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Arun Vitthalrao Raut And 2 Others vs The State Of Mah.Thr.Pso Amravati on 9 April, 2018

1 apeal485.05

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

NAGPUR BENCH, NAGPUR.

CRIMINAL APPEAL NO.485 OF 2005

1) Arun Vitthalrao Raut,
Aged about 23 years,

2) Homdas Udhaorao Ramavat,
Aged 27 years,

3) Smt. Durgabai Purushottam Deomrar,
Aged about 37 years,

All residents of Mahavir Nagar,
Amravati. …. APPELLANTS

VERSUS

The State of Maharashtra,
through Police Station Officer,
Police Station Rajapeth, Amravati,
Tahsil and District Amravati. …. RESPONDENT

__

Shri Amit Choube, Counsel for the appellants,
Shri N.H. Joshi, Additional Public Prosecutor for the respondent.
__

CORAM : ROHIT B. DEO, J.

DATED : 9
APRIL, 2018.

th

ORAL JUDGMENT :

The appellants are challenging the judgment and order

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dated 11-8-2005 rendered by the learned 3rd Ad hoc Additional Sessions

Judge, Amravati in Sessions Trial 75/2003, by and under which while

acquitting the appellants-accused of offences punishable under Sections

366-A and 354 read with Section 34 of the Indian Penal code (“IPC” for

short), the learned Sessions Judge has convicted the accused for

offence punishable under Section 363 read with Section 34 of the IPC

and has awarded sentence of rigorous imprisonment for six months

and to payment of fine of Rs.500/-.

2. The prosecution case as is unfolded during the course of

trial is that the prosecutrix is a resident of Mahavir Nagar, Amravati

and is studying in 11th Standard in Sharda Kanya Mahavidyalaya.

Accused Durgabi is a neighbour and resides in the house of her sister

Purnima Vaisnav. On 23-7-2002 Durgabai came to the house of the

prosecutrix and asked her to reach at Navathe Bus Stop, the prosecutrix

went to Navathe Bus Stop where accused Homdas Ramavat was

waiting. He forced the prosecutrix to board the bus going to Shegaon.

Accused Arun also boarded the bus. Arun was known to prosecutrix as

he was on visiting terms with Ramavat. They reached Shegaon, paid

obeisance to Gajanan Maharaj and stayed at a lodge. Ramavat left the

room on the pretext of some work. The prosecutrix and accused Arun

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were alone in the room. Arun closed the door and tried to catch hold

of the prosecutrix who cried for help and shouted “ekek ekek” (uncle

uncle). The prosecutrix opened the door and asked accused Homdas as

to for what purpose she brought to Shegaon and the response of

accused Homdas was ‘everybody will return to the house’. Thereafter

the prosecutrix, accused Homdas and accused Arun went to the bus

station and took a bus to Amravati. At Navathe Bus Stop the

prosecutrix was asked to go home alone. She did not disclose the

incident to her parents as she was threatened by accused Homdas.

However, since accused Arun started coming to her house, she lodged

report on 18-8-2002. On the basis of the said report Rajapeth Police

Station, Amravati registered offence punishable under Sections 363,

366-A, read with Section 34 of the IPC and 354 of the IPC. Upon

completion of the investigation, charge-sheet was submitted in the

Court of Judicial Magistrate First Class, Court 4, Amravati who

committed the case to the Sessions Court.

The learned Sessions Judge framed charge (Exhibit 13)

under Section 363, 366-A read with Section 34 and 354 of the IPC

against the accused. The accused abjured guilt and claimed to be tried.

The defence of the accused is that the prosecutrix and accused Arun

were in a relationship to which the father of the prosecutrix was

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opposing and hence, the accused are falsely implicated.

3. Shri Amit Choube, learned Counsel for the appellants

submit that the judgment and order impugned is ex facie erroneous.

The unexplained delay of twenty-five days in lodging the report

renders the prosecution case suspect, is the submission. Shri Amit

Choube submits that the prosecutrix and accused Arun were obviously

in a relationship as is evident from letter (Exhibit 27) addressed by the

prosecutrix to accused Arun. The opinion of the handwriting expert

(Exhibit 41) proves that the letter (Exhibit 27) was written by the

prosecutrix. The prosecutrix accompanied the accused to Shegaon out

of free will, is the submission. Shri Amit Choube would submit that the

judgment impugned militates against the law enunciated by the

Hon’ble Apex Court in S. Varadarajan Vs. State of Madras, AIR 1965

SC 942. Per contra, the learned Additional Public Prosecutor Shri

N.H. Joshi supports the judgment and order impugned.

