IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 1713 of 2002()
1. SHAJAHAN, S/O. MUSTHAFFA,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY THE
... Respondent
For Petitioner :SRI.GEORGEKUTTY MATHEW
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice R.BASANT
Dated :29/07/2010
O R D E R
R.BASANT, J
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Crl.R.P No.1713 of 2002
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Dated this the 29th day of July, 2010
O R D E R
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.
Crl.R.P No.1713 of 2002 2
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
Crl.R.P No.1713 of 2002 3
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
Crl.R.P No.1713 of 2002 4
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 station
and was restored to PW10. These findings of fact are absolutely
safe and certain from the evidence adduced. Both the trial court
and the appellate court accepted the above facts.
8. The courts below came to the conclusion evidently,
though we do not find detailed discussions on that aspect, that
the accused had taken or enticed PW11 from the lawful custody
of PW10 her father. The mother of PW11 and her father PW10
had a strained relationship and the mother of PW11 was residing
separately. PW10 had developed intimacy with an actress and
he was living with her along with his children including PW11.
The courts below appear to have come to the conclusion that
the petitioner/accused had taken or enticed PW11 out of the
keeping of PW10. The courts below appear to have come to the
further conclusion that such kidnapping was with the
contumacious intent of compelling PW11 to marry the petitioner
Crl.R.P No.1713 of 2002 5
or to have illicit sexual relationship with him. Accordingly the
courts below proceeded to pass the impugned concurrent verdict
of guilty, conviction and sentence.
9. Arguments have been advanced before us. The
learned counsel for the petitioner assails the impugned
concurrent findings primarily on the two grounds referred
above. The ingredients of Section 366 I.P.C have not, at any
rate, been established. Even the ingredients of Section 361 I.P.C
have not been established. At any rate, the sentence imposed is
excessive. These are the contentions raised by the learned
counsel for the petitioner.
10. I shall straightaway deal with the challenge against
the conviction and sentence under Section 366 I.P.C. For this
purpose, I assume that the offence of kidnapping as defined
under Section 361 I.P.C has been established. I extract Section
366 I.P.C below:
“366: Kidnapping, abducting or inducing
woman to compel her marriage etc.– Whoever
kidnaps or abducts any woman with intent that she
may be compelled, or knowing it to be likely that she
will be compelled, to marry any person against her
will, or in order that she may be forced or seduced to
illicit intercourse, or knowing it to be likely that she
will be forced or seduced to illicit intercourse, shall
be punished with imprisonment of either description
for a term which may extend to ten years, and shall
also be liable to fine; (and whoever, by means of
Crl.R.P No.1713 of 2002 6
criminal intimidation as defined in this Code or of
abuse of authority or any other method of
compulsion, induces any woman to go from any place
or any other method of compulsion, induces any
woman to go from any place with intent that she may
be, or knowing that it is likely that she will be, forced
or seduced to illicit intercourse with another person
shall be punishable as aforesaid)
(emphasis supplied)
11. In order to establish an offence under Section 366
I.P.C, it must first be established that the offence of kidnapping
under Section 361 I.P.C has been proved. It must then be shown
that such kidnapping was with the contumacious intent referred
to under Section 366 I.P.C.
12. I shall accept the case of the prosecution in toto.
There is not a semblance of material to even remotely indicate
that the intention of the petitioner was to compel PW11 to marry
him against her will. The materials available suggest clearly that
PW11 was not unwilling to marry him. She had not objected to
going with him. Her own evidence shows that prior to leaving
her father, she was assured by the accused by showing
documents that he had divorced his earlier wife and was eligible
to marry her. In these circumstances, I am unable to perceive
any indications to suggest the contumacious intent contemplated
under Section 366 I.P.C. Intention to force or compel her to
Crl.R.P No.1713 of 2002 7
marry the accused against her will or to compel or force her to
have illicit sexual relationship with him cannot be assumed or
inferred from the totality of circumstances available. The
obvious intent of PW11 and the accused was that they must get
married as desired by both of them and lead a marital life. I am,
in these circumstances, convinced that the offence under Section
366 I.P.C is not, at any rate, made out. The challenge on that
ground must necessarily succeed. The mere fact that they may
have got married and they may have thereafter engaged in
sexual relationship, with absolutely no reason to assume that
PW11 was unwilling to these courses, cannot expose the
petitioner to conviction and punishment under Section 366 I.P.C.
The challenge on this ground succeeds.
13. That takes us to the next question whether the offence
under Section 361 I.P.C has been made out. Section 361 I.P.C is
extracted below for a clear understanding of the ingredients.
Section 361 I.P.C: 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.
Crl.R.P No.1713 of 2002 8
Explanation:–The words `lawful guardian’ in this
section include any person lawfully entrusted with
the care or 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.”
