# Cases 143 and Shantiranjan Majumdar v. Abhoyandanda Brahamachari &

- **Citation:** [1973] 2 S.C.R. 728
- **Court:** Supreme Court of India
- **Decided:** 1972-10-27
- **Bench:** J. M. Shelat, Y. V. Chandrachud, I. D. DuA
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/cases-143-and-shantiranjan-majumdar-v-abhoyandanda-brahamachari-5894
- **Pages:** 10

## Headnote

B:
Indian Penal Code (Act 45 of 1860), S.<. 361 and 366-Scope of.
One J, the coacC'Used in the case, had tried to become intim..te. with
the prosecutrix, a girl of fourteen, and to seduce her to go and live with
him.
When her father forbade J to visit his house, J started sending
messages to the prosecutrix through the respondent.
On the day of the
occurrence, the respondent went to see the prosecutrix and asked her
to visit his house, and IMer, on the same day, sent his daughter to fetch
the prosecutrix.
When she came the respondent informed her that she
should come to his house at about midnight when she would be taken
to J. That night, when the prosecutrix came to his house, the respondent
took her with him and handed her over to J.
On the question, whether the respondent was guilty under S. 361,
I. P. C., of the offence of kidnapping from lawful guardianship, the trial
Court convicted him, but the High Court set aside the conviction.
In e,;ipeal to this Court,
HELD : The acquittal o'f the respondent by the High Court vcas clearly
errone.ous both on facts and in law and considering the nature of the
offence there was clear failure of justice justifying interference by this
Court unde'r Art. 136. [,737 A·Bl
·
Th object of S. 361, I.P.C., is to protect minor children from being
seduced for improper purposes and to protect the rights and privileges of
guardians having l21wful charge or custody of their minor wards.
The
gravamen of this offence lies in the taking or enticing of a minor under
the ages specified in the section, out of the keeping of the lawful guardian
without the consent of such guardian.
The use of the word 'keeping'
connotes the idea of charge, protection, maintenance ~nd control; further,
the guardian's charge and control are compatible with the independence
of action and movement in the minor, the guardian's i.irotection and cor.-
trol of the minor being avail2ble, whenever necessity arise.s.
The consent of the minor who is taken or enticed is wholly immaterial; ft is only
the guardian's consent, that would take a case out of the purview of the
section. It is not necessary that the taking or enticing must be shown to
have been by means of force or fraud. Persul:(>ion by. the accused person
which creates willingness on the part of the minor to ·be taken out of
the keeping of the lawful ilJardian would be sufficient to attract the
section. [7340-E]
In the present case, the respondent's action was the proximate cause
of the prosecutrix going out of the keeping of her father, a,nd, but for his
persuasive offer to take her to J, the prosecutrix would not have gone
out of the keeping of· her father who was Jier lawful guardian, as she
actually did.
The respondent actively participated in the formation of
the intention of the p'°'ecutrix to 1C21ve her father's house, and the facts
that the respondent did not go to her house to bring her and that she was
easily persuaded to go with him would not prevent the respondent from
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HARYANA STATE v. RAJA RAM (Dua, J.)
7Z9
being guilty of the offence. Her consent or willingness to accompany the·
respondent would be immaterial &nd it would be equally so even if. the·
proposal to go with !he respondent had emanated from her. There 1s a
distinction between lr.tking and allowing a minor to- accompany a person,
but the instant case is not one of the ptosecutrix herself leaving her·
father's house wit'hout any inducement by the respondent who merely
allowed her to accompany him. [734E~H; 735A-G]
Reg. v. Job Timming; 169 E.R. 1260, Reg. v. Handley & anr., 175·
E.R. 890'; Reg. v. Robb. 176 E.R. 466, Reg. v. Manketeloy, _6 Cox Crim.
Cases 143 and Shantiranjan Majumdar v. Abhoyandanda Brahamachari &
Ors. Cr. A. No. 21 of 1960 decided on the 14th September 1964, referred'
to.
CRIMINAL APPELLATE JuR1smcnoN :
Cr. A. No. 214 of
c
1969.