4. It is obvious from the contents of letter (Exhibit 27) that

the prosecutrix and accused Arun were in love. The fact that the

incident occurred on 23-7-2002 and the report was lodged belatedly on

18-8-2002 renders the prosecution version vulnerable. The learned

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Sessions Judge does record a finding that there is no satisfactory

explanation for the delay. Having recorded this finding, the learned

Sessions Judge observes that although delay is not satisfactorily

explained, it is not vital to the prosecution.

5. The prosecution was concededly seventeen years and three

months of age as on the day of the incident. She was on the verge of

majority. She was in a position to understand the implication and

consequences of her actions. The prosecutrix (P.W.1) does state that

she went to Navathe Bus Stop at the insistence of accused Durgabai

and then along with accused Homdas and Arun went to Shegaon. She

states that everybody stayed in a lodge at Shegaon where accused Arun

closed the door of the room and held her and attempted to outrage her

modesty. The version of the prosecutrix is that when she raised alarm

and opened the door, accused Homdas told her that everybody would

return home. The prosecutrix came to Amravati alongwith accused

Arun and Homdas and when her parents enquired, she told them that

she had gone to a friend.

The evidence of the prosecutrix is not at all confidence

inspiring. In the cross-examination, she states that prior to the incident

she did not meet accused Arun alone nor is she aware of the education

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or occupation or birth date of accused Arun. The prosecutrix denies

that Exhibit 27 was written by her and addressed to Arun on his

birthday. She admits that when she was going to Shegaon in the bus,

there were many co-passengers. The conduct of the prosecutrix of not

alerting any co-passenger is sufficient to create doubt about the

veracity of her version. Be it noted, that in the examination-in-chief,

the prosecutrix has deposed that she was forced to board the bus by

accused Homdas. The conscience of this Court is satisfied that offence

punishable under Section 363 of the IPC is not made out. The

prosecutrix was on the verge of majority and was mentally and

emotionally competent to take conscious decisions. There is absolutely

no evidence on record to suggest that the accused played any role in

the intention formation process of the prosecutrix in accompanying

them to Shegaon. The evidence of the prosecutrix that accused

Durgabai insisted that the prosecutrix should go to the bus stop and

that she was forced to board the bus going to Shegaon is not

confidence inspiring at all. The following observations of the Hon’ble

Apex Court in S. Varadarajan Vs. State of Madras, AIR 1965 SC 942

are apt :

“7. The question whether a minor can abandon the

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guardianship of his or her own guardian and if so the further
question whether Savitri could, in acting as she did, be said to
have abandoned her father’s guardianship may perhaps not
be very easy to answer. Fortunately, however, it is not
necessary for us to answer either of them upon the view which
we take on the other question raised before us and that is
that “taking” of Savitri out of the keeping of her father has
not been established. The offence of “kidnapping from lawful
guardianship” is defined thus in the first paragraph of S. 361
of the Indian Penal Code:

“Whoever takes or entices any minor under sixteen
years of age if a male, or under eighteen years of age if a
female, or any person of unsound mind, out of the keeping of
the lawful guardian of such minor or person of unsound
mind, without the consent of such guardian is said to kidnap
such minor or person from lawful guardianship.”
It will thus be seen that taking or enticiting away a minor out
of the keeping of a lawful guardian is an essential ingredient
of the offence of kidnapping. Here, we are not concerned with
enticement but what we have to find out is whether the part
played by the appellant amounts to “taking” out of the
keeping of the lawful guardian of Savitri. We have no doubt
that though Savitri had been left by S. Natarajan at the
house of his relative K. Natrajan she still continued to be in
the lawful keeping of the former but then the question
remains as to what is it which the appellant did that
constitutes in law “taking”. There is not a word in the
deposition of Savitri from which an inference could be drawn
that she left the house of K. Natarajan at the instance or even
a suggestion of the appellant. In fact she candidly admits
that on the morning of October 1st, she herself telephoned to
the appellant to meet her in his car at a certain place, went
up to that place and finding him waiting in the car got into
that car of her own accord. No doubt, she says that she did
not tell the appellant where to go and that it was the
appellant himself who drove the car to Guindy and then to
Mylapore and other places. Further, Savitri has stated that
she had decided to marry the appellant. There is no
suggestion that the appellant took her to the Sub-Registrar’s
office and got the agreement of marriage registered there

