JUDGMENT Dev Darshan Sud, J (Oral). Both these appeals arise from the same judgment of the learned trial Court which convicted the appellants-Bhim Singh and Devinder Singh for offences under Sections 363, 366 and 120-B of the Indian Penal Code (hereinafter referred to as ‘I.P.C’.) and sentenced each of them to undergo rigorous imprisonment for three years and fine of Rs.5,000/- and in default of payment of fine to suffer rigorous imprisonment for six months under Section 363 read with Section 120-B I.P.C. and rigorous imprisonment for a period of five years and fine of Rs.5,000/- for offences punishable under Section 366 read with Section 120-B I.P.C. and in default of payment of fine simple imprisonment for six months. 2. Both the accused were charged for offences under Sections 363, 366 and 120-B I.P.C. Appellant Bhim Singh was the driver of Maruti Esteem in which the prosecutrix PW3 was purportedly kidnapped. The other convict Babu Ram who was sentenced for offences under Section 376 I.P.C. and accused Hem Lata convicted under Sections 363, 366 and 120-B I.P.C. have not preferred any appeal. 3. The prosecution case in brief is that the prosecutrix was undergoing training of stitching clothes etc. with accused Hem Lata. It was urged that at the time of the incident the prosecutrix was aged about 15 years. On the fateful day, she did not return home from the training centre, where after, the matter reported to the police and recorded in daily diary Ext.PW1/A. The case of the prosecutrix is that she had gone to Dehar after a telephonic call from Hem Lata who took her towards the bridge. She stopped her car and pushed the prosecutrix inside after gagging her mouth. She threatened her that in case she raised any hue and cry she would kill her. Accused Bhim Singh was driving the car and Devinder Singh was sitting in the car. Accused Devinder Singh told the other accused to leave the girl as she appeared to be minor. She was taken to Shimla and forcibly married to Babu Ram. A number of submissions were made before the learned trial Court by all the accused. One being that she had filed an affidavit Ext.DA in which she had disclosed her age as 19 years. This affidavit was attested before the Executive Magistrate, Shimla (Urban). She was identified by one Sh. A number of submissions were made before the learned trial Court by all the accused. One being that she had filed an affidavit Ext.DA in which she had disclosed her age as 19 years. This affidavit was attested before the Executive Magistrate, Shimla (Urban). She was identified by one Sh. Harinder Singh, Advocate which fact has not been taken into consideration by the learned trial Court. 4. To substantiate the conviction of these two accused, the Court holds that accused Hem Lata, Devinder Singh and Bhim Singh were travelling together and since the prosecutrix was forcibly pushed into the car, her statement as a victim has to be accepted according to the established law and the accused convicted for the offences as charged. When one looks at the cross examination of the prosecutrix, I find from her statement that she was perfectly happy in staying at Shimla with some brother of Hem Lata without making any complaint that she was forced to accompany the accused or was abducted etc. It is the role ascribed to these two accused which has to be considered for the purposes of this judgment. I am not pronouncing on the other findings of the learned Court which have been invoked for the purposes of convicting the other two accused. 5. In S. Varadarajan Vs. State of Madras, AIR 1965 S.C. 942 , the Supreme Court holds: “7. The question whether a minor can abandon the guardianship of his or her own guardian and if so the further question whether Savitri could, in acting as she did, be said to have abandoned her father’s guardianship may perhaps not be very easy to answer. Fortunately, however, it is not necessary for us to answer either of them upon the view which we take on the other question raised before us and that is that "taking" of Savitri out of the keeping of her father has not been established. Fortunately, however, it is not necessary for us to answer either of them upon the view which we take on the other question raised before us and that is that "taking" of Savitri out of the keeping of her father has not been established. The offence of "kidnapping from lawful guardianship" is defined thus in the first paragraph of s. 361 of the Indian Penal Code : "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." 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 of the keeping of the lawful guardian, of Savitri. We have no doubt that though Savitri had been left by S. Natarajan at the house of 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 1st, 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 she 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. No doubt, she says that she 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. There is no suggestion that the appellant took her to the Sub-Registrar’s office and got the agreement of marriage registered there (thinking that this was sufficient in law to make them man and wife) by force or blandishments or, anything like that. On the other hand the evidence of the girl leaves no doubt that the insistence of marriage came from her own side. The appellant, by complying with her wishes can by no stretch of imagination be said to have taken her out of the keeping of her lawful guardian. After the registration of the agreement both the appellant and Savitri lived as man and wife and visited different places. There is no suggestion in Savitri’s evidence, who, it may be mentioned had attained the age of discretion and was on the verge of attaining majority that she was made by the appellant to accompany him by administering any threat to her or by any blandishments. The fact of her accompanying the appellant all along is quite consistent with Savitri’s own desire to be the wife of the appellant in which the desire of accompanying him wherever he went was of course implicit. In these circumstances we find nothing from which an inference could be drawn that the appellant had been guilty of taking away Savitri out of the keeping of her father. She willingly accompanied