DINABANDHU PAIKARAY v. STATE — 1989 DIGILAW 290 (ORI)

JUDGMENT : J. Das, J. - This revision petition arises out the judgment dated 19.6.1985 passed by the First Additional Sessions Judge, Ganjam, Berhampur in Criminal Appeal No. 48/85 (Cr. A. 50/84 GDC) upholding the conviction and sentence) dated 12.1.1984 passed by the Additional Chief Judicial Magistrate, Berhampur, in G.R. Case No. 69 of 1982 convicting the Petitioner u/s 363, IPC, are sentencing him to undergo R.I. for one year. 2. The prosecution case briefly stated is that the informant Susila Dakua P.W.1. is the mother of Kalia, a boy aged about 4 years, P.W. 1 was deserted by her husband Ganga Dakua and as such she was staying with Dasarathi Behera as his mistress at Berhampur town at the relevant time. On 16.1.1982 at about 11 A.M. the informant Susila Dakua returned home after finishing her work as maid servant in different houses and found the Petitioner Dinabandhu Paikaray in her house. The Petitioner Dinabandhu Paikaray supplied her rice and other articles and requested. P.W. 1 to prepare the food. After this, the accused Petitioner saying that he was going to purchase bread for the child Kalia from the market, took the said Kalia with him at about 11.30 A.M. and there after neither the Petitioner Dinabandhu Paikaray nor the boy Kalia returned. The informant (P.W. 1) waited for them for sometime and searched for him but she could not get him anywhere and then she lodged report in the P.S. After due investigation charge-sheet was submitted. In course of investigation the kidnapped boy Kalia was recovered from the house of the accused-Petitioner. The accused stood his trial and stands convicted and sentenced as above. 3. The defence plea is one of danial. 4. The trial Court as well as the appellate Court gave the finding that the accused-Petitioner Dinabandhu Paikaray kidnapped the boy Kalia by taking him out of the lawful custody of his guardian. 5. The learned advocate for the Petitioner Mr. Tripathy argued that in this case the offence of Kidnapping has not been committed as the minor boy Kalia accompanied the Petitioner (accused) voluntarily and without any force or inducement and hence the conviction of the Petitioner is not justified. In support of the submission the learned Advocate for the Petitioner relied upon the decisions reported in S. Varadarajan Vs. State of Madras State of Haryana Vs. In support of the submission the learned Advocate for the Petitioner relied upon the decisions reported in S. Varadarajan Vs. State of Madras State of Haryana Vs. Raja Ram, and AIR 1977 Cri.L.J. 1255 Dabalasab v. The State of Karnataka. 6. The Supreme Court decision reported in AIR 1965 SC and AIR 1973 SC are the leading decisions and the decision reported in AIR 1977 Cri.L.J. is a decision of the Karnataka High Court and it is based upon the decision reported in A.L.R. 1965 SC 942. As it will be seen from the succeeding paragraphs the decisions referred to above are clearly distinguishable from the facts of this case. 7. As per the decision reported in S. Varadarajan Vs. State of Madras, the kidnapped girl had attained the age of discretion and was on the verge of attaining majority and she was also a senior college student. That girl herself went of her father's protection and was accompanied the accused voluntarily and out of her own free will. In the decision reported in State of Haryana Vs. Raja Ram, the principles enunciated in S. Varadarajan Vs. State of Madras, have been accepted. As per this decision the victim girl was also about 14 years at the time of her kidnapping. The Supreme Court accepted the principles that there is a distinction between taking and allowing a minor to accompany a person. The Supreme Court also accepted this principle that if the minor herself leaves her father's house without any inducement by the accused, who merely allows her to accompany him, he (accused) cannot be said to have taken her out of the keeping of her father. On facts however, the Supreme Court held that in that case the prosecutrix has been given sufficient inducement by the accused to leave her father's house and hence the offence of kidnapping has been made out. The decision of the Karnataka High Court reported in AIR 1977 Cri.L.J. 1255 (supra) accepted the principles enunciated in S. Varadarajan Vs. State of Madras, and applied that principles to the particular facts of the case and hence I do not feel it necessary to discuss about that decision in detail. 8. From the decisions reported in S. Varadarajan Vs. State of Madras, and State of Haryana Vs. Raja Ram, the following principles emerge. State of Madras, and applied that principles to the particular facts of the case and hence I do not feel it necessary to discuss about that decision in detail. 8. From the decisions reported in S. Varadarajan Vs. State of Madras, and State of Haryana Vs. Raja Ram, the following principles emerge. (i) When the minor has attained the age of discretion and has himself or herself taken the initiative for leaving the protection of the father or guardian and leaves the home and accompanied with accused, without any inducement being held by the accused, then the accused does not commit the offence of kidnapping; (ii) There in distinction between taking and allowing a minor to accompany with the accused and thus if the minor herself leaves her father's house without any inducement by the accused, who merely allows her to accompany him, he cannot be said to have taken her out of the keeping of her father. It must be shown that the accused held out some inducement to the minor or that the accused had an active participation in the formation to leave the house of the guardian of the intention of the minor (iii) The object of Section 361 seems as much to protect the minor children from being accused for improper purposes, as to protect the right and privileges of guardians having the lawful charge or custody of their minor wards. The gravemen of this offence lies in the taking or enticing of a minor under the ages specified in this section out of the keeping of the lawful guardian without the consent of such guardian; and (iv) 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. 9. 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. 