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PETITIONER: THAKORLAL D. VADGAMA

       Vs.

RESPONDENT: THE STATE OF GUJARAT

DATE OF JUDGMENT02/05/1973

BENCH: DUA, I.D. BENCH: DUA, I.D. MATHEW, KUTTYIL KURIEN

CITATION:  1973 AIR 2313            1974 SCR  (1) 178  1973 SCC  (2) 413

ACT: Indian  Penal  Code.   S.  366-When  a  person  "takes"   or "entices"  away a minor girl from the custody of her  lawful guardian-The scope of the section.

HEADNOTE: The  accused was convicted by the trial court under Ss.  366 and  376 I.P.C. On appeal, the High Court acquitted  him  of the  offence under s. 376 I.P.C.; but upheld the  conviction and  sentence under s. 366 I.P . C. on the ground  that  the appellant  had taken out a minor girl out of the keeping  of her parents (her lawful guardian) with an intention that she may be seduced to illicit intercourse. On appeal to this Court, the appellant contended that  since the  girl left her parents’ house out of her own accord  due to  the harsh treatment of her parents and as the  appellant kept her in his house out of compassion and sympathy for the helpless   girl,  the  charge  under  s.  366   I.P.C.   was unsustainable. Dismissing the appeal, HELD  :  (i) The legal position with respect of  an  offence under  s. 366 I.P.C. is clear.  In State of Haryana v.  Raja Ram A.I.R. 1973 S.C. 819 it was observed by this Court that the object of Section 361 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  charges  or  custody  of  their  minor  wards.   The gravamen of this (kidnapping) is the ’taking’ or  ’enticing’ of a minor girl under the ages specified in the section, out of  the keeping of the lawful guardian without  his  consent and section 366 provides for punishment of whoever kidnaps a woman for illicit intercourse or for the purpose of marriage against her will. [187C] (ii) The  word  ’takes’  in  section  361  I.P.C.  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".  The word "entice" means to involve the idea of inducement or allurement by giving rise to hope or desire in the   other.   If  the  minor  leaves  her  parental   home, influenced  by  any promise, offer or  inducement  emanating from  the guilty party then the latter will be guilty of  an

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offence as defined in s. 361 I.P.C. [187H] (iii)     In  the present case, the circumstances  in  which the  appellant and the victim came close to each  other  and the manner in which be is stated to have given her  presents etc. and the letters written by the victim to the  appellant furnish  very  Important  and essential  background  to  the offence  which the appellant committed.  Therefore, the  two courts blow have rightly convicted the appellant under  sec. 366 I.P.C. [188G] State of Haryana v. Raja Ram A.I.R., 1973 S.C. 819  referred to and S. Varadarajan  v. State of Madras, [1965]  1  S.C.R. 243 distinguished.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 18  of 1970. Appeal  by special leave from the judgment and  order  dated December  15,  1969 of the Gujarat High  Court  in  Criminal Appeal No. 827 of 1967. R.   H. Dhebar and S. K. Dholakia, for the appellant. R.   L. Kohli and S. P. Navar, for the respondent. 179 The Judgment of the Court was delivered by DUA, J. This appeal by special leave is directed against the judgment  and  order of the Gujarat High Court  allowing  in part the appellant’s appeal from his conviction by the Court of  the  Sessions  Judge, Jamnagar under ss.  366  and  376, I.P.C. The High Court acquitted him of the offence under  s. 375, I.P.C. but maintained his conviction and sentence under s. 366, I.P.C. According to the prosecution case, the offence under s. 366, I.P.C.,  took place on January 16, 1967 and the  offence  of rape  with which he was charged was committed on  the  night between the 16th and 17th January, 1967.  As observed by the High  Court,  the background which led  to  the  culmination resulting  in the commission of the offences leading to  the appellant’s  trial has been traced by Mohin, the  victim  of the offences, in the prosecution version, to the latter part of  the year 1965.  The appellant, an industrialist,  had  a factory  at  Bunder Road for manufacturing oil  engines  and adjoining the factory was his residential bungalow.   During the  bombardment of Jainnagar by Pakistan in 1965,  Mohini’s parents  came to reside temporarily at Dhrol near  Jamnagar. The  appellant came to be introduced to that family  and  on December 18, 1965, which was Mohini’s birth-day, the  appel- lant presented her with a parker pen.  It may be pointed out that  mohini was at that time a school going girl  below  15 years  of age.  She kept the pen for about 2 to 3 days,  but at the instance of her mother, returned it to the appellant. Thereafter,  the appellant went to Baroda in his car and  he took  with  him,  Mohini, her father  Liladhar  Jivraj,  his manager  Tribhovandas, Malti, daughter of Tribhovandas,  who was  about  12 years old, and Harish, a younger  brother  of Malati.    At   Baroda,  the   appellant   negotiated   some transaction with regard to the purchase of some land for the purpose  of  installing a factory there.   It  appears  that there  was  some kind of impression created in the  mind  of Mohini’s  father that he would be employed by the  appellant as a’ manager of the factory to be installed at Baroda.  The party  spent a night at Baroda and next morning  started  on their return journey to Jamnagar.  During Christmas of  1965 the appellant had a trip to Bombay and during this trip also he took with him, the same party, viz.  Mohini, her  father,