Appeal by ~pecial leave from the judgment and order dated
March 18, 1969 of the Punjab & Haryana High Court at Chandigarh in Criminal Appeal No.

## Text

728
STATE OF HARYANA
I'.
RAJA RAM
October 27, 1972
[J. M. SHELAT, Y. V. CHANDRACHUD AND I. D. DuA, JJ.]
B:
Indian Penal Code (Act 45 of 1860), S.<. 361 and 366-Scope of.
One J, the coacC'Used in the case, had tried to become intim..te. with
the prosecutrix, a girl of fourteen, and to seduce her to go and live with
him.
When her father forbade J to visit his house, J started sending
messages to the prosecutrix through the respondent.
On the day of the
occurrence, the respondent went to see the prosecutrix and asked her
to visit his house, and IMer, on the same day, sent his daughter to fetch
the prosecutrix.
When she came the respondent informed her that she
should come to his house at about midnight when she would be taken
to J. That night, when the prosecutrix came to his house, the respondent
took her with him and handed her over to J.
On the question, whether the respondent was guilty under S. 361,
I. P. C., of the offence of kidnapping from lawful guardianship, the trial
Court convicted him, but the High Court set aside the conviction.
In e,;ipeal to this Court,
HELD : The acquittal o'f the respondent by the High Court vcas clearly
errone.ous both on facts and in law and considering the nature of the
offence there was clear failure of justice justifying interference by this
Court unde'r Art. 136. [,737 A·Bl
·
Th object of S. 361, I.P.C., is to protect minor children from being
seduced for improper purposes and to protect the rights and privileges of
guardians having l21wful charge or custody of their minor wards.
The
gravamen of this offence lies in the taking or enticing of a minor under
the ages specified in the section, out of the keeping of the lawful guardian
without the consent of such guardian.
The use of the word 'keeping'
connotes the idea of charge, protection, maintenance ~nd control; further,
the guardian's charge and control are compatible with the independence
of action and movement in the minor, the guardian's i.irotection and cor.-
trol of the minor being avail2ble, whenever necessity arise.s.
The consent of the minor who is taken or enticed is wholly immaterial; ft is only
the guardian's consent, that would take a case out of the purview of the
section. It is not necessary that the taking or enticing must be shown to
have been by means of force or fraud. Persul:(>ion by. the accused person
which creates willingness on the part of the minor to ·be taken out of
the keeping of the lawful ilJardian would be sufficient to attract the
section. [7340-E]
In the present case, the respondent's action was the proximate cause
of the prosecutrix going out of the keeping of her father, a,nd, but for his
persuasive offer to take her to J, the prosecutrix would not have gone
out of the keeping of· her father who was Jier lawful guardian, as she
actually did.
The respondent actively participated in the formation of
the intention of the p'°'ecutrix to 1C21ve her father's house, and the facts
that the respondent did not go to her house to bring her and that she was
easily persuaded to go with him would not prevent the respondent from
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HARYANA STATE v. RAJA RAM (Dua, J.)
7Z9
being guilty of the offence. Her consent or willingness to accompany the·
respondent would be immaterial &nd it would be equally so even if. the·
proposal to go with !he respondent had emanated from her. There 1s a
distinction between lr.tking and allowing a minor to- accompany a person,
but the instant case is not one of the ptosecutrix herself leaving her·
father's house wit'hout any inducement by the respondent who merely
allowed her to accompany him. [734E~H; 735A-G]
Reg. v. Job Timming; 169 E.R. 1260, Reg. v. Handley & anr., 175·
E.R. 890'; Reg. v. Robb. 176 E.R. 466, Reg. v. Manketeloy, _6 Cox Crim.
Cases 143 and Shantiranjan Majumdar v. Abhoyandanda Brahamachari &
Ors. Cr. A. No. 21 of 1960 decided on the 14th September 1964, referred'
to.
CRIMINAL APPELLATE JuR1smcnoN :
Cr. A. No. 214 of
c
1969.
