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Kartara Alias Kartar Singh Vs. the State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtPunjab and Haryana High Court
Decided On
Case NumberCriminal Appeal No. 628 to 1956
Judge
Reported inAIR1958P& H323; 1958CriLJ1097
ActsIndian Penal Code (IPC), 1860 - Sections 366
AppellantKartara Alias Kartar Singh
RespondentThe State
Appellant Advocate M.S. Gujral, Adv.
Respondent Advocate K.L. Jagga, Adv.-General
Cases ReferredManicha Chetty v. Emperor
Excerpt:
.....of the learned counsel for the accused-appellant were well-founded, the case would certainly fall under section 363 read with section 361 in which case also the maximum sentence that can be awarded is seven years. to the various acts of sexual intercourse 'hat took place she appears not to have been an unwillingparty and such resistance, if any, as she might have offered seems to have been overcome by the accused......but according to her statement she rejected his amorous advances.she then stated that he committed sexual intercourse with her against her wishes. she tried to raise alarm but he gagged her mouth with a piece of cloth. after committing rape on her, he repeated his overtures that she should elope with him, but she declined to do so. this part of the story regarding rape on her and refusal on her part to go with him has been rightly disbelieved by the learned sessions judge.on 25-4-1956, the date of the occurrence, while she was still under 17 years, she was taken from the house of her parents by the accused, and the two of them, proceeded by bus to ferozenore, from where she was taken in railway train to ludhiana. from' there they went to malerkotla, barnala and then to village bhadore.....
Judgment:

Tek Chand, J.

1. Kartara alias Kartar Singh, son of Amar Singh, of village Mahianwala, Tehsil Zira. District Ferozepore, was convicted by the Additional Sessions Judge, Ferozepore, under Section 366, Indian Penal Code, and sentenced to undergo imprisonment for a period of five years. There were two other accused persons, Hari Singh and Bachan Singh, who were acquitted of the offence charged.

2. The prosecution story is that P. W. 1 Mohin-der Kaur alias Joginder Kaur, a minor girl born on 11-12-1939, was suffering from an eye trouble (cor-neal opacity). Her parents, P. Ws. Kapur Singh and Nand Kaur, who were living in village Warrang, had called the accused who was known for his skill in curing diseases by conjuring spirits and then exorcising them.

He applied his occult gilt in expelling the spirits a few times before the occurrence and while he so busied himself it is said, that he used to play with her breasts, and while doing so he took care to see that his actions remained screened from the view of the credulous parents of the girl; they used to watch the treatment being given from some distance. Thus winning the confidence of the gullible parents he had a free access to their house ostensibly for the purpose of curing (the girl of the disease but actually for taking liberties with her person. He then asked her to elope with him, but according to her statement she rejected his amorous advances.

She then stated that he committed sexual intercourse with her against her wishes. She tried to raise alarm but he gagged her mouth with a piece of cloth. After committing rape on her, he repeated his overtures that she should elope with him, but she declined to do so. This part of the story regarding rape on her and refusal on her part to go with him has been rightly disbelieved by the learned Sessions Judge.

On 25-4-1956, the date of the occurrence, while she was still under 17 years, she was taken from the house of her parents by the accused, and the two of them, proceeded by bus to Ferozenore, from where she was taken in railway train to Ludhiana. From' there they went to Malerkotla, Barnala and then to village Bhadore where the other two accused, who have been acquitted, lived. The accused and the girl stayed with them.

At this time, the money that the accused had with him, was nearly finished and they decided to proceed to Zira. At Zira Railway Station they were arrested on 4-5-1956. The girl noticed her father along with some policemen, and shouted for help. During the course of their sojourns from place to place, it is alleged that the girl was subjected to sexual intercourse by the accused on several occasions.

3. P. W. 3 Dr. Vidya Madan stated in her statement dated 29-10-1956 after examining the girl that she suspected that she was pregnant at that time and the pregnancy might be seven months old. Mr. Manmohan Singh Gurjal, learned Counsel fur the accused appellant, wants me to infer that, the girl was used to sexual intercourse a considerable time prior to the date of occurrence.

4. The examination of the girl conducted in the retiring room of the lower Court by the lady doctor seems to be of a casual and perfunctory nature and the lady doctor's opinion rested on suspicion and was expressed in a language suggesting doubt and uncertainty in her own mind about the condition of the girl at the time of examination. I cannot deduce from the lady doctor's statement that the girl was of a loose character and was already leading a life of indulgence in unlawful sexual intercourse alt the time of the alleged abduction as was found to be the case in Shaheb Ali v. Emperor, ILR 60 Gal 1457 : (AIR 1933 Cal 718) (A). There is no evidence to suggest that the girl had already strayed from the path of viritue and had previous to her abduction been submitting to improper practices from her own lustful propensities and without any arts or blandishments of the person with whom she has had sexual intercourse. It will be a mistake to imagine that a single error on the part of the female will place her beyond the protection of the law punishing seduction.

5. Mr. Manmohan Singh Gujral basing his argument on Emperor v. Baijnath, ILR 54 All 756 : (AIR 1932 All 409) (B), contended that the term 'seduction' can only properly be held to apply to the first act of illicit intercourse, unless there be proof of a return to chastity on the part of the girl in the meanwhile, or unless possibly there is an intention on the accused's part that the girl should be seduced by some different man.

