N.M. Golvalker, J.
1. This is an appeal by the accused against his conviction under Section 363, I. P. C., by the Sessions Judge, Hoshangabad, in Sessions Trial No. 3 of 1960. He was also charged under Section 366, I. P. C.f but for want of evidence to substantiate that charge he was acquitted of the same.
2. Briefly stated the accused was charged for kidnapping Kumari Ivy alias Munni from the guardianship of her father Camelias alias Baboo under the following circumstances. Kumari Ivy (P. W. 1) was a resident of village Chhedka, where she lived with her father Carnelias (P. W. 2). He had his cultivation and had his house on One of his fields a couple of furlongs away from the abadi of the village. The girl had her education for some time in a village about a mile from Chhedka but since July 1959 she was taking, her education in a Missions Girls School at Khandwa where she lived with her maternal uncle, Bhaiyalal, in one of the quarters known as Tapal Chawl.
In another quarter of, the same building the accused lived. Kumari Ivy had a girl friend Kumari Amboo who also lived in another quarter in the same building where the accused used to visit. It was in the course of these visits of the accused that he became acquainted with Kumari Ivy and their friendship soon developed into intimacy to such an extent that the accused not only gave her small trinkets as presents but also got himself photographed with her. As usual when the school was closed for Divali vacation, Kumari Ivy came to her father's place to spend her vacation.
It is suggested that the accused on the mere pretext of searching his brother, who was said to have disappeared from Khandwa, came down to the village Chhedka and reached the house of Carnelias. There he made enquiries about his missing brother. Carnelias without suspecting any foul play in the visit of the accused tried to help him in search of his brother by requesting the Kotwar of the village to take the accused in the village and make further search for his missing brother.
It is then said that sometime in the afternoon on that very day the accused returned to the house of Carnelias and after drinking water left the place and proceeded towards the railway station at Sohagpur. It is suggested that during this brief halt the accused and Kumari Ivy decided upon a plan to elope and Kumari Ivy taking advantage of her father being busy in some work, left her house and followed immediately after the accused. She met him at some distance from where they proceeded together and reached Sohagpur railway station.
In the mean while Kumari Ivy's disappearance from the house having been detected a search for her was made without success. Then, suspecting that she may have gone with the accused and having learnt from one forest guard, Fundilal (P. W. 3), that he had seen the boy and the girl proceeding towards Sohagpur railway station, which fact having been further confirmed by some cartmen who had also come that way, Carnelias rushed to the railway station and found his daughter, Kumari Ivy, sitting with the accused on a bench on the platform of the station.
There was some exchange of hot words which attracted the attention of the station staff and on learning what had actually happened a report was lodged in the police station at Sohagpur and the accused was taken into custody. In the personal search pf the accused among other articles his photographs with Kumari Ivy (Articles B and C) and a letter (Article H) were seized. After investigation the accused was prosecuted and committed to stand his trial as stated in the beginning.
3. The accused denied to have committed the offence levelled against him. He pleaded that he never had any mala fide intentions towards Kumari Ivy, who was always treated by him as his sister. The presents and the photograph were given and taken as a brother would treat his sister. He asserted that his brother was in fact missing and that he had alone gone to the railway station in search of him. He denied to have taken the girl out of the keeping of her father's guardianship. On the contrary it was suggested by him that Kumari Ivy reached the station of her own accord after he had reached the place. He also disputed her age to be below 18 years.
4. The learned Sessions Judge round on the basis of the evidence on record that Kumari Ivy was not more than 16 years of age; that the accused bad taken away Kumari Ivy from the guardianship of her father Carnelias within the meaning of kidnapping, an offence punishable under Section 363, I. P. C. He accordingly convicted the accused.
5. In appeal before me it is contended that the prosecution has failed to establish the essential ingredients of the offence made punishable under Section 363, I. P. C., in the sense, that the evidence does not establish that the accused had taken away the girl within the meaning of that section. On the contrary it is urged that it unmistakably pointed to the fact that the girl had left her parent's place of her own accord and desire and with no intention to return back and hence the accused could not be convicted. No doubt the learned Sessions Judge did not find Kumari Ivy to be a truthful witness.
