State vs Sunder Singh

Shivdayal, J.—This is an appeal against the acquittal of the respondent, who was charged with the offences under Sections 366 and 411 of the Penal Code and tried by the Additional Sessions Judge, Gwalior.

The case for the appellant is this. Vimla Kumari Alias Kapuri (P.W.1) is the daughter of Prahlad Das ( P.W.7). At the material time, she was of about 13 years and was under the natural guardianship of her father. Sunder Singh accused resided in the military lines near the house of Prahlad Das at Lashkar in the locality called Kampoo Brigade. When Vimla went to her school and when she went for playing at the premises of a temple in the vicinity, the accused used to meet her and he started acquaintance with her. He then started writing love letters to her. This made her fond of him. They secretly exchanged letters wherein they expressed to each other their own thoughts of elopement and secret marriage. Eventually in the morning of September 18, 1957, Vimla left her house for the Madho Dispensary, a Government hospital, as she was complaining pain in her ear, but then she did not return home. As pre-planned the accused carried her away on a bicycle from Lashkar to Dabra (17 miles). From Dabra the accused took her to three villages one after another, staying for a day or two at each place until they were in Shekhupura, a place about 18 miles from Dabra (i.e.) about 35 miles from Lashkar). An extensive search for the girl was made by her brother and maternal uncle, but she could not be found. A report was then lodged to the Police. On September 24, 1957 Vimla was recovered by the Police from a sugar-cane field near village Shekhupura and the accused was also arrested then and there. Vimla had taken away with her from her father's box about Rs. 2,000 in cash, besides valuable ornaments worth about Rs. 15,000- The stolen property was partly recovered from the house of the accused at his instance and pointing on September 27, 1957.

The defence version is that although there was love between them, the accused neither took nor enticed away the girl from Lashkar, she herself ran away from her home, met the accused at Dabra and, inspite of being persuaded by him to go back, she became adamant to go with the accused. He then accompanied her to his house. It is admitted that he was arrested while he and she were sleeping together in the house at Shekhupura. it is denied that they were caught in the sugarcane field.

On a review of the entire evidence produced before him the learned trial Judge has come to the conclusion that the girl had become so restless to meet the accused that she left her father's house and went to Dabra by herself and that the disappearance of the girl on that day was not pre-arranged. On these findings he has inferred that this was a case of abandonment by the minor of the natural guardianship of her father and, as such, the offence of kidnapping was not made out. He also held that the prosecution could, not establish a case u/s 411, I.P.C. against the accused.

He has, however, held that the age of the girl on the 18th September was about 13 years. Shri Anand also does not challenge this finding. Prahlad Das ( P. W. 7 ) stated. that she was 13 or 14. Indirabai (P.W. 3), on the basis of the entries in the register of the maternity home stated that she was born on April 14, 1944. Dr. Razdan, by X-Ray examination on September 24, 1957, found her age to be 13 years. Thus it is not only proved but also not disputed now that Vimla was of 13 years in September, 1957. It is also admitted by the defence that at the material time she was under the lawful guardianship of her father.

The prosecution examined 16 witnesses in the Court, of Sessions and also produced under S. 33 of the Evidence Act the statement of Dhaniram recorded by the committing Magistrate. (This statement was marked as ''P.W. 16'' by the trial Judge).

Regarding the acquittal under S. 366, I. P. C, I propose to deal with the facts of the case under 4 parts thus :

(1) Facts anterior to Vimla's disappeared from Lashkar; (2) From Lashkar to Dabra; (3) From Dabra to Shekhupura: and (4) Recovery of the girl and arrest of the accused.

Facts anterior to Vimla's disappearance from Lashkar. Vimla Kumari (P.W. 1) stated that she knew Sundersingh for 3 years as he was putting up in the military lines in front of her house. She used to go for playing at the premises of a temple adjacent to her house and there she found him sitting. He first started acquaintance and then talking love. He used to follow her when she went to school, and to stand in front of her house when she went to the terrace for drying clothes. Then he started writing love letters to her. They began to love each other. She also wrote letters to him. They exchanged thoughts of running away from Lashkar and also of getting themselves married. On September 18, 1957 she took her father's permission to go to the Madho Dispensary, as she had pain in her ear for a few days.

These facts are fully established and Shri Anand has made no endeavour to dispute them. In fact, the sheet anchor of the defence is that the accused did not take away the girl, she came to him because of their "love". The accused also admitted that they used to talk, that they became intimate and that he agreed to marry her; but he denied that he ever suggested elopement.

