D. Falshaw, C.J.
1. Sulekh Chand was committed for trial on a charge Under Section 366, Indian Penal Code, but was acquitted. The State has filed this appeal against the order of acquittal.
2. The prosecution story is that Tilak Ram, a native of a village in Muzafarnagar district, U. P., was employed by Messrs. Ram Parkash Uppal and Co. as a labour contractor in connection with the construction of a large building in Sector 17-B, Chandigarh. He was living in a hut near the site of the construction with his daughter Balblri Aged about 14 and his younger son called Balbir. Sulekh Chand respondent, whose age was recorded in the committing Court as 22 and at the trial as 24, was also employed by the same company as the driver of a mortar mixing machine and he was living in a hut close by and was on friendly terms with Tllak Ram at whose hut he sometimes used to take his food.
3. It is alleged that on the afternoon of the 30th of October 1961 when Tilak Ram was away from his hut Sulekh Crjand went there and persuaded Balbiri to accompany him telling her that her father wanted to make some purchases in the bazar. For this purpose she took with tier Rs. 70/- in currency notes. However, instead of taking her to the bazar, Sulekh Chand took her outside the town and told her that he wanted to marry her and thsn took her i to the bus stand from where they travelled to Ambala by a bus. From Ambala they travelled to Delhi, also by bus, and then Sulekh Chand took her by a scooter-rickshaw to Okhla and eventually to his house in a village called Khanpur. The girl has alleged that she was compelled to accompany Sulekh Chand because he threatened, to kill her and she alleged that he had sexual Intercourse with her on various occasions against her will.
4. In the meantime lilak Ram returned to his hut In the evening and found his daughter missing. Som Nattl P.W. 5 who is also employed on the site and others told Tilak Ram that they had seen his daughter going away with Sulekh Chand. Tilak Ram continued searcmng for them throughout the night, but could not find any trace of them and his report was recorded at Chand'?arh Police Station at 10.55 a.m. on the 31st of October 1961.
5. The police were able to trace the home address of Sirlekh Chand through a postal money order form found In his hut. S. I. Gian Chand P.W. 10 went to Delhi an the 3rd of November and accompanied by Amar Singh P.W. 6. Pardha;n of Devli, and Makhan Singh P.W. 7 of Khanpur went to the house of Sulekh Chand at Khanpur on the 4th of November. They found the door fastened from Inside, but the police forced an entry end found Sulekh Ciunff present there with the missing girl. He was arrested and the girl was taken to the Irwin Hospital at New Delhi where she was examined by Dr. Miss P. Hingorani P.W. 1 who found her age to be 13 or 14. She found that the hymen of the girl was very much stretched, but not actually ruptured. She was of the opinion that there had beaa an attempt to rape without penetration. The girl was also examined by a Radiologist Dr. C. P. Sethi at the hospital at Chandigarh who found her age to be between 14 and 15}. H. C. Mauji Ram P.W. 11 went to Reta NangH, Muzafarnagar district, U. P., and obtained a copy of that entry in a register regarding the date of birth of Balbirt. The certified copy of the entry, Ex. P. G., shows the date of her birth to be the 7th of April 1948 and according It that her age at the time of the occurrence waa aboil 13 .
6. The accused denied his guilt. He denied having taken the girl away and denied even that she was fount at his house when the police went there. He alleged that a false case had been brought against him because Tllak Ram had borrowed Rs. 200/- from one Ram Nehor, ostensibly on account of the accused, and had also borrawaff Rs. 100/- from the accused who wanted the return of the money because he had to perform the marriage of his so. For that purpose he had gone to Khanpur on the 29th of October 1961. He alleged that Tilak Ram had threaten that he would settle accounts with him and on this at-count had brought this false charge of abduction. He alat alleged that the other witnesses were his enemiea was various reasons.
7. He produced one witness in defence, Ram Parkas the proprietor of the firm Ram Parkash Uppal and Co. This witness stated that Sulekh Chand and Tilak Ram was living in a single room. He even contradicted the statement of the accused that there was any partition betwew their sections. He also contradicted the allegation of the accused that Som Nath P.W. had given evidence again him because they had quarrelled on account of the fast that Som Nath wanted to replace him as a driver. Ram Parkash denied that there was any quarrel between Sat) Nath and Sulekh Chand and denied that Som Nath had of asked him to turn out Sulekh Chand and take him on at a driver.