Nevertheless the circumstantial evidence on record did establish, according to him, that Kumari Ivy was enticed by the accused rendering him guilty of the offence with which he was charged. In the appeal before me the learned counsel for the accused-appellant was unable to satisfy me that the finding recorded by the learned Sessions Judge as to the age of the girl was in any manner perverse Or wrong. I also examined the evidence myself.
The entry in the register of births and deaths, a copy of which is on record, (Ex. P-6), conclusively established that Kumari Ivy was horn in the village Chhedka on 9-3-1945 and thus thus little over on 20th November 1959, the day she was enticed, 14 years of age. The oral testimony of other witnesses conclusively established that the entry relates to Kumari Ivy and none else.
Thus the only question that needs to be considered in this appeal is whether the accused in the circumstances on record could be held guilty of taking away the girl from out of the guardianship of her father, Carnelias. I must at once say that the prosecution evidence on record does show that the girl is not so innocent as she wants it to be believed but was definitely a consenting party to the plan of elopement that was decided upon on that fateful day.
Nevertheless the accused is not absolved at all. The question, therefore, that has to be considered is whether the accused could be held guilty if the girl wag a consenting party although she was below 18 years of age. I, therefore, proceed to examine that question. But before doing that it may be pertinently noted that the entire prosecution evidence to show how intimacy between the accused and the girl developed and how they came to be thick with each other was not seriously disputed.
6. Now series of cases in the past dealing with similar questions, as in the instant case, have sufficiently laid down that the mere fact that a minor leaves the protection of her guardian does not put her out of the guardian's keeping. If it is proved that a minor has abandoned her guardian with no intention of returning back she cannot thereafter be deemed to continue in the keeping of the guardian. What will however be deemed to be sufficient to constitute abandonment of a guardian by a minor girl must depend upon the facts of each particular case and while considering the facts in each the following principles have to be borne in mind: (In re, Abdul Azeez, AIR 1954 Mad 62 followed in Mammootty v. Stateof Kerala, AIR 1958 Kerala 4; see also DebaprosadBose v. The King, AIR 1950 Cat 406):
(a) that it is not at all necessary that the accused should always be present on the scene whenthe minor quits its home with the intention of abandoning it; R. v. Robb, (1864) 4 F and F 59.
(b) that it must be apparent that the influence of the accused has either instigated or cooperated with the inclination of the minor at the time the final step to quit home is taken or iscaused to be taken; Hossaini Methor v. Emperor, AIR 1937 Cal 460 which has been followed in Mahadeo Rama v. Emperor, AIR 1943 Bom 179.
(c) that if the girl, even if she has left the house alone, by a preconcerted plan with the accused appears to have reached the place appointed where she is later on joined by him and then thereafter both of them went off together, without even the intention of returning, yet upto the moment of her meeting with the accused, she would not be held to have absolutely renounced her father's protection; (R. v. Manktelow, (1853) 22 LJ MC 115; Lakshmidhar Mishra v. State, AIR 1957 Orissa 29).
(d) that it would make no difference that thegirl had left her house even before the accused wished her to do so, if, finding that she has left the house, he avails himself of her position to induce her to continue away from the lawful custody, provided she has left her home under the influence of his previous persuasion. If however it is shown that such a conduct is due to a merepetulent outburst in consequence either of a quarrel with her relations or because of the guardian reprimanding her for her conduct, that would be a relevant question to be considered for deciding whether her conduct was sufficient to put an end to the ties of guardianship; R. W. Valliant v. Mrs. N. Eleazer, AIR 1926 Cal 467.
(e) that even if there is evidence to show that the girl did not intend to come back but the evidence further shows that but for something which the accused consented to do and did ultimatelydo, the minor would not have, in the natural course of events, left the house of her father then there would be a sufficient 'taking'' by the accused in the eye of law for attracting the provisions of Section 363, Indian Penal Code; (Abdul Sathar v. Emperor, AIR 1928 Mad 585 followed in, AIR 1958 Kerala 4).
(f) that since the act of 'taking' is made punishable for purposes of protection of parental rights, any disposition of the girl as being oversexed or animated by a desire to have a good time or any consent or forwardness on her part are immaterial on the question of the accused's liability and the only point to be decided is whether he took or induced to come away from her lawful guardianship for the time being.
