M.L. Jain, J.
1. This appeal arises out of the judgment of the learned Additional Sessions Judge. Baran dated 7-1-72.
2. I have heard the argument and perused the record.
3. The brief facts are that Mat. Tulsa PW. 4 wife of Chhotia Kumhar lost her father and she wag living with her mother in village Kanwarpura, Tehsil Keshorai Patan in District Bundi. She came with her grand-mother to village Medpura, in Tehsil Kishan Ganj, District Koca. There she was for about a month or so and used to work in the fields of her grand-mother. Accused Onkar made advances to her and proposed that since his wife had run away he would be ready to take her us his wife. The proposal did not find favour with her On 2-6-71 when she was sleeping in the house of Ram Chandra PW. 5. who is her maternal uncle, she happened to come out in the night about 10 p.m. to urbane Onkar accused and Prabhu were hiding there behind a stone wall. They lifted her and carried her sway forcibly to village Rampuria where Prabhu parted company with Onkar. At Rampuria she was kept in the house of one Mohan Singh and then, taken in the jungle where she remained with Onkar for three days and during that period Onkar committed rape on her. He thus, brought her to a village where they boarded a bus. Prabhu also came there The bus was going to Shahabad. When they reached Samraniya, some one informed the police out-post of Samraniya. borne cons' tables came and interrogated Onkar, Prabhu and Mst. Tulsa. Abul Aziz PW. 2 made cut a report Ex. P 2 and forwarded all the three of them to police station Bhanwargarh where first information report was drawn. Prabhu and Onkar were arrested.
4. After medical examination and conclusion of the investigation Onkar and Prabbu were challenged under Section 366 and 376 I.P.C. The learned Magistrate committed them for trial to the court of sessions, where Prabhu was acquitted of both the charges because the learned judge found that the charges were net proved beyond all manner of reasonable doubt He also acquitted Onkar accused of an offence under Section 376 I.P.C. but. be convicted appellants Onkar under Section 363 I.P.C. and sentenced him to rigorous imprisonment for three years and to a fine of Rs. 500/-. in default whereof to rigorous imprisonment for six months. Hence, this appeal by Onkar.
5. The learned Additional Sessions Judge after discussing the evidence held that Mst. Tulsa was a minor girl below 18 and since she was married her husband was her guardian. She was not in a position to give her consent and her removal by the accused amounted to kidnapping. He further held that Mst. Tulsa was kidnapped by Onkar by deceitful inducement and even if her material uncle & grand father were willing to give her in Nata as was suggested in a question put to Mst. Tulsa and Ram Chandra, they should not do so as both Onkar and Tulsa were married and their marriage had not been dissolved. Her guardian had not consented to her Nata with Onkar.
6. The learned counsel for the appellant submitted that the first question that this court has to determine is regarding the age of Mst. Tulsa. She has stated her age to be 15 years. Her maternal uncle Ram Chandra has also stated that she was of 16 years. In cross-examination Mst. Tulsa said that she knew of her age through her mother. Dr. M.M. Datta PW. 7 stated that the age of Mst. Tulsa is between 13 and 18 years. The learned Judge relied upon the testimony of Ramchandra PW. 5; Tulsa PW. 4 & Dr. Datta PW. 7. He also bad seen the girl when she appeared in the witness box. The learned Judge was stuck with her appearances of childhood. He has recorded that she appeared to him to be a minor and could not even understand the significance of oath and he declined to administer oath to her. Thus, the findings of the learned Additional Sessions Judge are not only based upon the oral evidence led before him but he himself found that the testimony of these witnesses was reliable as the girl was apparently a minor.
7. The learned Counsel has cited Emperor v. Qadrat and Anr. : AIR1939All708 , & Nathu and Bishwanath Ghosh v. The State : AIR1957Cal589 to show that the determination of age try physical petulance's is a mere opinion and the best evidence regarding the age of persons is ossification test. Dr. Datta did advise ossification test but it appears that the same was not undertaken He based his opinion on the basis of her teeth which were only 28 in number and therefore, he estimated her age below 18. It is the that ossification should have clinched the estimate but I find little reason to differ from the finding of the learned Sessions Judge because the evidence recorded before him was confirmed by his own observation. The learned Counsel was unable to how me any law that in the circumstances such as above judge's estimate of the age should not be accepted. Onkar too in his statement admitted that she could be near about it. I, therefore, uphold the finding of the learned lower court in this respect.
