JUDGMENT
Arun B. Saharya, J.
(1) This appeal was filed by Raghbir Singh and Bhuro against their conviction and sentence under Section 376 and Section 366, Indian Penal Code respectively by a judgment and order dated 21st of October 1976 of Shri Joginder Nath, Additional District and Sessions Judge, Delhi. During the pendency of the appeal, Raghbir died on 8th of October 1982. So, the appeal survives only in respect of Bhuro I would, therefore, deal with such facts as may have a bearing upon Bhuro’s case.
(2) On 24th of May 1971 at 9.25 p.m.. Asha Ram Public Witness -2 reported to the police station Rajinder Nagar, that while he and his wife were away to work, their minor daughter Urmila, aged about 15 years, went out to the jungle at about 1.30 pm. to ease herself. From there, without his consent, she was enticed away by the Raghbir. who was living in the neighborhood. He and his wife Kirpa Devi, Public Witness 5 learnt about this from some ladies living near-by. They searched for Urmila, but could not find her. On this information. Fir Fx Public Witness -D/A was registered against Raghbir under section 363, Indian Penal Code Ultimately. Urmila and Raghbir were spotted at Meerut and were brought to Delhi on 28th of May 1971.
(3) According to the prosecution, accused Bhuro met Urmila on the way when she was returning home. She took Urmila inside a hut (in common parlance called a jhuggi). Ragbir was already there. Bhuro went out. Raghbir overpowered Urmila. She raised hue and cry. Raghbir flashed out a knife, threatened to kil her, gagged her and committed sexual intercourse without her consent. Then, at the point of the knife, he brought her out of the jhuggi, stopped a scooter-rickshaw and forced her to sit in it. He took her to his uncle’s shop at Connaught Place, borrowed Rs.10.00 from him and then proceeded to Kashmere Gate Bus Stand. From there, he 073 carried her off by bus to Meerut. At Meerut, he took her to the house of his father’s sister. He told his ‘bhua’ that Urmila was his cousin sister and and that they had come after taking a dip in river Ganges. Next morning he took her to his sister’s house, and on the next day to the house of his second sister. At each place,at night, Raghbir threatened Urmila with the knife and raped her. From Meerut, Raghbir brought Urmila to the house of his maternal uncle at Delhi. Malkhan, father of Raghbir, and two other persons came there. Urmila bagged of them to take her to her home. Malkhan told her to stay-put. They discussed about solemnization of their marriage in Court. After this discussion, Malkhan gave Rs.150.00 to Raghbir He brought her to Paharganj Railway Station. They spent the night out there. Next morning, they boarded a train and returned to Meerut, Further, according to the prosecution, Kanhaya Lal Public Witness 3, Uday Bhan P.W. 10 and Harpai, who also were residing in the neighborhood, knew Urmila was missing. They came to know that she had come to Sat Nagar in Delhi. They went there to look for her and learns that Raghbir and Urmila had left for Meerut. So they also rushed to Meerut. There they spotted the two of them going together in a cycle-rickshaw towards the Courts. They persuaded the due to accompany them to Delhi on the pretext that they would ask Urmila’s father to marry her to Raghbir. At Delhi, they reached Rajinder Nagar police station. Asha Ram was called. He took away Urmila. Raghbir was arrested.
(4) Raghbir, his father Malkhan, and Bhuro were prosecuted. Raghbir was charged under Section 376, Indian Penal Code for raping Urmila. Malkhan and Bhuro were charged under Section 366, Indian Penal Code for kidnapping her with intent or knowledge that she may be forced or seduced to have illicit intercourse with Raghbir.
(5) The trial Court acquitted Malkhan. The Court convicted Raghbir and Bhuro on the charges against them, and sentenced them to undergo rigorous imprisonment for two years and one year respectively.
(6) In the impugned judgment the trial Court has narrated the first part of the episode as under :- “URMILADevi, prosecutrix. in the month of May 1971 was residing with her parents at Ambedkar Nagar, New Rajinder Nagar. She knew Raghbir Singh accused He was residing in the same Mohalla. Accused Bhuro and Malkhan Singh we residing in her neighborhood. On 24-5-71 at about 1-30 P.M Urmila Devi was going to her house after easing herself. Bhuro accused met her on her way. She took her to a jhuggi other accomplice Raghbir Singh accused. There Raghbir Singh accused committed rape upon her alter showing a knife to her. When she tried to raise an alarm she was threatened to death”
(7) One of the pleas takes in defense on behalf of the accused was that the prosecutrix was major and that she was a willing party to all that happened. On the first aspect, the trial Court noticed the ossification test report Ex Public Witness -7/B which indicated 073 that she was between 17 and 18 years of age. On the basis of the birth register, however, the court held that she was born on 25th of February, 1956 and that on the day of occurrence she was below the age of 16 years.