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Tribhovandas and Tribhovandas’ daughter and son.  In  Bombay they  stayed in Metropolitan Hotel for 2 nights.   According to the prosecution story it was during these two nights that Mohini, Malati and the appellant slept in one room,  whereas Mohini’s father, Malati’s father and Harish slept in another room.   On these two nights the appellant is stated to  have had  sexual inter-course with Mohini.  During this  trip  to Bombay  the  appellant is also said to  have  purchased  two skirts  and waste bands for Mohini and Malati.  After  their return to Jamnagar, according to the prosecution story,  the appellant  had sexual inter-course with Mohini once  in  the month  of March, 1965 when she had gone to  the  appellant’s residential bungalow at about 7.00 P.M. Indeed, Mohini  used to  visit  the  appellant’s place off and  on.   During  the summer  vacation  in  1966  the  appellant  had  a  trip  to Mahabaleshwar  in  his car.  On this  occasion,  along  with Mohini  he  took  her two parents as well as  also  his  own daughter Rekha.  On their way to Mahabaleshwar, they stopped at Bombay for 180 two  days.  After staying at Mahabaleshwar for two days,  on their  return  journey  they again halted at  Bombay  for  a night,  and then proceeded to Mount Abu.  At Mount Abu  they stayed  for one day and all of them slept in one  room.   At about  3.00  a.m. when Mohini’s mother got up for  going  to bath-room  and switched on the light, she noticed  that  the appellant was sleeping by Mohini’s side with his hand on her head.  Mohini’s mother restrained herself and did not  speak about what she had seen because the appellant had  requested her  not to, do so.  Next morning, the party went to  Ambaji from where they returned to Jamnagar.  At Jamnagar  Mohini’s mother  informed her husband about what she had seen  during the  night  at Mount Abu.  Mohini’s father got  annoyed  and rebuked   Mohini.   Her  mother  also  warned  her   against repetition   of  such  conduct.   Mohini  apologised.    The appellant,  on  coming to know of the feelings  of  Mohini’s parents,  told her father that Mohini was just like his  own daughter  Rekha  to  him  and  that  he  would  even  go  to Dattatraya  temple  and swear by God to  that  effect.   The appellant is stated to have actually taken Mohini’s  father, Mohini  and  Rekha  to Dattatraya  temple  in  Jamnagar  and placing  his  hands on the heads of Mohini and  Rekha  swore that  they were his daughters.  Even after this incident  in Dattatraya  temple, the appellant once met Mohini  when  she was  returning  from  her school and took  her  to  his  own bungalow in his car.  There, he had sexual intercourse  with her.  It seems that Mohini’s parents came to know about this incident  and  they  rebuked  her.   Mohini’s  parents  also started  taking precaution of not sending her alone  to  the school.  From July, 1966 onwards either the maid-servant  or Mohini’s  mother herself would accompany her to the  school. The  appellant is stated to have made an effort  to  contact Mohini  during- this period.  He called her at his house  on Saturday,  September 24, 1966.  Mohini’s mother having  come to  know  of this behaviour on the part  of  the  appellant, wrote  to him a letter dated September 26,  1966  requesting him to desist from his activity ’ ties of trying to  contact Mohini.  Apparently, after this letter there was no  contact between  Mobini and the appellant in Jamnagar.  In  October, 1966,  however, Mohini had gone to Ahmedabad in school  camp and there the appellant contacted her and took her out for a joy   ride  in  company  with  two  of  her  girl   friends. Thereafter,  in  the months of November and  December,  1966 nothing particular seems to have happened.  According to the appellant,  however,  during those two  months,  Mohini  had

