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CASE NO.: Appeal (crl.)  390 of 1997

PETITIONER: Parkash                                                  

RESPONDENT: State of Haryana                                                 

DATE OF JUDGMENT: 02/12/2003

BENCH: DORAISWAMY RAJU & ARIJIT PASAYAT.

JUDGMENT: J U D G M E N T

ARIJIT PASAYAT,J                  Perversity and degradation of mind sometimes reach rock bottom of  humanness when tiny girl become victims of sexual assault and libidinous  behaviour. One wonders to what low level of depravation, perpetrators of  such crimes can condescend.  The case at hand is one such shocking case  where the victim was about five years of age.  We do not propose to  indicate the name of the victim, who suffered the traumatic experiences  on 24.2.1986.  The accused-appellant and another person who faced trial  with him allegedly committed offences of kidnapping and attempted rape  punishable under Sections 363, 366 and 376 read with Section 511 of the  Indian Penal Code, 1860 (for short the ’IPC’).  The victim was called  and taken away by the accused-appellant who was known to her, for  fulfilling his lust and her absence was noticed by her octogenarian  grandmother (PW-5).  She went out in search of her. After going to a  short distance, she could hear the cries of the victim and rushed to the  house of the accused from where her sound was coming. She found the  victim naked and accused-appellant lying on top of her while acquitted  accused was standing nearby.  The father of the victim (PW-6) lodged the  report on learning about the incident from the victim and PW-5.  Initially there was an attempt to settle the matter which was not  accepted by the father of the victim. Information was lodged at the  police station. The girl was medically examined and charge sheet was  placed after completion of investigation.

The accused persons pleaded innocence and false implication on  account of litigations. The trial Court found the accusations  established so far as commission of charged offences under Section 363  and 366 IPC are concerned and awarded custodial sentence of 3 years for  the first two offences, and 4 years for the last one.  However, finding  that the other accused was not properly described or identified in the  first information report he was entitled to the benefit of doubt.  For  holding the accused guilty reliance was placed on the evidence of  eyewitness (PW-5). The accused-appellant preferred an appeal before the  High Court of Punjab and Haryana. By the impugned judgment, the High  Court upheld the conviction so far as offences relatable to Sections 363  and 366 IPC are concerned, but set aside the conviction recorded under  Section 376 read with Section 511 IPC.

In support of the appeal, learned counsel for the appellant  submitted that the prosecution has tried to improve its case at  different stages. Nowhere at the investigation stage, it was stated that  the accused took the victim by putting hand on her mouth; but in Court  such an improvement was made. With reference to the conviction under  Sections 363 and 366, it is submitted that the ingredients necessary for  constituting the said offences have not been made out and the case has  not been proved beyond reasonable doubt. The behaviour of PW-5 is

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unnatural. It is quite improbable that a grandmother finding her  granddaughter being sexually assaulted by any person would silently take  the victim away without even giving a tongue-lashing  to the accused.  The Courts below have lost sight of the fact that there were litigations  pending between accused’s family and the family of the father of the  victim. Since the co-accused has been acquitted by the trial court said  factor should have weighed with the Courts below. PW-5, the so-called  eyewitness admittedly had defective eyesight and was hard of hearing.   It is hard to believe that the victim was crying in such a loud voice  that PW-5 who is hard of hearing could hear it, but none others.   

In response, learned counsel for the respondent-State submitted  that PW-5’s evidence is cogent and trustworthy.  The victim was playing  outside at 1.30 p.m. Noticing her absence she went out to search for  her.  This is a natural behaviour. The child was recovered from the  house of the accused in naked condition.  Whether the child was taken by  putting her hand on her mouth or not has no relevance. Gravamen of the  offence is taking away a minor child from lawful custody of her  guardians.  There is clear evidence in that regard, and the  convictions  deserve to be upheld.