Appeal by ~pecial leave from the judgment and order dated
March 18, 1969 of the Punjab & Haryana High Court at Chandigarh in Criminal Appeal No. 951 of 1968.
Harbans Si!1gh and R. N. Sachthey, for the appellant.
D
Ram Sarup and J. C. Ta/war, for the respondent.
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The Judgment ot the Court was delivered by
Du A, J .-In 1his appeal by special leave the State of Haryana
has assailed the judgment of a learned single Judge of the High
Court of Punjab & Haryana at Chandigarh acquitting the responden1 Raja Ram on appeal from his conviction by the Additional
Sessions Judge, Karna!, under s. 366, I.P.C.
and sentence of
rigorous imprisonment of 1 t years with fine of Rs. 5001 - and
in de.fault rigorou1 imprisonment for two months.
I
Santosh Rani, the prosecutrix, aged about 14 years, daughter
of one Narain Dass, a resident of village Jor Majra, in the
district of Kamal was the victim of the offence.
According to
the prosecution story one Jai Narain, a resident of village Muradgarh, close to the village Jor Majra, once visited the house of
Narain Dass for treating his ailing sons, Subhas Chander and
Jagjit Singh.
When the two boys were cured bv
Jai Narain,
Narain Dass began to have great faith in him and indeed star1ed
treating him as his Guru.
Jai Narain started paying frequent
visits to Narain Dass's house and apparently began to cast an
evil eye on the prosecutrix.
He persuaded her to
accompany
him tfy inducing her to believe that though she was made to work
in her parents' house she was n01 even given proper food
and
clothes by her parents who were poor. He promised to keep her
like a queen, having nice clothes to wear, good food to eat and
also a servant at her disposal.
On one occasion Narain
Dass
happened to see Jai Narain talking to the prosecutrix and
felt
730
SUPREME COURT RE?ORTS
[1973] 2 S.C.k.
suspicious with the result that he requested Jai Narain not to
visit his house any more. He also reprimanded his daughter and
directed her .10t to be free with Jai Narain.
Having been prohibited from visiting Narain Dass's house, Jai . Narain started
sending messages to the prosecutrix through Raja Ram, respondent, who is a jheewar and has his house about 5 or 6 karams
away from that of Narain Dass.
As desired by Jai Narain, Raja
Ram persuaded the prosecutrix to go with him to the house of
Jai Narain.
On April 4, 1968 Raja Ram contacted the prosecutrix for \he purpose of accompanying him to Jai Narain's house.
Raja Ram's daughter Sona by name, who apparently was somewhat friendly with the prosecutrix went to the latter's house and
conveyed a message that she (prosecutrix) should come to the
house of Raja Ram at midnight.
The prosecutrix as desired,
went to Raja Ram's house on the night between April 4 and 5,
1968, when Raja Ram took her to Bhishamwala well. Jai Narain
was not present at the well at 1hat time.
Leaving the prosecutrix
the1 , Raja Ram went to bring Jai Narain, whom he brought
after some time, and handing over the prosecutrix to Jai Narain,
Raja Ram returned to his own house.
On the fateful night it
appears that Narain Das was not in the village, having gone to
Kamal and his wife was sleeping in the kitchen. The prosecutrix,
along with her two younger sisters was sleeping in the court-yard,
her elder brother (who was the eldest child) was in the field. It
was in these circumstances that the prosecutrix had gone to the
house of Raja Ram ,from where she was taken to Bhishamwala well.
On the following morning, when Abinash Kumar, who is also
:sometimes described as A binash Chander Singh, brother of the
prosecutrix, returned from the field to feed the cattle, the prosecutrix was found missing from her bed.
Abinash had returned
to the house at about 4 a.m.
He woke up his mother and enquired about Santosh Rani's whereabouts.
The mother replied
that the prosecutrix might have gone to ease herself. After waiting for about half an hour Abinash Kumar went to his grandfather who used to reside in a separate adjoining houi,e and informed him abput this fact.