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written  letters to him complaining of ill-treatment by  her parents  and  expressing her desire to  leave  her  parent’s house,.   We  would refer to those letters a  little  later. Early  in  January, 1967, the appellant is alleged  to  have told  Mohini to come to his bungalow.  On January 16,  1967, Mohini  started  for her school with a school book  and  two exercise books, in the company of her mother Narmada who had to go to Court for some work- UPTO the Court Premises,  they both went together where Smt.  Narmada stayed on and  Mohini proceeded  to her school.  Instead of going to  her  school, she apparently went to the appellant’s factory, according to a  previous  arrangement.  There the appellant met  her  and took her inside his motor garage.  From there she was  taken to the attached room and made to write two or three  letters on  his dictation.  She did so while sitting on  two  tyres. These letters were, 181 stated to have been addressed to her father, to the District Superintendent  of Police of Jamnagar, and to the  appellant himself.    These  letters  contained  complaints  of   ill- treatment of Mohini by her father and mother and information about the fact that she was leaving for Bombay after  taking Rs.  250/-  from  the appellant.  According  to  the  postal stamps,  these, letters appeared to have been  cleared  from the   post  office  at  2.30  p.m.  on  January  16,   1967. Thereafter, according to the prosecution version, Mohini was made  by the appellant to sit in the dicky of his car  which was  taken to some place, Mohini remaining in the dicky  for some hours.  She was then taken to the office of his factory at  mid-night and there he had sexual inter-course with  her against her will.  After the sexual inter-course, there  was some sound of motor car entering the compound whereupon  the appellant  took  her inside the cellar in  the  office,  and asked  her to sit there.  After about an hour the  appellant came  and took her from the cellar to his garage  where  she was again made to remain in the dicky.  It appears that  the following  morning  the appellant told Mohini  that  he  was called to the police station.  He went there in his car with Mohini in the dicky and then he and the police man came back to  his bungalow.  The police man went inside  the  bungalow and  the appellant parked the car in h is garage.   He  took Mohini out of the dicky and told her to go to the inner room of the garage.  This inner room had four doors.  One of them opened on the main road and another in the garage.   Feeling thirsty,  Mohini  went  out in the garden  and  saw  a  Mall working there whom she asked for water.  It appears that  at about  6.30  p.m. the appellant came to the inner  room  and promised  to bring some food, water and clothes for  Mohini, telling her to wait for him in that room.  After some, time, he  returned with food, water and clothes.   Mohini  changed her  clothes  washed her face and started taking  her  meal. While doing so, she felt that some motor car had come,  into the compound.  The, appellant told her that police had  come and, therefore, she must leave through the back door and  go to the road-side directing her to go towards Gandhinagar and wait  there  for him.  Leaving her food  unfinished,  Mohini went out and waited near Gandhinagar at a distance of  about one  furlong from the appellant’s garage.  It was here  that she  was  traced by the Police Sub-Inspector  Chaudhary  who came  there with the appellant in the latter’s car at  about 9.00  p.m. From the dicky of the appellant’s motor car,  one bedding  and some clothes belonging to Mohini, viz.,  skirt, blouse  nicker and petticoat were, found.  These,  clothes were wet.  Her school books and two exercise books were also found  there.   In the inner room of the  garage  was  found