6. On the other hand there is a catena of authority to the effect that the word 'seduced' in the section is not used in the narrow sense of inducing a girl to part with her virtue for the first time, but includes subsequent seduction for further acts of illicit intercourse. The words 'seduced to illicit intercourse' do not refer to the first act of seduction only when she is lured into surrendering her chastity.

7. In King-Emperor v. Nga Ni Ta, (1903) 10 Bur. L. Rule 196 (C), Adamson, J. said :

'It is a monstrous proposition, and one that would strike at the very roots of social and moral rectitude to hold that, because a man has induced a girl, while in the custody of her parents, to surrender her chastity, he committed no further act of seducing to illicit intercourse, when he persuaded her to live with him in a condition of concubinage not sanctioned by marriage.'

In Pessumal v. Emperor, 27 Cri L. J. 1292: (AIR 1927 Sind 97) (D), it was held that the word 'seduction' was not to be confined to the first connection with an unmarried girl.

'When a man has induced a girl, while in the custody of her parents, to surrender her chastity to him, and thereafter induces her to leave the protection of her parents and live with him in a condition of concubinage not sanctioned by law, he commits an offence under Section 366. Every time a woman surrenders herself to a lover, whether it is the first or the twentieth time, there is a seduction.'

8. This view was upheld by Allahabad High Court in Emperor v. Prem Narain, 30 Cri LJ 218 : (AIR 1929 All 82) (E), where the view was expressed that previous intimacy was wholly immaterial. In Krishna Maharana v. Emperor, ILR 9 Pait 647 : (AIR 1929 Pat 651) (F), a Division Bench of the Patna High Court held that a person may be guilty of kidnapping a girl for the purpose of seducing her to illicit intercourse even though he had also had such intercourse prior to the kidnapping.

The High Court of Bombay has voiced dissent from the view taken by a Division Bench of the Allahabad High Court in ILR 54 All 756 : (ATR 1932 All 409) (B) vide Emperor v. Ayubkhan Mirsullan, AIR 1944 Bom 159 (G), and Lakshman Bala v. Emperor, ILR 59 Bom 652: (AIR 1935 Bom 189 (H). Similar view has also been expressed by the High Court of Calcutta in Prafulla-kumar Basu v. Emperor, ILR 57 Cal 1074 : (AIR 1930 Cal 209) (I), and Shaheb Ali v. Emperor, ILR 60 Cal 1457 : (AIR 1933 Cal 718) (J). The High Court of Madras in Manicha Chetty v. Emperor, 1935 Mad W. N. 358 (K) and the Andhra High Court in In re Khalandar Saheb, 1955 Cri L. J., 581 : (AIR 19.55 Andhra 59) (L), have accepted the above line of reasoning and have dissented from the Allahabad view.

9. It is 'seduction' when a woman is induced to consent to unlawful sexual intercourse by enticements and persuasion overcoming her reluctance and scruples. It occurs where a man abuses the simplicity and the confidence of a woman to obtain by false promise what she ought not to give. It is a criminal offence where a female under 18 years has been induced to surrender her chastity to an unlawful sexual Intercourse.

Where this has been accomplished by her seducer by the use of seductive arts such as flattery, solicitation, importunity or by importing some other species of artifice, beguilement, or deception the offence is completed. It docs not matter whether the accused person achieved his object by means of brute force or she may have capitulated to the gentle promptings of confiding love by deceitful promises; his guilt in either case is established.

10. Etymologically the word 'seduction' is derived from two Latin words 'se' which means, away, and 'duco' which means to lead, and together they mean to lead away or to draw away. The term 'seduction,' therefore, implies that the woman is led away or is induced to stray away from the path of rectitude. The act of seduction is don? when the girl is drawn away from the virtuous course and then made to yield her chastity. But where the deviation on the part of the girl is the result of the promptings of her own inclinations, and she herself permits or encourages improper sexual relations, as opportunity comes her way, without the aid of any artifice or wile on the part of the man, it is no seduction.

11. The learned Counsel for the accused appellant did not argue that the accused did not take the girl from place to place and did not question the veracity of the prosecution story relating to her movements from Warrang, the village of her parents, to Ferozepore, Ludhiana and other places till the arrest of the accused at Zira. I do not accept the contention of the learned Counsel that the facts of this case do not establish the commission of an offence under Section 366, but even if the contention of the learned Counsel for the accused-appellant were well-founded, the case would certainly fall under Section 363 read with Section 361 in which case also the maximum sentence that can be awarded is seven years.

12. The only question in this case is that of sentence. I have no doubt in my mind that Mohinder Kaur fell into temptations offered by the accusedand she was not subjected to any force or compulsion. To the various acts of sexual intercourse 'hat took place she appears not to have been an unwillingparty and such resistance, if any, as she might have offered seems to have been overcome by the accused. In view of these circumstances the sentence of fiveyears' rigorous imprisonment appears to be excessive. While I maintain the conviction of the accused, I reduce his sentence and direct that he shouldundergo rigorous imprisonment for two years.


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