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SUPREME COURT OF INDIA
M. Hidayatullah, S. M. Sikri & Raghuwar Dayal, JJ.
Raghunath Singh
Vs.
State of M. P.
Cr. A. No. 256 of 1964 from judgment and Order dated 30th July, 1964 of the M. P. High Court in Cr. A. No. 216 of 1964
Decided on : 10-10-1966
(2) Penal Code, 1860 - Ss. 368, 212 & 411 - words 'knowledge' and 'reason to believe' -difference.
(3) Words & Phrases - words 'knowledge' and 'reason to believe' - distinction.
The definitions of 'abduction and 'kidnapping' as contained in sections 362 and 361 of the Penal Code must be borne in mind before deciding the guilt of an accused under section 368. Section 368 speak of 'knowledge' of abduction or kidnapping.
The Indian Penal Code uses two different expressions in its different parts. Sometimes the gist of the offence is dependent on knowledge and the words 'knowing' or 'knowingly' are used to indicate that knowledge as such should be proved either by positive evidence or circumstantially before mens rea can be established. Sometimes (see for example sections 212, 411, etc), the expression 'has reason to believe' is used. The words 'knowing' or 'knowingly' are obviously more forceful than the words 'has reason to believe' because they insist on a greater decree of certitude in the mind of the person who is said to know or to do the act knowingly. It is not enough if the evidence establishes that the person has reason to suspect or even to believe that a particular state of affairs existed. When these words are used, something more than suspicion or reason for belief is required.
Before an offence under section 368 could be brought home it must be established that accused knew that the person had been kidnapped or abducted. AIR 1965 SC 942 referred to. [Para 4
Wrongful confinement, as defined in section 340 of the Indian Penal Code is only one of the ingredients of section 368, Indian Penal Code. The other ingredient of the offence is that the accused knew that the prosecutrix was kidnapped or abducted and unless this is also proved there cannot be a conviction under section 368. [Para 6
(4) Penal Code, 1860 - Ss. 342 & 343 - accused tried for offence under section 368 -knowledge of kidnapping or abduction not proved - conviction cannot be under section 368 - wrongful confinement for three nights but only two days proved - offence is under section 342 and not under section 343.
(5) Penal Code, 1860 - S. 342 - wrongful confinement for two days - wrongful confinement for three nights but only for two days - offence is under section 342.
Where the accused is tried for an offence under section 368, and the knowledge of kidnapping or abduction is not proved, and only wrongful confinement is proved, the duration of wrongful confinement is to be seen. Where it is proved that although the prosecutrix was wrongfully confined for three nights, but the confinement extended only for two days, the offence falls under section 342, Indian Penal Code and not under section 343. [Para 7
JUDGMENT
Hidayatullah, J.
1. The appellant Raghunath Singh was tried with six others for offences under Ss. 366/368 and 376 of the Indian Penal Code by the Additional Sessions Judge of Tikamgarh and was sentenced to rigorous imprisonment for ten years for the offence of rape and for five years for the other offence. The sentences were to run concurrently. On appeal to the High Court of Madhya Pradesh, his conviction and sentence for rape were set aside but his conviction under Ss. 366/368, Indian Penal Code and the sentence of five years, rigorous imprisonment passed on him were maintained. He now appeals by special leave of this Court.
2. One Mst. Parvati, daughter of Sukku was the prosecutrix in the case. Her age has been found by the High Court to be not below 16 years and not above 18 years. The prosecution case is as follows: On the night between the 3rd and 4th September, 1963, Mst. Parvati was returning at about midnight after answering a call of nature when Bharosa and Acchelal (co-accused of the present appellant) accosted her and told her that Mst. Ladkunvar, the mistress of appellant Raghunath Singh, had sent for her. Mst. Parvati at first did not wish to go but on being assured that she would be allowed to return within a short time, went with them. When she reached the house she met Raghunath Singh who was waiting for her and took her forcibly, at the point of a gun, to an upper storey in a portion of his house known as the Chakki Ghar. There she was made to take liquor against her will and thereafter was raped by Raghunath Singh. She was kept concealed in the house till the night intervening the 5th and 6th September, 1966 and then was taken to Palera by Bharosa and Acchelal. She than passed successively into the possession of the other accused in the case who in their turn, also detained her and raped her. As those persons have not appealed we are not concerned with what happened to Mst. Parvati after she left Raghunath Singh's house. At that place she was not allowed to go out of the house and even when she went out to answer the can of nature, Raghunath Singh used to mount guard so that she should not run away.
3. The learned Additional Sessions Judge believed the story of Mst. Parvati, as summarized above. The High Court differed on the question of rape and held that Mst. Parvati had consented. As a result Raghunath Singh was acquitted of that offence. The High Court, however, upheld the conviction under Ss. 366/368 holding that Mst. Parvati had been concealed or confined by Raghunath Singh knowing that she had been kidnapped or abducted. In this appeal Mr. Sanghi contends that there is no evidence to establish that Mst. Parvati was either kidnapped or abducted and further that it is not established that Raghunath Singh concealed or confined her knowing that she had been kidnapped or abducted.
4. We are not concerned with whether their is evidence to show that Mst. Parvati was kidnapped or abducted became we are satisfied that there is nothing to establish that Raghunath Singh knew that she had been kidnapped or abducted. The High Court did not believe the evidence of Mst. Parvati that she had informed Raghunath that she was brought on the pretext of meeting Ladkunvar and it is, therefore, difficult now to hold that Raghunath Singh knew that she was taken away from lawful guardianship or abducted.
"Abduction" is defined by S. 362 as follows:–
'Whoever by force compels, or by any deceiptful means induces, any person to go from any place, is said to abduct that person’.
"Kidnapping" is defined by S. 361 as taking away or enticing 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. It may be mentioned here that in S. Varadarajan Vs. The State of Madras AIR 1965 SC 942, this Court laid down that if a minor goes out of the guardiansh
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