Case – State of Haryana v Raja Ram 1973

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I.D. DUA, J.– In this appeal by special leave the State of Haryana has assailed the judgment of a learned single Judge of the High Court of Punjab and Haryana at Chandigarh acquing the respondent Raja Ram on appeal from his convicon by the Addional Sessions Judge, Karnal, under Secon 366, I.P.C. and sentence of rigorous imprisonment of 1 year with fine of Rs 50 and in default rigorous imprisonment for two months.

2. Santosh Rani, the prosecutrix, aged about 14 years, daughter of one Narain Dass, a resident of village Jor Majra, in the district of Karnal was the vicm of the offence. According to the prosecuon story one Jai Narain, a resident of village Muradgarh, close to the village Jor Majra, once visited the house of Narain Dass for treang his ailing sons, Subhas Chander and Jagjit Singh. When the two boys were cured by Jai Narain, Narain Dass began to have great faith in him and indeed started treang him as his Guru. Jai Narain started paying frequent visits to Narain Dass’s house and apparently began to cast an evil eye on the prosecutrix. He persuaded her to accompany him by inducing her to believe that though she was made to work in her parent’s house she was not even given proper food and clothes by her parents who were poor. He promised to keep her like a queen, having nice clothes to wear, good food to eat and also a servant at her disposal. On one occasion Narain Dass happened to see Jai Narain talking to the prosecutrix and felt suspicious with the result that he requested Jai Narain not to visit his house any more. He also reprimanded his daughter and directed her not to be free with Jai Narain. Having been prohibited from vising Narain Dass’s house Jai Narain started sending messages to the prosecutrix through Raja Ram respondent who is a jheewar and has his house about 5 or 6 karams away from that of Narain Dass. As desired by Jai Narain, Raja Ram persuaded the prosecutrix to go with him to the house of Jai Narain. On April 4, 1968, Raja Ram contacted the prosecutrix for the purpose of accompanying him to Jai Narain’s house. Raja Ram’s daughter Sona by name, who apparently was somewhat friendly with the prosecutrix, went to the latter’s house and conveyed a message that she (prosecutrix) should come to the house of Raja Ram at midnight. The prosecutrix, as desired, went to Raja Ram’s house on the night between April 4 and 5, 1968, when Raja Ram took her to Bhishamwala well. Jai Narain was not present at the well at that me. Leaving the prosecutrix there, Raja Ram went to bring Jai Narain, whom he brought aer some me, and handing over the prosecutrix to Jai Narain Raja Ram returned to his own house. On the fateful night it appears that Narain Dass was not in the village, having gone to Karnal and his wife was sleeping in the kitchen. The prosecutrix, along with her two younger sisters was sleeping in the court-yard; her elder brother (who was the eldest child) was in the field. It was in these circumstances that the prosecutrix had gone to the house of Raja Ram from where she was taken to Bhishamwala well.

3. On the following morning, when Abinash Kumar, who is also somemes described as Abinash Chandra Singh, brother of prosecutrix, returned from the field to feed the cale, the prosecutrix was found missing from her bed. Abinash had returned to the house at about 4 a.m., He woke up his mother and enquired about Santosh Rani’s whereabouts. The mother replied that the prosecutrix might have gone to ease herself. Aer waing for about half an hour Abinash Kumar went to his grandfather who used to reside in a separate adjoining house and informed him about this fact. Aer having searched for her unsuccessfully, Abinash went to Karnal to inform his father about it. The father and the son returned from Karnal by about 10 a.m. The search went on ll aernoon but the prosecutrix was not found. The father, aer having failed in his search for the missing daughter, lodged the first informaon report (Ex. P. W. 1/3) with the officer in charge of the Police Staon, Indri. “Confirmed suspicion” was cast in this report on Jai Narain Bawa Mo Ram, resident of Sambli, who was stated to be a bad character and absent from the village. It was added in the F. I. R. that about 5 or 6 months earlier Narain Dass had prevented Jai Narain from vising the former’s house as a result of which the latter had held out a threat to the former. On April 13, 1968, at about 7 a.m. Ram Shah, S. H. 0., Police Staon Indri, along with three other persons and Narain Dass, saw Jai Narain and Santosh Rani coming from the side of Dera Waswa Ram. As they reached near Dera Ganga Singh, Narain Dass idenfied his daughter and Jai Narain, accused, was taken into custody. The prosecutrix had a jhola (Ex. P- 16) which contained one suit and a shawl and two chunis which were taken into possession. The salwar of the prosecutrix appeared to have on it stains of semen.