Both the trial Court and the High Court have analysed in great  detail the evidence of PW-5, the grandmother.  Though it was submitted  that there were differences between accused and PW-6 because of some  dispute, it is highly improbable that for making  false implication a  child of 5= years would he used as a pawn unmindful of the disrepute she  would have to suffer in public with a stigma for the rest of her life.   Evidence of PW-5 has essence of credibility and truthfulness. She has  explained us as to how she chanced upon seeing the victim, after hearing  her cries.  Merely because nobody else has heard it or came forward  hearing it as contended by the accused-appellant, same cannot be a  ground to discard her evidence. The Courts below have rightly acted upon  her evidence.  

Next comes the question whether ingredients of Section 363 and 366  IPC are made out.                    Section 361, I.P.C. reads :  "361. Kidnapping from lawful guardianship. - 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.  Explanation. - The words ’lawful guardian’ in this  section include any person lawfully entrusted with  the care of custody of such minor or other person.  Exception - This section does not extend to the act  of any person who in good faith believes himself to  be the father of an illegitimate child, or who in  good faith believes himself to be entitled to lawful  custody of such child, unless such act is committed  for an immoral or unlawful purpose."  

The object of this section seems as much to protect the minor children  from being seduced for improper purposes as to protect the rights and  privileges of guardians having the lawful charge or custody of their  minor wards. The gravamen of this offence lies in the taking or enticing  of a minor under the ages specified in this section, out of the keeping  of the lawful guardian without the consent of such guardian. The words  "takes or entices any minor ........... out of the keeping of the lawful  guardian of such minor" in Section 361, are significant. The use of the  word "Keeping" in the context connotes the idea of charge, protection,  maintenance and control; further the guardian’s charge and control

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appears to be compatible with the independence of action and movement in  the minor, the guardian’s protection and control of the minor being  available, whenever necessity arises. 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. In State of Haryana v. Raja Ram (1973 (1) SCC 544) English  decisions were noticed by this Court for the purpose of illustrating the  scope of the protection of minor children and of the sacred right of  their parents and guardians to the possession of minor children under  the English Law. The decisions noticed were Reg v. Job Timmins (169  English Reports 1260); Reg v. Handley and Another, (175 English Reports  890) and Reg. v. Robb. (176 English Reports 466) In the first case Job  Timmins was convicted of an indictment framed upon 9 Geo. IV, Clause 31,  Section 20 for taking an unmarried girl under sixteen out of the  possession of her father, and against his will. It was observed by Erle,  C.J. that the statute was passed for the protection of parents and for  preventing unmarried girls from being taken out of possession of their  parents against their will. Limiting the judgment to the facts of that  case it was said that no deception or forwardness on the part of the  girl in such cases could prevent the person taking her away from being  guilty of the offence in question. The second decision is authority for  the view that in order to constitute an offence under 9 Geo. IV, Clause  31, Section 20 it is sufficient if by moral force a willingness on the  part of the girl to go away with the prisoner is created; but if her  going away with the prisoner is entirely voluntary, no offence is  committed. The last case was of a conviction under the Statute (24 & 25  Vict. Clause 100, Section 55). There inducement by previous promise or  persuasion was held sufficient to bring the case within the mischief of  the State. In the English Statutes the expression used was "take out of  the possession" and not "out of the keeping" as used in Section 361,  IPC. But that expression was construed in the English decisions not to  require actual manual possession. It was enough if at the time of the  taking the girl continued under the care, charge and control of the  parent : see Reg. v. Manketelow (6 Cox Criminal Cases 143). These  decisions were held to confirm the view that Section 361 is designed  also to protect the sacred right of the guardians with respect to their  minor wards.  The position was again reiterated in Thakorlal D. Vadgdama v. The  State of Gujarat (AIR 1973 SC 2313) wherein it was, inter alia, observed  as follows:  

"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

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"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. The statutory language suggests that if the  minor leaves her parental home completely  uninfluenced by any promise, offer or inducement  emanating from the guilty party, then the latter  cannot be considered to have committed the offence as  defined in Section 361, I.P.C."

       When the evidence on record is tested in the background of  aforesaid legal principles, the inevitable conclusion is that the trial  Court and the High Court were justified in convicting the accused.  The  sentence as imposed also appears to be liberal when loathsome nature of  the offence is considered.   

       The appeal is without any merit and is dismissed.