In Re: Sellan alias Ananda Selvan

K.N. Mudaliyar, J.—This is an appeal arising from the conviction of Sellan alias Ananda Selvan for offences under Sections 366 and 376 of the Indian Penal Code, by the Additional Sessions Judge, Salem.

P.W.2, Arumugham is the father of P. W. 1, Janaki. P.W. 2 was living in their field shed in Thirumalagiri with his wife and children, P. W. 1 was born on 13th February 1957, according to the evidence of P.W.2 and Ex. P. 7 and P. 9. At the time of the alleged offence, namely, 30th June 1970, P. W. 2 was studying in the IX standard P. W. 1 used to visit her grand-father at Thuthikulam, which is about a mile away from Thirumalagiri. The first accused Sellan used to follow P. W. 1 when she was away to her kadu. A month prior to the occurrence, P. W. 1 was on her way to the school, when A-1 met her under an arasu tree near her school and wanted her to marry him. She consistently objected and refused.

Again A-1 promised to settle some property on her just a fortnight before the date of the occurrence and again P. W. 1 rejected the offer. One day prior to the date of occurrence, A-1 met P. W. 1 again under the same arasu tree and reiterated his request. She got afraid and went away to her grand father's house.

On 30th June 1970 (Tuesday) morning when P.W.1 was on her way to school, A-1 and his junior paternal uncle's wife, Thangammal, A-2 (who is acquitted in the Court of Sessions) met her under the arasu tree. Both A-1 and A-2 induced her to go with them for the purpose of taking a photograph. P. W. 1 refused in the first instance, but agreed to the proposal later. All the three A-1, A-2 and P.W.1 got into a bus bound for Rasipuram and alighted from the bus some distance away from the Rasipuram bus stand. All the three went to the house of certain person related to A 2. A-2 left the place saying that she had to go to bazaar, but she did not come back. P. W. 1 questioned A-1 as to what happened to A-2.

A-1 replied that A-2 had gone to the village, that she would not come back and that he had brought P. W. 1 for the purpose of marrying her. She protested. She developed head ache and fever. A-1 brought some coffee and tablets and P. W. 1 took them. Both of them spent that night in that house.

On 1st July 1970 (Wednesday) morning A-1 took P.W. 1 to Salem in a bus under threat. A-1 secured a room No. 17, for stay in Midland hotel, Salem, through the hotel cashier Subramaniam P. W. 9. A-1 gave his name as Anandaselvan instead of Sellan and the name of his village Kuttikulam instead of Thuthikulam. P.W. 9 entered these particulars in Ex. P-5, the register maintained in the Midland hotel. P-6 is the relevant

entry. On the night of 1st July 1970 A-1 had intercourse with P. W. 1 in the said room. On 2nd July 1970 morning A-1 purchased new clothes, namely, M.O. 1 thavani, M. O. jacket, M.O. 3 brass chain and M.O. 4 chappals and P. W. 1 was compelled to wear them. A-1 took her to a theatre that night. They witnessed a picture at 10-30 p.m. She was brought back to the hotel by the accused and both spent that night in the said room.

On 3rd July 1970 (Friday) morning A-1 vacated the room in the hotel and took P.W. 1 to the house of his relation P. W. 5 Raman situated in Harijan St, in Thoppampatti village. They reached the house of Raman in the afternoon. A-1 is related to P. W. 5, P. W. 5 questioned A-1 about P.W, 1. A-1 admitted that he had brought ( ) from Thuthikulam. Thereupon P. W. 5 represented the matter to P. W. 6, the village munsif of Thoppampatti, P.W. 6 sent P.W. 5 to go to Thuthikulam and bring the parents of A-1 and P.W. 1. P.W. 5 went and informed the parent of P. W.

1 and A-1 and also the elders of the village. P.W. 4 was deputed to get back P.W. 1 to the village. The village munsif refused to send P. W.1 along with P. W. 4. Thereupon P.W. 2, the father of P.W.1 reported the matter to PW. 3, the Sub inspector of Police, Sendamangalam. Ex. P. 1 is the report. A-1 was arrested at the house of P.W. 5 where P.W. 1 also was found. Both A-1 and P.W. 1 were sent to the medical officer, Namakkal for examination. I shall deal with the testimony of P. Ws. 3 and 11 regarding the examination of P.W. 1 and the testimony of P.W. 7 regarding the examination of A-1 during the discussion of the evidence relating to the offence under Sections 366 and 376, I. P. C.

