# THAKORLAL D. VADGAMA v. THE STATE OF GUJARAT

- **Citation:** [1974] 1 S.C.R. 178
- **Court:** Supreme Court of India
- **Decided:** 1973-05-02
- **Case number:** Criminal Appeal No. 18 of 1970
- **Bench:** K. K. Mathew, I. 0. Dua
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/thakorlal-d-vadgama-v-the-state-of-gujarat-6650
- **Pages:** 13

## Headnote

111dh1.n Penal Code, S. 366-When a person "takes" or "entices'' away a minor
girl from rhe custody of her lawful guardian-The scope of the section.
The accused. was convicted by the trial court under Ss. 366 and 376 l.P.C.
Ou appeal. the Hii:h Court acquitted him of the offence under s. 376 I.P.C.;
but upheld the conviction and sentence under s. 366 I.P.C. 'OD the ground that
the appellant had taken out a minor girl out of the keeping of her parents (her
lawfut guardian)
with an intention that she may be seduced to illicit intercourse.
On appeal to this Court, the appellant contended that since the girl left her
parents' house out of her own accord due to the harsh treatment of her pareats
and as the appellant kept her in his house out of compassion and sympath~· for
the helpless girl. the charge under s. 366 I.P.C. was unsustainable.
Dismissing the appeal,
A
B
c
HELD : (i) The legal position '''ith respect of an offence under s. 366
1.P.C. is clear. Jn Siate of Haryana v. Raja Rani A.I.R. 1973 S.C. 819 it
D
was observed by this Court that the object of Section 361 seems as
much io
protect the minor children from being seduced for improper
purposes as
to
protect the rights and privileges of guardians having the lawful charges or cuslody of their minor wards.
The gravamen of this (kidnapping) is the 'taking'
or 'enticing' of a minor girl under the ages specified :n the section, out of the
keeping of the lawful guardian \Vithout his consent and section 366 provides for
punishment of whoever kidnaps a woman for illicit intercourse
or
for
the
purp"Jse of marriage against her will. [187C]
E
(ii) The word 'takes' in section 361 I. P. C. does not necessarily connote
, taking by force and it is not confined only to use of force, actual or cons-
. tructive. This word merely means "to cause to go", "to escort'' or "to get
into possession''. The word "e~tice" means to involve the idea of inducement
or allurement by giving rise to hope or desire in the other. If the minor leaves
her parental home, influenced by any promise, offer or inducement en1anating
from the guilty party then the latter will be guilty of an offence as defi:ted
in s. 361 l.P .C. [187HJ
F
(iii) In the present case, the circumstances in which the appellant and the
victim came close to each other and the manner in which he
is stated to
have given her presents etc. and the letters written by the victim to the appellant furnish very important and essential background to the offence \Vhich
the appeliant committed. Therefore. the two courts blow have rightly convicted the appellant under sec. 366 I. P. C. [J 88GJ
State of Harya11a v. Raja·R:im A.I.R. 1973 S.C. 819
referred to
and
G
S. Varadarajan v. State of Madras, 11965J 1 S.C.R. 243 distinguished.

## Text

_Characters 0–39,987 of 42,702. This is a partial read: ask again with offset=39987 for what follows._

178
THAKORLAL D. VADGAMA
v.
THE STATE OF GUJARAT
May 2, 1973
[K. K. MATHEW AND I. 0. DUA, JJ.]
111dh1.n Penal Code, S. 366-When a person "takes" or "entices'' away a minor
girl from rhe custody of her lawful guardian-The scope of the section.
The accused. was convicted by the trial court under Ss. 366 and 376 l.P.C.
Ou appeal. the Hii:h Court acquitted him of the offence under s. 376 I.P.C.;
but upheld the conviction and sentence under s. 366 I.P.C. 'OD the ground that
the appellant had taken out a minor girl out of the keeping of her parents (her
lawfut guardian)
with an intention that she may be seduced to illicit intercourse.
On appeal to this Court, the appellant contended that since the girl left her
parents' house out of her own accord due to the harsh treatment of her pareats
and as the appellant kept her in his house out of compassion and sympath~· for
the helpless girl. the charge under s. 366 I.P.C. was unsustainable.
Dismissing the appeal,
A
B
c
HELD : (i) The legal position '''ith respect of an offence under s. 366
1.P.C. is clear. Jn Siate of Haryana v. Raja Rani A.I.R. 1973 S.C. 819 it
D
was observed by this Court that the object of Section 361 seems as
much io
protect the minor children from being seduced for improper
purposes as
to
protect the rights and privileges of guardians having the lawful charges or cuslody of their minor wards.
