Varadaraja Iyengar, J.
1. This appeal is by the accused in S. C. 63 of 1936 on the file of the Quilon Sessions Court, against his conviction under Section 365, I. P. C. and sentence of rigorous imprisonment for five years.
2. Nandini Amma, the girl in question belongs to the Nair Community and was living with her father P. W. 1 and mother P. W. 6 in their house in Soornad Village. The accused Chathan Kunjukunju is a Pulaya aged about 26 and living in the same village, about a mile away. He had married in his community and had an issue by the marriage. His business consisted of selling song books and he knew how to sing. His uncle was residing in the house adjoining that of P. W. 1 and this apparently had given him opportunity to get acquainted with P. W. 5.
According to the Prosecution on the night of 13-10-1955 corresponding to 27-2-1131 at about 10 p. m., P. W. 5 got out of the house to answer calls of nature and 3ien the accused and his brother Kumaran together caught hold of her and by force and stealth took her away to the accused's house. The accused subsequently took P. W. 5 along with him, to various places travelling only by night and on 27-10-1955 got up a registered agreement of marriage with her vide Ext. D-2 at the Soornad Sub-Registry Office.
Meanwhile, P. W. 1 made complaints to the Panchavat and the Police but without result. He then filed complaint on 24-11-1955 Ext. P-1 before the Kunnathur First Class Magistrate. The police soon after secured P. W. 5 from the accused's house & in due course she was entrusted back to P. W. 1. The case was since then transferred to the District Magistrate (Judicial), Quilon for expeditious trial. After preliminary enquiry the District Magistrate discharged the accused's brother and committed the accused alone to the Sessions Court of Quilon for the offences under Sections 363 and 366, I. P. C.
3. Before the committing Magistrate's Court, the accused had pleaded that P. W. 5 had been intimate with him even during the five years before the occurrence, and they had in fact been living in his house as husband and wife for the three months prior to 27-10-1955. On the night in question he had not taken P. W. 5 by force or stealth as alleged; she alone had voluntarily left with him. Those pleas he reiterated before the court below. He further denied that P. W. 5 had become a major at the date of the incident.
4. Learned Sessions Judge found on the evidence before him that P. W. 5 was below 18 years of age on the date of the occurrence and was also then in the keeping of her lawful guardian, P. W. 1. So the question whether the girl went away willingly with the accused or was taken forcibly by him was immaterial under law for the offence under Section 363. It was clear and indeed admitted by the accused that the object of taking away the girl was with intent to marry her. The offence under Section 366 was therefore also made out. But the offence under Section 366 was merely an aggravated form of the offence under Section 363. So the learned Sessions Judge convicted the accused under Section 366 and awarded the sentence of five years as abovesaid.
5. The accused appeared in person before us. He canvassed once again the question of the minority of P. W. 5 and also his immunity from conviction on the ground that P. W. 5 was a consenting party throughout. Having heard the accused and gone through the records we may say at once that there is absolutely no substance in these pleas.
6. On the question of age the evidence afforded by the parents P. Ws. 1 and 6 and also of the girl herself as P. W. 5 was that she was only about 15 years old at the time of the occurrence. There were also registered documents, Exts. P-4 to P-6 executed for and on behalf of P. W. 5 also through guardian referring to her age, consistently with the above position. P. W. 3, medical officer examined P. W. 5 and submitted report Ext. P-7 on 1-12-1955 finding her age to be between 15 to 17 at the time.
The accused relied on the other hand on Exts. D-1 and D-2. Ext, D-2 is the registered udampadi of marriage dated 27th October, 1955 between the accused and P. W. 5. The age of P. W. 5 is mentioned there as 20. But that document was brought about by the accused after the occurrence, P. W. 5 being after all illiterate. No importance can therefore be attached to it, Ext. D-1 purports to be a certified copy of a school register showing the date of birth of 'Nandanikutty' the pupil concerned, to be 14-3-1113.
This copy is seen to have been obtained on 7-12-1955 after the incident here. The name also did not tally with that of P. W. 5. Even otherwise it was not of much help to the accused seeing that the girl referred to there would still be less than 18 years old on the relevant date, 27-2-1131. The court below was therefore right in its finding as to the minority of P. W. 5 at the time of the occurrence.
7. The only other question is whether the consent of P. W. 5, whether in going with the accused or in marrying him afford protection to him. There can be no doubt that P. W. 5 was in the keeping of her legal guardian, viz., her father at the time. In Ext. P-11 statement of the accused in the Committing Court, this fact was even admitted. If so, the taking or enticing of P. W. 5 so as to kidnap her within the scope of Section 361 is achieved even though she is a consenting party to it. Bramwell, B. stated the law in R. v. Olifier, (1866) 10 Cox C. C. 402 at p. 404:
'I am of opinion that if a young woman leaves her father's house without any persuasion. Inducement, or blandishment held out to her by a man, so that she has got fairly away from home, and then goes to him, although it may be his moral duty to return her to her parent's custody, yet, his not doing so is no infringement of this Act of Parliament, for the Act does not say he shall restore her, but only that he shall not take her away. It is, however, equally clear that, if the girl, acting, under his persuasion, leaves her father's house, although he is not present at the moment, yet, if he avails himself of that leaving which took place at his persuasion that would be taking her out of her father's possession, because the persuasion would be the motive cause of her leaving. Again, although she may not leave at the appointed time, and although he may not wish that she should have left at that particular time, yet, if finding she was (i) left, he avails himself of that to induce her to continue away from her father's custody, in my judgment, he is also guilty, if his persuasion operated on her mind, so as to induce her to leave.'
And even the fact that the girl deceived the accused by overstating her age would be no defence for as Erle, C, J., said in R. v. Timmins, (1860) Bell C. C. 276:
'The Statute was passed for the protection of the parents, and for preventing unmarried girls from being taken out of the possession of their parents against their will; and it is clear that no deception or forwardness on the part of the girl in such cases can prevent the person taking her away from being guilty of the offence created by this section.'
And for purpose of Section 366 also the minor's consent to the marriage or illicit intercourse is not of any significance. In Emperor v. Safdar Reza, ILR 49 Cal 905: (AIR 1922 Cal 508) Sanderson, C. J. observed:
'It is further conceded that the offence dealt with by Section 366 is merely an aggravated form of the offence created by Section 363; and it would, therefore, seem to follow that when the matter under consideration, in relation to Section 366 is the seduction to illicit intercourse of a girl under 16 years of age, as in this case, her consent or intention would be just as immaterial as it would be in connection with the offence dealt with under Section 363. One object of the sections under consideration is not only to protect the rights of parents and others having the lawful guardianship of girls under the age of 16, but also to protect the girls, themselves and to prevent persons taking improper advantage of their youth and inexperience.'
So in Ahmed Bepari v. Emperor, AIR 1925 Cal 578, a Mohammadan girl of ten or eleven years of age was married without consent of her lawful guardian under Mohammadan Law, but with the lull approval of the minor's mother and it was held that the accused were guilty under this section. Here the accused has admitted that himself and P. W. 5 lived as husband and wile for some time before the incident and he also got a marriage udampadi between himself and P. W. 5 registered subsequently. The intention to take P. W. 5 for purpose of marrying her must therefore be held to be established. The conviction under Section 366 is therefore well sustained.
8. There is no doubt that the accused was guilty of a deliberate act. He also contended that the girl should not be taken away from him. The punishment of five years awarded to the accused cannot in the circumstances be considered to be too severe.
9. In the result the appeal fails and is dismissed.