# Ramvir v. State of U.P

- **Citation:** (2025) 8 ILRA 884
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-08-21
- **Case number:** Criminal Appeal No. 2100 of 1983
- **Bench:** Anish Kumar Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ramvir-v-state-of-u-p-53826
- **Pages:** 10

## Headnote

Sections 363 and 366 IPC was sustainable
when the victim initially accompanied the
appellant
voluntarily,
but
was
thereafter
threatened, confined and taken away from
lawful guardianship, and whether documentary
evidence regarding age of the victim would
prevail over medical opinion.

Headnotes
Indian Penal Code, 1860 - ss. 363, 366 -
Kidnapping from lawful guardianship -
Enticement of minor girl - Voluntary
initial
companionship
-
Subsequent
threat and compulsion - Confinement -
Proof of age - Documentary evidence -
Medical opinion - Conviction affirmed.

Held:
For an offence under Section 361 IPC, it is not
necessary that the minor be taken away by
force from the very inception. If the accused
plays an active role of inducement or
enticement which becomes the proximate
cause for the minor leaving lawful guardianship,
the offence of kidnapping is complete. Initial
voluntary accompaniment by the minor does not
absolve the accused when subsequent conduct
discloses threat, intimidation and compulsion.
[Paras 17-20]
8 All. Ramvir Vs. State of U.P.
885
In the present case, the appellant enticed the
victim, a minor girl aged about 15 years, on the
false pretext that her father had granted
permission to watch cinema. Thereafter, on her
refusal to marry him, he threatened to kill her
and compelled her to accompany him to
Gwalior, where she was kept confined in the
house of his relative under false identity. These
facts
clearly
established
kidnapping
and
abduction with intent to compel marriage.
[Paras 20-21]

Where documentary evidence such as a High
School marksheet proving date of birth of the
victim is available, the same prevails over
medical
opinion
regarding
age.
Medical
estimation of age being approximate cannot
displace reliable documentary proof. [Para 21]

The testimony of the victim was consistent,
natural and corroborated by other prosecution
witnesses.
No
material
contradiction
or
improbability
was
shown.
Ingredients
of
Sections 363 and 366 IPC were fully established.
Conviction and sentence recorded by the trial
court warranted no interference. [Paras 20-22]

Appeal dismissed. (E-14)

Case Law Cited
S. Varadarajan v. State of Madras, AIR
1965 SC 942 - relied on (distinction
between
"taking"
and
voluntary
accompaniment; enticement of minor).

List of Acts / Statutes
Code of Criminal Procedure, 1973; Indian Penal
Code, 1860.

List of Keywords
Kidnapping; Abduction; Minor girl; Enticement;
Threat and compulsion; Lawful guardianship;
Section 361 IPC; Documentary proof of age;
Medical opinion; Cinema pretext; Confinement;

Case Arising From
Judgment and order dated 24.08.1983 passed
by the XIth Additional Sessions Judge, Agra in
Sessions Trial No. 117 of 1982, arising out
of FIR dated 30.04.1980, Police Station Gwalior
(transferred to P.S. Etmadpur), District Agra.

Appearance for Parties
For the Appellants: Sri Deenanath Mishra,
Amicus Curiae
For the State: Sri Satyendra Nath Tiwari

## Text

884 INDIAN LAW REPORTS ALLAHABAD SERIES
appears to be too less/lenient. Rather, it
commends to us as proportionate.

50.
Accordingly,
the
impugned
judgement and order of the learned court
below is modified to the extent that the
conviction of the appellants for the offence
under Sections 395/120B, 397/120B, 412
IPC and Section 25 Arms Act is confirmed.
However, the sentence awarded is reduced
to 14 years (with remission) in place of life
sentence awarded by the learned court
below. That may have already been
undergone by the appellants.

51. The fine imposed by the learned
court below does not warrant interference.
It is maintained. Fine shall be deposited by
the appellants within three months from
their release. In default of payment of fine,
they shall further undergo additional
imprisonment as provided under impugned
judgment and order.