4. Aer invesgaon Jai Narain, aged 32 years and Raja Ram, the respondent, were both sent up for trial, the former under Secons 366 and 376, I.P.C. and the laer under Secons 366 and 376/109, I.P.C. They were both commied to the Court of Sessions. The learned Second Addional Sessions Judge, Karnal, who tried them, convicted Jai Narain alias Bawa under Secon 376, I.P.C. and sentenced him to rigorous imprisonment for six years and fine of Rs. 500 or in default to further rigorous imprisonment for six months. The respondent was convicted under Secon 366, I.P.C. and sentenced to rigorous imprisonment for 1 year and fine of Rs. 50 or in default to rigorous imprisonment for 9 months, Jai Narain was acquied of the charge under Secon 366, I.P.C. and the respondent of the charge under Secons 376/109, I.P.C.

5. Both the convicts appealed to the High Court of Punjab and Haryana. A learned single Judge of that Court dismissed the appeal of Jai Narain maintaining his convicon and sentence but acquied the respondent Raja Ram of the charge under Secon 366, I. P. C. It is against the order of the respondent’s acquittal that the State of Haryana has appealed to this Court.

6. It appears that the respondent had not entered appearance in this Court within. 30 days of the service on him of the noce of judgement of the peon of appeal. He applied for condonaon of the delay though according to him no such applicaon was necessary. The permission to enter appearance was granted by this Court at the me of the hearing.

7. In the High Court Shri K. S. Keer, the learned counsel appearing for Raja Ram contended that even if the case of the prosecuon as made out from the evidence of the prosecutrix herself as supported by the tesmony of her father Narain Dass her mother Tarawan and her brother Abinash Kumar is admied to be correct, no offence could be said to have been commied by Raja Ram under Secon 366, IPC. Apparently it was this argument which prevailed with the High Court. The learned, single Judge, aer briefly stang the facts on which the prosecuon charge was founded accepted the only contenon raised before him, expressing himself thus:
The queson which arises is whether in the face of these facts stated by the prosecutrix Raja Ram could be held to be guilty of offence under Secon 366, Indian Penal Code. In order that an accused person may be guilty of offence under Secon 366, Indian Penal Code, prosecuon has to show that the woman was kidnapped or abducted in order that she might be forced or seduced to illicit intercourse or knowing it to be likely that she would be so forced or seduced. In other words, the prosecuon must show that there was either kidnapping or abducon. Secon 361, Indian Penal Code which defines ‘kidnapping’ says that when any person takes or ences any minor under the age of 18 if a female out of the keeping of lawful guardianship of such minor without the consent of such guardian, commits kidnapping. The girl le the house of her father at midnight of her free will. Raja Ram, appellant, did not go to her house to persuade her and to bring her from there. She chose the dead of night when other members of the family were, according to her own statement, fast asleep. Soon aer reaching the house of Raja Ram, who she says was waing for her and that suggests that she had on her visit during the day so seled with him, that she agreed to accompany him to Bhishamwala well. These facts leave no doubt that she was neither enced nor taken by Raja Ram from the lawful guardianship of her parents. She has herself chosen to accompany Raja Ram and to be with Jai Narain, appellant. It could not be said that the girl went with Raja Ram either by use of force or an account of any kind of persuasion on the part of Raja Ram. Under the circumstances, it could not be held that the girl had been taken or seduced from the custody of her parents. The girl reached at that odd hour to carry into effect her own wish of being in the company of Jai Narain, appellant. In view of these facts, it could not be held that Raja Ram was guilty of the act of either taking away the girl or seducing her out of the keeping of her parents. The word ‘take’ implies want of wish and absence of desire of the person taken. Once the act of going on the part of the girl is voluntary and conformable to her own wishes and the conduct of the girl leaves no doubt that it is so. Raja Ram appellant could not be held to have either taken or seduced the girl. The learned single Judge also excluded the offence of abducon by observing that Raja Ram had neither compelled the prosecutrix by force nor had he adopted any deceiul means to ence her to go from her house to that of Jai Narain.