(8) The trial Court, after discussing the evidence on record, came to the conclusion that it could not be said that there was use of any force in the part played by Bhuro and even Raghbir; and that Urmila’s conduct suggested that she was a willing party to it all. But, as the prosecutrix was a minor at the time of accurrence.it held that her consent was immaterial, and that Raghbir was guilty under Section 376, Indian Penal Code No doubt, in these circumstances, the case against Raghbir squarely falls under the VIth description under Section 375, IPC.
(9) Now, we are concerned only with the case against Bhuro. For this purpose, it would be necessary to advert to paragraph 18 and a part of paragraph 22 of the impugned judgment. The text thereof is set out below : “18. Though from the testimony of the prosecutrix the element of force in her taking by Bhuro accused and in the commission of rape upon her by Raghbir Singh accused cannot be taken to be there and her not raising an alarm at any stage would suggest her consent, but this would not take out these accused from the clutches of the offences charged, as the prosecutrix was minor under the age of 16 years at the time of occurrence and this being so her consent would be immaterial.” “22. …The prosecutrix implicated Bhuro accused as according to her she had initially taken her and brought her a jhuggi where she was raped by Raghbir Singh accused after she had made her exit from there.”
(10) Learned counsel for the appellant has contended .that no case is made out against Bhuro under Section 366, Indian Penal Code According to him, the trial Court proceeded on a misconceived assumption that Bhuro had taken Urmila ‘to a jhuggi or her accomplice Raghbir Singh accused”. Further, he has asserted that there is no evidence on record to show use of force, profile or inducement in any form by Bhuro, to constitute ‘kidnapping’, and, much less, to show that she did so with intent or knowledge that Urmila would be forced or seduced to have illicit intercourse with Raghbir. Against this, learned counsel for the State has urged that the charge against Bhuro has been established as it has been proved that she had taken Urmila inside a secluded jhuggi, where Raghbir was present; and that she left Urmila in the exclusive control of Raghbir. who ravished her.
(11) Section 361, Indian Penal Code applies when a person takes or entices any minor out of the keeping of the awful guardian of such minor without the consent of the guardian. If these ingredients are fulfillled, the accused is said to kidnap the minor. In a case under Section 366, Indian Penal Code, it must be established that the accused did so knowing it to be likely that she would be forced or se 073 duced to illicit intercourse,
(12) In the Fir, no allegation was made against Bhuro. It was alleged that Raghbir had taken and enticed away Urmila, and that several women living in the neighborhood saw this. No role at all was attributed to her. At the trial also, except Public Witnesse6 Urmila herself, no ore said a word involving Bhuro. So, we have the statement of only the prosecutrix to go-by.
(13) Public Witness 6 Urmila’s statement was recorded in vernacular (Urdu) and was also typed out in English language. Since a doubt was cast on the correctness of the English translation, her statement in vernacular also has been read. In her examination-in-chief, she said that she was going towards her house, Bhuro called her. She took her inside a jhuggi. In the jhuggi, Raghbir was present. Bhuro then went away and Raghbir gagged and raped her. In cross-examination, with regard to the jhuggi, she explained : The first jhuggi of Bhuro accused had burnt and it was the second jhuggi in which she was residing. The rape was committed in the jhuggi which was burnt The jhuggi where Bhuro was residing adjoins that jhuggi. Only the roof of the jhuggi had been burnt.”
(14) From the above statement of Urmila, it appear that the alleged act was committed inside Bhuro’s burnt jhuggi. It was not the jhuggi “of her accomplice Raghbir Singh accused” as mistaken by she trial Court. Thus, it is obvious that the trial Court viewed the case against Bhuro on this erroneous assumption.
(15) The law with regard to the relevant ingredients necessary to teat applicability of Section 366, Indian Penal Code to the present case clearly emerges on a conspectus of a series of three judgments of the Supreme Court, namely, S. Varadarajan v. State of Madras, , State of Haryana v. Raja Ram and Thakorlal D. Vadgamav. The State of Gujarat. .
(16) In the case of S. Vardharajan. to explain the notion of kidnapping, Madholkar, J. pointed out that it must be borne in mind that there is a distinction between taking and allowing is a minor to accompany a person. Whether the minor alleged to have been taken by the accused person leaves her guardian’s protection knowing and having capacity to know the full import of what she was doing voluntarily joins the accused person, the accused cannot be said to have taken her away from the keeping of her lawful guardian. Something more has to be shown in a case of this kind and that is some kind of inducement held by the accused person or an active participation by that person in the formation of the intention of the minor to leave the house of the guardian.
(17) In the case of Raja Ram, it was established on the record that the prosecutrix had been solicited and persuaded by the accused to leave her father’s house. With regard to kidnapping, in view of Section 361, Ipc, Dua, J. observed: “ON plain reading of this section the 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 musi 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.”
