Trilok Singh v. State — 1967 DIGILAW 310 (ALL)

ORDER Mahesh Chandra, J. - This is an appeal by Trilok Singh who has been convicted u/s 363 IPC and sentenced to undergo two years rigorous imprisonment. He has also been convicted u/s 376 IPC and sentenced to undergo rigorous imprisonment for a period of four years. Both the sentences are to run concurrently. 2. Brieflly stated, the prosecution case was this. Trilok Singh Appellant was a tenant in Lal Bahadur's house in Mohalla Sadiapur of Allahabad district. About a year before 3-1-1964, because of his undesirable association with Ghuran Devi, the daughter of Lal Bahadur (PW 1), Trilok Singh had, to be turned out of the house. Ghuran Devi herself had to be withdrawn from the school where she was being educated. Trilok Singh then started living in Moti's house at a short distance from Lal Bahadur's house and often visited and talked with Ghuran Devi. On the night between 2nd and 3rd January, 1964, Ghuran Devi and her parents were sleeping inside a room. In the morning Lal Bahadur found the door open and the girl gone from the room. When she did not return after sometime he made enquiries about her in the neighborhood and then went to his relations at Kydganj and Daraganj to search her there. He also searched for her at the I.T.I., Naini, where Trilok Singh had been employed at the time and learnt there that Trilok Singh had been transferred to Hardwar. On 6-1-1964, Lal Bahadur lodged a FIR at PS Kotwali at 11 p.m. The police recovered the girl on 21-3-1964, from the Hata of Pt. Rameshwar at Hardwar, where she was living in a room occupied by Trilok Singh. The girl was examined at Chain Rai Women's Hospital, Hardwar, on 23-3-1964 at 9.30 a.m. She was found to be about 16 years of age by appearance. After medical examination showing that she had been habituated to sexual intercourse the Appellant was charge sheeted. 3. The Appellant pleaded not guilty and alleged that she was not taken away by the Appellant, that she was more than 18 years old at the time, that she had herself reached the station from her house and had even reached Hata of Pt. Rameshwar at Hardwar herself and that he had not taken her there. He however admitted that she lived with him there. Rameshwar at Hardwar herself and that he had not taken her there. He however admitted that she lived with him there. He also denied before the Court below to have had any sexual intercourse with her, although he had stated earlier in the court of the committing magistrate that he had sexual intercourse with the girl with her consent. They have been married in Phagun last after his connection in October 1964, about 3 years ago. 4. Out of the fourteen witnesses examined by the prosecution Ghuran Devi herself (PW 2) her father Lal Bahadur (PW 1) and her mother Samdai (PW 3) deposed about her being kidnapped and raped by the Appellant. Mithai Lal and Bulaki Lal (PWs 5 and 7) deposed that she had been seen by them being taken by the Appellant on the carrier of the bicycle in the early morning of the day of occurrence. The recovery of the girl from the Appellant's house at Hardwar in Rameshwar's Hata has been proved by constable Mahidhar Sharma (PW 9), S.I. Gautam Pandey (PW 10) and Gauri Shanker (PW 12). Roshan Lal (PW 6) deposed that he found Ghuran Devi and the Appellant intimately and had even complained to Lal Bahadur about it. Dr R.K. Mehrotra (PW 13) and Dr. R.P. Sharma (PW 14) examined the girl and deposed about her age. 5. The first and the most important question is that of the age of the girl. Although Lal Bahadur (PW 1) father of the girl stated in the examination in chief in the court below that her age was 12 years, the court below, on the basis of medical evidence, came to the conclusion that her age was between 15 and 16 years. Dr. R.P. Sharma found her by appearance to be 16 years but advised X-Ray of the elbow and the wrist for a definite opinion. On examination, Dr. R.K. Mehrotra, after taking her X-Ray, was of the view that she was about 15 years of age. Dr. R.K. Mehrotra found that she was healthy and her breasts, pubic hair and axillary hair were developed, that the epiphysis of the hand of radius were partially fused with its diaphysis, that the medial epicondyle was not fused and that so far as the other joints were concerned no epiphysis was found to be fused with its respective diaphysis. Dr. R.K. Mehrotra found that she was healthy and her breasts, pubic hair and axillary hair were developed, that the epiphysis of the hand of radius were partially fused with its diaphysis, that the medial epicondyle was not fused and that so far as the other joints were concerned no epiphysis was found to be fused with its respective diaphysis. The Doctor herself was of the view that some difference were possible in ascertaining the age on the basis of the bones on account of the race diet and heritage of the person examined. She found that the lateral epicondyle was fused with its shaft. 6. According to Modi's Medical Jurisprudence and Toxicology the fusion of the epiphysis differs with the girls of different States of India. Modi has mentioned instances of Bengalis, Punjabis and Madrasis. About the medial epicondyle he is of the view that in the females in UP it fused between ages of 14 to 15. There is not the slightest doubt that as stated by both the Doctors her age was below 18 years. No where is this fusion delayed till the age of 18 years. So far as the statement of the father of the girl Lal Bahadur (PW 1) is concerned, the age given by him in the examination in chief before the court below was certainly very low being only 12 years. But, when examined in this Court, he stated that she was 16 or 17 years old at the time of her departure for Hardwar. According to the statement of the father her age would be above 16 but below 18 years at the time of her departure for Hardwar. There is, no reason to disbelieve him on the point in view of the clear and definite medical evidence that she was below 18 years of age at that time. It would not, however, be correct to say that she has been proved to be below 16 years of age in view of the different ages observed for the fusion of the epiphysis, in the different States of India. The statement of the father himself is that she was 16 or 17 years old at the time of her departure for Hardwar. 