The gravamen of this (kidnapping) is the 'taking'
or 'enticing' of a minor girl under the ages specified :n the section, out of the
keeping of the lawful guardian \Vithout his consent and section 366 provides for
punishment of whoever kidnaps a woman for illicit intercourse
or
for
the
purp"Jse of marriage against her will. [187C]
E
(ii) The word 'takes' in section 361 I. P. C. does not necessarily connote
, taking by force and it is not confined only to use of force, actual or cons-
. tructive. This word merely means "to cause to go", "to escort'' or "to get
into possession''. The word "e~tice" means to involve the idea of inducement
or allurement by giving rise to hope or desire in the other. If the minor leaves
her parental home, influenced by any promise, offer or inducement en1anating
from the guilty party then the latter will be guilty of an offence as defi:ted
in s. 361 l.P .C. [187HJ
F
(iii) In the present case, the circumstances in which the appellant and the
victim came close to each other and the manner in which he
is stated to
have given her presents etc. and the letters written by the victim to the appellant furnish very important and essential background to the offence \Vhich
the appeliant committed. Therefore. the two courts blow have rightly convicted the appellant under sec. 366 I. P. C. [J 88GJ
State of Harya11a v. Raja·R:im A.I.R. 1973 S.C. 819
referred to
and
G
S. Varadarajan v. State of Madras, 11965J 1 S.C.R. 243 distinguished.
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 18 of
1970.
Appeal by special leave from the judgment and order dated
December 15, 1969 of the Gujarat High Court in Criminal Appeal No.
827 of 1967.
R. H. Dhebar and S. K. Dho/akia, for the appellant.
R. L. Kohli and S. P. Navar, for the respondent.
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THAKORLAL v. GUJARAT (Dua, I.)
179
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The Judgm~nt of the Court was delivered by
DuA, J. This appeal by special leave is directed against the judg·
m~nt and order of the Gujarat High Court allowing in part the appellant's appeal from his conviction by the Court of the Sessions Judge,
Jamnagar under ss. 366 and 376, LP .C.
The. High Court acquitted him of the offence under s. 375, I.P .C. but maintained his
·a
conviction and sentence under s. 366, I.P.C.
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Accordini: to the prosecution case, the offence under s. 366, I.P.C.,
took: place on January 16, 1967 and the offence of rape with which
he was charged was committed on the night between the 16th and 17th
January, 1967. As observed by the High Court, the
background
which led to the culmination resulting in the commission of the
offences leading to the appellant's trial has been traced by Mohin, the
victim of the offences, in the prosecution version, to the latter part of
tile year 1965. The appellant, an industrialist, had a factory at Bunder
Road for manufacturing oil engines . and adjoining the factory was his
residential bungalow. During the bombardment Qf J.amnagar by Pakistan in 1965, Mohini's parents came to re8ide
temporarily at Dhrol
near Jamnagar.
The appellant came to be introduced to that family
and. on December 18, !965, which was Mohini's birth.day, the appellant presented her with a parker pen. It may be pointed out' that
\1obmi was at that time a school going girl below 15 years of age.
She kept the pen for about 2 to 3 days, but at the instance of her
inother, returned it to the appellant. Thereafter, the appellant went to
Baroda in his car and he took with him, Mohini, her father Liladhar
Jivraj, )!is manager Tribhovandas, Malti, daughter of Tribhovandas,
who was about 12 years old, and Harish, a younger brother of Malati.
At Baroda, the appellant negotiated some transaction with regard to
the purchase of some land for the purpose of installing a factory there.
It appears that there was some kind of impression created in the mind
of Mohini's father that he would be employed by the appellant as a
manager of the factory to be installed at Baroda. The party spent a
night at Baroda and next morning started on their return journey to
Jamnagar.
During Christmas of 1965 the appellant had a trip to
Bombay and during this trip also hec took with him, the same party.
viz. Mohini, her father, Tribhovandas and· Tribhovandas' daughter and
son. In Bombay they stayed in Metropolitan Hotel for 2 nights.
According to the prosecution story it was during these two nights that
Mohini, Malati ·and the appellant slept in one room, whereas Mohini's
father. Maliti's father and Harish slept in another room. On these
two nights the appellant is stated to have had sexual inter-course with
Mohini. During this trip to Bombay the
appellant is also said to
have purchased two skirts and waste bands for Mohini and Malati.