The plea of the second accused was that she went to attend the funeral of her grandmother. She examined D. Ws. 1 and 2 to show that her grand-mother died at Koneripatti on that day and that she attended the funeral.

The plea of the first accused is that he went to Salem for selling certain articles. He and his friend Palanisami stayed at midland Hotel on 1st July 1970 till they vacated on 3rd July 1970. Later he proceeded to Rasipuram and at the Rasipuram bus stand he found P.W. 1 roaming about in a pitiable condition. She stated that because she wrote letters to him her parents locked her up in a room after severe beatings and made her to starve and therefore she came away from the house. She wanted A-1 to marry her and to go away to some other place. He refused and took her to his relation's house (P.W.5) at Thoppampatti for the purpose of sending her to her parent's house through P.W. 5. He represented to P.W. 5 as to what had happened. Accordingly P.W. 5 went to Thuthikulam for the purpose of bringing the parents of PW. 1. The police arrived on the next day and took A-1, P.W. 1 and P.W. 5 into custody. P.W. 5 was compelled to depose that P.W. 1 was kidnapped by A.1.

The learned Sessions Judge found A-2 not guilty of the offence u/s 366 read with See. 34 I.P.C. and acquitted her. He held that: P.W. 1 was undoubtedly below 17 years of age on the date of the offence, namely, 3rd June 1970. After dealing with the entire evidence of P. Ws. 1, 5 and 9 he held that P.W. 1 was under 14 years of age on the date of the occurrence and that she was kidnapped by A-1 out of the lawful guardianship of her parents without their consent with intent that P.W. 1 may be forced or seduced to illicit intercourse. The learned Judge also accepted the evidence of P.W. 1 and found A-1 guilty u/s 376 I.P.C.

9.The learned Counsel for the Appellant (A-1) argues that in view of the plea of A-1 it is clearly a case of abandonment of the guardianship of P.W. 1''s parents and, there fore, P.W. 1, though a minor, cannot be deem-end to have been taken out of the lawful guardianship of her parents.

He further argued that P.W. 1 is more than 16 years of age, that she is reading in IX Standard and that therefore, the uncorroborated testimony of P.W. 1 in regard to A-1 taking or enticing her out of the lawful guardianship of her parents without their consent cannot be and ought not to be relied on.

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[The discussion of facts is omitted: Ed.]

Even accepting the testimony of P.W. 1 that on the Wednesday night 1st July 1970 A-1 committed the act of sexual intercourse with her would not constitute proof of the offence u/s 376 I.P.C. The recorded evidence would clearly warrant a finding that there was no medical evidence that the intercourse had taken place without her consent. The Judicial Committee of the Privy Council in James v-R 1971 Cri. App. Rep. 299 held that ""on a charge of rape the corroborative evidence must confirm in some material particular that intercourse has taken place and that it has taken place without the woman's consent, and also that the Defendant was the man who committed the crime."" Speaking on behalf of the Board,

Viscount Dilhorne observed as follows:

Independent evidence that intercourse had taken place is not evidence confirming in some material particular either that the crime of rape had been committed or, if it had been, that it had been committed by the accused. It does not show that the intercourse took place without consent or that the accused was a party to it.

The position of law as adumbrated in the judgment of the Board is that there must be some medical evidence either confirming of corroborating that intercourse had taken place without her consent. Their Lordships of the Privy Council observed again as follows:

Despite what he had said earlier about corroboration being particularly necessary where the issue is consent or no consent he failed to direct the jury as to the need for corroboration on both these questions. Indeed the passage cited above suggests that the jury might well have thought that, if they accepted the medical evidence, they were entitled to disregard the warning he had given against the danger of acting on uncorroborated evidence.

One has got to be very wary, circumspect and slow to act on the uncorroborated testimony of the victim girl. Bearing these legal principles in mind, I am unable to hold that the sexual intercourse committed by A. 1 on P.W.1 on the night of 1st July, 1970 is without evidence or against her

will. At any rate, the consent on record admits of a reasonable doubt about the proof of guilt of the accused for an offence u/s 376, I.P.C.