52. Accordingly, the appeals are
partly allowed. Appellant-Nadeem is on
bail. He need not surrender, in case he is
not wanted in any other case. His bail
bonds and sureties are discharged. The
appellant-Khursheed is in jail. He be
released forthwith. Both the appellants are
directed
to
furnish
bail
bonds
in
compliance of Section 437-A Cr.P.C. to the
satisfaction of the Court concerned within
two months from today.

53. A copy of this judgment be
transmitted to the Court concerned for
necessary compliance. Compliance report
be submitted to this Court, at the earliest.
Office is directed to keep the compliance
report on record. Pending applications, if
any, stand disposed of.
----------
(2025) 8 ILRA 884
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 21.08.2025

BEFORE

THE HON'BLE ANISH KUMAR GUPTA, J.

Criminal Appeal No. 2100 of 1983

Ramvir ...Appellants
Versus
State of U.P. ...Respondents

Counsel for the Appellants:
A. Rathore

Counsel for the Respondents:
A.G.A.

Issue for Consideration
Whether conviction of the appellant under
Sections 363 and 366 IPC was sustainable
when the victim initially accompanied the
appellant
voluntarily,
but
was
thereafter
threatened, confined and taken away from
lawful guardianship, and whether documentary
evidence regarding age of the victim would
prevail over medical opinion.

Headnotes
Indian Penal Code, 1860 - ss. 363, 366 -
Kidnapping from lawful guardianship -
Enticement of minor girl - Voluntary
initial
companionship
-
Subsequent
threat and compulsion - Confinement -
Proof of age - Documentary evidence -
Medical opinion - Conviction affirmed.

Held:
For an offence under Section 361 IPC, it is not
necessary that the minor be taken away by
force from the very inception. If the accused
plays an active role of inducement or
enticement which becomes the proximate
cause for the minor leaving lawful guardianship,
the offence of kidnapping is complete. Initial
voluntary accompaniment by the minor does not
absolve the accused when subsequent conduct
discloses threat, intimidation and compulsion.
[Paras 17-20]
8 All. Ramvir Vs. State of U.P.
885
In the present case, the appellant enticed the
victim, a minor girl aged about 15 years, on the
false pretext that her father had granted
permission to watch cinema. Thereafter, on her
refusal to marry him, he threatened to kill her
and compelled her to accompany him to
Gwalior, where she was kept confined in the
house of his relative under false identity. These
facts
clearly
established
kidnapping
and
abduction with intent to compel marriage.
[Paras 20-21]

Where documentary evidence such as a High
School marksheet proving date of birth of the
victim is available, the same prevails over
medical
opinion
regarding
age.
Medical
estimation of age being approximate cannot
displace reliable documentary proof. [Para 21]

The testimony of the victim was consistent,
natural and corroborated by other prosecution
witnesses.
No
material
contradiction
or
improbability
was
shown.
Ingredients
of
Sections 363 and 366 IPC were fully established.
Conviction and sentence recorded by the trial
court warranted no interference. [Paras 20-22]

Appeal dismissed. (E-14)

Case Law Cited
S. Varadarajan v. State of Madras, AIR
1965 SC 942 - relied on (distinction
between
"taking"
and
voluntary
accompaniment; enticement of minor).

List of Acts / Statutes
Code of Criminal Procedure, 1973; Indian Penal
Code, 1860.

List of Keywords
Kidnapping; Abduction; Minor girl; Enticement;
Threat and compulsion; Lawful guardianship;
Section 361 IPC; Documentary proof of age;
Medical opinion; Cinema pretext; Confinement;

Case Arising From
Judgment and order dated 24.08.1983 passed
by the XIth Additional Sessions Judge, Agra in
Sessions Trial No. 117 of 1982, arising out
of FIR dated 30.04.1980, Police Station Gwalior
(transferred to P.S. Etmadpur), District Agra.

Appearance for Parties
For the Appellants: Sri Deenanath Mishra,
Amicus Curiae
For the State: Sri Satyendra Nath Tiwari

(Delivered by Hon'ble Anish Kumar
Gupta, J.)