(emphasis supplied)
14. It appears to me to be well settled that before the
charge of kidnapping is held to be proved, the following
ingredients must be established:
i) that PW1 is a girl below the age of 18 years;
ii) that she was in the keeping of her guardian PW10;
iii) that she had gone out of the keeping of the lawful
guardian without the consent of the guardian;
iv) the accused must have “taken or enticed” her out of
the keeping of her lawful guardian.
Except the last, all other ingredients are indisputably present in
this case. The short question is whether the accused has “taken
or enticed” PW11. That alone is the question raised for
consideration.
15. My attention has been drawn to two decisions of 3
Judge Benches of the Supreme Court on the play of the
expression “takes or entices”. They are S.Varadarajan v. State
Crl.R.P No.1713 of 2002 9
of Madras [AIR 1965 SC 942] and State of Haryana v.
Rajaram [1973 SC 819]. Both decisions are by 3 Judge Benches.
But unfortunately Rajaram (supra) (the later decision) does not
refer to the earlier 3 Bench decision in Varadarajan. My
attention has been drawn to a later 2 Judge Bench decisions of
the Supreme Court. The first is T.D.Vadgama v. State of
Gujarat [AIR 1973 SC 2313]], which decision refers to both
Varadarajan and Rajaram (supra). My attention has also been
drawn to the later 2 Judge decision in Prakash v. State of
Haryana [AIR 2004 S.C 227].
16. The purpose and object of Section 361 I.P.C appears
to be in dispute. In Varadarajan, the Supreme Court had
occasion to consider this. In Section 498 I.P.C, we find identical
expression “takes or entices” employed by the legislature. That
was of course for a totally different offence. While considering
the object of Section 361 I.P.C, the Supreme Court in
Varadarajan, took the view that the interpretation of the
expression “takes or entices” in Section 498 I.P.C cannot be
blindly and mechanically imported while considering the
interpretation of the same expression in Section 361 I.P.C. The
Supreme Court took the view that Section 498 I.P.C is meant
Crl.R.P No.1713 of 2002 10
essentially for protection of the rights of the husband, whereas
Section 361 I.P.C and other cognate sections of the I.P.C are
intended more for the protection of minors and persons of
unsound mind than the rights of the guardians of such persons.
Varadarajan had referred to the decision of the Bombay High
Court in State vs. Harbansing [AIR 1954 Bombay 339], where
it was held that “the mischief intended to be punished (by
Section 361 I.P.C) partly consists in the violation or the
infringement of the guardians’ rights to keep their wards under
their care and custody; but the more important object of this
provision is undoubtedly to afford security and protection to the
wards themselves”. Varadarajan following Harbansing
appears to take the view that both purposes are there – ie.
protection of the vulnerable minors as also protection of the
rights of the guardian; but emphasis appears to have been
located in the former reason/purpose.
17. We find discussion on this aspect in the latter 3 Judge
Bench decision in Rajaram in para.8. It is observed so by the
court.
“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 liesCrl.R.P No.1713 of 2002 11
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 words “takes or entices any
minor …………………… out of the keeping of the lawful
guardian of such minor” in S.361, are significant.
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 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 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.”
18. Later in Prakash (supra), a two Judge Bench of the
Supreme Court held that Section 361 I.P.C is designed to protect
the sacred right of the guardians with respect to their minor
wards. That Bench had observed earlier that the object of
Section 361 I.P.C, it seems, is as much to protect the minor
children from being seduced for improper purpose as to protect
the rights and privileges of guardians having the lawful custody
of their minor wards.
Crl.R.P No.1713 of 2002 12
19. Be that as it may, there can be absolutely no doubt on
the position of law that to decide whether the minor has been
“taken or enticed” 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 Section
361 I.P.C. All the decisions referred above do not lay down any
contrary position of law.
20. There is and can be difference between the
expressions “takes” and “entices” in Section 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 Section 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
Crl.R.P No.1713 of 2002 13
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.
21. It is in this context that the purpose of the statutory
provisions becomes important. Varadarajan and Rajaram
become important in this context. Protection of the rights of the
guardian and protection of the rights of the minor are not
Crl.R.P No.1713 of 2002 14
contradictory themes/purposes. They are different dimensions of
the same concept. It would be myopic to assume that the two
purposes conflict. The law assumes that in the Indian context
the true interest of the minor and the interest of the
parent/guardian concur. That is the basic plank of parental
(guardians) authority and right. 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.
22. Varadarajan (supra), according to me, does not lay
down any contrary position of law. It would be myopic to
understand Varadarajan as laying down a proposition that the
consent of a minor – even of a minor who “knows and has the
capacity to know the full import of what she is doing” and
perilously close to the Rubicon of 18 years, is relevant when she
Crl.R.P No.1713 of 2002 15
is “taken or enticed” out of the keeping of her lawful guardian.