him and the law did not cast upon him the duty of taking her back to her father’s house or even of telling her not to accompany him. She was not a child of tender years who was unable to think for herself but, as already stated, was on the verge of attaining majority and was capable of knowing what was good and what was bad for her. She was no uneducated or unsophisticated village girl but a senior college student who had probably all her life lived in a modern city and was thus far more capable of thinking for herself and acting on her own than perhaps an unlettered girl hailing from a rural area. She was no uneducated or unsophisticated village girl but a senior college student who had probably all her life lived in a modern city and was thus far more capable of thinking for herself and acting on her own than perhaps an unlettered girl hailing from a rural area. The learned Judge of the High Court has referred to the decision In Abdul Sathar Vs. Empror, 54 Mad. L.J.456 : (AIR 1928 Mad. 585) in which it was held that where the evidence disclosed that, but for something which the accused consented to do and ultimately did, a minor girl would not have left her husband’s house, or would not have been able to leave her husband’s house, there was sufficient taking in law for the purpose of S. 363 and expressing agreement with this statement of the law observed: "In this case the minor, P.W. 4, would not have left the house but for the promise of the appellant that he would marry her." Quite apart from the question whether this amounts to blandishment we may point out that this is not based upon any evidence direct or otherwise. In 54 Mad. L.J. 456 : (AIR 1928 Mad. 585) Srinivasa Aiyangar J., found that the girl whom the accused was charged with having kidnapped was desperately anxious to leave her husband’s house and even threatened to commit suicide if she was not taken away from there and observed : "If a girl should have been wound up to such a pitch of hatred of her husband and of his house or household and she is found afterwards to have gone out of the keeping of her husband, her guardian, there must undoubtedly be clear and cogent evidence to show that she did not leave her husband’s house herself and that her leaving was in some manner caused or brought about by something that the accused did." In the light of this observation the learned Judge considered the evidence and came to the conclusion that there was some legal evidence upon which a court of fact could find against the accused. This decision, therefore, is of little assistance in this case because, as already stated, every essential step was taken by Savitri herself : it was she who telephoned to the appellant and fixed the rendezvous, she walked up to that place herself and found the appellant waiting in the car; she got into the car of her own accord without the appellant asking her to step in and permitted the appellant to take her wherever he liked. Apparently, her one and only intention was to become the appellant’s wife and thus be in a position to be always with him……... 9. It must, however, be borne in mind that there is a distinction between "taking" and allowing a minor to accompany a person. The two expressions are not synonymous though we would like to guard ourselves from laying down that in no conceivable circumstance can the two be regarded as meaning the same thing for the purposes of 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 and having capacity to know the full import of what she was doing voluntarily joins the accused person. In such a case we do not think that the accused can be said to have taken her away from the keeping of her lawful guardian. Something more has to be shown in a case of this kind and that is some kind of inducement held out by the accused person or an active participation by him in the formation of the intention of the minor to leave the house of the guardian... 12…………It must be borne in mind that while ss. 497 and 498, I.P.C. are meant essentially for the protection of the rights of the husband, - s. 361 and other cognate sections of the Indian Penal Code are intended more for the protection of the minors and persons of unsound mind themselves than of the rights of the guardians of such persons. In this connection we may refer to the decision in State v. Harbansing Kisansing, ILR (1954) Bom.784: ( AIR 1954 Bom. In this connection we may refer to the decision in State v. Harbansing Kisansing, ILR (1954) Bom.784: ( AIR 1954 Bom. 339 ) In that case Gajendragadkar J., (as he then was) has, after pointing out what we have said above ,observed: "It may be that the mischief intended to be punished partly consists in the violation or the infringement of the guardians’ right to keep their wards under their care and custody; but the more important object of these provisions undoubtedly is to afford security and protection to the wards themselves." (P.944, 945 & 946) 6. This decision was subsequently considered by the Supreme Court in Thakorlal D. Vadgama Vs. The State of Gujarat, AIR 1973 S.C. 2313 , holding: 9. The legal, position with respect to an offence under s. 366, I.P.C. is not in doubt. In State of Haryana v. Raja Ram, AIR 1973 SC 819 , 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 ages specified in this--Section, out of the keeping of the lawful guardian without the consent of such guardian. The word “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 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". 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 case cited reference 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 offence in question and that if by moral force a willingness is created in the girl to go away with the former, the offence would be committed unless her going away is entirely voluntary. Inducement by previous promise or persuasion was held in some’ English decision 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 in 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, "to cause to go", "to escorts’ or "to get into possession’. No doubt it does mean physical taking, but not necessarily by use of force or fraud. The word "entice" seems to involve the idea of inducement or 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 successful 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 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 in s.