1. Heard Shri Deenanath Mishra,
learned amicus curie for the appellant and
Shri Satyendra Nath Tiwari, leaned AGA
for the State.

2. The instant criminal appeal has been
filed by the sole appellant-Ramvir being
aggrieved by the judgment and order dated
24.8.1983 passed by the XIth Additional
Session Judge, Agra in Sessions Trial No.
117 of 1982 whereby the appellant was
convicted for the offence under Section 363
and 366 IPC and was sentenced to undergo
rigourous imprisonment of 3 years and 5
years respectively.

3. The prosecution story in brief is that
victim/informant
lodged
an
FIR
on
30.4.1980 at 11 a.m. at Police Station
Gwalior stating therein that she is the
daughter of Shri Ram Gopal Vaidya,
resident of Etmadpur, Police StationEtmadpur, District Agra and is aged about
15 years. She came to the Police Station
and made a statement that she has appeared
in 10th class and Ramvir, who is the
resident of Nagla and known to her father
used to come to her village. On 24.4.1980,
she was present in the medical shop of her
father and her father was not there. The
said Ramvir came to the medical shop of
her father and asked her to accompnay him
for watching cinema on the pretext that he
has already taken permission from her
father. The appellant brought her to Tundla
and told her to come to Agra to watch
cinema there. Then, he brought her to Agra
and after watching the cinema at Agra, he
886 INDIAN LAW REPORTS ALLAHABAD SERIES
told that he will marry her. When she
refused, then he threatened that she will not
be left alive and asked her to follow silently
and told that if anybody asked her, then she
should tell that he is her brother-in-law. Out
of fear, she accompanied the said Ramvir,
who brought her to Gwalior on 25.4.1980 and
kept her in the house of one Rajendra, one of
the relative of Ramvir and he told his relative
that the victim is her sister-in-law and has
come for tourism. Since then, she was kept in
the house of Rajendra. Today, when Ramvir
had gone to market, then she had escaped
from the house and straight away came to the
police station. Ramvir had brought her
forcefully and she is reporting for the same.
On such report submitted by the victim, the
police arrested the accused-appellant Ramvir
and after registration of the FIR, the case was
handed over to police station Etmadpur. The
victim was thereafter handed over to her
father at the police station.

4. The medical examination of the
victim was conducted on 1.5.1980 and in the
medical examination, no injury was found on
the private parts of the victim. X-ray was
conducted and as per the x-ray reports, age of
the victim was found between 16-18 years.
No opinion was given by the doctor with
regard to any rape of the victim as according
to the doctor the victim was habitual of
masturbation. The matter was investigated by
the police and after recording the statement of
witnesses, chargesheet was filed against the
appellant for the offence under Section 363
and 366 IPC.

5. In support of its case, the
prosecution has examined the father of
the victim-Ram Gopal as P.W. 1, victim
as P. W. 2, Hargyan Singh as P.W. 3, Dr.
Veena Jain as P. W. 4, Lakhan Singh
Parihar as P. W. 5 and Constable Ranvir
Singh as P. W. 6.

6. P. W. 1-Ram Gopal is the father of
the victim and he stated that on the date of
incident he has gone to Agra to take the
medicines for his medical shop; when he
returned at around 4 p.m., he came to know
that his daughter is not at home. He tried to
search her out, then his compounder Shankar
Lal told that master Hargyan Singh-P..W. 3
has seen the appellant and victim riding on
the bus. He further stated that on 13.4.1980,
her daughter came from Gwalior to the police
station Etmadpur and then was handed over
to him. He further stated that at the time of
incident the age of her daughter was 15 years.

7. The victim P. W. 2 has deposed the
entire incident in great detail as to how the
incident had taken place and as to how she
herself has lodged the FIR at police station
Gwalior after escaping from the clutches of
the appellant, as mentioned above.

8. P.W.-3 Hargyan Singh has stated that
24.4.1980, he has seen the victim along with
the appellant at bus stand. At that time, he
was coming from school. Both the appellant
and the victim had boarded the bus which
was going towards Tundla and he had
informed the father of the victim on the same
date at around 7.00 pm.

