Back
High Court Of Delhi
DIP CHAND DIPU - Appellant
Versus
STATE OF DELHI - Respondent
CRIMINAL APPEAL 24 of 1978
Decided On : 09/08/1999
Held: Mr. Thakur placed reliance on some of the leading judgments of the Supreme Court. He placed reliance on State of Haryana v. Raja Ram, AIR 1973 SC 819. In para 9 of that judgment Their Lordships observed that “there is no doubt a distinction between taking and allowing a minor to accompany a person. Thus, if the minor herself leaves her father's house without any inducement by the accused who merely allows her to accompany him. he cannot be said to have taken her out of the .keeping of her father". It is further observed in the judgment that persuasion by the accused person which creates element of willingness on the part of the girls to be taken out of the lawful guardian would be sufficient to attract the section.
Further held: On consideration of the evidence on record, it is .one of those exceptional cases where both the girls Santosh and Asha categorically stated that they had gone voluntarily. There was no promise, persuasion, inducement or allurement of any kind emanating from the appellant. On the contrary both Asha and Santosh were anxious to go for outing with the appellant. Santosh had gone to the extent of stating that in case she was not taken with them, she would commit suicide. In the instant case both these girls had in fact persuaded the accused-appellant to take them for outing. The appellant cannot be held guilty of enticing or taking away Asha and/ or Santosh. In view of the evidence on record, it is difficult to endorse the findings of the learned Additional Sessions Judge, Delhi. Accordingly, the appeal filed by the appellant is allowed and the appellant Deep Chand's conviction under Section 363, IPC is set aside and he is acquitted of this charge.
Result: Appeal allowed.
( 1 ) THIS appeal is directed against the judgment of learned Additional Sessions Judge, Delhi dated 14. 2. 1978 by which the accused appellant was convicted under Section 363 Indian Penal Code and sentenced to one year rigorous imprisonment. It may be pertinent to mention that the appeal was admitted on 15. 2. 1978 and at that time, Shri C. L. Prem, Adv, appeared for the appellant. This appeal has been on Board for quite some time and no one has appeared for the appellant. Therefore, the Court appointed Shri Naveen Thakur, Adv. , as Amicus Curiae in this case.
( 2 ) BRIEF facts which are necessary to dispose of this appeal are recapitulated as under. On 31. 7. 1976 Santosh and Asha, both were around 17 years of age, started for school but never reached the school. On search it was found that one Deep Chand @ Dipu abducted them and took them to Khurja and brought them back to Delhi. On 22. 8. 1976 both the girls were found present at the waiting room of Old Delhi Railway Station wherefrom they were recovered.
( 3 ) THE case of the prosecution is that Ajit Kumar was reported to be friendly with Santosh and he had also planned to accompany them but he left them in the company of Deep Chand, accused and never joined them. Ajit Kumar was acquitted by the trial court.
( 4 ) DEEP Chand, accused was committed to the Court of Sessions for facing the trial under Sections 366, 376 IPC. Though the accused Deep Chand was acquitted of the charges under Sections 366 and 376 IPC, he was convicted under Section 363 Indian Penal Code and sentenced to undergo one year rigorous imprisonment.
( 5 ) THE statement of both Santosh and Asha were recorded. PW-12 Asha in her statement had mentioned that she was acquainted with Deep Chand, accused and they used to meet and roam about together and she used to go out with Deep Chand on her own accord. On 31. 7. 1976 she had asked Deep Chand to take her out of Delhi for an outing. Santosh had asked Asha to take her also along with her as her father used to beat her every day and if they did not take her along with them she would commit suicide. Further case of the prosecution is that both the girls Asha and Santosh reached the Old Delhi Railway Station. There they met Ajit and Deep Chand. Ajit did not accompany them, but Deep Chand had taken the girls to Khurja and they returned on 22. 8. 1976.
( 6 ) MR. Thakur, learned counsel appearing for the accused as Amicus Curiae submitted that the trial court has erroneously convicted the appellant under Section 363 IPC. He submitted that on the basis of the evidence on record, the appellant cannot be convicted under Section 363 IPC. The punishment of Section 361 Indian Penal Code is provided under Section 363 IPC. Section 361 Indian Penal Code is reproduced as under:-
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 the lawful custody of such child, unless such act is committed for an immoral or unlawful purpose. "
( 7 ) MR. Thakur submitted that basic ingredients of the offence are absent because there is no question of any enticing or taking away of the minor girls. They had voluntarily gone to the railway station and accompanied the accused. As a matter of fact these girls persuaded the accused to take them for outing. The accused did not even go to take them from their re
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
