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High Court of Kerala
THE HONOURABLE MR. JUSTICE R. BASANT
Shajahan
Versus
State Of Kerala
Crl. Rev. Pet. No. 1713 of 2002 (A)
Decided on : 29-07-2010
Criminal Law - Criminal Trail - Indian Penal Code, 1860 - Section 361 - Offence of Kidnapping/ Abduction - Kidnapping under the lawful guardian - Allegations against petitioner/accused is that on 30.07.1996 at 1 p.m., he took or entice PW11, a minor girl at that time out of the keeping of her lawful guardian PW10 - This was allegedly done by the accused, a neighbour, aged about 25 years, who had by then secured divorce from his wife PW5. PW5 and the accused are Muslims by religion, whereas PWs. 10 and 11 are Hindus by religion - Held, There can be absolutely no doubt on the position of law that to decide whether the minor has been taken or entice out of the keeping of the lawful guardian, the consent of the minor is irrelevant. Similarly it is well settled and trite that it is not necessary that such taking or enticing of the minor out of the lawful keeping of the guardian must be by means of force, fraud or deceit. With the consent of the minor, without any element of fraud, force or deceit, the minor can be moved out of the custody of the guardian and that would perfectly answer the expression 'takes or entices' under S.361 I.P.C. - There is and can be difference between the expressions takes and entices in S.361 I.P.C. In certain cases, the meanings may overlap also. The expression "takes" may ordinarily refer to the gross physical act of taking away manually. But the expression must cover not merely the gross overt act of physically carrying away a minor. Subtle variants of the act of taking must also fall within the sweep of the expression 'takes' in S.361 I.P.C. It would be incorrect to assume that 'taking' is a culpable act which can take place only without the consent of the minor. A rule of the thumb that if the consent of the minor is there, the contumacious act of taking can never take place would be too unrealistic and impermissible. The distinction between take and "entice" cannot certainly be consent and absence of consent of the minor. Several subtle varieties of taking may take place with the consent of the minor and without the actual physical act of moving the minor. 'Enticing' a minor in language simply means luring or tempting or prompting a minor to move out of the custody of the guardian. Here also no gross physical act is necessary. Assurance given to a minor that if she comes out of the keeping of the guardian, the minor shall be protected and patronised must also necessarily fall within the range of contumacious conduct under S.361. In short to me it appears that the expressions takes and "entices" must together cover all acts by which it is ensured by the offender that the minor moves out of the keeping of the lawful guardian. To give true effect to the purpose or rationale of the penal provision in S.361 I.P.C, those expressions must be given such a comprehensive and exhaustive sweep - Consent of the minor is hence irrelevant. In a case where the true interest of the minor and the interest of the guardian conflict and the guardian acts against the interest of the minor, the expression 'takes' or 'entices' may not cover a good Samaritan who acts in the true and genuine interests of the minor and saves the child from the guardian. But except in such a rare and exceptional situation, it will have to be assumed that the right of the guardian and the true interest of the minor concur and any invasion into the right of the guardian even with the consent of the minor will have to be frowned upon by law by invoking S.361 I.P.C - Revision Petition allowed
1. Are there elements of "taking or enticing" in the facts of the case to attract culpability under Section 361 I.P.C? Under any circumstances, can the accused be attributed with contumacious intent to bring the case within the sweep of Section 366 I.P.C? These are the questions that arise for consideration in this Crl.R.P.
2. The challenge is against a concurrent verdict of guilty, conviction and sentence in a prosecution under Section 366 I.P.C. The revision petitioner/accused faces a sentence of R.I for a period of 4 years and to pay a fine of Rs.5,000/-. In default he is sentenced to undergo S.I for a period of six months.
3. The crux of the allegations against the petitioner/accused is that on 30.07.1996 at 1 p.m, he "took or enticed" PW11, a minor girl at that time (date of birth -27.06.1979), out of the keeping of her lawful guardian PW10. This was allegedly done by the accused, a neighbour, aged about 25 years, who had by then secured divorce from his wife PW5. PW5 and the accused are Muslims by religion, whereas PWs 10 and 11 are Hindus by religion.
4. A crime was registered on the basis of a complaint by PW10, the father of PW11. Investigation was completed. Final report was filed. Cognizance was taken. The accused denied the charges levelled against him. Thereupon the prosecution examined PWs 1 to 12.
5. It appears to me to be unnecessary to refer to the evidence in detail. Suffice it to say that PW1 is the father of PW5, the divorced wife of the petitioner/accused. They (Pws 1 and 5) speak only about the previous marriage and divorce. PW2 is the autorickshaw driver in whose vehicle the petitioner allegedly travelled on the relevant date along with a girl. PW2 did not specifically identify PW11 as the girl who travelled along with the petitioner/accused. PW3, a doctor was given up. PWs 4, 6, 8 and 9 are officials of the police, who had various roles to play in the registration of the crime, investigation and filing of charge sheet. PW7, a Panchayat Secretary, proved the date of birth of PW11 as entered in the Birth Register. PW10, as stated earlier, is the father of PW11. He had lodged Ext.P3(a) complaint. PW11 is the victim girl and PW12 is the father of the accused. He turned hostile to the prosecution. No defence evidence was adduced.
6. When the accused was examined under Section 313 Cr.P.C, he denied all circumstances which appeared in evidence against him. Primarily we have only the oral evidence of PWs 10 and 11, which is relevant on the crucial question. I am satisfied that the following findings of fact can safely be entered.
7. Accused and PW11 were neighbours. Accused was married to PW5. They had a child in the wedlock. Prior to the incident in this case, he had divorced PW5. The accused and PW11 used to meet each other even when the matrimony of the accused with PW5 was in force. They interacted with each other. They had such opportunities for interaction as they were neighbours. The accused stated to PW11, and showed her the document to show that his matrimony with PW5 had come to an end. Accused told PW11 that they could both go away to some other place and settle down. He stated so, a couple of times. PW11 did not reveal this to anyone else. On 30.07.1996, PW11 went away from her house carrying wearing apparel with her. She and the accused tavelled in the autorickshaw of PW2 till a place called Cheruthoni. From there, they went by bus to a place called Perumbavoor. In the meantime they had spent some time together. There is nothing to show that there was any illicit sexual inter course performed by them during this time. On the complaint of PW10 [Ext.P3(a)], Ext.P3 F.I.R has been registered. At Perumbavoor, PW12, the father of the accused, who evidently was going around in search of his son - the petitioner herein, located the petitioner/accused and PW11. The accused ran away in fear. PW11 stood there and explained the facts to PW12. PW12 informed the police. PW11 was taken to the police sta
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