The girl's father found two letters (Ex. P. 2 and Ex. 3) in a book of hers. He handed them over to the police. Shri Behari Lai Saxena (P.W. 10), an expert, compared the hand-writing of those letters with the signature of the accused on his applications dated the 1st October, and the 10th October and his personal bond dated the 5th October and his affidavit dated the 8th November, 1957-all filed in this very case before the committing Magistrate. After a scientific examination he was clearly of the opinion that the letters were in the hand-writing of Sundersingh. He submitted a detailed and well-reasoned report (Ex. P. 14). He had taken necessary photographic enlargements also. On a scientific treatment of the question before him, he has shown how and why he reached that opinion. I find that he premises of his opinion are firm. The fact that nothing material was put to him in cross-examination shows that there was no serious dispute about the conclusion reached by the expert- Absolutely nothing could be brought out which could injure his opinion. He was asked about resemblance in "angles" between the standard and the disputed writings to which he replied that they were similar. No question appears to have been asked about Ex. P-2 in particular. As regards Ex. P 3 he stated that there was no dissimilarity in formation and what the defence suggested to be so were only natural variations in "shape". He was emphatic in the answer that the "movement of writing" in Ex, P-3 could not belong to any other person but Sundersingh. In fact, I do not find anything whatever for which the correctness of his opinion can be doubted. The trial Judge has not held to the contrary. Before us Shri Anand could not advance any comment on the opinion of the expert nor could he argue against it with any vigour or conviction. His only comment is that, as the letters do not bear any dates, it cannot be said that they were written near about the 18th September. That argument I propose to consider at its proper place. I am fully convinced that both the letters Ex. P-2 and Ex- P-3 were written by Sundersingh to Vimla.

Both the letters open with acknowledgment of receipt of her letters and in both of them he addressed Vimla as his sweet-heart ( "PRAN PYARI" ). In the first one (Ex, P-2) he wrote to her that it would mean a lot of trouble when they would go to a new place. She was asked to write now much money she had. He, on his part, had nothing except life itself. At a new place money was essential as, otherwise, there would be risk to their lives. He had passed restless days and nights in her separation and he could do everything for her. Whatever she had done for him he could not forget. They would certainly go on Friday or Tuesday. In any event he would positively meet her on Tuesday. He would meet her during "rest" interval at 10 or 9-30 a.m. He would be in plain clothes. And go they must.

"Mera aap se kahana hai ki men aap se shukrawar ya mangalwar ko zarror chalna hai. Nahin to Mangalwar ko zaroor aunga. Aap se kahna mera hai 10 baje ya 9-50 baje aap ko rest men miloonga- Seet kapre men aunga. Aur yeh aap se kahna mera hai ki chalna zaroor hai."

If they were destined to live longer nobody could do them any harm. In her hand was his life. She must accept this to be true in her heart because even if he had to sacrifice his life for her sake he would not mind it. Those who loved did nonfear death. Wiihout money living would be no joke. At the end. he entreated her not to disclose it to "Maji" (refering to an old woman of the temple).

In the second letter (Ex- P-3) he wrote that she had asked him to take leave so that they could flee, but she should know that he was not getting leave as he had recently availed of it. He tried his best, if he could get 10 days'' leave his purpose would be -served. He hoped that he would get two mouth's leave "in the next month" and then they could join themselves otherwise every thing was in her hands. If she was with him for one day and one niglu, the matter would be completed because she was aware that they had already been defamed and ii was only proper to clear the matter even at the risk of life.

"Men aasha karta hun ki mujhe agle mahine men do mahine ki chhutti ho jajgee to mera aur aap ka sang hota hai-Nahin to aap ke hath men sab kuchh hai. (Men to) aap se kahna mera yih hai ki aap ek din aur ek raat mere sang rahne so kaam poora hota hai- Kyonki aapko maloom hove ki meri aur aap ki badnami jo ho chuki hai ab to jaan par khel kar saaf kahna theek hai".

If she loved him she could bring poison from her faiher and give it to him. They would still be together. If their love was true, poison could not kill them. However much one may exert, she and he could not be separated.

"Chahe koi kitna zar laga kar app aur mujhe juda nahin ho sakte."

Without her he did not relish either food or drink. Day and night he was brooding over how he and she could be joined. He did not want to betray her. She had given everything to him. He was prepared to do as she wanted, but he was at his wit's end.

" Aap ki yad men khana peena bhi achha nahin lagta hai aur raat did bhi shochta hun ki mera aur apka kese sang hoga. Kyonki men to aap ko tihooka uahin dena chahta hun kyonki aap ne mujhe sab kuch diya hai aur men aap ka kahna karne ko tayaai hun paraaiu dimag kaam nahin karta"

In the end he requested her to keep his letters carefully otherwise his life would be in danger.