7. The learned counsel for the accused-appellant relied on the law laid down in the case reported in Bishwanath Ghosh v. The State, AIR 1957 Orissa 589 and the observations to the same effect made by Sharma J. in Ghasita v. State of M. P., Criminal Appeal No. 355 of 1959, D/- 7-10-1959 of this Court. The respective observations inthese two cases are as under:
'A minor may not be competent to give her consent to her taking, but a minor is certainly competent to leave the protection of her guardian of his or her own accord.'
'Before the accused person can be held to have removed the girl from lawful guardianship, a case has to be clearly made out that it was on account of any persuasion proceeding from the accused that the girl left her parental house. The mere fact that the girl was found in the company of the accused after she had removed herself from her father's guardianship cannot by itself suffice to form basis of an order of conviction.''
8. The aforesaid observations, in my view, have necessarily to be considered in the context of the circumstances that were available in those cases and cannot be accepted independently and divorced from them. In the case before the Calcutta High Court the facts in short were these. The girl was found missing on the 1st of May 1955 and she along with the accused were produced before the police on the 5th of May by one to whose place it was said both of them had gone together on that day. There was no evidence as to where both these two were between 1st and 5th of May, Therefore their mere association only on the 5th after a lapse of 4 days was not considered sufficient circumstance to infer that the accused had any hand in the disappearance of the girl on the 1st of May. Nevertheless their Lordships constituting the Division Bench have observed as under:
'If the petitioner and the girl had gone to the house of this witness at 5-30 P. M. on 1st of May, 1955, it might be a matter for consideration as to 'whether such association between the two so soon after her disappearance from her father's house might not be taken as constituting some evidence of the petitioner having taken her from the protection of her guardian'.' (The underlining (here into ' ') is by me).
9. Bearing in mind, therefore, the various relevant principles that have to be borne in mind as stated by me hereinbefore in para 6, the circumstances on record unmistakably point to one inference that Kumari Ivy could not have left her father's house unless there was a definite plan arrived at between her and the accused, which may have been even during the short halt of the accused at her place. The version of the accused that he had gone all alone without any idea whatsoever that the girl would follow him is absolutely a fantastic suggestion.
The evidence of the forest guard, Fundilal (Pw. 3), who is an independent witness, conclusively establishes that both the accused and the girl were seen going together towards the railway station through the forest. The accused was not known to him from before and he was duly identified in the identification parade. He is also not shown to have any cause to depose against the accused. It is also not understood how the girl could know, unless she was already informed, that the accused was proceeding to the Sohagpur railway station.
It is in evidence that for some distance the road passes through a jungle. It cannot be imagined that the girl would decide upon her ownto undertake that journey merely in the fond hope of meeting the accused. I am, therefore, quite clear that the intimacy that had developed between the two did play a considerable part in the whole affair of elopement and Kumari Ivy could not have left the house but for the instigation or co-operation or accompaniment of the accused.
It is evident from the record that as a neighbour at Khandwa he managed to worm himself intothe good graces of Kumari Ivy and he wanted thisfriendship to ripen into intimacy. The girl alsoapparently oversexed, was out for a good time butwithout adequately realising then the consequencesof her conduct. No doubt the girl now tries toput a gloss over this escapade by making herself outas the innocent victim.
But this is natural because any admission otherwise on her part would jeopardise her future. It may also be that her relations, too, are anxious to hush this unsavoury episode. If the accused had no oblique intentions in the matter he would have refused to accompany her to the railway station with a view to board a train together for Khandwa.
10. Therefore, taking stock of the whole evidence on record there leaves no manner of doubtabout the accused having committed the offencewith which he was charged and convicted. However as the girl herself was equally responsible forlanding the accused in this mess an award of sentence of 3 months' rigorous imprisonment in placeof 6 months awarded by the Sessions Judge wouldmeet the ends of justice. I, therefore, reduce thesentence awarded to the accused to 3 months'rigorous imprisonment. Excepting for this modification in reduction of the sentence, the appealotherwise stands dismissed.