9. Dr. Veena Jain is P.W.-4 has
medically examined the victim and she had
supported the medical examination reports.

10. Lakhan Singh Parihar is the P.W.-
5, who had investigated the instant case and
thereafter submitted the charge sheet.

11. Constable Ranvir Singh is P.W.-6
who has made the entries in the General
Diary on 30.4.1980.

12. The appellant has denied the
allegations in his statement under Section
8 All. Ramvir Vs. State of U.P.
887
313 Cr.P.C. and stated that he used to come
to the shop of father of victim and her
father also used to send the victim with him
many times. He had advanced some money
to the father of the victim and after the
incident also the victim continued to write
letters
to
the
appellant.
He
further
submitted that the police has wrongly
investigated the matter and prosecuted the
appellant. The appellant has not led any
evidence in support of his statment nor any
letter, which is alleged to have been written
by the victim, has been produced. On the
basis of aforesaid evidence, the trial court
has convicted the appellant for the offence
under Section 363 and 366 IPC and
sentenced him to undergo three years and
five
years
of
rigirous
imprisonment,
respectively.

13. Learned counsel for the appellant
submits that the victim had gone with the
appellant out of her own free will without
any force or fear created on the part of the
appellant herein. As per the medical
examination report, her age was found to
be between 16-18 years and benefit of
doubt should go in favour of the appellant,
therefore, she should be presumed to be 18
years of age at the time of incident. He
further submits that in the entire incident
when she has gone along with the
appellant, first she has gone to Tundla then
to Agra where she watched the cinema and
thereafter the allegation is that she was
threatened to marry forcibly and under
threats she was taken to Gwalior. In the
entire journey, at public places she had not
raised any alarm that she was being
forcibly taken by the appellant. Learned
counsel for the appellant further submits
that the conduct of the father of the victim
is also very unusual. As per P.W.-3, the
father of the victim came to know that his
daughter has gone with the appellant on the
date of the incident itself at 7:00 PM,
however, he has not made any efforts to
find her out nor reported the incident at the
police station. Thus, the victim and the
appellant were familiar to each other and
the victim had gone with the appellant out
of her own free will without there being
any force or fear from the appellant. Hence,
no offence under Section 363 and 366 IPC
is made out against the appellant. Thus,
learned counsel for the appellant seeks
acquittal of the appellant in the instant case.

14. Per contra, learned AGA submits
there is nothing on record to disbelieve the
testimony of the victim herself. Though she
admits that she had voluntarily gone with
the appellant at the initial stage from her
village to Tundla and then from Tundla to
Agra and watched cinema with him in
Agra, however, the appellant proposed to
marry the victim which was denied by the
victim;
thereafter
the
appellant
had
threatened her to kill and being frightened
by such threats, she had accompanied the
appellant to Gwalior where she was kept in
confinement in the house of one Rajendra,
the relative of the appellant, by giving a
misinformation that she is the sister-in-law
of the appellant. There she was not allowed
to move out of the house. When the
appellant had gone out to the market, the
victim has successfully escaped from the
house of said Rajendra and thereafter
lodged the FIR at the nearest police station
at Gwalior. As per the high school mark
sheet, her date of birth is 11.4.1965, thus on
the date of incident she was a minor aged
about 15 years. It is further submitted by
learned AGA that once the documentary
proof such as the high school mark sheet is
available on record with regard to date of
birth of the victim that has to be relied upon
and medical opinion would not serve any
purpose with regard to age of the victim.
888 INDIAN LAW REPORTS ALLAHABAD SERIES
Thus the offence under Section 363 and
366 IPC are categorically made out in the
instant case from the testimony of the
victim herself which is corroborated by the
other evidences and the statement of the
other witnesses.

15. Having heard the rival submissions
made by learned counsel for the parties,
this Court has carefully gone through the
records of the case.

16. Before proceedings further, it
would be relevant to take note of the
provisions of Section 359, 361, 363 and
366 IPC, which are reproduced herein as
under:-

"359. Kidnapping.-Kidnapping
is of two kinds: kidnapping from India, and
kidnapping from lawful guardianship.