8. The learned Counsel then referred me to Ram Murti v. State of Haryana : AIR1939All708 wherein in it was observed that in a case under Section 366 I.P.C. if the prosecutor is found to be used to sexual intercourse, her statement that she was threatened and induced to go with the accused should be corroborated in material particulars from independent source in order to base conviction of the accused thereupon. In Nathu v. Emperor A.I.R. 1931 Lah. 401 it was held that it is inconceivable that a grown up girl of about 18 would submit to being carried about and raped without protesting and the presumption in such circumstances is that she is a consenting party to development. The learned Counsel submitted that there is no corroboration of the evidence of Mst. Tulsa which is very much required in her case. To my mind, this argument is of little avail to the appetent. Mst. Tulsa was found in the company of Onkar when the police detained her at the out-post of Samraniya the only question that remains to be determine is whether the accused took bet out of the keeping of the lawful guardian and his intention in doing so was to force her to marry him or to commit illicit intercourse with her. In this respect we have to examine the testimony of Mst. Tulsa Mst. Tulsa has staled that she was removed by the accused in the night and then they carried her to several places until they were apprehended by the police. Kana PW. 6 has deposed that he had teen the accused taking away Mst. Tulsa. The learned Counsel in this connection referred the again to Bishwanath's case : AIR1957Cal589 that where there is absence of evidence as to the taking of the girl or the active participation of the accused in the girl's leaving her guardian's house the accused cannot be said to have committed an offence under Section 366 I.P.C. because a minor may not be competent to give her consent but. a minor is certainly competent to leave the protection of her guardian of his or her accord. It was urged that Mst. Tulsa left the protection of her guardian of her own accord and therefore, the accused could not be convicted under Section 366 I.P.C. the accused did not use any force, nor cid he entice her. Kana PW6 saw her going with the accused and even asked about it but she kept silent. The learned Counsel pointed out that she was an unreliable witness also because she has improved upon her testimony that she told the police that her husband was cruel to her, yet she resiled from that statement before the learned trial Judge As a matter of fact she was allowed to go with the accused try the people of her mother's family because her previous marriage was unhappy. She had several opportunities before she was actually detained by the police, to contact independent people to convey to them that she was being forcibly carried about but she did not avail or them. That shows that she had left the protection of her guardian of her own accord and free will.
9. The learned Counsel also pointed out that she had several maternal uncles end her grand parents were living but they did not even care to search for her nor did they inform the police. That shows that they had consented to her being taken by Onkar Accused Onkar in his statement has even denied that Tulsa was with him. Thus, the theory that her maternal uncles or grand parent, had consented to her being taken away was not the case pleaded by the accused in his statement, though some such suggestions were given to the witnesses who repelled. It her people had consented to her being taken away, then, why should have they now any complaint against the accused. It appears to me that neither her husband nor her mother or the maternal family had consented to her being taken away by Onkar thus, neither her guardian de jure nor guardian de facto have been proved to have given his consent.
10. As regards the question as to where the girl goes with the accused of her own accord, the provisions of Section 366 I.P.C are attracted or not, the position of law has now been placed beyond doubt by their Lordships of the Supreme Court in Thakorlal v. The State of Gujarat A.I.R. 1973 S.C. 2329. Their Lordships examined the provisions of Section 361 which defines kidnapping and held that 'taking means physical taking but not necessarily by use of force or fraud.' The word 'entice' seems to involve the idea of inducement or allurement by giving rise to hope or desire in the other. This may work immediately or it may create continuous and gradual but imperceptible impression culminating after some time in achieving its ultimate purpose of successful document. The words 'takes' and 'entices' as used in Section 361 I.P.C. are intended to be read together so that each takes to some extent its colour and content from the other. If the minor leaves her parental home completely uninfluenced by any promise, offer or inducement emanating from the guilty party, then the latter cannot be considered to have committed the offence of kidnapping. But if the guilty party has laid a foundation by inducement, allurement or threat and it this can be considered to have influenced the minor or weighed with her in leaving her guardian's custody or keeping and going to the guilty party, then, prima facie, it would be difficult for the accused to plead innocence on the ground that the minor had voluntarily come to him. The mere circumstance that his act was not the immediate cause of her going from her parental home or guardian's custody would constitute no valid deence and would not absolve him. The question truly fails for determination on the facts and circumstances of each case.'
11. If we apply the aforesaid dictum, then it is clearly borne out by record that the accused at first extended a promise to Mst. Tulsa who was not happy with her existing marriage, that he himself was uphappy with his present marriage, and would like to marry her. When she spurned the offer, he carried her stealthy in the night by force. In these circumstances of the case, the act clearly falls within the mischief of Section 361 I.P.C. and thereby also of Section 366 I.P.C. The offence of kidnapping or act of kidnapping is complete as soon as the accused takes or entices the minor out of the keeping of lawful guardian without the consent of such guardian. The consent of the minor has no relevance and it was not at all a case of abandonment of guardianship. It is also difficult to subscribe to the proposition that where the minor leaves the house of the guardian on her own record, even if it be out of distress, it will amount to no offence under the penal code. I cannot imagine that the girl can be said to have abandoned the guardianship in this case.
12. I am therefore, of the view that the accused Onkar is guilty of an offence under Section 366 I.P.C. and has rightly been convicted by the learned lower court. The sentence awarded to him also does not seem to be excessive and I hereby dismiss this appeal. He is on bail and shall surrender to his bail bonds to serve the sentence.