Chhajju Ram Maru Ram and Another vs The State of Punjab

J.S. Bedi, J.—Chhajju, aged 21 and Kri-shan Lal, aged about 35, were committed to the Court of Session to stand their trial under Sections 363 and 366 of the Indian Penal Code. They were convicted u/s 363 of the Code and sentenced to one and a half year''s rigorous imprisonment besides a fine of one hundred and fifty rupees each. In default of payment of fine, they were to further undergo rigorous imprisonment for one and a half months each. They were also convicted u/s 366 of the Penal Code and sentenced to one and a half years'' rigorous imprisonment besides a fine of two hundred rupees each or in default of payment of fine to further undergo rigorous imprisonment for one and a half months each, vide his order dated the 30th November, 1967. The appellants have come up in appeal to this Court. Hari Chand, complainant, also has put in revision (Criminal Revision No. 102 of 1968) for the enhancement of sentence. The appeal and the revision will both be disposed of by this judgment.

The prosecution story briefly runs as under. Hari Chand was residing in Sirhind Mandi where the two appellants kept their shops. Hari Chand had a daughter named Vijay Kumari aged about 15 years on the day of her abduction, i.e., the 17th May, 1967. It is stated that on that day, at about 10 p.m., Vijay Kumari was sleeping on the roof of her house along with other children when the two appellants came up there and woke her up. Chhajju Ram, appellant, placed his hands on her mouth and also a handkerchief close to her nose which was besmeared with some medicine to cause drowsiness to Vijay Kumari. Both the appellants thereafter lifted her from the cot and tool her to a kick room of the shop of Chhajju Ram. She was made to sit on a cot. The appellants sprinkled water on her face to bring her back to her normal senses. The appellants then made her sit in their middle and started moving their hands on her body including the breasts in order to outrage her modesty.

It was then that Hari Chand who obviously ran some sort of cinema house returned from their at about 11-15 P. M., and was apprised by his wife that Vijay Kumari was missing. He went upstairs and found her cot empty but other children asleep there. He noticed some light in the shop of Chhajju Ram appellant which adjoins the house or Hari Chand. Hari Chand I went on the back of that shop in the courtyard and through a chink saw Vijay Kumar sitting on a cot in between the two appellants. They were sprinkling water on her face and hugging her in a lustful manner at that time. He knocked at the door which alarmed the appellants, who then took Vijay Kumari towards the main gate of the shop and after opening it pushed her out. Her father also in the meantime came in front of the shop and met Vijay Kumari in the bazar and took her to his house. Vijay Kumari told him and her mother her tale of woe. Hari Chand then went to the police station and lodged report Exhibit P A and after due investigation the appellants were sent up for trial under Sections 363 and 366 of the Indian Penal Code.

When examined u/s 342 of the Criminal Procedure Code, they denied the allegations against them. The prosecution examined a number of witnesses but the fate of this case hinges on the statements of Hari Chand and her daughter Vijay Kumari; the rest of the witnesses are almost formal.

It is not denied and is clear from Exhibit P. E., and the statement of the father besides that of the prosecutrix herself that Vijay Kumari was about fifteen years of age when this occurrence took place. She was born in 1952 at Rajpura.

The only argument advanced by the appellants'' counsel was that the facts and circumstances of this case showed that Vijay Kumari was a willing party and herself went to the shop of Chhajju Ram and that therefore, it could not be said that the two appellants took her out ot lawful guardianship of her father as defined in Section 361 of the Penal Code which was a necessary ingredient to prove this offence. This argument seems to be the brainwave of the appellants'' counsel because if this position was correct, the appellants would themselves have taken that stand, but they have denied this occurrence altogether and have taken the defence that Vijay Kumari was of a loose character and was a vagabond and was hobnobbing with other persons of ill repute. The appellants snatched away letters Exhibits D-1 to D-3 from some boy and Hari Chand feeling that the two appellants may not defame his daughter has involved them in this case. This defence, I have no doubt in my mind, is most unconvincing.

It appears in this case that the appellants did come to the kotha where the prosecutrix was sleeping, woke her up and took her away with them. It of course does not appear to be correct that the appellants forcibly took her to the back portion of the shop of Chhajju Ram, as alleged by the prosecutrix. If they did so, she could have raised an alarm and attracted the attention of a number of persons sleeping in front of their shops which were as many as forty in number. She could also raise an alarm and thus attract the attention of her mother who was vet awake and also of her brothers and sisters sleeping close to her. But consent in such cases when the prosecutrix is certainly a minor has no relevancy; of course, it may he a ground tor reduction of sentence. In support of his contention, the counsel cited S. Varadarajan Vs. State of Madras, . But the facts in that case were entirely different and so that authority has no application to the present case. The "taking" need not be by force, actual or constructive and it is immaterial whether the girl consents or not. There must be a taking of the child out of the possession of the parent. The word "take" means to cause to go, to escort, or to get into possession. What is required is that there must be proof of taking. The prosecution has to prove that the accused had played some active part in the girl leaving her lawful guardian''s house and taking shelter in his house The facts given above leave no room for doubt that the two appellants took Vijay Kumari to the shop of Chhajju.

The next argument advanced by the appellants'' counsel was that the prosecutrix in this ease was removed only a few yards from the house of her father and, therefore, it would not amount to taking her out of the lawful keeping of her guardian. In determining whether a person takes a minor out of the lawful keeping of its guardian, the distance is immaterial. In my opinion, even if a person takes a minor girl without the consent of her guardian to a distance of twenty or thirty yards, as in this case, it would amount to taking her out of the keeping of her lawful guardian as required by Section 361 of the Indian Penal Code. I am, therefore, of the view that the case against the appellants is proved. The sentence under the circumstances is adequate. I accordingly dismiss this appeal and the revision filed by the complainant.