Raman Nayar, J.
1. The appellant, who was the 1st accused at the trial, has been convicted under Section 363 of the Indian Penal Code and sentenced to suffer rigorous imprisonment tor three years. His fellow accused, accused 2 and 3, who were charged with abetment of this offence have been acquitted, and against their acquittal no appeal has been preferred. We might therefore ignore them altogether.
2. P. W. 1, the alleged victim, a married Hindu girl of the Karuvan community, was living under the care and protection of her parents, P. Ws. 3 and 4, in the village of Tholpatti in the Wynad Taluk where they had settled. According to the prosecution, she was, at the time of the occurrence, just below the age of 17. The appellant, a Muslim bachelor of Kadambur near Cannanore, aged about 22, was running a small shop at Tholpatti within about 25 or 30 feet of P. W. 1's house and was living in the same building.
He and P. W. 1 became acquainted, and in the absence of her parents and of her uncle, P. W. 2 (who also was living in the house, P. W. 3 in fact being often absent for long periods working in other places) they used to meet frequently, and, according to P. W. 1, the appellant used to make overtures to her (which she virtuously resisted) and ask her to be his wife after conversion to Islam. On the night of 29th March, 1956, P. W. 1 left her house during her father's absence at some other place eluding the other inmates, P. Ws. 2 and 4.
Then, accompanied by the appellant, she went to a place called Kuttam in Coorg and from there by bus the next morning to Virajpet where she was kept in a Muslim house. The following day (31-3-1956) she went with the appellant to Tellicherry and from there by train to Kozhikode where she was kept for three days in a place where conversions are made. Then, on 3-1-1956, they went to the appellant's house in Kadambur near Cannanore, and, later in the day, they came out of the house and went to the bus stand four miles away and boarded a bus for Cannanore.
When P. W. 1 went to the appellant's house, she was dressed in Hindu fashion but she emerged dressed in Muslim fashion, and this roused the suspicion of two neighbours, P. Ws. 9 and 10, who followed the couple (who according to them were accompanied by the two acquitted accused) boarded the bus, questioned P. W. 1 and the appellant and ascertained the facts, and when the bus stopped at the police station at Cannanore, went and reported the matter to the Sub-Inspector, P. W. 13, who detained P. W. 1 and the three accused and took cognisance of the case on the statement, Ext. P-6 recorded from P. W. 9.
The case was then transferred to the Manantoddy Police Station within the limits of which the offence took place, and where P. W. 2, who along with P. Ws. 3 and 4, had been searching in vain for the girl, went on 5-4-1956 on learning that the girl was there and made a statement which, though shut out by Section 162 of the Criminal Procedure Code, has nevertheless been received in evidence and marked as Ext. P 1. Nothing however turns on this document.
3. Pw. 1's evidence at the trial was that on the night in question the appellant came and knocked at her door, that she asked who it was and on learning that it was the appellant, opened the door and went out unnoticed by her mother and uncle. When she came out, the appellant, helped by the two acquitted accused, dragged her away by force, silenced her by threats, and took her to the several places mentioned until she was rescued by the police. There is no other evidence on this aspect of the case apart from the evidence of the next door neighbour Pw. 5 who has said that at about one in the morning he found the appellant and the two acquitted accused hanging round Pw. 1's house and that when he questioned them the appellant replied that they were waiting for somebody.
4. The appellant's case both in the committing magistrate's court and at the trial was that Pw. 1 was over 19 years old and that he was in criminal intimacy with her for over a year before the occurrence. On the night in question Pw. 1 went to his house (namely the shop) and entreated him to take her away. To the said entreaty, which was supplemented by the threat that she would otherwise hang herself in his house, he yielded and he took her to the several places mentioned by Pw. 1 until finally he and Pw. 1, along with the two acquitted accused who happened to be in the bus, were caught and handed over to the police by Pws. 9 and 10.
5. No witnesses were examined for the Defence.
6. Mr. Pocker for the appellant argues, (i) that there is no satisfactory evidence to show that Pw. 1 was below the age of 18 and (ii) that the appellant neither took nor enticed P. W. 1 out of the keeping of her lawful guardian. (That, although her legal guardian might have been her husband, she was, at the time, in the lawful guardianship of her parents within the meaning of Section 361 of the Indian Penal Code Is not disputed). He also argues that the sentence is excessive.