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(thinking that this was sufficient in law to make them man
and wife) by force or blandishments or anything like that.
On the other hand the evidence of the girl leaves no doubt
that the insistence of marriage came from her side. The
appellant, by complying with her wishes can by no stretch of
imagination be said to have taken her out of the keeping of
her lawful guardian. After the registration of the agreement
both the appellant and Savitri lived as man and wife and
visited different places. There is no suggestion in Savitri’s
evidence, who, it may be mentioned had attained the age of
discretion and was on the verge of attaining majority that she
was made by the appellant to accompany him by
administering any threat to her or by any blandishments.
The fact of her accompanying the appellant all along is quite
consistent with Savitri’s own desire to be the wife of the
appellant in which the desire of accompanying him whereever
he went was of course implicit. In these circumstances we
find nothing from which an inference could be drawn that the
appellant had been guilty of taking away Savitri out of the
keeping of her father. She willingly accompanied him and
the law did not cast upon him the duty of taking her back to
her father’s house or even of telling her not to accompany
him. She was not a child of tender years who was unable to
think for herself but, as already stated, was on the verge of
attaining majority and was capable of knowing what was
good and what was bad for her. She was no uneducated or
unsophisticated village girl but a senior college student who
had probably all her life lived in a modern city and was thus
far more capable of thinking for herself and acting on her
own than perhaps an unlettered girl hailing from a rural
area. The learned Judge of the High Court has referred to the
decision in Abdul Sathar v. Emperor, 54 Mad LJ 456: (AIR
1928 Mad 585) in which it was held that where the evidence
disclosed that, but for something which the accused consented
to do and ultimately did, a minor girl would not have left her
husband’s house, or would not have been able to leave her
husband’s house, there was sufficient taking in law for the
purpose of S. 363 and expressing agreement with this
statement of the law observed: “In this case the minor, P.W.
4, would not have left the house but for the promise of the

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appellant that he would marry her.” Quite apart from the
question whether this amounts to blandishment we may point
out that this is not based upon any evidence direct or
otherwise. In 54 Mad LJ 456: (AIR 1928 Mad 585) Srinivasa
Aiyangar J., found that the girl whom the accused was
charged with having kidnapped was desperately anxious to
leave her husband’s house and even threatened to commit
suicide if she was not taken away from there and observed:

“If a girl should have been wound up to such a pitch of
hatred of her husband and of his house or household and she
is found afterwards to have gone out of the keeping of her
husband, her guardian, there must undoubtedly be clear and
cogent evidence to show that she did not leave her husband’s
house herself and that her leaving was in some manner
caused or brought about by something that the accused did.”

In the light of this observation the learned Judge
considered the evidence and came to the conclusion that there
was some legal evidence upon which a court of fact could find
against against the accused. This decision, therefore, is of
little assistance in this case because, as already stated, every
essential step was taken by Savitri herself; it was she who
telephoned to the appellant and fixed the rendezvous she
walked up to that place herself and found the appellant
waiting in the car; she got into the car of her own accord
without the appellant asking her to step in and permitted the
appellant to take her wherever he liked. Apparently, her one
and only intention was to become the appellant’s wife and
thus be in a position to be always with him.”

9. It must, however, be borne in mind that there is a
distinction between “taking” and allowing a minor to
accompany a person. The two expressions are not
synonymous though we would like to guard ourselves from
laying down that in no conceivable circumstances can the two
be regarded as meaning the same thing for the purposes of S.
361 of the Indian Penal Code. We would limit ourselves to a
case like the present where the minor alleged to have been
taken by the accused person left her father’s protection
knowing and having capacity to know the full import of what
she was doing voluntarily joins the accused person. In such a

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case we do not think that the accused can be said to have
taken her away from the keeping of her lawful guardian.
Something more has to be shown in a case of this kind and
that is some kind of inducement held out by the accused
person or an active participation by him in the formation of
the intention of the minor to leave the house of the guardian.

10. It would, however, be sufficient if the prosecution
establishes that though immediately prior to the minor
leaving the father’s protection no active part was played by
the accused, he had at some earlier stage solicited or
persuaded the minor to do so. In our opinion, if evidence to
establish one of those things is lacking it would not be
legitimate to infer that the accused is guilty of taking the
minor out of the keeping of the lawful guardian merely
because after she has actually left her guardian’s house or an
house where her guardian had kept her, joined the accused
and the accused helped her in her design not to return to her
guardian’s house by taking her along with him from place to
place. No doubt, the part played by the accused could be
regarded as facilitating the fulfilment of the intention of the
girl. That part, in our opinion, falls short of an inducement
to the minor to slip out of the keeping of her lawful guardian
and is, therefore, not tantamount to “taking”.