After having searched for her unsuccess.fully, Abinash went to Kamal to inform his father about
it. The father and the son returned from Kamal by about 10 a.m.
The search went on till afternoon but the prosecutrix was
not
found.
The father, after having failed in his search for the misJ'.··
. ing daughter, lodged the first information report (Ex. PW 1 /3,
with the officer in charge of the Police Station, lndri. "Confirmed suspicion" was cast in this report on Jai Narain Bawa Moti
Ram, resident of Sambli, who was stated to be a bad character
and absent froni the village. It was added in the F.I.R. that about
S or 6 months earlier Narain Dass had prevented Jai Narain from
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HARYANA STATE v. RAJA RAM (Vua, ./.,.)
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A viSiting the former's house as a result of which the latter had
held out a threat to the former. On April 13, 1968 at about
7 a.m. Ram Shah, S.H.O., Police Station Indri, along with three
other persons and Narain Dass, saw Jai Narain and Santosh Rani
coming from the side of Dera Waswa Ram.
As they reached
near Dera Ganga Singh, Narain Dass identified his daughter and
B Jai Narii_in, accused, was taken into custody. The prosecutrix
had a jhola (ex. P-16) which contained one suit and a shawl and
two chunis which were taken into possession. The sa/war of the·
prosecutrix appeared to have on it stains of semen.
c
After investigation Jai Narain, aged 32 years and Raja Ram,
the respondent, were both sent up for trial, the former under ss.
366 and 376 I.P.C. and the latter under ss. 366 and 376/109,
I.P.C. They were both committed to the court of Sessions. The·
learned Second Additional Sessions Judge, Karna!,
who
tried
them, convicted Jai Nurain alias Bawa under s. 378, I.P.C. and
sentenced him to rigorous imprisonment for six years and fine of'
Rs. 500/- or in default to further rigorous imprisonment for six
D months. The respondent was convicted under s. 366, I.P.C. and
sentenced to rigorous imprisonment for 1 i years and fine
of
Rs. SO
or in default to rigorous imprisonmpnt for two months.
Jai Narain was acquitted of the charge under s. 366, I.P.C. and'
the respondent of the charge under ss. 376/109, I.P.C.
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Both the convicts appealed to the High Court of Punja~ &
Haryann. A learned single Judge of that Court dismissed · the··
appeal of Jai Narain maintaining his conviction and
sentence·
but acquitted the respondent Ra.ia Ram of the charge under
s. 366. I.P.C. It is against the order of the respondent's acquittal
that the State of Haryana has appealed to this Court.
It appears that the fespondent had not entered appearance
in this Court within ~O days· of the service on him of the notice·
of lodgment of the petition of appeal. He applied for condonation of the delay though according to him no such application
was necessary. The permission to enter appearance was granted
by this Court at the time of the hearing.
In the High C(lurt Shri K. S. Keer, the learned counsel appear•
ing for Raja Ram contended that even if the case of the prosecution as made out from the evidence of the prosecutrix herself and
supported by . the testimony oJ:' her father Narain Dass her
mother Tara Wanti and her brother Abinash Kumar is admitted'
to be correct, no offence could be said to have been committed·
by Raja Ram under s. 366, l.P.C. Apparently it was this argument which prevailed with the High Court. The learned single-
732
SUPREME COURT REPORTS·
[1973] 2 S.C.R.
.Judge, after briefly s1ating the facts on which the prosecution
.charge was founded accepted the only contention raised IJtefore
.him, expressing himself thus :
"The question which arises, is whether in the face
of ·these facts stated by the prosecutrix Raja Ram
could be held to be guilty of offence under section 366,
Indian Penal Code.
In order that an accused person
may be guilty of offence under section 366, Indian Penal
Code, prosecution has to show that. the woJD.an was kidnapped or abducted in order that she might be forced
or seduced to illicit intercourse or knowing it to be b'k:ely that she would be so forced or seduced.
In other
words, the prosecution must show that there was either
kidnapping or abduction.