361. Kidnapping from lawful
guardianship.-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.

Explanation.-
The
words
"lawful guardian" in this section include
any person lawfully entrusted with the care
or custody of such minor or other person.

363.
Punishment
for
kidnapping.-Whoever kidnaps any person
from India or from lawful guardianship,
shall be punished with imprisonment of
either description for a term which may
extend to seven years, and shall also be
liable to fine.

366. Kidnapping, abducting or
inducing woman to compel her marriage,
etc.-Whoever kidnaps or abducts any
woman with intent that she may be
compelled, or knowing it to be likely that she
will be compelled, to marry any person
against her will, or in order that she may be
forced or seduced to illicit intercourse, or
knowing it to be likely that she will be forced
or seduced to illicit intercourse, shall be
punished
with
imprisonment
of
either
description for a term which may extend to
ten years, and shall also be liable to fine; and
whoever, by means of criminal intimidation
as defined in this Code or of abuse of
authority or any other method of compulsion,
induces any woman to go from any place
with intent that she may be, or knowing that it
is likely that she will be, forced or seduced to
illicit intercourse with another person shall
be punishable as aforesaid."

17. Thus, from the provisions of Section
361 IPC, it appears that if a person takes
away or entices a girl below 18 years of age
and keeps her away from the lawful
guardianship of such minor, without the
consent of her guardian, the same is said to be
kidnapping of such girl from the lawful
guardianship. Section 363 provides for the
punishment for kidnapping from the lawful
guardianship. Section 366 provides that
whoever kidnaps or abducts any woman
with intent that she may be compelled, or
knowing it to be likely that she will be
compelled, to marry any person against her
will, or in order that she may be forced or
seduced to illicit intercourse, or knowing it
to be likely that she will be forced or
seduced to illicit intercourse, shall be
punished with imprisonment of either
description for a term which may extend to
ten years, and shall also be liable to fine.

18. In S. Varadarajan v. State of
Madras, AIR 1965 SC 942 the Apex Court
in paragraphs 9, 10, 12, 13, 14, 15, 16, 18,
and 19 has held as under:-
8 All. Ramvir Vs. State of U.P.
889

"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 circumstance can the two
be regarded as meaning the same thing for
the purposes of Section 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 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 a
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 fulfillment 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".

11. ....

12. In the next decision, that is,
that in Kumarasami's case (2 MHCR 331)
upon which the High Court has relied, it
was observed that the fact that a married
woman whom the accused was alleged to
have taken or enticed away for certain
purposes was a temptress, would make no
difference and the accused who yielded to
her solicitations would be guilty of an
offence under Section 498 (b) of the Penal
Code. This decision was approved of in In
Re: Sundara Dass Tevan (4 MHCR 20), a
case to which also the High Court has
referred. The basis of both these decisions
appears to be that depriving the husband of
his proper control over his wife, for the
purpose of illicit intercourse is the gist of
the offence of taking away a wife under the
same
section
and
that
detention
occasioning such deprivation may be
brought about simply by the influence of
allurement and blandishment. It must be
borne in mind that while Sections 497 and
498, I.P.C. are meant essentially for the
protection of the rights of the husband,
Section 361 and other cognate sections of
the Indian Penal Code are intended more
for the protection of the minors and
persons of unsound mind themselves than
of the rights of the guardians of such
persons. In this connection we may refer to
the decision in State v. Harbansing
Kisansing (ILR 1954 Bom. 784). In that
case Gajendragadkar J., (as he then was)
has, after pointing out what we have said
above, observed:

"It may be that the mischief
intended to be punished partly consists in
890 INDIAN LAW REPORTS ALLAHABAD SERIES
the violation or the infringement of the
guardians' right to keep their wards under
their care and custody; but the more
important object
of
these
provisions
undoubtedly is to afford security and
protection to the wards themselves."

13. While, therefore, it may
perhaps be argued on the basis of the two
Madras decisions that the word "taking"
occurring in Sections 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.

