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 victim of the offence.
According to the prosecution one Jai Narain, a resident of village Muradgarh, close to village Jor Majra, once visited the house of Narain Dass for treating his ailing sons. When the two boys were cured by Jai Narain, Narain Dass began to have great faith in him and indeed started treating 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 visiting 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 time. Leaving the prosecutrix there, Raja Ram went to bring Jai Narain, whom he brought after some time, and handing over the prosecutrix to Jai Narain Raja Ram returned to his own house.
On April 13, 1968, S. H. 0. Police Station Indri saw Jai Narain and Santosh Rani coming from the side of Dera Waswa Ram. Jai Narain was taken into custody. The prosecutrix had a jhola 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.
After investigation Jai Narain and Raja Ram were both sent up for trial, the former under Sections 366 and 376, I.P.C. and the latter under Sections 366 and 376/109. The respondent was convicted under Section 366 I.P.C. High Court acquitted respondent Raja Ram.
The evidence on record 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, 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 time 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 time. 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 Section 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 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 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 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 present case evidence establishes beyond reasonable doubt: (1) that Jai Narain had tried to become intimate with the prosecutrix and to seduce her to go and live with him and on objection 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 after some time 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.
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 question. 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 actively participated in the formation of the intention 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 distinction 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.