8. The approach and reasoning of the learned single Judge quite manifestly insupportable both on facts and in law. It clearly ignores important evidence on the record which establishes beyond doubt that the prosecutrix had been solicited and persuaded by Raja Ram to leave her father’s house for being taken to the Bhishamwala well. Indeed, earlier in his judgment the learned single Judge has himself observed that according to the statement of the prosecutrix, on receipt of Raja Ram’s message as conveyed through his daughter Sona, she contacted Raja Ram during day me in his house and agreed with him that she (prosecutrix) would accompany him (Raja Ram) to go to Bhishamwala well at midnight to meet Jai Narain, as the other members of her family would be sleeping at that me. If, according to the learned single Judge, it was in this background that the prosecutrix had left her father’s house at midnight and had gone to the house of Raja Ram from where she accompanied Raja Ram to the Bhishamwala well, it is difficult to appreciate how Raja Ram could be absolved of his complicity in taking the prosecutrix out of the keeping of her father, her lawful guardian, without his consent. It was in our opinion, not at all necessary for Raja Ram, himself to go to the house of the prosecutrix at midnight to bring her from there. Nor does the fact that the prosecutrix had agreed to accompany Raj Ram to Bhishamwala well take the case out of the purview of the offence of kidnapping from lawful guardianship as contemplated by Secon 361, I.P.C. This is not a case of merely allowing the prosecutrix to accompany Raja Ram without any inducement whatsoever on his part from her house to Bhishamwala well.
The object of this secon 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 encing of a minor under the ages specified in this secon, 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 appears to be compatible with the independence of action and movement in the minor, the guardian’s protecon and control of the minor being available, whenever necessity arises. On plain reading of this secon the consent of the minor who is taken or enced 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 encing 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 aract the secon.

9. In the present case the evidence of the prosecutrix as corroborated by the evidence of Narain Dass, P.W. 1 (her father), Abinash Chander P.W. 3 (her brother) and Smt Tarawan P.W. 4 (her mother) convincingly establishes beyond reasonable doubt: (1) that Jai Narain had tried to become inmate with the prosecutrix and to seduce her to go and live with him and on objecon having been raised by her father who asked Jai Narain not to visit his house, Jai Narain started sending message to the prosecutrix through Raja Ram, respondent; (2) that Raja Ram, respondent, had been asking the prosecutrix to be ready to accompany Jai Narain; (3) that at about 12 noon on April 4, Raja Ram went to see the prosecutrix at her house and asked her to visit his house when he would convey Jai Narain’s message to her; (4) that on the same day aer some me Sona was sent by her father to the house of the prosecutrix to fetch her to his house where the prosecutrix was informed that Jai Narain would come that night and would take the prosecutrix away and (5) that Raja Ram accordingly asked the prosecutrix to visit his house at about midnight so that she may be entrusted to Jai Narain. This evidence was believed by the learned Addional Sessions Judge who convicted the respondent, as already noced. The learned single Judge also did not disbelieve her statement. Indeed, in the High Court the learned counsel for Raja Ram had proceeded on the assumpon that the evidence of the prosecutrix is acceptable, the argument being that even accepng her statement to be correct no offence was made out against Raja Ram. Once the evidence of the prosecutrix is accepted, in our opinion, Raja Ram cannot escape conviction for the offence of kidnapping her from her father’s lawful guardianship. It was not at all necessary for Raja Ram to have himself gone to the house of the prosecutrix to bring her from there on the midnight in queson. It was sufficient if he had earlier been soliciting or persuading her to leave her father’s house to go with him to Jai Narain. It is fully established on the record that he had been conveying messages from Jai Narain to the prosecutrix and had himself been persuading her to accompany him to Jai Narain’s place where he would hand her over to him. Indisputably the last message was conveyed by him to the prosecutrix when she was brought by his daughter Sona from her own house to his and it was pursuant to this message that the prosecutrix decided to leave her father’s house on the midnight in question for going to Raja Ram’s house for the purpose of being taken to Jai Narain’s place. On these facts it is difficult to hold that Raja Ram was not guilty of taking or enticing the prosecutrix out of the keeping of her father’s lawful guardianship. Raja Ram’s action was the proximate cause of the prosecutrix going out of the keeping of her father and indeed but for Raja Ram’s persuasive offer to take her to Jai Narain the prosecutrix would not have gone out of the keeping of her father who was her lawful guardian, as she actually did. Raja Ram acvely parcipated in the formaon of the intenon of the prosecutrix to leave her father’s house. The fact that the prosecutrix was easily persuaded to go with Raja Ram would not prevent him from being guilty of the offence of kidnapping her. Her consent or willingness to accompany Raja Ram would be immaterial and it would be equally so even if the proposal to go with Raja Ram had emanated from her. There is no doubt a disncon between taking and allowing a minor to accompany a person but the present is not a case of the prosecutrix herself leaving her father’s house without any inducement by Raja Ram who merely allowed her to accompany him.