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 of each case. In the case before us, we cannot ignore the circumstances in which the appellant and Mohini came close to each other and the manner in which he is stated to have given her presents 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 the 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 entertained by Mohini’s mother is also, in our opinion, relevant in considering the truth of the story as narrated by the prosecutrix. These letters were taken into consideration by the High Court and in our opinion rightly. The suspicion entertained 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 comparatively 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, among others, show that the main substratum of the story as revealed by 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, 1. P.C. are unexceptionable. There is absolutely no ground for interference under Article 136 of the Constitution”. (P.2320&2321) 7. Subsequently, in Moniram Hazarika Vs. State of Assam, AIR 2004 S.C. 2472 , the Supreme court holds: 5. Keeping in mind the above requirement of law, we will examine the facts of this case to find out whether two courts below were justified in convicting the appellant. It is clear from the finding of facts of two courts below which is based on material available on record, that PW-2 was a minor at that time when she was taken away from her lawful guardian. As a matter of fact the said finding is not seriously challenged. The case of the appellant is that PW-2 voluntarily accompanied him with a view to marry him and there was no enticement or taking away of PW-2 as contemplated under Section 361 of IPC. We think the material on record shows otherwise. It has come on record that the appellant was known to the family of PW-2 and was on visiting terms. It is his own case that during such visits he developed intimacy with PW-2. It is the case of the defence that even on the day of incident when the appellant was standing outside the house, PW-2 came to him and requested him to take her away. It is his own case that during such visits he developed intimacy with PW-2. It is the case of the defence that even on the day of incident when the appellant was standing outside the house, PW-2 came to him and requested him to take her away. But there is material on record to show that the appellant promised to marry her and it is based on such promise she went away with the appellant and there is also material on record to show that on that day preparation for marriage was already made in the house of the appellant. Thus two things are clear from this fact; one, that there was a promise of marriage and secondly, based on the said promise PW-2 went with the appellant. Of course, PW-2 had come out with the case that she had come out of the house to answer the call of nature when she was forcibly taken by the appellant which part of the prosecution case is not accepted. But the material on record, as stated above, shows that there was a promise of marriage made to PW-2 which amounts to enticement of a minor because of which she had left the house of her lawful guardian. In this background, in our opinion, the courts below were justified in coming to the conclusion that the appellant had committed the offence punishable under Section 366 of IPC. (P.2474) 8. Reliance has also been placed on the decision of this Court in Paramjit Singh Vs. State of Himachal Pradesh, 1987 Cri.L.J. 1266, holding: “24………………..It is clear that in order to hold a person guilty of an offence under S. 363 of the Indian Penal Code it must be proved that the accused played an active part in taking away a female out of the keeping of her guardian without the consent of the guardian either prior to, or at the time of her taking away out of such guardianship by either directly using force or threat against the female or injecting into her mind some irresistible allurements or temptations which may impel her to leave or forsake the custody of her guardian.” (P.1270) 9. In the present case, what has to be considered is the fact as to whether there was involvement of the accused in any conspiracy facilitating the act of kidnapping and rape. In the present case, what has to be considered is the fact as to whether there was involvement of the accused in any conspiracy facilitating the act of kidnapping and rape. So far as Section 376 I.P.C. is concerned, there was no charge against the accused but it is only Sections 363 and 366 I.P.C. which has been invoked against the accused. But I find from the evidence relatable to the role played by the accused is that the testimony of the prosecutrix that both the accused have no role in forcibly enticing away the prosecutrix from the lawful High Court of H.P. guardianship of her father or an active role in taking her away from that guardianship. Merely because the fact that the prosecutrix was forcibly pushed into the car will not be sufficient to convict them for the offences nor attribute any knowledge of conspiracy with the other accused. 10. In Ext. DA which is an affidavit filed by the prosecutrix, which affidavit has been attested by the Executive Magistrate does not point to the accused as active participants. The prosecutrix was quite happy filing the affidavit and there was no whisper before the Magistrate that she was abducted. She did not even complain of any maltreatment to the Advocate who has identified her in this affidavit. In these circumstances, it becomes difficult to hold that these two appellants are guilty of the offences under Sections 363 and 366 I.P.C. Both these appeals are accordingly allowed. The judgment of the learned trial Court in so far as the conviction of the appellants for offences under Sections 363, 366, read with Section 120-B I.P.C. are quashed and set aside. The fine deposited by the appellants shall be refunded to them. Bail bonds furnished by the appellants shall stand discharged. 11. I make it clear that this judgment has no bearing on the findings in so far as other two convicts Babu Ram and Hem Lata are concerned.