9. In this case the trial Court and the appellate Court have given clear finding that Susila (P.W. 1) is the mother of the kidnapped minor boy Kalia who was aged about 4 years and that the accused Petitioner Dinabandhu Paikaray who was not known to Susila Dakua previously, came to her house and supplied her rice and other articles to prepare food and took the boy Kalia by giving out to bring, some bread for him from the nearby shop and thereafter neither the boy nor Dinabandhu returned. The minor boy Kalia is aged 4 years and hence by no stretch of imagination it can be said that he may had any discretion to decide about himself. Such children are also easily induced if offer of very small thing is made to them. In this case Dinabandhu took the minor boy by saying that he would purchase the bread from the nearby shop. The minor boy, according to the circumstances of the case; belongs to a very poor family. Hence, a piece of bread may be held to be sufficient inducement to such a child, when the accused-Petitioner Dinabandhu offered to purchase a piece of bread for, the boy, it appears that the boy went with Dinabandhu and after that neither the child nor Dinabandhu returned. This goes to show that the accused-petitianer gave sufficient inducement to the child Kalia to come with him leaving the protection of his mother. 10. It is an established fact that the kidnapped child Kalia was born to the informant Susila Dakua through her husband Ganga Dekua, who deserted her. After being deserted Susila (P.W. 1) remained as a mistress with Dasarathi Behera at Berhampur town. Thus the legal custody of the kidnapped boy was with Susila Dakua, who is the mother. Dasarathi Behera with whom Susila was staying as a mistress did not have any legal relationship with the child Kalia, except that technically Dasarathi Behera may be in keeping of the child. The accused-Petitioner Dinabandhu Paikaray was not known to Susila (P.W. 1) previously. Thus the legal custody of the kidnapped boy was with Susila Dakua, who is the mother. Dasarathi Behera with whom Susila was staying as a mistress did not have any legal relationship with the child Kalia, except that technically Dasarathi Behera may be in keeping of the child. The accused-Petitioner Dinabandhu Paikaray was not known to Susila (P.W. 1) previously. In such circumstances, it is neither expected that the 4 year old minor child of Susila would have voluntarily gone with the accused-Petitioner or that the accused Petitioner would take the said minor child out of love and affection. On the other hand, the evidence is that the child Kalia went with the accused-Petitioner, who offered to purchase a piece of bread for him (child). Thus, for a 4 year minor child belonging to the lowest economic group, it must be held to be sufficient inducement. 11. Section 361 of the Indian Penal Code reads: 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, 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. Explanation - This section does not extend to the Act of any person who is in good faith believed to be the father of an illegitimate child, or who in good faith believes himself to be entitle to the lawful custody of such child, unless such act is committed for an immoral or unlawful purpose. As per the decision reported in State of Haryana Vs. Raja Ram, 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 gravemen of this offence lies in the taking or enticing of a minor under the ages specified in this section, out of the keeping of the lawful guardian without the consent of such guardian. The gravemen of this offence lies in the taking or enticing of a minor under the ages specified in this section, out of the keeping of the lawful guardian without the consent of such guardian. On plain reading of this Section 361 it appears that 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 of 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 this case the child is aged 4 years and as such he is not capable to give any consent, There is material to show that the child went with accused-Petitioner after the accused-Petitioner offered to purchase a piece of bread. This is sufficient persuasion to a child, who is aged about 4 years and belongs to the very lowest economic group. 12. The offence of kidnapping from lawful guardianship is complete when the minor is actually taken from lawful guardianship; it is not an offence continuing so long as the minor is kept out of such guardianship. The act of taking is not, in the proper sense of the term, a continuous act; when once the boy or girl has been actually taken out of the keeping, the act is completed one, In other words, the keeping of the guardian will be at an and when the person of the minor has been transferred from the custody of the guardian or some person on his behalf into the custody of some person not entitled to the custody of the minor. 13. In this case, the mother (P.W. 1) is the lawful guardian of the minor child Kalia as stated earlier, It may be said that Dasarathi Behera with whom Susila Dakua (P.W. 1) was staying as a mistress may also be in custody of the minor on behalf of P.W. 1. It is clear from the evidence of Susila (P.W. 1) that the accused-Petitioner Dinabandhu did not take the boy with her (P.W. 1) consent. It is clear from the evidence of Susila (P.W. 1) that the accused-Petitioner Dinabandhu did not take the boy with her (P.W. 1) consent. In any case the consent of P.W. 1 extended temporarily to enable the accused-Petitioner to purchase a piece of bread for the child and hot beyond that There is no evidence that Dasarathi Behera gave any consent to the accused-Petitioner for taking the boy. The accused Petitioner Dinabandhu is not entitled to the custody of the minor child. In these circumstances, as soon as the accused-Petitioner Dinabandhu took the child from the shop in question where a bread was to be purchased or in the worst view of the case from Berhampur town, the keeping of the guardian of the boy came to an end and the person of the minor was transferred into the custody of Dinabandhu Paikaray who is not entitled to the custody of the minor. Hence. "taking was completed" and the offence within the meaning, of Section 363, IPC was committed. It may be mentioned that the child was taken by the accused-Petitioner on 16.1.82 and he was recovered on 17.1.82 at 3.30 P.M. Thus, the minor child remained with the accused-Petitioner Dinabandhu for more than 24 hours and it is clear that during that period either P.W. 1 or Dasarathi Behera did not have any definite information about the whereabouts of the minor child Kalia. Such a conduct on the part of the accused-Petitioner also fortifies the theory of kidnapping. 14. In the circumstances discussed above, the appellate Court and the trial Court have taken a very correct view in the matter and the conviction and the sentence passed against the accused-Petitioner are justified and I find no reason to interfere with the same.