After their return to Jamnagar, according tCJ the prosecution story. the
.appellant had sexual Inter-course with Mohini once in the month of
March, 1965 when she had gone to the appellant's residential bungalow at about 7.00 P.M. Indeed, Mohini used to visit the appellant's
nlace off and on. During the summer vacation in 1966 the appellant
had a trip to Mahabaleshwar in his car. On this occasion, along with
Mohini he took her two parents as well as also his own daughter
Rekha. On their way to Mahabaleshwar, they stopped at Bombay for
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SUPREME COURT REPORTS
[ 1974 .! 1 s.c.R.
two days. After staying at Mahabaleshwar for two days, on their return journey they again halted at Bombay for a night, and then proceeded to Mount Abu. At Mount Abu they stayed for one day and
all of them slept in one room. At about 3.00 a.m. when Mohini's
mother got up for going to bath-room and switched on the light, she
noticed that the appellant was sleeping by Mohini's side with his hand
on her head. Mohini's mother restrained herself and did not speak
about what she had seen because the appellant had requested her not to
do so. Next morning, the party went to Ambaji from where they
returned to Jamnagar.
At Jamnagar Mohini's mother informed her
husband about what she had seen during the night at Mount Abu.
Mohini's father got annoyed and rebuked Mohini. Her mother also
warned her against repetition of such conduct. Mohini apologised.
The appellant, on coming to know of the feelings of Mohini's parents,
told her father that Mohini was just like his own daughter Rekha to
him and that he would even go to Dattatraya temple and swear by
God to that effect. The appellant is stated to have actually taken
Mohini's father, Mohini and Rekha to Dattatraya temple in Jamnagar
and placing his hands on the heads of Mohini and Rekha swore that
they were his daughters. Even after this incident in Dattatraya temple,
the appellant once met Mohini when she was
returning from
her
school and took her to his own bungalow in his car. There, he had
sexual intercourse with her. It seems that Mohini's parents came to
know about this incident and they rebuked
her.
MohJni's parents
also started taking precaution of not sending her alone to the school.
From July, 1966 onwards either the maid-servant or Mohini's mother
herself would accompany her to the school.
The appellant is stated
to have made an effort to contact Mohini during this period.
He
called her at his house on Saturday, September 24, 1966. Mohini's
mother having come to know of this behaviour on the part of the
appellant, wrote to him a letter dated September 26, 1966 requesting
him to desist from his activities of trying to contact Mohini.
Appa·
rently, after this letter there was no contact between Mohini and the
appellant in Jamnagar.
In October, 1966, however, Mohini had gone
to Ahmedabad in school camp and there the appellant contacted her
and took her out for a joy ride in company with two of her girl friends.
Thereafter, in the months of November and December, 1966 nothing
particular seems to have happened.
According to the
appellant,
however, during those two months, Mohini had written letters to him
complaining of ill-treatment by her parents and expressing her desire
to leave her parent's house.
We would refer to those letters a little
later. Early in January, 1967, the appellant is alleged to have told
Mohini to come to his bangalow. On January 16, 1967; Mohini
started for her school with a school book and two exercise books in the
company of :ner mother Narmada who had to go to Court fo; some
work.
Upto the Court premises, they both went together
where
Smt. Narmada stayed on and" Mohini proceeded to ·her school. Instead
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of goi~g to her scho~l, she apparently went to the appellant's factory,
accordmg to a previous arrangement. There the appellant met her
and took her inside his motor garage.
From there she was taken to
1~e attached room and made to write two or three letters on his
dictation. She did so while sitting on two tyres. These letters were
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THAKORLAL v. GUJARAT (Dua, J.)
181
stated to have been addressed to her father, to the District Superintendent of Police of Jamnagar, and to the appellan~ ~imself. These
letters contained complaints of ill-treatment of Mohm1 by her. father
and mother and information about the fact that she was leaving for
Bombay after taking Rs. 250 / - from the appellant.
Accord mg to
the postal stamps, these letters appeared to have been cleared from
the post office at 2.30 p.m. on January 16, 1967.
Thc_reaftcr, according to the prosecution version, Mohini was made by t11e appellant _t<:
sit in the dickv of his car which . was taken to some place, Mohm1
remaining in the dicky for some hours.
She was then t~ken to the
offic~ of his factory at mid-night and there he had sexual mter-course
with her against her will.