14. The last case relied upon by
the High Court is Ramaswami Udayar v.
Raju Udayar (1952 MWN 604) which is
also a case under Section 498, I.P.C. In
that case the High Court has followed the
two earlier decisions of that Court to which
we have made reference but in the course
of the judgment the learned Judge has
observed that it is not open to a minor in
law to abandon her guardian, and that,
therefore, when the minor leaves the
guardian of her own accord and when she
comes into the custody of the accused
person, it is not necessary that the latter
should be shown to have committed an
overt act before he could be convicted
under Section 498. The learned Judge has
further observed :

"A woman's free will, or her
being a free agent, or walking out of her
house of her own accord are absolutely
irrelevant and immaterial for the offence
under Section. 498."

Whatever may be the position
with respect to an offence under that,
section and even assuming that a minor
cannot in law abandon the guardianship of
her lawful guardian, for the reason which
we have already stated, the accused person
in whose company she is later found cannot
be held guilty of having taken her out of the
keeping of her guardian unless something
more is established.

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 (X Cox's Criminal Cases, 402). In
that case Baron Bramwell stated the law of
the case to the jury thus :

"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 (24
& 25 Vict. clause 100, Section 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(XX Cox's Criminal Cases,
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 of the prisoner,
he is entitled to your verdict. And, even if
you do not believe that he did what he was
8 All. Ramvir Vs. State of U.P.
891
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
them matter, you must acquit him. If,
however, prisoner's conduct was such as to
persuade the girl, by blandishments or
otherwise, to leave her home either then or
some future time, he ought to be found
guilty of the offence 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.

17. ....

18. Relying upon both these
decisions and two other decisions, the law
in England is stated thus in Halsbury's
Laws of England, 3rd 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 har- boured 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
cannot 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 Kerala 481) and Chathu v.
Govindan Kutty (ILR 1957 Kerala 591). 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
words 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.

19.
As
against
this
Mr.
Ranganadham Chetty appearing for the
State has relied upon the, decisions in
Bisweswar Misra v. The King (ILR 1949
Cuttack 194) and In re : Khalandar Saheb
(ILR 1955 Andhra 290). The first of these
decisions is distinguishable on the ground
that it was found that the accused had
induced the girl to leave the house of her
lawful guardian. Further the learned
Judges have made it clear that mere
passive consent on the part of a person in
giving shelter to the minor does not amount
to taking or enticing of the minor but the
active bringing about of the stay of the
minor in the house of a person by playing
upon the weak and hesitating mind of the
minor would amount to "taking" within the
meaning of Section 361. In the next case,
the act of the accused, upon the facts of the
case was held by the Court to fall under
892 INDIAN LAW REPORTS ALLAHABAD SERIES
Section 366, I.P.C. and the decision in
Nura v. Rex on which reliance has been
placed on behalf of the appellant is
distinguished. Referring to that case it was
observed by the Court :

"Reliance is placed upon the
decision of Mustaq Ahmed J. in Nura V.
Rex wherein the learned Judge observed
that where a minor girl voluntarily leaves
the roof of her guardian and when out of
his house, comes across another who
treats her with kindness, he cannot be
held guilty under secti on 361, Indian
Penal Code. This decision cannot help the
accused for, on the facts of that case, it was
found that the girl went out of the
protection of her parents of her own
accord and thereafter went with the
accused...... In the present case it is not
possible to hold that she is not under the
guardianship of her father. In either
contingency, namely, whether she went out
to answer calls of nature, or whether she
went to the house of the accused pursuant
to a previous arrangement, she continued
to be under the guardianship of her father.
On the evidence, it is not possible to hold
that she abandoned the guardianship of
her father and, thereafter, the accused
took her with him."

After pointing out that there is an
essential distinction between the words
"taking" and "enticing" it was no doubt
observed that the mental attitude of the
minor is not of relevance in the case of
taking and that the word "take" means to
cause to go, to escort or to get into
possession. But these observations have to
be understood in the context of the facts
found in that case. For, it had been found
that the minor girl whom the accused was
charged with having kidnapped had been
persuaded by the accused when she had
gone out of her house for answering the
call of nature, to go along with him and
was taken by him to another village and
kept in his uncle's house until she was
restored back to her father by the uncle
later. Thus, here there was an element of
persuasion by the accused person which
brought about the willingness of the girl
and this makes all the difference. In our
opinion,
therefore,
neither
of
these
decisions is of assistance to the State."