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unfinished  food  and utensils which bore the  name  of  the appellant.   Mohini was sent for medical examination by  the Lady Medical Officer, but the Medical Officer did not  find any symptoms of forcible sexual inter-course. Turning  now to the scene at the house of Mohini’s  parents, after her mother Smt.  Narmada finished with the court work, she  returned  to her house.  They had a  visitor  Dinkerrai from Rajkot.  While they were all at home some school  girls informed  Mohini’s  mother that Mohini had not gone  to  the school  that  day.   Smt.  Narmada at  once,  suspected  the appellant  and  therefore  went  to  his  house  along  with Dinkerrai.  On enquiry from the appellant, he expressed  his igno- 182 rance  about  Mohini’s whereabouts.  He,  however,  admitted that  she had come to him for money but had gone away  after taking Rs. 250/from him.  This according to him had happened between 4 and 5.30 p.m. on that day viz.  January 16,  1967. Mohini’s  father then lodged complaint with the police  at about 7.20 p.m. on that very day.  The Police  Sub-Inspector visited the appellant’s bungalow in the night between  16th and  17th of January and searched the bungalow but  did  not find  Mohini  there.  Thereafter, the,  Sub-Inspector  again went to the appellant’s bungalow on the morning of the  17th January and attached some letters and other papers  produced by  the appellant.  He also went to the  appellant’s  office and  inspected  the  books of account  for  the  purpose  of verifying  whether there was any entry about the payment  of Rs.  250/- to Mohini.  Meanwhile, Mohini’s  father  Liladhar received  a letter bearing post mark dated  16-1-1967  which was produced by him before the Police Sub-Inspector.  On the night  of 17th January, Police Sub-Inspector Chaudhary  went to the appellant’s bungalow and it was this time that Mohini heard  the sound of a motor car and left the garage  at  the instance  of the appellant leaving unfinished the  food  she was  eating.   In the inner room, next to the  garage,  were found Mohini’s clothes, a lady’s purse, one comb, 2  plastic buckets full of water, one lantern and some other  articles. From  the dicky of the appellant’s car on search  were  also found  skirt, one blouse, a petticoat and one book  and  two exercise  books  as  already noticed.   All  these  articles belonged to Mohini.  This in brief is the prosecution story. The  appellant  admitted  that  he  had  developed  intimate relations  with  the  family of Mohini,  but  denied  having presented  to her a parker pen in December, 1965.   He  also admitted  his trips to Baroda and Bombay in  December,  1965 when he took with him Mohini, her father Malati, her  mother and   Malati’s  brother.   He  admitted  having  stayed   in Metropolitan Hotel at Bombay but denied that he, Mohini  and Malati  had slept in one room and that he had sexual  inter- course with Mohini during their stay in this hotel.  He also denied  having sexual inter-course with Mohini in the  month of  March, 1966.  He further denied having purchased  skirts and waste bands for Mohini and Malati in Bombay in December, 1965.  The trip to Mahabaleshwas during summer vacation  and also  the trip to Mount Abu were admitted by  the  appellant but  he  denied having been found sleeping  with  Mohini  by Mobini’s  mother at Mount Abu.  He admitted the incident  of Dattatraya temple in Jamnagar but this he explained was  due to  the  fact  that Mohinis parents  had  heard  some  false rumours about his relations with Mohini, and that he  wanted to remove their suspicion.  He further admitted that in  the evening   of  16th  January,  Narmada  and   Dinkerrai   had approached  him to inquire about Mohini’s’  whereabouts  but according  to him Mohini had merely taken Rs.  250/from  him