13. While, therefore, it may perhaps be argued on the basis
of the two Madras decisions that the word “taking” occurring
in Ss. 497 and 498 of the Indian penal Code should be given
a wide interpretation so as to effectuate the object underlying
these provisions there is no reason for giving to that word a
wide meaning in the context of the provisions of Section 361
and cognate sections.

15. The view which we have taken accords with that
expressed in two decisions reported in Cox’s Criminal Cases.
The first of them is Reg v. Christian Olifir, (1866) 10 Cox CC

402. In that case Baron Bramwell stated the law of the case
to the jury thus:

“I am of opinion that if a young women leaves her
father’s house without any persuasion, inducement, or

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blandishment held out to her by a man, so that she has got
fairly away form 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 (24 and 25 Vict. C.100, S. 55) for the Act does
not say he shall restore her, but only that he shall not take
her away.”

The jury returned a verdict of guilty in this case because the
girl’s evidence showed that the initial formation of her
intention to leave her father’s house was influenced by the
solicitations of the accused and by his promise to marry her.

16. The other case is Rex v. James Jarvis, (1903) 20 Cox
CC 249. There Jelf J., has stated the law thus to the Jury:

“Although there must be a taking, yet it is quite clear
that an actual physical taking away of the girl is not
necessary to render the prisoner liable to conviction; it is
sufficient if he persuaded her to leave her home or go away
with him by persuasion or blandishments. The question for
you is whether the active part in the going away together was
the act of the prisoner or of the girl; unless it was that the
prisoner, he is entitled to your verdict. And, even if you do
not believe that he did what he was morally bound to do –
namely, tell her to return home – that fact is not by itself
sufficient to warrant a conviction; for if she was determined
to leave her home, and showed prisoner that that was her
determination, and insisted on leaving with him – or even if
she was so forward as to write and suggest to the prisoner
that he should go away with her, and he yielded to her
suggestion, taking no active part in the matter, you must
acquit him. If, however, prisoner’s conduct was such as to
persuade the girl, by blandishment or otherwise, to leave her
home either then or some future time, he ought to be found
guilty of the offences of abduction.”

In this case there was no evidence of any solicitation by the
accused at any time and the jury returned a verdict of ‘not
guilty’. Further, there was no suggestion that the girl was
incapable of thinking for herself and making up her own
mind.

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12 apeal485.05

17. The relevant provisions of the Penal Code are similar to
the provisions of the Act of Parliament referred to in that
case.

18. Relying upon both these decisions and two other
decisions, the law in England is stated thus in Halbury’s Law
of England, third edition, vol. 10, at p. 758:

“The defendant may be convicted although he took no
part in the actual removal of the girl, if he previously solicited
her to leave her father, and afterwards received and
harboured her when she did so. If a girl leaves her father of
her own accord, the defendant taking no active part in the
matter and not persuading or advising her to leave, he can
not be convicted of this offence, even though he failed to
advise her not to come, or to return, and afterwards
harboured her.”

On behalf of the appellant reliance was placed before us upon
the decisions in Rajappan v. State of Kerala, ILR (1960)
Kerla 481 and Chathu v. Govindan Kutty, ILR (1957) Kerla,
591: (AIR 1958 Kerala 121). In both the cases the learned
Judges have held that the expression “taking out of the
keeping of the lawful guardian” must signify some act done
by the accused which may be regarded as the proximate cause
of the person going out of the keeping of the guardian; or, in
other wards an act but for which the person would not have
gone out of the keeping of the guardian as he or she did. In
taking this view the learned Judge followed, amongst other
decisions, the two English decisions to which we have
adverted. More or less to the same effect is the decision in
Nura v. Rex, AIR 1949 all 710. We do not agree with
everything that has been said in these decisions and would
make it clear that the mere circumstance that the act of the
accused was not the immediate cause of the girl leaving her
father’s protection would not absolve him if he had at an
earlier stage solicited her or induced her in any manner to
take this step.”

6. If the evidence is tested on the anvil of law enunciated by

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the Hon’ble Apex Court in S. Varadarajan Vs. State of Madras, AIR

1965 SC 942, the conclusion is irresistible that the prosecution failed

to establish offence punishable under Section 363 of the Indian Penal

Code.

7. The judgment and order impugned is set aside and the

accused are acquitted of the offence punishable under Section 363 read

with Section 34 of the IPC.

8. The bail bonds of the accused shall stand cancelled.

9. The fine paid by the accused, if any, shall be refunded to

them.

10. The appeal is allowed and is disposed of.

JUDGE
adgokar

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