Section 361, Indian Penal
Code, which defines 'kidnapping' says that when any
person takes or entices any minor under the age ol 18 if
a female out of the keeping of law guardianship of s~ch
minor without the consent of such guardian, commits
kidnapping.
The girl left the house of her father . at
midnight of her free will.
Raja Ram, appellant, dirl
not go 10 her house to persuade her and to bring her
from there. · She chose the dead cf night when other
members 9f the family were, according to her own state'
ment fast asleep.
Soon after reaching the house . of.
Raja Ram, who she says was waiting for her and that
suggests that she had on her visit during the day so
set1led with him, that she agreed to accompany him to
Bhishamwala well. These facts leave no doubt that she
was neither enticed nor taken by Raja Ram from the
lawful guardianship of her parents.
She bas herself
chosen to accompany Raja Ram and to ~ with Jai
Narain, appellant. It could not be said that the girl
went with Raja Ram either by use of force or on
account of any kind of persuasion on the part of Raja
Ram.
Under the circumstances, it could not be held
that the girl had been taken or seduced from the custody of her parents. The girl reached at that odd hour
to carry into effect her own wish of being in the company of Jai Narain, appellant. In vi_ew of these facts,
it could not iJe held that Raja.Ram was guilty of the act
of either taking away the girl or seducing her out of the
keeping of her parents. The word 'take' implies want
of wish and absence of desire of the person taken. Once
the act of going on the part of the girl is voluntary and
conformable to her own wishes and the conduct of the
_girl leaves no doubt that it 'is so, Raja Ram appellant
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HARYANA STATE v. RAJA RAM (Dua, J.)
733
could not be held to have either taken or seduced the
girl."
The learned single Judge also excluded the offence of abduction
by observing that Raja Ram had neither compelled the prosecutrix by force nor had he adopted any deceitful means to entice
her to go from her house to that of Jai Narain.
The approach and reasoning of the learned single Judge is
quite manifestly insupportable both on facts
and in· 1aw .. It
clearly ignores important evidence on the record which establishes
l:Aeyond doubt that the .prosecutrix had been solicited and persuaded by Raja Ram to leave her .father's house for being taken to
the Bhishamwala well.
Indeed, earlier in his
judgment
the
learned single Judge has himself observed that according to the
statement oi the prosecutrix, on receipt of Raja Ram's message
as conveyed through his daughter Sona, she contacted Raja Ram
during day time in his house and agreed with him that she (th~
prosecutriir would accompany him (Raja Ram) to go to Bhishamwala well at midnight to meet Jai Narain, as the other members of her family would be sleeping at that time.
If, according
to . the learned single Judge, it was in this background that the
prosecutrix had left her father's house at midnight and had gone
to the house of Raja Ram from where she accompanied Raja Ram
to the Bhishamwa]a well, it is difficult to appreciate how Raja
Ram could be absolved of his complicity in taking the prosecutrix
out of the keeping ot her father, her lawful guar~ianL without his
consent. It was in our opinion, not at all necessary for Raja Ram,
himself to go to the house of the prosecutrix at midnight to bring
her ftom there.
Nor does the fact that the
prosecutrix
had
agreed to accompany Raja Ram to Bhishamwala well take the
case out of the purview of the offence of kidnapping from lawful
guardianship as contemplated by s. 361, I.P.C.
This is not a
case of merely allowing the prosecutrix to accompany Raja Ram
without any inducement whatsoever on his part from her house
to Bhishamwala well.
Section 361, I.P.C. reads:
"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 !!\!ch 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.
734
Sl,IPREME COURT REPORTS
[1973] 2 S.C.R.
Exceplion.-This section does not extend 1IO the
act of any person l'iJlo in good faith believes himself
to be the father of an illegitimate child, or who in good
faith believes himself to be entitled to the lawful custody
of such child, unless such act is
committed for
an
immoral or unlawful purpose."
The object of .. this section seems as much to protect the minor
children from "being seduced for improper purposes as to protect
the rights and privileges of guardians having the "lawful charge or
custody of their minor wards. The gravamen of this offence fo:s
in tre taking or enticing of a minor under the ages specified in this
sec1ion, .out of the keeping of the lawful guardian without the
consent. of such guardian.