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without  telling him as to where she was going.   He  denied having  told  Dinkerrai  teat Mohini  had  gone  to  Bombay. According  to his version, Mohini approached him on  January 16,  1967  and requested him to keep her at  his  house  for about  15  days because she was tired of harassment  at  the bands of her parents.  She added that she would make her own arrangements after 15 days.  The appellant 183 expressed  his  inability  to  keep her  in  his  house  and suggested  that he would take her to her parents’ house  and persuade them not to harass her.  She, however, was firm and adamant in not going back to her parents’ house at any cost. According to the appellant, the reason for falsely involving him  in  this  case  was that  Mohini’s  father  wanted  the appellant  to appoint him as a manager at Baroda  where  the appellant  was  planning  to  start  a  new  factory.    The appellant  having  declined  to do so because  he  had  many senior  persons working in his office, Mohini’s father  felt displeased and concocted the false story to involve him. The trial court in an exhaustive judgment after  considering the  case from all relevant aspects came to  the  conclusion that  Mohini  was born on September 18, 1951  and  that  the medical  evidence led in the case also showed that  she  was above  14  and  below 17 years of age  during  the  relevant period.  She was according held to be a minor on the day  of the  incident.   If,  therefore, the  appellant  had  sexual intercourse  with  her even. with her consent, he  would  be guilty of rape.  Mohini was believed by the trial court when she  stated that the appellant had sexual inter-course  with her  at  the  earliest  possible  opportunity  as  this  was corroborated by the medical evidence.  The trial court found no  reason for her to stake her whole life by  making  false statement  about  her  chastity,  nor  for  her  parents  to encourage  or  induce her to come out with  a  false  story, there  being no enmity between the appellant and the  family of  Mohini  with respect to any matter, which  would  induce them  to  charge him falsely.  The  appellant’s  explanation that  as a result of his refusal to appoint Mohini’s  father as a Manager of his factory at Baroda, she had, in collusion with the parents, concocted this story was considered by the trial  court to be too far-fetched to be worthy  of  belief. In fact, according to the trial court it was the  appellant who  had made a suggestion about appointing Mohini’s  father as  his  manager at Baroda and this explained  why  Mohini’s father  was taken by the appellant to Baroda when he paid  a visit to that place for purchasing land.  The court found no other  cogent reason for taking Mohini’s father  to  Baroda. The trial court in express terms disbelieved the appellant’s explanation.   That  court also-cane to the  conclusion,  on consideration  of  the  evidence and- bearing  in  mind  the common  course of human conduct, that it was  the  appellant who  had induced Mohini to leave her parents’ house  on  the day  in question and to have sexual inter-course  with  her. The  trial  court  also considered  that  part  of  Mohini’s statement  that when she went to the appellant’s  place,  he told her to return to her school, suggesting that he would take her to her parents and persuade them not to harass  her and,  it expressed its undoubted opinion that the  appellant had-  used  those words to make a show of  being  her  well- wisher,  so that, if some proceedings were. started  against him, he could put forth the defence that he had kept  Mohini at his house only at her own request and not with the object of keeping her out of her parents, custody for having sexual inter-course with her.  The trial court got support for this view from

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184 the  letters  got  written  by  the  appellant  in  Mohini’s handwriting.    This  is  what  that  court  said  in   this connection :               "There is therefore, no doubt in my mind  that               the accused had prepared all this material  so               that  in case criminal proceedings were  taken               against  him  by Mohini’s parents, he  may  be               able   to  lead  plausible  defence   of   his               innocence.   Nothing  prevented  the,  accused               from returning Mohini to her parents.  In  any               case, even if it were held that it was not the               duty  of the accused to return Mohini  to  her               parents,  it can equally he said that  it  was               not  legal  on  the part  of  the  accused  to               secretly confine Mohini at his place and  have               sexual intercourse with her."               The  trial  court then  quoted  the  following               passage  from the case of  Christian  Officer,               reported in 10 Cox. 420 :-               "Although  she may not leave at the  appointed               time  and  although he may not wish  that  she               should have left at that particular time,  yet               if, finding she has left, he avails himself of               that  to induce her to continue away from  her               father’s  custody, in my judgment he  is  also               guilty, if his persuasion operated on her mind               so as to induce her to leave." On the basis of this observation, the trial court held  that in  the present case, the inducement given by the  appellant operated on Mohini’s mind to stay in his house and do as  he told  her to do.  The trial court on a consideration of  the circumstances  of the case and of the subsequent conduct  of the  appellant came to the definite conclusion  that  Mohini had  gone  to  the appellant’s place  at  his  instance  and subsequently  taking  advantage  of that  position  she  was persuaded by the appellant to stay there.  The appellant was accordingly held guilty under ss. 366 and 376, I.P.C.  Under s.  366, I.P.C., hi was sentenced to  rigorous  imprisonment for  18  months  and  under  s.  376,  I.P.C.  to   rigorous imprisonment for two years and also to fine of Rs. 5001- and in default, to further rigorous imprisonment for six months. The  substantive  sentences  of  imprisonment  were  to  run concurrently. On  appeal by the appellant, the High Court also  considered the  matter  at  great  length  and  in  a  very  exhaustive judgment,  the appellant’s conviction under s. 376  was  set aside and he was acquitted of that offence.  This  acquittal was  ordered  because  the  charge  being  only  for  sexual intercourse  on the night of January 16, 1967, the  evidence of  Mohini  in support of that offence was not  accepted  as safe  and free from all reasonable doubt, in the absence  of independent  corroboration.  In adopting this  approach  the High Court seems to us to have been somewhat over indulgent, and  unduly favourable to the appellant with respect to  the offence  under  s.  376, I.P.C. But there  being  no  appeal against  acquittal, we need say nothing more about it.   The appellant’s  conviction for the offence punishable under  S. 366, I.P.C. and the sentence for that offence were, however, upheld.   The High Court felt that the story of Mohini  with regard to the appellant’s call about 3 or 4 days before  the incident  in question was so natural and so highly  probable that   it   felt  no  hesitation  in  accepting   it.    The circumstances preceding the incident were considered 185