7. The Appellant has been convicted of offences Under Sections 363 IPC and 376 IPC. The statement of the father himself is that she was 16 or 17 years old at the time of her departure for Hardwar. 7. The Appellant has been convicted of offences Under Sections 363 IPC and 376 IPC. Section 363 IPC provides for punishment for the offence of kidnapping from lawful guardianship and Section 376 IPC provides for punishment for the offence of rape. The offence of kidnapping from lawful guardianship has been defined in Section 361 IPC and the offence of rape u/s 375 IPC. Section 361 IPC runs as follows: 361. 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. It would be apparent from the pro visions of this section that for this offence the age of the minor female should be below 18 years. 8. Section 375 IPC runs as follows: 375. A man is said to commit 'rape' who except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the five following descriptions: First. Against her will. Secondly. Without her consent. Thirdly. With her consent, when her consent has been obtained by putting her in fear of death, or of hurt. Fourthly. With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fifthly. With or without her consent, when she is under sixteen years of age. Explanation: Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. Exception: Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age is not rape. It is apparent from the provisions of Section 375 IPC that the consent of a girl below 16 years of age for sexual intercourse will be immaterial. Exception: Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age is not rape. It is apparent from the provisions of Section 375 IPC that the consent of a girl below 16 years of age for sexual intercourse will be immaterial. If she is above 16 years of age and her consent has not been obtained by putting her in fear of death or of hurt or by deception inducing her to believe that the offender is another man to whom she is or believes herself to be lawfully married sexual intercourse committed with her consent would not amount to an offence of rape. 9. It would thus appear that while the age material u/s 362 IPC is 18 years, it would be 16 years u/s 375 IPC. In the present case there is no evidence of deception, coercion or use of force. On the other hand, the girl herself definitely stated that sexual intercourse was committed with her free consent. Since it has not been established that she was below 16 years of age, the conviction of the Appellant u/s 376 IPC cannot be upheld. 10. It has, however, been found to be clearly established that she was below 18 years of age. The learned Counsel for the Appellant has contended that no offence u/s 363 IPC also has been established because there was no case of enticement and it had not been established that the girl was taken out of the keeping of a lawful guardian. Stress has been laid on the phrase "Whoever takes or entices any minor..." of Section 361 IPC Reliance is also placed on the case S. Varadarajan Vs. State of Madras, AIR 1965 SC 942 . 11. It will be evident that the section uses two different words "takes or entices." It is thus clear that the Legislature itself contemplated a difference between the meaning of the words "takes" and "entices" and that it is not necessary for taking of a minor out of the keeping of her lawful guardian that there should also be an enticement of the minor. Even if there is no evidence of enticement and it has been established that the minor has been taken out of the keeping of the lawful guardian and that the minor girl is below 18 years (in the case of a female), an offence of kidnapping has been committed. What we have to see in this case is, whether the girl who has been proved to be below 18 yeas of age, was taken out of the keeping of the lawful guardian of the minor. It is true that Madholkar, J. speaking for the Supreme Court in Section Varadarajan's case (supra) created a distinction between taking of a minor and allowing a minor himself to accompany a person. But Madholkar, J. himself went on to say, "The two expressions are not synonymous though we would like to guard ourselves from laying down that in no conceivable circumstances can the two be regarded as meaning the same thing for the purpose of Section 361 of the IPC. 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 joined 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 gurdian. 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. 12. It would thus appear that the Supreme Court limited itself to a case where the minor knew and had the capacity to know the full import of what she was doing voluntarily and had then joined the accused persons. In the case before their Lordships of the Supreme Court, there was not a word in the deposition of the girl Savitri from which an inference could be drawn that she left the house of K. Natrajan at the instance or even at the suggestion of the Appellant. In the case before their Lordships of the Supreme Court, there was not a word in the deposition of the girl Savitri from which an inference could be drawn that she left the house of K. Natrajan at the instance or even at the suggestion of the Appellant. She had admitted that on the morning of the 1st October she herself telephoned to the Appellant to meet her in a car at a certain place, went up to that place and finding him waiting in the car got into the car of her own accord. Further she herself stated that she had decided to marry the Appellant. Their Lordships observed that the evidence of the girl left no doubt that the insistence of marriage came from her side. That after the registration of the agreement of marriage both the Appellant and the girl lived as husband and wife and visited different places. They further observed that the fact of her accompanying the Appellant all along is quite consistent with her own desire to be the wife of the Appellant in which the desire--of accompanying him wherever he went was implicit. They further observed that she was on the verge of attaining majority and was capable of knowing what was good and what was bad for her "and that she was no uneducated or unsophisticated village girl" but a senior college student who had had probably all along lived in a modern city. She was a student of second year B.Sc. class in Ethiraj College. 