing and he was also  informed that she was seen in the company of the appellant in the  locality.  So suspecting the appellant of having kidnapped his  sister, he went to the house of the appellant where he was not  allowed to enter the house by the appellant and his brother.   However, he noticed there that arrangements were made for  performing a marriage ceremony.   He also mentioned in his  evidence as also in his complaint  that his sister was a minor and  in support of his case he had produced her date of birth as   entered  in school certificates. The victim was subjected to  medical examination and PW-5 the doctor who examined the  victim had opined after performing the necessary tests that she  was  below the age of 18 years.  While the evidence of PW-4 the  father of  the victim as supported by the records of the school also  showed that the girl was a minor on the date of the incident.    Victim (PW-2) herself has stated in her evidence that on the   relevant date when she had gone out to answer the call of nature  the appellant by force took her to his house where his mother and  sister-in-law were present who made her change her dress and   put vermilion on her forehead and prepared her for the marriage  with the appellant.         Thus on the basis of the above evidence the courts below  came to the conclusion that on the date of the incident  PW-2 was

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 4  

a minor and the act of the appellant in taking her  with the object  of getting her married to him amounted to an offence punishable  under Section 366 IPC and hence found him  guilty  and  sentenced him as stated above.   Shri Vijay Kumar the learned counsel appearing for the  appellant did not seriously controvert before us the fact that the  victim  was a minor on the date of the incident. However, his case  was that both  the appellant and victim( PW-2) were in love for   number of  years prior to the date of the incident and she  voluntarily and willingly  went with him,  therefore  even though   she is a minor, since there was no  enticement or taking  away as   contemplated under Section 361 of  the Indian Penal Code  appellant cannot be held guilty   of kidnapping  PW-2.  It is his  contention that even a minor has every right to abandon the house  of the guardian and go to any place of  his or her choice and there  is no legal  obligation on the person to whose place  such minor  goes to restore back the minor to the custody of the legal  guardian.  He contended from the evidence on record, it is clear  that PW-2 accompanied him voluntarily to his house with a  desire to marry him and therefore conviction under Section 366  IPC was not maintainable.  The learned counsel apart from    relying on Sections 361 and 366  of the Code also relied on a  judgment of this Court  in the case  of  S. Varadarajan  Vs. State   of Madras ( AIR 1965 SC 942).  He submitted  the  law laid  down therein and the facts of the  said case are fully applicable to  the facts of the present case.  Therefore, the conviction recorded  by the two courts below against the appellant is unsustainable in  law.  He also placed reliance on two other judgments one of  Himachal Pradesh High Court   in  Paramjit Singh  Vs. State  of   Himachal Pradesh   (1987 Crl. Law Journal 1266) to support his  argument that when a minor accompanies a person voluntarily,   the said person cannot be held guilty of kidnapping. He further  relied on a judgment of Calcutta High Court in Sachindra Nath  Mazumder  Vs. Bistupada Das & Ors. ( 1978 Crl. Law  Journal  1494) to support  his contention that when a minor child  abandons  his or her  guardian, there is no obligation on the  person to whose custody such minor chooses to go, to return such  minor to the original guardian.  He placed  emphasis on the words  "whoever takes away or entices" found in Section 361  of  the  Code,  to argue  that unless any one  of these conditions   is  established by the  prosecution, there can  be no question of   accusing  a person of kidnapping a minor.  It was the further  submission that if it  is not an offence of  kidnapping as  contemplated under  Section 361 IPC, the further question of  convicting  such person  under Section 366 of the Code does not  arise. Keeping in mind the above requirement of law, we will  examine the facts of this case to find out whether two courts  below were justified in convicting the appellant. It is clear from  the finding of facts of two courts below which is based on  material available on record, that PW-2 was a minor at that time  when she was taken away from her lawful guardian. As a matter  of fact the said finding is not seriously challenged. The case of  the appellant is that PW-2 voluntarily accompanied him with a  view to marry him and there was no enticement or taking away of  PW-2 as contemplated under Section 361 of IPC. We think the  material on record shows otherwise. It has come on record that  the appellant was known to the family of PW-2 and was on  visiting terms. It is his own case that during such visits he  developed intimacy with PW-2. It is the case of the defence that  even on the day of incident when the appellant was standing  outside the house, PW-2 came to him and requested him to take  her away. But there is material on record to show that the  appellant promised to marry her and it is based on such promise  she went away with the appellant and there is also material on

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 4  

record to show that on that day preparation for marriage was  already made in the house of the appellant. Thus two things are  clear from this fact; one, that there was a promise of marriage and  secondly, based on the said promise PW-2 went with the  appellant. Of course, PW-2 had come out with the case that she  had come out of the house to answer the call of nature when she  was forcibly taken by the appellant which part of the prosecution  case is not accepted. But the material on record, as stated above,  shows that there was a promise of marriage made to PW-2 which  amounts to enticement of a minor because of which she had left  the house of her lawful guardian. In this background, in our  opinion, the courts below were justified in coming to the  conclusion that the appellant had committed the offence  punishable under Section 366 of IPC.              As stated above, the learned counsel for the appellant  placed strong reliance on the judgment of this Court in   Varadarajan’s case (supra).  The facts of that case show that the  minor in that case left the house of the legal guardian as per her  own choice and not on the basis of any enticement or persuasion  on the part of the accused. This is clear from the following  observations of this Court in that case :  

"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."  

         It is on the basis of the said finding that the minor in that  case walked out of the house of her guardian without any  inducement from the accused, this Court came to the conclusion  that the accused in that case was not guilty of the offence. It is  also worthwhile to notice what this Court said about the act of  accused in such cases which amounts to enticement which is  found in paragraph 10 of the said judgment and which reads  thus:-

       "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." (emphasis supplied)

       It is clear from the above observations of this Court   that if  the accused  played   some role at any stage by which he  either

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 4  

solicited or persuaded the minor to abandon the legal  guardianship, it would be sufficient to  hold such person guilty of  kidnapping.         In the instant case, we have noticed from the evidence that  appellant who was a regular visitor to the house of PW-1, took  undue advantage of his friendship and persuaded the minor to  abandon the guardianship with a promise of marriage which on  facts of this case is sufficient to uphold the judgments of the   courts below.         We having considered two other judgments cited before  us   by the learned counsel  for the appellant, are satisfied  that it is  not necessary for us to deal with the same elaborately  since on  facts  of this  case it is established that  the appellant  had taken  the minor  by enticing her and hence  had committed  the offence  of kidnapping which kidnapping was for the purpose of marrying  the said  minor. In our opinion, courts below were justified in   convicting the appellant for an offence punishable under Section  366 IPC.         For the reasons stated above this appeal fails and is  dismissed.