The words "takes or entices any
minor .... out of the keeping of the lawful guardian of such
minor" in s. 361, are oignificant. The use of the word "keeping"
in the context connotes the idea of charge1 protection, maintenance
and control, further the guardian's charge arid control appears to
be compatible \\\ith the independen~e of action and movement in
the minqr, the guardian's prctection and control of the minor being availllble, whenever necessity arises. On plain reading of this
section the consent of the minor who is taken or enticed is wholly
immaterial : it is only the guardian's consent which takes the
case out of its purview.
Nor is it necessary that the taking or
enticing must be shown to have been by means of force or fraud.
Persuasion by the accused person which creates willingness on
the part of the minor to be taken out of the keeping of the lawful
guardian would be sufficient to attract the section.
In the present case the evidence of the prosecutrix as corroborated by the evidence of Narain Das, P.W. 1 (her
fath~r),
Abinash Chander P.W. 3 (her brother) and Smt. Tarawanti P.W.
4 (her mother)
convincingly establishes beyond reasonable
doubt : ( 1) that Jai Narain had tried to become intimate with
the prosecutrix and to seduce her to go and live with him and on
objection having been raised by her father who asked Jai Narain
not to visit his house, Jai Narain started sending messages to· the
prosecutrix through Rafa Ram, respondent; (2) that Raja Ram,
respondent, had been asking the prosecutrix to be
ready
to
accompany Jai Narain; (3) that at about 12 noon on April 4,
Raja Ram went to see the prosecutrix at her house and asked
her to visit his house when he would convey Jai Narain's message
to her; ( 4) that on the same day after som~ time Sona was se~t
by her father to the house of the prosecutnx to fetch her to hts
house where the prosecutrix was informed that. Jai Narain would
come that night and would take the prosecutnx away; and ( 5)
that Raja Ram accordingly asked the prosecutrix to visit his
house at about midnight so that she may be entrusted to Jar
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HARYANA STATE V. RAJA RAM (Dua,/.)
·735
Narain.
This evidence was believed by the learned Additional
Sei;s1ons Judge wno convicted tne respondent, as a1reaily noticed.
The learned smgle Judge aJ.sO did not d1sbel1eve her statement.
ln<leed, m the l:Lgh Court the learned counsel for Raja Ram had
procee<led on tne assumpuon that the evidence of the pr~ecutrix
is acceptable, the argument bemg that even acceptmg her statement to be correct no offence was made out agamst Raja Ram.
Once the evidence of the prosecutrix is accepteu, in our opiruon,
Raja Ram cannot escape conviction for the offence of kidnappmg
her from her father's lawful guardianship. It was not al all
necessary for Raja Ram to have himself gone to the house of the
prosecutrix to bring her from there on the midnight in question.
It was 1uflicient if he had earlier been soliciting or pe1suadmg her
to leave her father's house to go with him to Jai Narain. It is
fully established on the record that he had been conveying mes·
sages from Jai Narain to the prosecutrix and had himself been
persuading her to accompany him to Jai Narain's place where he
would hand her over to him. Indisputably the last message was
conveyed by him to the prosecutrix when she was brought by his
daught\!1 Sona from her own house ·to his and it was pursuant to
this message that the prosecutrix decided to leave her father's
house on the midnight in question for going to Raja Ram's house
for the purpose of being taken to Jai Narain's place.
On these
facts it is difficult to hold that Raja Ram was not guilty of taking
or enticing the prosecutrix out of the keeping of her father's lawful guardianship.
Raja Ram's action was the proximate cause
of the prosecutrix going out of the keeping of her father and
indeed but for Raja Ram's persuasive offer to take her to Jai
Narain the prosecutrix would not have gone out of the keeping of
her father who was her lawful guardian, as .she actually did. Raja
Ram actively participated in the formation of the intention of
the prosecutrix to leave her father's house. The' fact that the prosecutrix was easily persuaded to go with Raja Ram would not
prevent him from being guilty of the offence of kidnapping her.