10. On behalf of the appellant state our aenon was drawn to some of the English decisions for the purpose of illustrang the scope of the protecon of minor children and of the sacred right of their parents and guardians to the possession of minor children under the English Law. The learned counsel cited Reg. v. Job Timmmis [169 ER 1260]; Reg. v. Handley [175 ER 890] and Reg. v. Robb [176 ER 466]. In the first case Job Timmis was convicted of an indictment framed upon 9 Geo. IV, Clause 31, Secon 20 for taking an unmarried girl under sixteen out of the possession of her father, and against his will. It was observed by Erie, C. J. that the statute was passed for the protecon of parents and for prevenng unmarried girls from being taken out of possession of their parents against their will. Liming the judgment to the facts of that case it was said that no decepon 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 queson. The second decision is authority for the view that in order to constute an offence under 9 Geo. IV, Clause 31, Secon 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 enrely voluntary, no offence is commied. The last case was of a convicon under the Statute (24 & 25 Vict. Clause 100, Secon 55). There inducement by previous promise or persuasion was held sufficient to bring the case within the mischief of the Statute. In the English Statutes the expression used was “take out of the possession” and not “out of the keeping” as used in Section 361, I. P. C. But that expression was construed in the English decisions not to require actual manual possession. It was enough if at the me of the taking the girl connued under the care, charge and control of the parent: see Reg. v. Manketelow [6 Cox Crim. Cases 43]. These decisions only serve to confirm our view that Secon 361 is designed also to protect the sacred right of the guardians with respect to their minor wards.

11. On behalf of the respondent it was contended us a last resort that this Court should be slow to interfere with the conclusions of the High Court on appeal from an order of acquial and drew our aenon to an unreported decision of this Court in Shanranjan Majumdar v. Abhovananda Brahmachari. The decision cited was given by this Court on appeal by the complainant. In any event it was observed there that the complainant appellant had not been able to sasfy the court that any grave miscarriage of jusce had been caused with the result that he could not be permied to urge grounds other than those which are fit to be urged at the me of obtaining special leave to appeal. The decision of the High Court there could not “even remotely be characterised as unreasonable”, to use the language of this Court,-though it might have been possible to take the view that the circumstances found by the High Court were not adequate for enabling it to set aside the verdict of the jury and examine the evidence for itself. In the present case the acquial by the High Court is clearly erroneous both on facts and in law and keeping in view the nature of the offence commied we consider that there is clearly failure of jusce jusfying interference by this Court under Arcle 136 of the Constuon. The result is that the appeal is allowed and seng aside the order of the High Court acquing Raja Ram, respondent, we restore the order of the Second Sessions Judge affirming both the convicon and sentence as imposed by the trial court. Raja Ram, respondent should surrender to his bail bond to serve out the sentence.