A.S. Qureshi, J.
1. This is the appeal filed by the three appellants who were the original accused in Sessions Case No. 55 of 1979. The accused were charged for having committed offences punishable under Sections 366, 376 read with Section 109 of Indian Penal Code. All the three accused were found guilty of the offence punishable under Section 366 of the Indian Penal Code. Accused No. 2 was also found guilty under Section 376 of the Indian Penal Code and accused No. 3 was found guilty of the offence punishable under Section 376 read with Section 109 of the Indian Penal Code. Each one of them was sentenced to undergo R.I. for a period of 18 months on either count.
2. The prosecution case was that the three accused who belong to the Soni Community belonging to Anand came in contact with the two minor girls namely Swatiben Bhailal Patel P. W. 2 (Exh. 15) and Malvikaben Natubhai Patel P.W.4. (Exh. 32). The birth date of Swatiben is stated to be 28th March, 1965 and that of Malvikaben to be 12th November, 1960. The accused are said to have induced the two minor girls to go with them away from Anand on the promise that accused No. 1 will marry Malvikaben and accused No. 2 will marry Swatiben. They were assured that they will be kept happy and will be well provided for. The girls apparently were lured by these promises of the accused who were themselves young persons. Accused Nos. 1 & 2 are said to be about 19 years or 20 years' old and accused No. 3 is about 22 or 23 years old. Accused No. 3 who is the eldest is the uncle of accused Nos. 1 & 2 that is to say that accused No I was the brother's son and accused No. 2 was sister's son of accused No. 3. The accused are said to have been taking out the two girls occasionally to see the cinema show. By prior arrangement it was agreed between the accused and the girls that they will meet at Bus-stand on the morning of 11th April, 1978. Accordingly the three accused accompanied by the two girls left Anand on the morning of April II, 1978 and reached Chitodgadh in the evening. From there they proceeded to Jaipur and after staying for a few days there, they came to Udaipur. At Udaipur the accused are said to have persuaded the two girls to go through the ceremony of garlanding each other which the girls were told to be in token of the marriage. Accused No. 1 was supposed to have married Malvikaben and accused No. 2 was said to have married Swatiben in presence of accuser No. 3. The two girls were made to believe that this was a solemn ceremony and that they were now married couples. The girls were induced to consent to sexual intercourse under a wrong belief of having been married to the concerned accused. The prosecution story further proceeds that having run short of money the accused left Udaipur and proceeded to a place called Ichhapur near Surat. They came back to Surat and they were apprehended by the police in a Cinema house at Surat.
3. Mr. K. J. Shethna, the learned Counsel for the appellants accused has submitted that the accused cannot be said to be guilty of kidnapping because, according to him, the two girls had voluntarily terminated the custody of their respective guardians by their own free volition and that the accused has neither induced nor intimidated them to come out of the custody. This submission of Mr. Shethna is not correct. The custody of the minor by the guardian is not dependent on the volition of the minor. It is not open to the minor to walk away and claim that the custody no longer continues. The relationship of guardian and minor is not based on contract. It is created by the law and it can come to an end by the provisions of law. Till the minor attains majority the relationship continues.
4. For his above proposition Mr. Shethna has railed on the decision reported in 5. Varadarajan v. State of Madras : 1965CriLJ33 , with due respect to him, there is no such proposition of law laid down in that case. On the facts of the case the Supreme Court had held that the accused had not induced the minor girl to leave the custody of her father. The girl was on the verge of attaining majority and that she had a love affair with the accused and had a strong desire to marry him. Consequently it was she who induced him to take her out and marry her which the accused did. The marriage was duly registered. On these facts it is quite obvious that it could not be held that the accused had taken out a minor person from the custody of the father. In the present case the facts are entirely different. As far as Malvikaben is concerned, it is true that she was about 17 years and 5 months which can be said to be on the verge of attaining majority. But there is nothing on the record to show that it was Malvikaben at whose instance the alleged kidnapping has taken place. On the contrary it seems that she had been made to believe that the accused No. 1 was going to carry her and that he would keep her happy and look after her well. Therefore, the inducement has come from the accused No. 1 and, therefore, the ratio in S. Varadarajan's case (supra) would not be applicable here. Moreover, in respect of Swatiben not only that she was on the verge of attaining majority but also she was of a very tender age of about 13 years and was studying in the IXth (Ninenth) Standard. There is not even a suggestion on the part of the defence that it was at the instance of Swatiben that the elopment has taken place. On the contrary, the facts of the case show that she has been a helpless victim to the machinations of the accused who have exploited this girl, who had not yet reached the age of adolescence, for the satisfaction of their sexual lust.
