S.B. Sen, J.
1. Kalia, a Bhil married the mother of Chirli, a Bhilali. Her mother died and Chirli continued to live under the guardianship, if we may say so, of Kalia, along with other children born out of the union between mother of Chirli and Ealia.
2. On 30th June 1965, in the noon, the accused-respondents Bhera and Nankia, both resident of village Akloo came armed with deadly weapons in the market of Chandpur where Chirli had gone with Kalia. They forcibly kidnapped her. Bhera gave a blow on her arm by the back of the bow, whereas Nankia who had a Palia threatened the Chaukidar Punia, who was ac. companying Kalia, when he protested.
3. After the girl was taken away a report was made. Bhera and Nankia were prosecuted for an offence under Section 366, Indian Penal Code, for kidnapping her out of de facto guardianship of Kalia with intention of compelling her to marry with Bhera.
4. The defence was that the marriage of Chirli was settled with Bhera and though the price was paid to Kalia the girl was not Bent. Bhera therefore took her away with the consent of herself and also the implied consent of Kalia. Punia Chaukidar who had an evil eye on her created all the fuss. Nankia's defence was that he had gone to (he market along with Bhera. He did not do any thing excepting going back with Bhera when the girl was taken away. He never made any attempt to help Bhera.
5. The Second Additional Sessions Judge Alirajpur before whom they were tried held that there was an implied consent of Kalia who was a de facto guardian of Chirli and therefore acquitted both of them. The State has now come up in apple.
6. There has been no dispute about the age of the girl. She has been held to be 15 years old i.e., more than 14 years of age. It has also not teen challenged that compared to her age she was developed much more. She was healthy, tall and robust. The only question that has been agitated before us is that there was no consent of Kalia. The evidence adduced by the prosecution or the defence did not show that there was any -consent implied or otherwise.
7. As the girl is minor we have to look to the definition of kidnapping. We have therefore to look to Section 361. Indian Penal Code. See Para 12th of the judgment). The 4th ingredient of this section is 'such taking or enticing must be without the consent of such guardian'. It has been argued by the learned Counsel for the respondents tint assuming that all the ingredients have been established, the prosecution his failed to establish the 4th ingredient and there, fore the acquittal is proper.
8. Now so far as Kalia is concerned he did not go even to mike a report. The incident took place in the market. It was admitted that there were a number of persona in the Bizar. Beyond making a lame protest he did not do anything. It was Pania Chowkidar who went to mike a report. Had there been no implied consent on his part he would have created a row. It was a market place and the people would have gathered and helped Kalia in rescuing Chirli. No witness has been examined from the market indicative of the situation as to how the girl was taken away.
9. It was vehemently argued by the learned Government Advocate that Kalia after all wag not a natural father and the anxiety and earnestness would not be there as that of a natural lather. It is true but his conduct also can be consistent; in remaining silent because the girl has grown up, she is a Bhilala and not a Bhil and if opportunity is to be there she can certainly be allowed to go.
10. About Punia Chaukidar the learned Government Advocate submitted he was threatened with Palia and therefore he could not do any thing instead of making protest and when he became unsuccessful he went to make a report. He is a Chaukidar. He has not performed his duty as a Chaukidar. His duty is to prevent crime. He could have raised a hue and cry. The market place is an open place and people would have gathered immediately and would have rescued the girl, it seems that Kalia, the de facto guardian was not willing to take such steps and therefore the Chaukidar had to remain silent.
11. We have not so far taken into consideration the defence evidence which has been accept by the trial Court to some extent that money was advanced to Kalia and he hw no serious objection to the taking away of the girl, though two defence witnesses differed about the actual amount paid and the time when it was paid. It is therefore clear that there were some negotiations. Besides this taking away of a girl is not rare when father makes a show of protest amongst Bhils. The prosecution has therefore failed to establish that there was no consent on the part of Kalia, a de facto guardian of Chirli.
12. We may now consider a suggestion that was made at the time of argument regarding the plea of consent. It was stated that the burden was on the accused to prove consent and as he has failed to do so, the Court shall presume the absence of such circumstance. We are afraid, this is not the correct position of law. When a person is prosecuted for an offence under Section 366, Penal Code, the prosecution must prove all the ingredients of the said section. Section 366, Penal Code, in this case is an aggravated form of Section 361 which has gat the following ingredients:-(Vide Ratanlal's Law of Crime 20th Elition, page 901).
1, Taking or enticing away a minor of a parson of unsound mind.
2. Such m nor must be under sixteen years of age, if a male, or under eighteen years of age if a female.
3. The taking or enticing must be out of the keeping of the lawful guardian of such minor or parson of unsound mind.
4. Such taking or enticing must be without the consent of such guardian.
The prosecution has to establish tie fourth ingredient which it has failed to establish.
13. The above argument was advanced on tba basis of Section 105 of the Indian Evidence Act which says:
When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case wit bin any of the general exception in the (Indian) Penal Code, or within any special exception or promo contained in any other part of the same Code or in any law defining the offence is upon him and the Court shall presume the absence of such circumstances.
It will be clear from the reading of the section that when the accused pleads any general exception, special exception or proviso, he has to establish the same. The General Exception comes under Chapter IV of the Penal Code. This is not a case of General Exception. When the offence itself is defined, each and every part constituting the offence has to be established. Special exception or proviso has to be established by a person who pleads the same. Want of consent does not come under a special exception or a proviso. Therefore, Section 105 of the Evidence Ace is not applicable in the present case The prosecution has miserably failed to establish want of consent in this case. The acquittal of the respondents is therefore proper.
14. The result is the appeal is dismissed.