The crucial observations appear in para.9 which I extract:
Para.9: It must, however, be borne in mind
that there is a distinction between “taking” and
allowing a minor to accompany a person. The two
expressions are not synonymous though we would
like to guard ourselves from laying down that in no
conceivable circumstances can the two be regarded
as meaning the same thing for the purposes of
S.361 of the Indian Penal Code. We would limit
ourselves to a case like the present where the minor
alleged to have been taken by the accused person
left her father’s protection knowing and having
capacity to know the full import of what she was
doing voluntarily joins the accused person. In such
a case we do not think that the accused can be said
to have taken her away from the keeping her lawful
guardian. Something more has to be shown in a
case of this kind and that is some kind of
inducement held out by the accused person or an
active participation by him in the formation of the
intention of the minor to leave the house of the
guardian.”
23. The Supreme Court in Varadarajan (supra) had come
to the positive conclusion that the minor had gone out of the
keeping of her guardian voluntarily and the accused had no role
whatsoever in such minor walking out of the keeping of her
guardian. A person who allows such a minor who is already out
of the keeping of the guardian to accompany him commits no
offence under Section 361 I.P.C. That alone is the dictum in
Varadarajan. It is no authority on the question whether consent
of a minor (even a knowledgeable minor close to 18 years) is
Crl.R.P No.1713 of 2002 16
relevant or crucial in a prosecution under Section 361 I.P.C.
Varadarajan is really authority only on the question as to when
a minor can be said to be in the “keeping” and when she can be
said to be “out of the keeping” of the lawful guardian. If it were
proved that the accused had anything to do with the minor
walking out of the keeping of the guardian, the final conclusion
in Varadarajan, I have to assume, would have been different.
24. According to the learned counsel for the petitioner,
the dictum in Varadarajan would apply squarely. This
according to him is a case where PW11 had gone out of the
custody of her father PW10 and she was later joined by the
accused. The counsel argues that, in these circumstances, the
offence under Section 361 I.P.C is not made out.
25. I am afraid the said contention cannot be accepted. In
order to understand the dictum in Varadarajan correctly one
has to carefully go through the facts of that case in detail. In
Varadarajan, a minor girl close to the Rubicon – on the verge of
attaining majority, and the accused were neighbours. Cupid
appears to have played its role and they wanted to get married.
Her father came to know of the affair and he was not willing to
accept the same. He therefore transported his daughter to the
Crl.R.P No.1713 of 2002 17
house of a friend/relative and wanted to keep her beyond the
reach and contact of the appellant. On the very next day, the
ward went away from the custody of such person. After so
coming out, she allegedly contacted the accused. The accused
later joined her and permitted her to accompany him. A careful
reading of Varadarajan conveys eloquently that the fact that
prior to her leaving the keeping of her guardian, there was no
enticing or blandishment on the side of the accused was the
factor that tilted the scales. The accused, the court found on
facts, could not have anticipated the conduct of the ward leaving
the keeping of her lawful guardian before she actually came out
of such keeping and solicited his help, support and patronage.
That is the finding of fact on which the dictum is founded. The
Courts which are to follow the dictum cannot differ on facts
which propounded the dictum, proceed to re appreciate the
facts, come to different findings and thereafter attempt to
understand the dictum.
26. But the facts of the instant case are totally different.
PW11 and the petitioner/accused were neighbours. The
petitioner/accused had secured divorce. He had attempted to
convince PW11 that he has obtained divorce. This evidently was
in an attempt to induce her to live with him. He had told her a
Crl.R.P No.1713 of 2002 18
number of times that they could leave, go somewhere else and
reside together. The positive evidence of PW11 is that 10 days’
prior to the date of such alleged kidnapping and later, a day or
two prior to the date of the offence, this was repeated to PW11.
The showing of a document to convince PW11 that the accused
had obtained divorce from PW5 was also a prior act on the part
of the accused to take, induce, allure and entice PW11 to leave
her guardian and live with him.
27. Of course, we have no positive evidence to show that
there was a specific understanding that on 30.07.1996, PW11
was asked by the accused to leave the keeping of her father. But
the fact remains that the various pieces of prior conduct
cumulatively lead to the unmistakable inference that the
petitioner/accused had prevailed upon PW11 by offering her
enticement/assurance to leave the keeping of her guardian.
After she left the keeping of her guardian, the subsequent
conduct of the indictee also confirms prior
allurement/enticement. He took PW11 in an autorickshaw driven
by PW2 for a long distance of about 22 k.m to a place called
Cheruthoni. From there, they together boarded a bus and
reached a place called Perumbavoor. In between, they spent a
long time together. PW11 left the house at about 1 p.m and they
Crl.R.P No.1713 of 2002 19
were traced at Perumbavoor at about 7 p.m.