8. The reasons given by the learned Sessions Judga for acquitting the accused are not at all satisfactory. Ht found that the age of the girl was definitely below 18 and that if her story was true the action of the accuosf amounted to taking her out of the keeping of her yaw guardian within the meaning of Section 361, Indian Penal Code in which the offence of kidnapping from lawful guardianship is defined. However, he apparently did Ml feel it safe to rely on the evidence of the girl alone, at if that were the only evidence in the case.
9. It seems quite probable that the story told by the girl is not entirely true, and it is probable that wettest she took Rs. 70/- out of her father's money and went fros a the hut with the accused she was not under a mistake Impression that she was being taken shopping, but understood that the accused was taking her away with him somewhere. She is almost certainly not telling the truth which she says that she accompanied the accused under threats of being killed, and she must In fact have incompact him quite willingly. She herself admitted that when that were at the bus stand at Ambala changing buses to go t Delhi there was a constable standing only a few pacas away, whose attention she could obviously have attracted very easily if she had wished to do so. It is, however, only to be expected that a girl who has been taken away they a man even willingly must, when she gives evidence as a complainant, allege that she was either tricked of forced into accompanying him. This is the natural effect of both parental and police pressure, both for the sake of the prosecution and her own reputation, but it does not mean that her story as a whole is not true.
10. In the present case there is absolutely no reason for disbelieving the evidence of Som Math that he actually saw the accused taking the girl away and equally no doubt that four or five days later she was found with the accused in his house in his village Khanpur on the other Ids of Delhi. To ray mind the suggestion of the accused that he had gone alone to his village, and that the police brought the girl there with them and pretended to have recovered her from his house is merely fantastic. In the first place it implies that the girl's father is a party to this, and that he deliberately made a false report that Ail daughter had been taken away by the accused for the object of marrying her or having sexual intercourse, and that he is a party to a false story that the girl was recovered after four or five days in the company of the accused. No father could possibly damage his daughter's reputation in this manner. In my opinion there can be no doubt whatever that the accused took the girl away with ibis to his village either for the purpose of marrying her or seducing her, and that although he did make some attempt to have sexual intercourse with her he fortunately did not carry it to extremes.
11. The learned Counsel for the respondent attempted, to argue that as the girl went with the accused willingly he did not 'take' her within the meaning of Section 361 Indian Penal Code, and he relied on the decision in Bhajna. The State, 1961-63 Pun LR 625 : 1962-(1) Cri LJ 841, In which Shamsher Bahadur, J. held that the mere. proof of the minority of the gin in the absence of evldtnea regarding another essential ingredient of taking the girl by the accused by enticement or misrepresentation does not constitute an offence Under Section 361 and where a married girl is shown to be a minor, but It Is proved from her evidence that she was a willing party throughout and there is no evidence that she was taken way against her will or under any misrepresentation, the accused cannot be convicted. With due respect I consider that this Is not a correct pronouncement of the law on the sent. In Section 361 which defines the offence of kld-tepping from lawful guardianship all that is lequired is that a minor, under 16 in the case of a male or under 18 '(i the casa of a female, must be 'taken or enticed' from the keeping of the lawful guardian. 'Taking' implies neither forct nor misrepresentation and In my opinion if a girl of less than 18 is taken away from the keeping of her lawful guardian, even at her own wish, the offence of kidnapping is established. The word 'take' in this context means no more than the sense in which one would use the word If one said one was 'taking' one's sister to the cinema. flew extent to which the girl is a consenting party is a matter for consideration under the question of sentence, Mid does not affect the commission of the offence.
12. The offence of kidnapping Under Section 363 consists solely of taking a minor from the keeping of her j lawful guardian, and no intention needs to be established. 'Section 366 applies whether the offence is kidnapping or Mutton, the additional Ingredient being required that such kidnapping or abduction is with the object of marriage or teduction. In the present case I have no doubt that this was the object with which the accused kidnapped the girl although, as I have said, ha did not press the matter to extremes.
13. I am therefore of the opinion that the accused was wrongly acquitted and that he was guilty of an off-once Under Section 366, Indian Penal Code, In view of the fact that it would appear that the girl was a consent Ing party and the accused did not persist very resolutely In his object of sexual intercourse although he had every opportunity I consider that a heavy sentence Is not called for. The accused was arrested about four months ago and has been In jail pending the appeal since then and I would sentence him to six months' rigorous Imprisonment.
Jindra Lal, J.
14. I agree.