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by  the  High  Court  to be  sufficiently  telling  to  lend assurance that it was quite safe to act upon her  testimony. Her  account  was  considered  to  be  quite  truthful  and, therefore, acceptable.  Mohini’s version that the  appellant had  told  her  about 3 or 4 days  before  the  incident  of January  16, 1967 that he would keep her permanently at  his place  provided  sufficient temptation to  the  school-going girl like Mohini to go to the appellant leaving her parental home.  This was all the more so because in the past year  or so,  the appellant had treated Mohini very fondly by  taking her out on trips to different places in his own car and  had also  lavishly given her gifts of articles like costly  pens and   silver   band.   The  High  Court   also   took   into consideration  the  attitude adopted by Mohini’s  mother  in this  connection.   She  had  very  discretely  warned   the appellant  in a dignified and respectful language  to  leave Mohini  alone  and  also expressed  her  disappointment  and unhappiness  at  the manner in which the appellant  used  to behave towards Mohini.  The High Court considered a part  of Mohini’s version, as to how she was kept in the dicky of the appellant’s  car on the 16th and 17th January, 1967,  to  be improbable and to have been exaggerated by her, but this was considered  to be due to the fact that, like  a  school-girl that she was, she introduced an element of sensation in  her story.    Her complaint about inter-course on this  occasion was not accepted    for  want of independent  corroboration. The medical evidence also     suggested  that there  was  no presence of spermatozoa when vaginal    swab  was  examined. It  was  on this reasoning that the offence  under  s.  376, I.P.C.  as charged was held not to have been  proved  beyond doubt.  The presence of Mohini in the appellant’s house  and also in his garage on the 16th and 17th January was held  by the  High Court to be fully established on the record.   The version give by Mohini was held to be fully corroborated  by the  surrounding  circumstances  of  the  case  and  by  the recoveries  of various articles belonging to her.  The  High Court also came to the positive conclusion that there was no unreasonable   delay  on  the  part  of  the   investigating authorities to record Mohini’s statement.  The suggestion on behalf  of the appellant that various articles belonging  to Mobini  and  the  utensils found in the inner  room  of  the appellant’s  premises were planted, was  rejected  outright. The High Court in a very well-reasoned judgment with respect to  the offence under s, 366, I.P.C. came to the  conclusion that  the appellant had taken Mohini out of the  keeping  of her parents (her lawful guardian) with an intention that she may  be seduced to illicit inter-course.  This is  what  the High Court observed               "Have  come  in  contact with  the  family  of               Mohini  in about November 1965  the  appellant               cultivated  relationship with them to such  an               extent  that he took Mohini, and  her  parents               out  on trips in his car spending lavishly  by               staying   in  hotels  in  Ahmedabad,   Bombay,               Mahabaleshwar   and   Mount  Abu.    He   also               presented Mohini with a parker pen on 18th De-               cember, 1965.  Within a few days thereafter he               purchased  by  way of gift  to  Mohini  skirt,               silver  waist-band which as  per  unchallenged               testimony of Mohini was worth about Rs. 1,2/-.               He was actually found by the side of Mohini in               Mohini’s bed by Mohini’s mother at Mount  Abu.               His con-               186               nection with Mohini was suspected and in spite