After the sexual inter-course, there was
some sound of motor car entering the compound whereupon the appel~
!ant took her inside the celler in the office and asked her to sit there.
After about an hour the appellant came and took her from the celler
to his garage where she was again made to remain in the dicky. It
appears that the following morning the appellant told Mohini that
he was called to the police station. He went there in his car with
Mohini in the dicky and then he and the police man came back to
his bangalow.
The police man went inside the bungalow and the
appellant parked the car in his garage.
He took Mohini out of the
dicky and told her to go to the inner room of the garage.
This inner
room had four doors.
One of them opened on the main road and
another in the garage.
Feeling thirsty, Mohini went out in the. garden
and saw a Mali working there whom she asked for water.
It appears
that at about 6.30 p.m. the appellant came to the inner room
and
promised to bring some food, water and clothes for Mohini, telling
her to wait for him in that room.
After some time, he returned with
food, water and clothes. Mohini changed her clothes washed her
face and started taking her meal.
While doing so, she felt that some
motor car had come into the compound. The appellant ~old her that
police had come and, therefore, she must leave through the back door
and go to the road-side directing her to go towards Gandhinagar and
wait there for him. Leaving her food unfinished, Mohini went out and
waited near Gandhinagar at a distance of about one furlong from the
appellant's garage.
It was here that she was traced by the Police
Sub-Inspector Chaudhary who came there with the appellant in the
latter's car at about 9.00 p.m. From the dicky of the
appellant's
motor car, one bedding and some clothes belonging to Mohini, viz.,
skirt, blouse,, nicker and petti·coat were found.
These clothes were
wet. Her. school books and two exercise books were also found there.
In the inner room of the garage was found unfinished food and utensils which bore the name of the appellant.
Mohini was sent for
medical examination by the Lady Medical Officer, but the Medical
Officer did not find any symptoms of forcible sexual inter-course.
Turning now to the scene at the house of Mohini's parents, after
her mother Sm!. Narmada finished with the court work, she returned
to her hous.e. They had a visitor Dinkerrai from Rajkot. While they
were all at home some school girls informed Mohini's mother that
Mohini had not gone to the school that day. Smt. Narmacia at once
suspected the appellant and therefore went to his house along with
Dinkerrai.
On enquiry from the appellant, he expressed his igno-
182
SLTREME COURf REPORTS
[ 1974 J l s.c.R.
ranee about Mohini's whereabouts.
He, however, adinitted that she
had come to him for money but had gone away after taking Rs. 250/.-
from him. This according to him had happened between 4 and 5.30
p.m. on that day viz. January 16, 1967. Mohini's father then lodged
complaint with the police at about 7·20 p.m. on that very day. The
Police Sub-Inspector visited the appellant's bungalow in the night
between 16th and 17th of January and searched the bungalow but
did not find Mohini there. Thereafter, the Sub-Inspector again went
to the appellant's bungalow on the morning of the 17th January and
attached some letters and other papers produced by the appellant.
He also went to the appellant's office and inspected the books of
account for the purpose of verifying whether there was any entry about
the payment of Rs. 250/- to Mohini. Meanwhile, Mohini's father
Liladhar received a Jetter bearing post mark dated 16-1-1967 which
was produced by him before the Police SJib-Inspector. On the night
of 17th January, Police Sub-Inspector Chaudhary went to the appellant's bungalow and it was this time that Mohini ·heard the sound of a
motor car and left the garage at the instance of the appellant leaving
unfinished the food she was eating.
In the inner room; next to the
garage, were found Mohini's clothes, a lady's purse, one comb, 2
plastic buckets full of water, one lantern and some other
articles.
From the dicky of the appellant's car on search were also found skirt,
one blouse, a petti-coat and one book and two exercise books as
already noticed. All these·articles belonged to Mohirri. This in brief
is the prosecution story.