Her consent or willingness to accompany Raja Ram would be
immaterial and it would be equally so even if the proposal to go
with Raja Ram had emanated from her. There is no doubt a
distinction between taking and allowing a minor to accompany a
person. But the present is not a case of the prosecutrix herself
leaving her father's house without any inducement by Raja Ram
who merely allowed her to accompany him.
On behalf of the appellant State our attention was drawn to
some of the English decisions for the purpose of illustrating the
scope of the protection of minor children and of the sacred right
of their parents and guardians to the possession of minor children
under the English law. The learned counsel cited Reg. v. Job
I 2-L499Sup.C. I. 173
736
SUPREME COURT REPORTS
(1973] 2 S.C.R.
Timmins('); Reg. v. Handley.& Anr.(2 ) and Reg. v. Robb(3).
In the first case Job Timmins was convicted of an iridictment
framed upon 9 Geo. IV, c. 31, s. 20 for taking an unmarried
girl under sixteen out oi the possession of her father, and against
his will. It was observed by Erle C.J. that the Statute was passed
for the protection of parents and for preventing unmarried girls
from being taken out of possession of their parents against their
will.
Limiting the judgment to the facts of that case it was said
that no deception or .forwardness on the part of the girl in such
cases could prevent the person taking her away from being guilty
of the offence in question. The second decision is authority for
the view that in order to constitute an offence under 9 Geo. IV,
c. 31, s. 20 it is sufficient if·by moral force a willingness on the
part of the girl to go away with the prisoner is created; but if
her going away with the prisoner is entirely voluntary, no offence
is committed. The last case was of a conviction under the Statute
(24 & 25 Viet. c. JOO, s. 55). There inducement by previous
promise or persuasion was held sufficient to bring the case within
the mischief of the Statute. In the English Statutes the expression
used was "take out of the possession" and not "out of the keeping"
as used in s. 361. I.P.C.
But that expression was construed in
the English decisions not to require actual manual possession.
It was enough if at the time of the taking the girl continued under
the care, charge and control of the parent : see Reg: v. Manketelow. (') These decisions only serve to confirm our view that s.
361 is designed also to protect the sacred right of tl1e guardians
with respect to their minor wards.
A
B
c
D
E
On behalf of the respondent it was contended as a last' resort
that this Court should be slow to interfere with the conclusions
of the High Court on appeal from an order of acquittal and drew
our attention to an unreported decision of this Court in Shanti-
· F
ra11ja11 Majumdar v. Abhoya11a11da Brahmachari & Ors.(G). The
decision cited was given by this Court on appeal by the complainant. In any event it was observed there that the complainant
appellant had not been able to satisfy the court that any grave
miscarriage of justice had been caused with the result that he
could not be permitted to urge grounds other than those which are
G
fit to be urged at this time of obtaining special leave to appeal.
The decision of the High Court there could not "even remotely
be characterised as unreasonable", to use the language of this
Court, th:mgh it might have been possible to take ihe view that
the circumstances found by the High Court were not adequate for
(t) 169 English Rooorts 1260.
(2) 175 English Reports 890.
H
(3) 176 E"~lish Reoorts 466.
(4) 6 Cox. cfim. cases 143.
(5)Crl. A. N>. 2l or 195~ d•cided on 14th September, 1964.
A
B
HARYANA STATE v. RAJA RAM (Dua,/,)
73i
enabling it to set aside the verdict of the jury and examine the
evidence for itself. In the present case the acqu.ittal by the High
Court is clearly erroneous both on facts and in law and keeping
in view the nature of the offence committed we consider that there
is clearly failure of justice justifying interference by this Court
under Art. 136 of the Constitution. The result is that the appeal
is allowed and setting aside the order of the High Court acquitting
Raja Ram, respondent, we restore the order of the Second Additional Sessions Judge affirming both the conviction and sentence
as imposed by the trial court. Raja Ram, respondent should surrender to his bail bond to serve out the sentence.
V.P.S.
·Appeal allowed. ·