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             of  that as the letters of Mohini show he  was               in   correspondence  with  her   without   the               knowledge of her parents.  Mohini was a school               girl of immature understanding having  entered               her  16th  year less than a month  before  the               incident.  Out of emotion she wrote letters to               the   appellant  exaggerating   incidents   of               rebuking by her mother and beating.  She  how-               ever was quite normal from 1st January,  1967.               The  appellant having come to know  about  the               frame  of her mind disclosed from the  letters               of November and December 1966, took chance  to               take  away this girl from her  parents.   With               that  view he told Mohini about 4 days  before               16th  January, 1967 to come to his  house  and               added   that  he  will  keep  her   with   him               permanently-  This possibly caught the  imagi-               nation of the girl and the result was that  on               16th January she left her father’s house  with               bare clothes on her body and with school books               and  went  straight  to  the  appellant.   The               appellant in order to see that her view to his               factory   during  day  time  may  not   arouse               suspicion  of  other  invented  the  story  of               giving  Rs.  250/-  to  Mohini  and  also  got               written  3  letters  by  Mohini  addressed  to               himself the District Superintendent of  Police               Jamnagar and Mohini’s father.  He kept her  in               the  garage of his bungalow for 2 days,  tried               to secret her from police and her parents  and               had already made attempt on 16th to put police               and  parents of Mohini on wrong track.   There               is  no scope for an inference other  than  the               inference  that  Mohini  was  kidnapped   from               lawful  guardianship,  with  an  intention  to               seduce  her  to  illicit  inter-course.    The               intention  contemplated by section 366 of  the               Indian Penal Code is amply borne out by  these               circumstances.   Therefore, the conviction  of               the  appellant under that section  is  correct               and has to be maintained." As  already  observed, the appellant was  acquitted  of  the offence under s.    376,  I.P.C.,  but  his  conviction  and sentence under s. 366, I.P.C. was  upheld. In   this  Court,  Shri  Dhebar  addressed  very   elaborate arguments  and  took  us through considerable  part  of  the evidence led in the case with the object of showing that the conclusions  of the two courts below accepting the  evidence led  by the prosecution with respect to the charge under  s. 366,  I.P.C.  is wholly untrustworthy and no  judicial  mind could  ever  have  accepted it.   After  going  through  the evidence to which our attention was drawn, we are unable  to agree with the appellant’s learned counsel.  Both the courts below  devoted very anxious care to the evidence led in  the case and the circumstances and the probabilities inherent in such  a situation.  They gave to the appellant all  possible benefit of the circumstances which could have any reasonable hearing in his favour, but felt constrained to conclude that the  appellant was proved beyond reasonable doubt guilty  of the offence under s. 366, I. P. C. The  appellant’s  main argument was that it was  Mohini  who feeling unhappy and perhaps harassed in her parent’s  house, left it on her own 187 accord  and came to the appellant’s house for help which  he

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gave out of compassion and sympathy for the helpless girl in distress.  Mohini’s parents were, according to the  counsel, unreasonably  harsh on her on account of some. erroneous  or imaginary  suspicion which they happened to entertain  about the appellant’s attitude towards their daughter or about the relationship between the two, and that it was primarily  her parent’s  insulting  and stern behaviour towards  her  which induced her to leave her parental home.  It was contended on this  reasoning that the charge under s. 366, I.P.C. was  in the circumstances unsustainable. The legal, position with respect to an offence under s. 366, I.P.C. is not in doubt.  In State of Haryana v. Raja Ram(1), this  Court  considered  the meaning and scope  of  s.  361, I.P.C. It was said there               "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 s. 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 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  the case cited reference has been made to  some  English decisions  in which it has been stated that  forwardness  on the  part of the girl would not avail the person taking  her away  from being guilty of the offence in question and  that if by moral force a willingness is created in the girl to go away with the former, the offence would be committed  unless her  going  away  is  entirely  voluntary.   Inducement   by previous  promise  or persuasion was held in  some’  English decision  to  be  sufficient to bring the  case  within  the mischief  of the statute.  Broadly, the same seems to us  to be  the position under our law.  The expression used  in  s. 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  go9", "to escorts’ 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- (1)  A.I.R. 1973 S.C. 819.