. The appellant admitted that he had developed intimate relations
with the family of Mohini, but denied having presented to her a parker
pen in December, 1965. He also admitted his trips to Baroda and
Bombay in December, 1965 when he took with him
Mol1Url, her
father Malati, her mother and Malati's brother. He admitted havinJ!
stayed in Metropolitan Hotel at Bombay but denied that he, Mohim
and Malati had slept in one room and that he had sexual inter-course
with Mohini during their stay in this hotel. He also denied having
sexual inter-course with Mohini in the month of March, 1966. He
further denied having purchased skirts and waste bands for Mohini
and Malati in Bombay in December, 1965. The trip to Mahabii.leshwas during summer vacation and also the trip to Mount Abu were
admitted by the appellant but he denied having been found sleeping
with Mohini by Mohini's mother at Mount Abu. He admitted the
incident of Dattatraya temple in Ja:mnagar but this he explained was
djie to the fact that Mohini's parents had heard some false rumours
about his relations with Mohini, and that he wanted to remove their
suspicion. He further admitted that in the evening of 16th January,
Narmada and Dinkerrai had approached him to inquire about Mohini's
whereabouts but according to him Mohini had merely taken Rs. 250/-
from him without telling hiin as to where she was going. He deriied
having told Dinkerrai that Mohini had gone to Bombay. According
to his version, Mohini approached him on January 16, 1967 and re·
quested him to keep her at his house for about 15 days because she
was tired of harassment at the hands of her parents. She added that
she would make her own arrangements after 15 days. The appellant
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THAKORLAL v. GUJARAT (Dua, J.)
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expressed his inability to keep her in his house and suggested that he
would take her to her parents' house and persuade
the.m not
to ·
harass her.
She, however, was firm and adamant in not going back
to her parents' house at any cost. According to the appellant, the
reason for falsely involving him in this case was that Mohini's father
wanted the appellant to appoint him as a manager at Baroda where
the appellant was planning to start a new factory.
The appellant
having declined to do so because he had many senior persons working
in his office, Mohini's father felt displeased and conncocted the false
story to involve him.
The trial court in an exhaustive judgment after considering the
case from all relevant aspects came to the conclusion that Mohiqi was
bO\n on September 18, 1951 and that the medical evidence led in
the 'case also showed that she was above 14 and below 17 years of age
during the relevant period. She was according held to be a mi_nor on
the day of the incident. If, therefore, the appellant had sexual inter·
course with her even with her consent, he would be guilty of rape.
Mohini was believed by the trial court when she stated that the appel·
!ant had sexual inter-course with her at the earliest possible opportunity
as this was corroborated by the medical evidence. The trial court
found no reason for her to stake her whole life by making false state·
ment about her chastity, nor for her parents to encourage or induce.
!>er to come out with a false story, there being no enmity between the
appellant and the family of Mohini with respect to any matter, which
would induce them to charge him falsely. The appellant's explanation
that as a result of his refusal to appoint Mohini's father as a Manager
of his factory at Baroda, she had, in collusion with the parents, concocted this story was considered by the trial court to be too far-fetched
to be worthy of belief. In fact, according to the trial court it was the
appellant who had made a suggestion about appointing Mohini's
father as his manager at Baroda and this explained why Mohini'f
father was taken by the appellant to Baroda when he paid a visit to that
place for purchasing land. The court found no other cogent reason
for taking Mohini's father to Baroda. The trial court in express terms
dis-believed the appellant's explanation. That court also came to the
conclusion, on consideration of the evidence and bearing in mind the
common course of human conduct, that it was the appellant who had
induced Mohini to leave her parents' ll.ouse on the day in question and
to have sexual inter-course with her;,c' The trial court also considered
that part of Mohini's statement that when she went to the appellant's
place, he told her to ·r.eturn to her school, suggesting that he would
ta:ke her to her parents and persuade them not to harass hei and, it
expressed its undoubted opinion th_at the appellant had used those
words to make a show of being her well-wisher. so that. if some proceedings were started against him, he could put forth the defence that
he had kept Mohini at his house only at her own request and not with
the object of keeping her out of her parents' custody for having sexual
inter-course with her. The trial court got support for this view from
184
&UPREME COURT REPORTS
[ i'.J14] 1 S.C.K.
the letters got written by the appellant in Mohini's handwriting. This
is what that court said in this connection :
"There is therefore, no doubt in my mind that the accused
had prepared all this material so that in case criminal proceedings were taken against him by Mohini's parents, he
may be able to lead plausible defence of his innocence.
Nothing prevented the accused from returning Mohini to her
parents.
In any case, even if it were held that it· was not
the duty of the accused to return Mohini to her parents,
it can equally he said that it was not legal on the part of
the accused to secretely confine Mohini at his place and
have sexual intercourse with her.".
The trial court then quoted the following passage from the case of
Christian Olifier, reported in 10 Cox. 420 :-
"Although she may not leave at the appointed time and although he may not wish that she should
have left
at
that particular time, yet if, finding she has left, he avails
himself of that to induce her to continue away from her
father's custody, in my judgment he is also guilty, if his
persuasion operated on her mind so as to induce her to leave."