13. The object of Section 361 IPC is evidently to protect minors from being kidnapped out of the lawful guardianship on the ground that the minor does not know and has not the capacity to know the full import of what she is doing. There may be exceptional cases where a minor below 18 years of age would know and have a much greater capacity to know the full import of what she was doing than a major. The college girl student of second year B.Sc. class in the case before their Lordships, before going from place to place with the Appellant, had registered the agreement of marriage and she certainly knew and had the capacity to know the full import of what she was doing. In fact she had much greater capacity than an ordinary woman above 18 years of age. class in the case before their Lordships, before going from place to place with the Appellant, had registered the agreement of marriage and she certainly knew and had the capacity to know the full import of what she was doing. In fact she had much greater capacity than an ordinary woman above 18 years of age. But in the present case before us Ghuran Devi, the minor girl, is a Mallah, a backward caste. She was not educated beyond the sixth class. It is in evidence that she was taken out of the school when she was in the sixth class because it had been found that the Appellant cut jokes with her on her way to and from the school. The father of the girl is a petty tailor living in a two roomed house with his wife and four children. She cannot, therefore, be said to be so well-educated or to be belonging to so advanced a family that even though a minor she could know or have had the capacity to know the full import of what she was doing. It was not a case in which she had married the Appellant soon after leaving her house and before going with him to a place like Hardwar. On the contrary, we find that the marriage is alleged to have taken place only in Phagun last while she had left with the Appellant for Hardwar in March 1964, more than three years ago. It cannot then be said that at the time of her departure to Hardwar she knew and had the capacity to know the full import of what she was doing. She was thus certainly taken by the Appellant and not merely allowed to go out of the lawful guardianship when he took her on the carrier of his bicycle as deposed 'o by Mithai Lal and Bulaqi Lal PWs 5 and 7. They saw her being taken by the Appellant on the carrier only 60 yards away from her house and there is no reason to disbelieve their sworn testimony. 14. Both Lal Bahadur (PW 1) and his wife Shyam Devi (PW 3), the parents of the girl stated that they had no knowledge that the girl had gone or was to go away. They stated that on the night previous to Ghuran Devi's departure they had slept in one and the same room. 14. Both Lal Bahadur (PW 1) and his wife Shyam Devi (PW 3), the parents of the girl stated that they had no knowledge that the girl had gone or was to go away. They stated that on the night previous to Ghuran Devi's departure they had slept in one and the same room. When they woke up in the morning at about 6 a.m. they found that Ghuran Devi was not on her cot. They thought that she might have gone to ease herself and waited for her return for about an hour. When she did not return, they looked round for her and found that the lock of the box was open. Rs. 350/-, four Saris and some clothes were missing. PW 1 Lal Bahadur categorically stated that he had no knowledge about her intended departure. It is true that Smt. Ghuran Devi (PW 2) herself before the court below and in her statement before this Court also, tried to support the Appellant. As observed by the court below, regarding her statement in that court, she was at the time of her statement thinking of marrying the Appellant. The statement here has been given after her marriage. There is, however, no reason to disagree with the court below that what, PWs 1 and 3, the parents, were stating was the truth and that they had not been informed and had never consented to her departure. Nor can it be reasonably accepted that the parents of a minor girl would consent to her departure with another person without marrying her to him. It is clear from the statement of Ghuran Devi (PW 2) and the medical evidence that she had sexual intercourse with the Appellant without marrying him. 15. The decision of the Supreme Court reported in Section Varadarajan's case (supra) is clearly inapplicable on principle to the present case before us. Ghuran Devi did not know and had not the capacity to know the import of what she was doing. She was taken by the Appellant on the carrier of his bicycle. It was a clear case of being taken out of the custody of her lawful guardian. 16. The Appellant has therefore been rightly found guilty of the offence u/s 363 IPC. She was taken by the Appellant on the carrier of his bicycle. It was a clear case of being taken out of the custody of her lawful guardian. 16. The Appellant has therefore been rightly found guilty of the offence u/s 363 IPC. But in view of the age, character, antecedents and other circumstances of the case I consider it proper to give him the benefit of the First Offenders' Probation. Act. 17. The result is that the appeal is partly allowed. The conviction and sentence of Trilok Singh, Appellant u/s 376 IPC are set aside. The appeal in so far as it relates to his conviction u/s 363 IPC is dismissed, but the sentence is sec aside. Instead of sentencing him to any punishment it is directed that he be released on his entering into a bond with sureties to the satisfaction of the court below to appear and receive sentence as and when called upon to do so during a period of two years and in the meantime, to keep the peace and be of good behaviour. Appeal partly allowed.