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188 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 s. 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 s. 3 6 1, I.P.C. But if the, ’guilty  party  has laid a foundation by inducement, allurement or threat,  etc. and  if this can be considered to have influenced the  minor or  weighed: with her in leaving her guardian’s  custody  or keeping  and going to the guilty party, then prima facie  it would be, difficult for him to plead innocence on the ground that the minor had voluntarily come to him.  If he had at an earlier  stage  solicited or induced her in  any  manner  to leave her father’s protection, by conveying or indicating an encouraging suggestion that he would give her shelter,  then the  mere  circumstance that his act was not  the  immediate cause of her leaving her parental home or guardian’s custody would constitute no valid defence and would not absolve him. The ;question truly falls for determination on the facts and circumstances  of  each  case.  In the case  before  us,  we cannot  ignore the circumstances in which the appellant  and Mohini  came close to each other and the manner in which  he is  stated  to  have  given her presents  and  tried  to  be intimate  with  her.   The letters written  by  her  to  the appellant  mainly in November, 1966 (Exhibit p. 20)  and  in December, 1966 (Exhibit p. 16) and- also the letter  written by  Mohini’s  mother to the appellant  in  September,  1966 (Exhibit  p.  27)  furnish  very  important  and   essential background in which the culminating incident of January 16th and 17th, 1967 has to be examined.  These letters were taken into  consideration  by the High Court and  in  our  opinion rightly.   The suspicion entertained by Mohini’s  mother  is also, in our opinion, relevant in considering  the truth  of the  story  as narrated by the prosecutrix.  In  fact,  this letter  indicates how the mother of the girl belonging to  a comparatively poorer family felt when confronted with a rich man’s    dishonourable   behaviour   towards   her    young, impressionable, immature daughter; a man who also  suggested to  render  financial help to her husband in time  of  need. These  circumstances,  among  others,  show  that  the  main substratum  of  the  story  as revealed  by  Mohini  in  her evidence,  is probable and trustworthy and it admits  of  no reasonable   doubt  as  to  its  truthfulness.    We   have, therefore, no hesitation in holding that the conclusions  of the two courts below with respect to the offence under s.  3 66,  1.  P.C. are unexceptionable.  There is  absolutely  no ground   for   interference  under  Article   136   of   the Constitution. On the view that we have taken about the conclusions of  the two  ,courts  below on the evidence, it  is  unnecessary  to refer to all the 189 decisions cited by Shri Dhebar.  They have all proceeded  on

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their own facts.  We have enunciated the legal position  and it  is unnecessary to discuss the decisions cited.   We  may however  briefly advert to the decision in S. Varadaraja  v. State  of Madras(1), on which Shri Dhebar  placed  principal reliance,  Shri  Dhebar relied on the following  passage  at page 245 of the report :-               "It will thus be, seen that taking or enticing               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. Natarajan, 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". From this passage, Shri Dhebar tried to infer that the  case before  us  is similar to that case and,  therefore,  Mohini herself  went  to  the  appellant  and  the  appellant   had absolutely  no involvement in Mohini’s leaving her  parents’ home.  Now the relevant test laid down in the case cited  is to be found at page 248 :-               "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 circumstance 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 theft 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  participa-               tion by him in the formation of the  intention               of  the  minor to leave  the  house  of  the

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             guardian. (2)  (1965) 1 S.C.R. 243. 190               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 a  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’ ". It  is obvious that the facts and the charge with  which  we are  concerned  in the present case are not  identical  with those  in Varadarajan’s case (supra).  The  evidence-of  the constant  behaviour  of  the appellant  towards  Mohini  for several  months preceding the incident on the 16th and  17th January  1967 completely brings the case within the  passage at  S. 248 of the decision cited.  We have before  us  ample material  showing  earlier  allurements  and  even  of  the, appellant’s  participation  in  the  formation  of  Mohini’s intention  and  resolve to leave her  father’s  house.   The appellant’s conviction must, therefore, be upheld. In  so far as the question of sentence is concerned, we  are wholly  unable to find any cogent ground  for  interference. The  conduct and behaviour of the appellant in going to  the temple  and representing that Mohini was like  his  daughter merely  serves  to add to the depravity  of  the  appellants conduct,  when once we believe the evidence of  Mohini  with respect  to  the  offence under s. 366,  I.P.C.  Though  the appellant  has  been acquitted of the offence of  rape,  for which  he was also charged, we cannot shut our eyes  to  his previous improper intimacy with Mohini on various  occasions as  deposed  by her.  They were not taken  into  account  as substantive  evidence  of  rape  on  earlier  occasions  for reasons  best known to the prosecution and the charge  under s.  376, I.P.C. was not framed with respect to  the  earlier occurrences.  But the previous conduct of the appellant does clearly constitute aggravating factors.  The sentence is  in our view, already very lenient. This appeal must, therefore, fail and is dismissed. S. C.                Appeal dismissed. 191