On the basis of this observation, the trial court held that in the present
case, the mducement given by the appellant operated on Mohini's
mind to stay in his house and do as he told her to do.
The trial
court on a consideration of the circumstances of the case and of the
subsequent conduct of the appellant came to the definite conclusion
that Mohini had gone to the appellant's place at his instance and
subsequently taking advantage of that position she was persuaded by
ihe appellant to stay there.
The appellant
was accordingly
held
guilty under ss. 366 and 376, l.P.C. Under s. 366, I.P.C., he was
sentenced to rigorous imprisonment for 18 months and under s. 376,
I.P.C. to rigorous imprisonment for two years and also to fine of Rs.
500/- and in default, to further rigorous imprisonment for six months.
The sub'stantive sentences of imprisonment were to run concurrently.
. On appeal by the appellant, the High Court also considered the
matter at great length and in a very exhaustive judgment, the appellant's conviction under s. 376 was set aside and he was acquitted of
that offence.
This acquittal was ordered because the charge
being
only for sexual inter-course on the night of January 16, 1967, the
evidence of Mohini in support of that offence was not accepted as
safe and free from all reasonable doubt, in the absence of independent corroboration. In adopting this approach the High Court seems
to us to have been somewhat over indulgent and unduly favourable
to the appellant with respect to the offence under s· 376, I.P.C. But
there being no appeal against acquittal, we need say nothing more
about it. The appellant's conviction for the offence punishable under
s. 366, I.P.C. and the sentence for that offence were, however, upheld.
The High Court felt that the story of Mohini with regard
to the
appellant's call about 3 or 4 days before the incident in question was
so natural and so highly probable that it fe1t no hesitation in accepting it.
The circumstances preceding the incident were considered
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THAKORLAL v. GUJARAT (Dua, J.)
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by the High Court to be sufficiently telling to lend assurance that it
was quite safe to act upon her testimony. Her account was considered
to be quite truthful and, therefore, acceptable. Mohini's version that
the appellant had told her about 3 or 4 days before the incident of
January 16, 1967 that he would keep her permanently at his place
provided sufficient temptation to the 'school-going girl like Mohini to
go to lite appellant
leaving her parental home.
This was all
the
more so because in the past year or so, the appellant had treated
Mohini very fondly by taking her out on trips to different places in
his own car and had also lavishly given her gifts of articles like costly
pens and silver band.
The High Conrt also took into consideration
the attitude adopted by Mohini's mother in this connection. She had
very discretely warned the appellant in a dignified and respectful Ian·
guage to leave Mohini alone and also expressed her dis-appomtment
and unhappiness at the manner in which the appellant used to behave
towards Mohini. The High Court considered a part of Mohini's ver·
sion, as to how she was kept in the dicky of the appcliant's car on
the 16th and 17th January, 1967, to be improbable and to have been
exaggerated by her, but this was considered to be due to the fact that,
like a school-girl that she was, she introduced an element of sensation
in her story· Her complaint about inter-course on this occasion was
not accepted for want of independent corroboration.
The medical
evidence also suggested that there was no presence of spermatozoa
when vaginal swab was examined.
It was on this reasoaing that the
offence under s. 376, I.P.C. as charged was held not to have been
proved beyond doubt.
The presence of Mohini in the appellant's
house and also in his garage on the 16th and 17th Janunry was held
by the High Court to be fully established on the record. The version
given by Mohini was held to be fully corroborated by the surround·
ing circumstances of the case and by the recoveries of various articles
belonging to her. The High Court also came to the positive conclusion that there was no unreasonable delay on the part of the investigating authorities to record Mohini's statement.
The suggestion on
behalf of the appellant that various articles belonging to Mohini at:d
the utensils found in the inner room of the appellant's premises were
planted, was rejected outright. The High Court in a very well reasoned judgment with respec_t to the offence under s. 366, I.P.C. came
to the conclusion that the appellant had taken Mohini out of the keeping of her parents (her lawful guardian) with an intention that she
may be seduced to illicit inter-course. This is what the High Court
observed:-
"Having come in contact with the family of Mohini in about
November 1965 the appellant cultivated relationship .with
them.to such an extent that he took Mohini, and her parents
out on trips in his car spending lavishly by staying in hotels
in Ahmedabad, Bombay, Mahabaleshwar and Mount Abu.