5. While arguing that no offence of kidnapping has taken place, Mr. Shethna urged that there is internal evidence which suggests that there was a tacit consent on the part of guardians of the two minor girls. Mr. Shethna points out that there is inordinate delay in filing the complaint. The two girls had eloped on the morning of 11th April, 1978. The father of Malvikaben, Natubha Trikambhai P. W. 9 (Exh. 47) and grand-father of Swatiben, Gordhanbhai Trikambhai P. W. 8 (Exh. 43) had come to know on the morning of 12th that these two girls were seen with the accused at the S.T. Bus-stand and on inquiry the three accused were also found missing from their respective houses. Even then the two guardians kept quiet for three days namely, 12th, 13th and 14th April and filed the complaint as late as on 15th April. This, according to Mr. Shethna suggests that the respective guardians had given their tacit content to this elopment. Mr. M. A. Trivedi, the learned Additional Public Prosecutor has argued that it is not correct to say that the aforesaid guardians had either given their tacit consent or had reconciled to the fact that the girls had gone away with the boys of their own choice. Mr. Trivedi says that in circumstances like this it would be natural for the guardians to see that such story does not circulate as it would tarnish the reputation of the family in the Society. According to him, perhaps the guardians had hoped that the girls would come back soon; but as they did not come back for about 3 to 4 days the guardians must have become apprehensive and must have reluctantly thought of filing a formal complaint with the Police so that the Police may investigate and restore the girls to the custody of the guardians and the accused brought to book. Mr. Trivedi also urged that if the respective guardians of the two girls were willing to give consent - either tacit or express - there would have been no need for the accused to elope with the girls. The arguments of Mr. Trivedi are quite convincing and it must be held that on the facts of this case there was no tacit consent or acquiescence by the respective guardians of the two girls.
6. Apparently the offence of kidnapping of the aforesaid two girls by the accused was pre-planned and the three accused had played part in inducing the girls to go with them to different places. It is in evidence that whenever the girls met the accused all the three were together. So also all the three were together during the course of the entire escapade covering Chitodgadh, Jaipur, Udaipur, Ichhapur and Surat. Hence the complicity of all the three accused is quite evident; but the fact remains that the accused No. 3 has not done any overt act which would go to show that he being the eldest of the three, was the prima mover of this planned escapade. There is no allegation of rape against him. At the most it can be said against him that he was acting as the protector of his two nephews or accused Nos. 1 & 2. Therefore, in the matter of punishment the case of accused No. 3 will stand on a slightly different footing from that of accused Nos. 1 & 2. Therefore, the conviction of all the three accused punishable under Section 366 is upheld. As regards the sentence, the R.I. of 18 months imposed on accused Nos. 1& 2 is confirmed, but the sentence of one-and-a-half years imposed on accused No. 3 deserves to be reduced to R.I. for a period of six months.
7. As regards the offence of rape alleged to have been committed by accused Nos. 1 & 2 and abetment by accused No. 3 the Trial court has on evidence', acquitted the accused No. 1 of the offence of rape punishable under Section 376 of the Indian Penal Code. This finding of the trial court must be upheld in view of the fact that Malvikaben was 17 years and 5 months old that is to say she was on the verge of attaining majority and that she had given a willing consent to sexual intercourse by the accused No. 1. It is true that she had allowed herself to be misled by the representation made by the accused No. I that they were now married and they had to live together for the rest of their lives. For this act of self-deceiption Malvikaben can only blame herself. As regards accused 'No. 2 it must be stated that he has committed a heinous crime in defiling this minor girl Swatiben aged only 13 years. Although the age of the accused is said to be 19 or 20 years, there is no excuse for him or for that matter any of those three accused to mislead this innocent little girl of 13 years and to seduce her to illicit intercourse. This kind of monsterous activity must be firmly put down otherwise there would be no safety for the female children of tender age. The unscrupulous youths who are for fun and enjoyment at the cost of others would ruthlessly exploit these innocent little girls unless the Society takes a serious view of this kind of bestiality.
8. The learned Additional Public Prosecutor is quite right in submitting that the trial court has been too lenient in awarding the sentence of R.I. for 18 months for the offence of this magnitude; but he has very fairly stated that as the State has chosen not to come in appeal for enhancement against this meagre sentence, there is nothing he could say except that the sentence is totally inadequate in relation to the gravity of the offence. Therefore, the order of conviction and sentence passed by the Trial Court is confirmed. As regards accused No. 3 the learned Additional Public Prosecutor has very fairly stated that there is absolutely no evidence of his having committed any immoral act as regards the two girls. Indeed the accused No. 3 could not have done any act of immorality as he is the uncle of the two accused, elder in age and perhaps posing himself as the guardian of the accused Nos. 1 & 2. In the circumstances he could not have indulged in sexual immorality in respect of those girls whom he perhaps regarded as the wives or would-be wives of his nephews, the accused Nos. 1 & 2. The charge against accused No. 3 is that he has aided and abetted the commission of the offence of rape and, therefore, under Section 109 of the Criminal Procedure Code he should be punished, for the said abetment.
9. It is no doubt true that all throughout the commission of these offences he had been physically present and has participated in all the activities of his co-accused and hence he is rightly convicted for the abetment of the offence punishable under Section 376 read with Section 109 of the Indian Penal Code; but looking to the role that he has played and no overt act of immorality is alleged against him, his sentence of R.I. for 18 months is set aside and is substituted by a sentence of R.I. for six months.
10. In the result, the appeal is partially allowed. The conviction and sentence passed against accused Nos. 1 & 2 are confirmed. The conviction of accused No. 3 is upheld, but his sentence is reduced from 18 months R.I. to six months R.I. Both the sentences in respect of accused Nos. 2 & 3 will run concurrently. The accused are granted time of six weeks from today to surrender to their bail and serve out their sentences.