28. In this context it will be apposite to refer to the
following passage in Varadarajan which has been referred to by
the later two Judge Bench in T.D.Vadgama v. State of Gujarat
[AIR 1973 SC 2313] to ascertain the precise distinction in the
dictum between the 3 Judge Benches in Varadarajan and
Rajaram. The dictum in Varadarajan turned on its own
peculiar facts. The learned Judge said so in paragraph 10 as
follows:
“It would, however, be sufficient if the
prosecution establishes that though immediately
prior to the minor leaving the father’s protection no
active part was played by the accused, he had at
some earlier stage solicited or persuaded the minor
to do so. In our opinion, if evidence to establish one
of those things is lacking, it would not be legitimate
to infer that the accused is guilty of taking the minor
out of the keeping of the lawful guardian merely
because after she has actually left her guardian’s
house or a house where her guardian had kept her,
joined the accused and the accused helped her in her
design not to return to her guardian’s house by
taking her along with him from place to place. No
doubt, the part played by the accused could be
regarded as facilitating the fulfillment of the
intention of the girl. That part, in our opinion, falls
short of an inducement to the minor to slip out of the
keeping of her lawful guardian and is, therefore, not
tantamount to “taking”.”
(emphasis supplied)
29. The learned counsel for the petitioner argues that
there are indications to suggest that PW11 had taken a conscious
Crl.R.P No.1713 of 2002 20
decision to leave the keeping of her father PW10. The counsel
points out the particular fact that she had left her house taking
clothes for her with her. Varadarajan (supra) cannot be
reckoned as authority for the proposition that the voluntary
consent of the minor would militate against the offence under
Section 361 I.P.C. The maturity of the minor and her ability to
comprehend her situation and react independently in
Varadarajan were taken into reckoning by the learned Judges in
Varadarajan not to hold that the minor’s consent is relevant, but
only to satisfy themselves that the minor’s conduct was
independent of any act on the part of the accused. In short their
Lordships were only considering the question whether the minor
was taken or enticed out of the keeping of the guardian by the
accused or it was a case of the minor herself going out of the
keeping of her guardian unrelated to any conduct on the part of
the accused which could be said to amount to “taking or
enticing”. It would be myopic to read the dictum in
Varadarajan to sail to the conclusion that the consent or
willingness of the minor is in any way relevant under Section 361
I.P.C.
30. It follows from the above discussions that the conduct
of the accused prior to the date of kidnapping and his conduct on
Crl.R.P No.1713 of 2002 21
the date of kidnapping in this case clearly and satisfactorily must
lead Courts to the conclusion that the minor left the keeping of
her guardian PW11 only because of the act of “taking or
enticing” on the part of the accused.
31. The above discussions lead us to the conclusion that
the offence of kidnapping defined under Section 361 I.P.C
punishable under Section 363 I.P.C is established beyond doubt.
I come to the further conclusion that the offence under Section
366 I.P.C has not been established.
32. We now come to the nature of the sentence to be
passed. R.I for a period of 4 years and fine of Rs.5,000/- is the
sentence imposed by the courts below. I take note of the fact
that there were no elements of deceit, fraud or force involved.
The indications available unmistakably suggest that the minor
had also consented to go with him and she was also willing to
marry and live with the accused. He is not shown to have
indulged in any premarital illicit sexual activity also. These may
be no defences for a charge under Section 361 I.P.C. But to
decide the quantum of punishment, certainly this aspect can be
looked into. The deterrent substantive sentence of R.I for 4
years, I am satisfied, has no penalogical purpose to achieve in a
case like the instant one. What has happened subsequently is
Crl.R.P No.1713 of 2002 22
also not without relevance. She was returned to her father on
the same evening. I take note of the elapse of time also. I am, in
these circumstances, satisfied that the imposition of a sentence
of S.I for a period of 22 days, the period of imprisonment which
the accused/revision petitioner has already undergone, and fine
of Rs.5,000/- (Rupees Five thousand only) shall meet the ends of
justice satisfactorily. The challenge on that aspect can succeed
only to the above extent.
33. In the result:
a) This revision petition is allowed in part;
b) The verdict of guilty, conviction and sentence under
Section 366 I.P.C are set aside;
c) The conviction is altered and the accused is found
guilty, convicted and sentenced under Section 363 I.P.C to
undergo S.I for a period of 22 days and to pay a fine of Rs.5,000/-
(Rupees Five thousand only) and in default to undergo S.I for a
period of one month;
d) The learned Magistrate shall execute the modified
sentence hereby imposed.
(R.BASANT, JUDGE)
rtr/-