19.
Thus,
from
the
aforesaid
judgments which are also referred by the
apex court in S. Vardhrajan (Supra), there
must be an active role of the accusedappellant while taking and enticing away a
minor girl from her legal guardianship.

20. In the instant case, the appellant
has enticed the victim for watching cinema
with him on the pretext that he had already
sought permission from her father. Thus,
the victim has accompanied the appellant.
Subsequent thereto, he has threatened the
victim to marry him and when she denied,
she was threatened to be killed. Since the
victim was minor of 15 years of age at the
time of incident, obviously there was threat
perception on her and she obeyed dictates
of the appellant under threat perception and
followed him to Gwalior and stayed with
him and followed all the instructions given
by the appellant. However, when she found
a chance to escape, she has escaped and
reported the incident to the police.
Thereupon the police has arrested the
appellant and the victim was handed over
to her father after transferring the case to
Etmadpur Police Station. Thus, in the
considered opinion of this court, all the
ingredients of Section 363 and 366 are
clearly made out in the instant case.

21. As per the high school mark sheet
and the statement of the victim, she was 15
years of age at the time of the incident.
8 All. Bala Shankar Vs. State of U.P.
893
When there is documentary evidence
available on record, the medical opinion
with regard to age of the victim becomes
irrelevant. Thus, since the victim was
minor and she was enticed by the appellant
to watch cinema with him on the pretext
that her father has already given consent for
the same and thereafter she was threatened
to follow the appellant and she was taken to
Gwalior
and
was
kept
there
under
confinement. In view thereof in the
considered opinion of this court the
appellant is guilty of the offence under
Section 363 and 366 IPC. Accordingly, this
court do not find any illegality in the
impugned judgment and order dated
24.8.1983. Hence, the conviction as well as
the sentence awarded to the appellant by
the trial court is hereby affirmed.

22. The instant criminal appeal is
dismissed accordingly.

23. The appellant is on bail. The Cheif
Judicial Magistrate, Agra is directed to take
him into custody in the aforesaid case and
send him to jail to serve out the remaining
sentence as awarded by the trial court and
affirmed by this Court.

24. Office is directed to send a copy of
this order to the court concerned within a
week for compliance along with the Lower
Court Record. The compliance report shall
be sent by the court concerned to this court
within a further period of fifteen days.

25. This Court appreciate the able
assistance provided by Sri Deena Nath
Mishra, learned Amicus Curiae. He shall be
paid an honorarium of Rs. 10,000/- for
services rendered by him as per rules.
----------
(2025) 8 ILRA 893
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.08.2025

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE JITENDRA KUMAR SINHA, J.

Criminal Appeal No. 2695 of 1986

Bala Shankar ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Kamlesh Kumar, Deena Nath

Counsel for the Respondent:
A.G.A.

Issue for Consideration
Whether
the
conviction
of
the
surviving
appellants under Section 302 read with
Section 149 IPC was sustainable when the
deceased died eight days after the incident
due to septicaemia arising from antemortem injuries, and whether, in the facts
proved, the offence was liable to be altered to
Section 304 Part-II read with Section 149
IPC, along with appropriate modification of
sentence.

Headnotes
Indian Penal Code, 1860 - ss. 302/149,
304 Part-II/149, 147, 148, 323/149,
324/149 - Murder - Unlawful assembly
- Common object - Injured witnesses -
Evidentiary
value
-
Death
due
to
septicaemia - Intention and knowledge -
Alteration
of
conviction
-
Sentence
already
undergone
-
Fine
and
compensation.

Held:
Testimonies of PW-1 (informant) and PW-2
(injured witness) were natural, cogent and
trustworthy. Evidence of an injured witness
carries a higher evidentiary value and ordinarily
warrants reliance unless major contradictions
are shown. Their ocular version stood fully
corroborated
by
medical
evidence
and