He also presented Mohini with a parker pen on 18th December, 1965.
Within a few days thereafter he purchased
by way of gift to Mohini skirt, silver waist-band which as
per unchallenged testimony of Mohini was worth about Rs.
12/-. He was actually found by the side of Mohini in
Mohini's bed by Mohini's mother at Mount Abu. His con-
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[ 19 J.l.] 1 S.C.R,
nection with Mohini was suspected and in spite of that as
the le~ters of Mohini show he was in correspondence with
her without the knowledge of her parents. Mohini was a
school girl of immature understanding having entered her
16th. year less than a month before the incident.
Out of
emotion she wrote letters to the appellant exaggerating incidents of rebuking by her mother and beating.
She however. was quite normal from ls! January, 1967. The appellant
havmg come to know about the frame of her mind disclosed from the letters of November
and
December, 1966,
took chance to take away this girl from her parents. With
that view he told Mohini about 4 days before 16th January, 1967 to come to his house and added that he will keep
her with him permanently· This possibly caugbt the imagination of the girl and the result was that on 16th January
she left her father's house with bare clothes on her body
and with school books and went straight to the appellant.
The appellant in order to see that her view to his factory
during day. time may not arouse suspicion of other invented
the story of giving Rs. 250/- to Mohini and also.got written
3 letters by Mohini addressed to himself, the District Superintendent of Police Jamnagar and Mohini's father.
He
kept her in the garage of his bungalow for 2 days, tried to
secret her from police and her parents and had already
made attempt on 16th to put police and parents of Mohini
on wrong track. There is no scope for an inference other
than the inference that Mohini was kidri~pped from lawful
guardianship, with an intention to seduce her to 1ilicit inter-course.
The intention contemplated by section 366 of
the Indian Penal Code is amply borne out by these circumstances.
Therefore, the conviction of the appellant under
that section is correct and has to be maintained."
As already observed, the appellant was acquitted of the offence under
s. 376, I.P.C., but his conviction and sentence under s. 366, I.P.C.
was upheld.
In this Court, Shri Dhebar addressed very elaborate argUlllents and
took us through considerable part of the evidence led in the case with
the object of showing that the conclusions of the two courts below
accepting the evidence led by the prosecution with respect to the charge
under s. 366, I. P. C. is wholly untrustworthy and no judicial mind
could ever have accepted it. After going through the evidence to which
our attention was drawn, we are unable to agree with th~ appellant's
learned counsel. Both the courts below devoted very anxious care to
the evidence led in the case and the circumstances and the probabilities
inherent in such a situation. They gave to the appellant all possible
benefit of the circumstances which could have any reasonable hearing
in his favour, but felt constrained to conclude that the appellant was
proved beyond reasonable doubt guilty of the offence under s. 366,
I.P.C.
11ie appellant's main argument was that it was Mohini who feeling
unhappy and perhaps harassed in her parent's house, left it on her own
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accord and came to the appellant's house for help which he gave out of
compassion and sympathy for the helpless girl in distress. Mohini's
parents were, according to the counsel, unreasonably harsh on her on
account of some erroneous or imaginary suspicion which they happened
to entertain about the appellant's attitude towards their daughter or
about the relationship between the two, and that it was primarily her
parent's insulting and stern behaviour towards her which induced her
to leave her parental home.
It was contended on this reasoning that
the charge under s. 366, l.P.C. was in the circumstances unsustainable.
The legal position with respect to an offence under s. 366, I.P.C.
is no! in doubt. In State of Haryana v. Raja Ram(l), this Court considered the meaning and scope of s. 361; I.P.C. It was said there:-
"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 lies in the taking or enticing of a minor
under the ag~s specified in this section, 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
significant. The use of the word "keeping" in the context
connotes the idea of charge, protection, maintenance and
control : further the guardian's charge and control appears
to be compatible with the independence of action and movement in the minor, the guardian's protection and control' of
the minor being available, 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 gu,!lrdian's
consent which talces the case out of its purview. Nor is it
necessary that the tiling or enticing must be shown to have
!teen 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 wo11ld be
sufficient to attract the section".