It is not known when these letters were written and which "Tuesday" or "Friday" was meant in Ex. P 2.

On behalf of the defence also two letters were produced (mailed Ex. D 6 and Ex. D 7), botn of which Vimla admitted to have been written by her. Ex D 6 purports to have been written on December 17. 1956 and and Ex. D 7 bears the date February 12, 1957. In these letters she expressed her love for him, agreed to be his life-partner, promised faithfulness and asked him to find out if a marriage according to Arya Samaj rites was possible.

From Lashkar to Dabra. The facts under this head are really in controversy. According to Prahlad Das (P.W. 7) Vimla had asked him in the morning of the 18th September his permission to go to the Mahav dispensary. He allowed her to go with Ganga Singh Chowkidar. To the trial Judge she stated that on the previous evening Sundersingh had informed her that he was going on two months'' leave and if she wanted she might accompany him, to which she agreed. Then it had been arranged that on the 18th September she was to meet him at the Madhav dispensary and she was also to bring some ornaments with her. Accordingly, she reached the Madhav dispensary with cash and valuables which she had taken out from her father's box two or three days before the occurrence. At the dispensary the accused was found waiting for her. Ganga Singh allowed her to see the accused who then took her on his bi-cycle to Dabra. By noon, they reached Sundersingh's house in village Kheri (about 3 miles from Dabra).

She was confronted with her statement she had made before the committing Magistrate. There she had stated that the accused bad already gone on leave. On the 18th September she had gone to the Madhav dispensary for treatment of her ear. There she decided all of a sudden to go to Dabra to meet Sunder singh. She went to Dabra, by herself, in a bus. When she reached there at first she did not find Sundersingh but after a short while she met him in Dabra itself. Before us nothing has been pressed more forcefully by Shri Anand than the fact that even after five months-during which period Sundersingh had no occasion of meeting her- Vimla came forward with the story before the committing Magistrate that she had gone to Dabra by herself, unaccompanied by the accused. It cannot be denied that there is much force in this argument. But in my opinion that is not decisive of the issue. Arithmetic will not produce a solution. After how long a venomous effect will be got rid of, depends on the depth of the sting, the nature of the poison and the constitution of the victim. The factors not to be forgotten are that she was only 13 years of age, that the accused had tremendously influenced her mind by drawing before her pictures of a paradise-enjoyment of marital life-and, on the top of it, she had remained in the romantic association of the accused for six days and nights.

Prosecution witnesses Mewasingh (P.W.5) Ganga Ram (P.W. 6) and Dhani Ram (P.W. 16) have been held by the trial Judge to be "incapable of safe reliance" and that they did "not provide a reliable corroboration" to Vimla's statement before himself.

The evidence of Ganga Ram (P.W. 6) is worthy of note. He let bi-cycles on hire. He stated that Sundersingh had taken from his shop a bi-cycle on hire on the 18th September at 7 A.M., per entry Ex. P-7 in his register. When he did not return it, the witness lodged a criminal case against him, but by application Ex. P-8, a compromise was arrived at. In his statement under S. 342, the accused denied to have hired the bi-cycle on the 18th September. He stated that he proceeded on leave on the 9th September and took that bi-cycle on hire from the 1st Sept for two months. He admitted that he was prosecuted and that the offence was compounded on the first hearing (vide answers to questions 34 and 35 under S 342, Cr. P.C). Here it may be recalled that in his letter (Ex. P.-3) Sundersingh had mentioned to Vimla about getting "two months'' leave." It is true that (Ex. P-3) bears no date but the facts do speak. The learned trial Judge has observed that even if the fact that the accused was present in Lashkar in the morning of the 18th September be assumed to be true, that alone did not prove that the accused took away the girl on the bi-cycle. In my opinion, the matter was not so unsubstantial. I would have probed deeper to find out whether he left Lashkar with Vimla on the 18th September or whether he had gone away alone on the 9th September, but since she stated in he committing Court that from the Madhav dispensary she proceeded to Dabra of her own accord, and since there is no other direct evidence and since this is an appeal against acquittal, it is only safe to proceed on the hypothesis that at the dispensary she suddenly thought of going away to Sundersingh at Dabra, and that she went there alone, by herself.

From Dabra to Shekhupura. Vimla stated before the trial Judge that from Dabra the accused took her to his house in village Kheri where they stayed only until the evening of that day, and then they went to another village where they stayed in the night and for another two days. From there Sundersingh took her to another village. They reached Shekhupura.