Therefore, the first accused is acquitted of the offence u/s 376 Indian Penal Code.

On the same reasoning, I cannot but hold that the ingredient that P. W. 1 might have been forced or seduced to illicit intercourse is not made out on the proved facts of this case. Undoubtedly; the two letters, Exs. D. 6. and D. 7 are in the handwriting of P. W. 1. Her case is that at the house of P. W. 5, A. 1 wanted to have a statement to the effect that P. W. 1 came along with A. 1 of her own sweet will and accord. She further stated that when A. 1 dictated she wrote down the statement. But I am afraid this part of her evidence is unworthy of belief. If the statement is recorded to the effect that she came with A. 1 out of her own will and pleasure, such a statement has not seen the light of the day. When she was confronted with Ex. D. 6 and D. 7 she admitted that they are in her handwriting. A close examination and scrutiny of the contents of the documents would reveal that the two documents running into four pages nearly (both put together) would not lend any credence to her testimony. She invented this plea in order to get over the contents found in Exs. Dr. 6 and D. 7. I am of the view that Ex. D. 6 and D. 7 contained her outpourings of passionate love for A. 1. In this background of Ex. D. 6 and D. 7 my unhesitating rejection of her ingenious plea to get over the contents of these documents, I have no hesitation in holding that the ingredients in Section 366, I. P. C. are not proved beyond reasonable doubt. A-1 is acquitted of the offence u/s 366, I. P. C.

What remains is the question which falls for determination, whether the offence u/s 363 I. P. C. is made out against A.1. I have already noticed the finding of the learned Judge that the prosecution has proved that P. W. 1 was kidnapped by A. 1 and taken out of the lawful guardianship of her parents without their consent, in the context of the conviction of A. 1 under Sec. 356, I.P.C. On the basis of the testimony of P. W. 1. has the prosecution satisfied or made out the ingredients of either ''takes or entices'' within the meaning of S. 361, I. P.C.? Undoubtedly, A. 1 was following P. W. 1 on her way to school. He even went to the extent of holding out blandishments that he would settle some property on her. There were even three or four abortive attempts made by A. 1 to marry P.W. 1.; buts the consistently refused to entertain such an idea. Be it noted that

A. 1 was already a married man. P. W. l''s evidence is that A. 1 and A. 2 met her under the arasu tree. Both A. 1 and A. 2 induced her to go with them for the purpose of taking photograph. P. W. 1 refused in the first instance but later agreed. All the three-A. 1, A. 2 and P. W. 1. got into a bus bound for Rasipuram and on alighting from the bus they went to the house of a relation of A. 2. A. 2 cleverly disappeared from the scene after leaving A. 1 P.W. 1 and together. The learned Counsel for the Appellant argued that the evidence of P.W. 1 should not be believed particularly in the light of the plea of A. 1 (already noticed in the earlier part of the Judgment) and that P. W. 1 is studying in the IX Standard and that she had a will of her own and there is nothing surprising in her wandering near and around Rasipuram when she has been discovered by A-1 and taken to the house of P. W. 5. In support of this argument, the learned Counsel relied on the rationale found in Varadarajan v. State of Madras (1965) M.L.J.

Crl. 640. Their Lordships of the Supreme Court have held that:

Taking or enticing away a minor out of the keeping of a lawful guardian is an essential ingredient of the offence of kidnapping a minor from lawful guardianship u/s 361 I. P.C. Where a minor girl leaves her father's protection knowing and having capacity to know the full import of what she was doing in the instant case a senior college student on the verge of attaining majority and voluntarily joins the accused person permitting him to take her wherever he liked and marries him of her own accord, the accused cannot be said to have taken her away from the keeping of her lawful guardian. Something more has to be shown in such a case 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. It would, however, be sufficient if the prosecution establishes that though immediately prior to the minor leaving the father's protection no active part was played by the accused, he had at some earlier stage solicited or persuaded the minor to do so. If evidence to establish one of those things is lacking, it would not be legitimate to infer that the accused is guilty of taking the minor out of the keeping of the lawful guardian merely because after she has actually left her guardian's house or a house where her guardian had kept her, she joined the accused and the accused helped her in her design not to return to her guardian's house by taking her along with him from place to place. No doubt, the part played by the accused could be regarded as facilitating the fulfilment of the intention of the girl. That part falls short of an inducement to the minor to slip out of the keeping of her lawful guardian and is therefore not tantamount to taking.