In the case cited rderence has been made to some English decisions
in which it has been stated that forwardness on the part of the girl
would not avail the person taking her away from being guilty of the·
~ffence _in question and. that if by moral force a willingness is created
m the grrl to go away with the former, the offence would be committed
unles~ her going away is entirely voluntary. Inducement by preVious
promise or persuasion was held in some English decis?on to be sufficient to bring the case within the mischief of the statute. Broadly, the
same . seems to us to be the position under our law. The expression
used m s. 361, I.P.C. is "whoever takes or entices any :minor". The
word "takes" does not necessarily connote taking by force and-it is not
confined only to use of force, actual or constructive. This word merely.
means,. "t~ cause to go", "to escort" or "to get into possession". No
doubt 1t does mean physical taking, but not necessarily by use of force
or fraud. The word "entice" seems to involve the idea of inducement
(I) A.LR. 1973 S.C. 819.
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[ 1974] 1 s.C.R.
<>r allurement by giving rise to hope or desire in the other. This can
take many forms, difficult to visualise and describe exhaustively; some
of them may be quite subtle, depending for their success on the mental
state of the person at the time when the inducement is
intended to
operate. This may work immediately or it may create continuous and
gradual but imperceptible impression culminating after some time, in
achieving its ultimate purposes of succ~ssful inducement. The two words
"takes" and "entices", as used in s. 361, i.·P.C. are, in our opinion,
intended to be read together so that each takes to some extent its colour
and content from the other.
The statutory language suggests that 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 as defined
ins. 361, I.P.C. But if the guilty party has laid a foundation by inducement, allurement or threat, etc. and if 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 him to plead innocence on the ground that the
minor had voluntarily come to him. If he had at an earlier stage solicited or induced her in any manner to leave her father's protection, by
conveying or indicating an encouraging suggestion that he would give
her shelter, then the mere circumstance that his act was not the immediate cause of her leaving her parental home or guardian's custody
would constitute no valid defence and would not absolve him.
The
question truly falls for determination on the facts and circumstances nf
each case. In the case before us, we cannot ignore the circumstances
iii which the appellant and Mohini came close to each other and the
manner in which he is stated to have given her present3 and tried to be
intimate with her.
The letters written by her to the 'appellant mainly
in November, 1966 (Exhibit p. 20) and in December, 1966 (Exhibit
p. 16) and also the letter written by Mohini's mother to thf appellant in
September, 1966 (Exhibit p. 27) furnish very important and essential
background in which the culminating incident of January 16th and 17th,
1967 has to be examined. These letters were taken into consideration
by the High Court and in our opinion rightly. The suspicion entertai!led
by Mohini's mother is also, in our opinion, relevant in considering the
truth of the story as narrated by the prosecutrix. In fact, this letter
indicates how the mother of the girl belonging to a compartively poorer
family felt when confronted with a rich man's dishonourable behaviour
towards her young, impressionable, immature daughter; a man who also
suggested to render financial help to her husband in time of
need.
These circumstances. amo.ng others, show that the main substratum of
· the story as revealed b,y Mohini in her evidence, is probable and trustworthy and it admits of no reasonable doubt as to its truthfulness. We
have, therefore, no hesitation in holding that the conclusions of the two
courts below with respect to the offence under s. 366, I. P. C. are unexceotionable. There is absolutely no ground for interference under
Artii!le 136 of the Constitution.
On the view that we rave taken about the conclusions of the two
courts below on the evidence, it is unnecessary to refer to all the
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decisions cited by Shri Dhebar. They have all proceeded on their own.
facts.
We have enunciated the legal position and it is uuneces•ary to
discuss the decisions cited.
We may however briefly advert to the
decision in S. Varadarajan v. State of Madras( 1), on which Shri
Dhebar placed principal reliance, Shri Dhebar relied on the following
passage at page 245 of the report :-
"It will thus be seen that taking or enticing 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 or
the keeping of. the lawful guardian of Savitri. We have no
doubt that though Savitri had been left by S. Natarajan at the
house cif his relative K. Natarajan, 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 I st, 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 ;he 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".
From this passage, Shri Dhebar tried to infer that the case before us
1s similar to that case and, therefore, Mohini herself went to the appel·
!ant and the appellant had absolutely no involvement in Mohini's leaving
her parents' home. Now the relevant test laid down in the case cited
is to be found at page 248 :-
"It must, however, be borne in mind that there is a distinction between "taking" and allowing a minor to accompany
a person. Tr
0 two expressions are not synonymous thongh 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 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 an1 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 thaf
the accused can be said to have takei;t her away from the
keeping of her lawful guardian. Something more has to lx~
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 minortD'
leave the house of the guardian.
(2) (1965) I S.C.R.