(18) In Thakoral D. Vadgama case, these ingredients of Section 361 cropped up turn consideration in the context of Section 366, Indian Penal Code Again, Dua, J. expressed the view of the Court in in the following terms;- “…THEexpression used in Section 361 Indian Penal Code is “whoever takes or entices any minor”. The word “takes” does not necessarily connote taking by force and it is not confined only to use of force, actual or constructive. This word merely means, “to cause to go” “to escort” or “to get into possession”. No doubt it does mean physical taking, but not necessarily by use of force or fraud. The word “entice” seems to involve the idea of inducement or allurement by giving rise to hope or desire in the other. This can take many Forms, difficult to visualise and describe exhaustively; some of them may be quite subtle, depending for their success on the mental state of the person at the time when the inducement is intended to operate This may work immediately or it may create continuous and gradual but imperceptible impression culminating after some time, in achieving its ultimate pur poses of successful inducement. The two words “takes” and “entices”, as used in Section 361. Indian Penal Code are, in our opinion, intended to be read together so that each takes to some extent its colour and content from the other…”
(19) Learned counsel for the State has tried to support the impugned judgment on the basis of Kamakhya Prasad Agarwalla and others v. The State, A.I.R. 1957 Ass 39. He has relied upon the following observation made in that case: It has further been held in several cases that where a minor girl is kidnapped, and later an it is found that the accused had illicit intercourse with her, the accused is liable to be punished under Section 366, IPC. In the present case, according to him, it has been found that Bhuro had taken the 15 years old prosecutrix into a secluded jhuggi, that she left the minor there at the mercy of Raghbir; and that eventually Raghbir raped her. Therefore, he has argued, that a case of kidnapping Urmila has been established against Bhuro; and further that it must be presumed that she did so knowing it to be likely that the minor would be forced or seduced to illicit intercourse by Raghbir. The stand taken by the learned counsel is fallacious. It is neither sustainable on the evidence on record nor in law.
(20) The above-quoted observation made in the case of Kamakhya Prasad Agarwalla is wholly inapplicable to the present case. In that case, it was found that the four accused persons had dragged and carried away two minor girls by show of force and that they also ravished them. On these facts, there could be no doubt that the accused had kidnapped the girls with the intent that they may be forced to illicit intercourse and were punishable under Section 366 as well as Section 376. Indian Penal Code But no such inference can be drawn where one person is accused of kidnapping so as to be culpable under Section 366, and another of committing rape convictable under Section 376 IPC.
(21) In the present case. we are concerned with the intention and knowledge of Bhuro. The element of force has been ruled out by the trial Court itself. Not a word has been said by Urmila to suggest that Bhuro held out any inducement or allurement, or said or did anything to pursuade, or that she influenced Urmila, in any form, so as to cause her to leave the house of her guardian; or that she did so with the intention or knowledge that Urmila was likely to be forced or seduced to the acts that followed after she left the jhuggi. There is no evidence at all on record to indicate any pro-concept between Bhuro and Raghbir. The prosecutrix and Raghbir were living in the same locality. They were known to each other No go between was required to bring them together. It is not even the prosecution’s case that Bhuro played this role Assuming every word said by Public Witness . 6 to be correct, yet her testimony makes out no case against Bhuro under Section 366, Indian Penal Code What she said, falls short of the culpable act of taking or enticing the minor in the sense explained by the Supreme Court in the above-mentioned decisions to constitute kidnapping, and much less to establish the requisite intention or knowledge or the specific object to attract Section 366, IPC.
(22) Although the trial Court has held, on the basis of birth record entry Ex. Public Witness 12/H, that the age of the prosecutrix was below 16 years, yet the ossification test report Ex. Public Witness -7/B shows that she had a fairly well-formed and developed body as that of a girl around 18 years old. Keeping in mind the willful participation of the prosecutrix in the high jinks for four days. knowing and having the capacity to know the full import of what she was doing, it appears that she had voluntarily joined Raghbir. In these circumstances, it cannot be said that she was taken in or was enticed by Bhuru to do what she did.
(23) There is nothing on record to indicate that the jhuggi in which the real act was committed was at a secluded place. On the contrary, the Fir as well as the testimony of Public Witness 3, Public Witness 9 and Public Witness 10, apart from that of Public Witness 2. Public Witness 5 and Public Witness 6, shows that all of them were living in jhuggis in the neighborhood. The fact that Bhuro left after Urmila came into the jhuggi also cannot be viewed in the way suggested by learned counsel for the State. There is not even an iota of evidence on record to show that Bhuro knew or could know in advance of what Raghbir and Urmila eventually did with each other, much less that Urmila would be forced or seduced to do so. It would be too much to assume that 073 when a young boy and gill get together, they would pander to illicit intercourse. In the ordinary course of human conduct, in the absence of proof, such a perverse thought cannot be entertained, much less to punish any one in the realm of criminal law. Indeed, finding of the trial Court itself that Urmila voluntarily participated in the frolic with Raghbir chops of the case of the prosecution against Bhuro.
(24) In the facts and circumstances of the present case, Bhuro cannot be penalised for the elopement of Urmila with a Raghbir.
(25) As a result, the impugned judgment, in respect of Bhuro, and her conviction and sentence under Section 366, Indian Penal Code are set aside She is hereby acquitted. Tue bond furnished by her is cancelled.
(26) Accordingly, the appeal is allowed. No coats.