Applying the test laid down by the Supreme Court, something more has to be shown by the prosecution in such a case, 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. In this case, on the proved facts A. 1, according to the evidence of P.W. 1, stated that "Come along --We will take a photograph and return immediately". P.W. 1 replied "my father would abuse me or reprimand me". Thereupon A. 2 stated "I will tell your father you come along". A. 1 also told her ""come; we will go and return . P. W. 1 stated that she entertained some confidence in A. 2, she being a woman, and therefore she decided to go and come back and went along with A. 1 and A. 2. The trial Judge accepted this material piece of evidence of P.W.1.

I have no hesitation in accepting the same testimony. When once this evidence of P. W. 1 is accepted as I do, that would Certainly prove that some inducement has been held out by the accused person. A. 1 participated actively in the formation of the intention of the minor to leave her place in the company of A. 1 and A 2. There is no reason for P.W. 1 to state that she went in the company of A. 1 and A. 2 to the house of a relation of A. 2 after alighting from the bus bound for Rasipuram. Even assuming for one moment that A-2 went to attend the funeral there is no satisfactory evidence as to when the mother of D. W. 2 died at Koneripatti. The evidence is rather vague to come to a definite finding that A-2 made this journey in the bus solely for the purpose of attending the funeral consequent on the death of the mother of D. W. 2. I am unable to comprehend that P.W. 1 would be so ingenious as to combine the movements of A. 1 and A.2 in her journey to Rasipuram. According to A. 1, P.W. 1 was picked up at Rasipuram a few days later. There is no special motive or grudge for P.W. 1 to implicate A.2 in this crime. I am unable to see as to how the prosecution would suffer even in the event of A. 2 ascribing the inducement or the enticement solely to P.W. 1 for taking out a photograph and under that pretext A. 1 took her away to Salem. I am afraid, the acquittal of A. 2 is incorrect, improper and unjustified.

A number of authorities have been cited from the bar both by the learned Counsel for the Appellant and the Public Prosecutor Sayyid Abdul Sathar, In re. 1928 Mad. Crl. Cases 65, Abdul Azeez v. State 1952 M.W.N. Cri. 55, Sheik Dawood Sahib v. State 1954 M.W.N. Cri. 113, Umapathi Naicker v. State 1960 M.W.N. Cri. 213, The State Vs. Sulekh Chand, The State Vs. Babulal, In Re: Myilsami alias Mylan, Raunki Saroop Vs. State, and Ram Murti Vs. State of Haryana, It is unnecessary for me to deal with each of these cases in the light of the rationale already extracted from the decision in Varadarajan v. State of Madras 1965 M.L.J. Cri. 640. Srinivasa Ayyangar, J. held in Sayied Abdul Sathar, In re 1928 Mad. Cri. Cases 65 that the expression ""enticing involves that while the person kidnapped might have left the keeping of the lawful guardian willingly, still the state of mind that brought about that willingness must have been induced or brought about by the accused. The expression "taking out of the keeping of the lawful guardian" must signify some act done by the accused which may be regarded as the proximate cause of the person going out of the keeping of the guardian: or, in other words, an act but for which the person would not have gone out of the keeping of the guardian as he or she did. The legal position is best summarised in this ruling by Srinivasa Aiyangar, J. Applying the principles of law to the facts of the present case, as spoken to by P. W. 1, I have no hesitation in holding that A-1 is guilty of the offence u/s 363, I.P.C. The finding of the learned Judge, so far as it related to the offence u/s 363, I.P.C. is concerned (merged in the offence u/s 366, I.P.C.) is correct and proper. I affirm the finding of the trial Judge in regard to the offence of the first accused taking or enticing P. W. 1 out of the keeping of the lawful guardianship of P.W. 2. I sentence the first accused to undergo rigorous imprisonment for six months. With the above modification in the convictions and sentences, the criminal appeal is dismissed.