7. On the question of age we have the evidence of Pw. 1's father that she was born on the 9th Edavam 1114 corresponding to the 23rd May 1939 and of her mother Pw. 4 that she was born in Edavam 1114. This evidence is supported by the entry, Ext. P-7, in the birth register of Pw. 1's native village which is proved by the Village Headman, Pw. 11, who himself made the entry.
The entry shows that a female child was born to Valli wife of Karuvan Achuthan, and the evidence of Pw. 11 is that the Valli and Achuthan referred to are Pws. 3 & 4. That the name of the informant is not noted in the column set apart for the purpose is no reason for doubting the entry, and the evidence of both Pw. 3 and Pw. 11 goes to show that Pw. 3 was the informant.
Pw. 3's evidence is that the entry relates to the birth of Pw. 1 and the answers elicited from him in cross-examination put it beyond doubt that the entry can relate only to her and not to any other daughter oi Pws. 3 and 4. There is also the medical evidence based on a radiological examination to the effect that Pw. 1 was, at the time of her examination on 6-4-1956, between the age of 17 and 18. There can be no doubt on the evidence that Pw. 1 was born on 23-5-1939 & that, at the time oi the occurrence on 29-3-1956, she was just below the age of 17.
8. Coming now to the question of taking from lawful guardianship, P. W. 1's deposition in the committing magistrate's Court (portions of which were marked at the trial for the purpose of contradiction) was more or less in keeping with the appellant's case that she was in intimacy with the appellant for about a year and that it was she who left her house of her own accord on the night in question and went to the appellant's house and persuaded him to take her away.
Even her evidence at the trial that, on the appellant knocking at her door and calling out to her, she opened the door and slipped away unnoticed by her mother and uncle, goes to show that her case of force and threats must be false and that this was a case of elopement with her consent rather than of abduction. That, however, does not mean that the appellant did not take her out of the keeping of her lawful guardian. On the proved and admitted facts it is apparent that P. W. 1 and the appellant must have met on the night in question some-where between P. W. 1's house and the appellant's house hardly 30 feet away, and that thereafter they together left on their wanderings to the places already mentioned.
It is legitimate to infer, as the learned Sessions Judge has done, that this meeting must have been by prior concert and cannot have been a unilateral act of P. W. 1 as stated by the appellant and by P. W. 1 herself in the committing magistrate's Court. The inference is legitimate even if we brush aside the evidence of P. W. 5 as the learned Sessions Judge has, for good reason, done. It is most unlikely that, without the consent and encouragement of the appellant, P. W. 1 would have left the protection of her parents and eloped with the appellant. That apart even assuming that the meeting was in the appellant's house, P. W. 1 was still within the reach of her lawful guardians, hardly 30 feet away, and cannot be said to have gone out of their keeping.
It was the appellant's act in taking her away to distant places for which, from the narration of the facts, it is quite obvious he must have taken the initiative and not merely been a passive companion, that actually took her out of their keeping. There is nothing to show that P. W. 1 left her house with the intention of abandoning her guardians and with the intention never to return. The intention could only have been to go with the appellant if he would take her, and, but for his taking her, there can be little doubt that she would have returned home.
It is not as if the appellant picked up a destitute and abandoned girl from the street. He knew full well that P. W. 1 was living with her parents practically next door and even if he was under no legal obligation to take her back home he was certainly under a legal obligation not to run away with her. It seems to us that the Court below rightly applied the principles laid down in Abdul Sathar v. Emperor, 54 Mad LJ 456: (AIR 1928 Mad 585) (A) and Abdul Azeez, In re, 1952-1 Mad LJ 536: (AIR 1954 Mad 62) (B), to the facts of this case and rightly came to the conclusion that the appellant had taken P. W. 1 out of the keeping of her lawful guardians within the meaning of Section 361 of the Indian Penal Code.
We might refer also to the decision in Rashid v. State, AIR 1953 All 412 (C), where it was held that although the minor girl left her house of her own free will and went to the accused's house and asked him to take her away which he did, nevertheless there was an offence of kidnapping from lawful guardianship, and to the decision in In re Khalandar Saheb, AIR 1955 Andhra 59 (D). The decision in Nura v. Rex, AIR 1949 All 710 (E), so strongly relied upon on behalf of the appellant has no application to the facts of this case, for, there the taking out of lawful guardianship had been completed by some others before the particular accused whose case was under consideration took her over.
The appellant has been rightly convicted under Section 363, I. P. C. With the sentence awarded to him we see no reason to interfere. We dismiss the appeal.
The appellant who is on bail will be committed to prison to serve his sentence.