Before the committing Magistrate she had stated that on meeting Sundersing at Dabra he asked her why she had come alone and if her father did not agree why she was taking all that trouble, but she began crying and told him that she would not go back to her house. Then she started with Sundersingh. They stayed in two villages, one or two days at each. In the third village, viz., Shekhupura, they were apprehended. In both her statements she was consistent on the fact that he took her to three villages one after anotherland kept her with himself for a couple of days at each. The accused stated in his statement u/s 342, Cr. P. C. that since she insisted to go with him he took her to Shekhupura, and stayed in the house of a relation of his.

These statements leave no escape from the conclusion that from Dabra the accused immediately took the girl and kept her for six days and nights with himself, so much so that when they were apprehended, they were found sleeping on the same bed.

Recovery of the girl and arrest of the accused- Kishanlal ( P. W. 9 ) Sub-Inspector Police, Dabra stated that Shashtri S. I. of Madhavganj Police Station, Lashkar, came to him and told him that they had received some information through informers. He, therefore, borrowed a tractor and the party started in search for her. They succeeded in recovering the girl and arresting the accused in a sugar-cane field near Shekhupura at about 4-30 A. M. of the 24th September. A panchnama (Ex. P.-11) was drawn. He is corroborated by Kailash Chandra (P. W. 11), Sukhendrasingh (P. W. 12) Octroi Inspector, and Raghuraj Singh Siiastri (P. W. 17) the Investigating Officer. Recovery from the sugar-cane field is thus proved.

Vimla stated in the Sessions Court that Sundersingh was arrested in the sugarcane field where she was sleeping with him and a panchnama (Ex. P-11) was drawn by the police. In her statement before the committing Magistrate she had stated that the arrest was made in the house at Shekhupura.

The accused admitted that he was arrested at Shekhupura when he was sleeping on the same bed on which Vimla was, but he asserted that the arrest was in the house and not in the sugar-cane field.

In my opinion whether the girl was recovered from the village or the outskirts, the difference is of no significance. Admittedly, Vimla was found in, and recovered from Sundersingh's possession.

As discussed under head No. 2 above, I am proceeding on the assumption that Sundersingh did not take Vimla from Lashkar to Dabra. It will be unsafe to hold otherwise merely because as the trial Judge I would have perhaps reached that conclusion, for this is an appeal against acquittal. However, that is not the end of the matter. Indeed it cannot he seriously disputed that the accused, starting with casual acquaintance, developed close familiarity with the girl; that he wrote love letters to her including the letters Ex. P-2 and Ex P-3; that the girl also wrote letters to him including the letters Ex. D-6 and Ex. D-7; that her mind was prepared for elopement and secret marriage with the accused; that she suddenly left for Dabra and this she did only for the sake of meeting Sundersingh in the existing background; that the accused took her 18 miles away and that she was recovered from the possession of the accused when they were sleeping together. Facts leading to these results have been discussed above under heads 1, 3 and 4.

It is urged on behalf of the State that these facts constitute the offence of kidnapping as defined in S.361. I. P. C. On the other hand the contention of Shri Anand is that if the girl voluntarily left her father's house and came to the accused he did not commit any offence even if he kept her or took her from place to place. It is urged by the learned counsel that it was a case of abandonment of guardianship by the manor and as such the subsequent act of the accused in taking her from Dabra to Shekhupura did not constitute the offence of kidnapping. It is further maintained that even if the accused had at a certain time previous to the occurrence asked the girl to elope with him and to contract a secret marriage, the fact that the accused did not accompany the girl from Lashkar to Dabra and the fact that there was no previous pain that Vimla should leave on. that particular day or time to reach the particular place where they met, a legal inference of "enticement" or "taking" under S-361 of the Penal Code is not possible.

Thus the question to which this appeal boils down is whether this is a case of abandonment by a minor of her father's guardian-ship, so that she was not in his "keeping", or a case of "taking" or "enticing" by the accused of a minor out of her father's keeping withing the meaning of S. 361 of the Penal Code. After a careful and anxious consideration of the facts and the true legal position, I have formed the view that this is a clear case of kidnapping. On the findings of fact reached above it cannot be disputed that (1) Vimla was 13 years of age, (2) she was in the lawful guardianship of her father, 0) before her disappearance from Lashkar, Sundersingh had excited in her certain hope and desire and held out to her promise of marriage and pledge of life-Jong companionship, (4) she went to Dabra because of the inducements and promptings which he had advanced, (5) he availed himself of her reaching Dabra, (6) from Dabra Mandi he took her stealthily 18 miles in the interior, and (7) she was recovered from his possession while sleeping together.

The whole stress laid by the defence is on the fact that she went to Dabra by herself, unaccompanied by the accused and, further, that the prosecution has not been able to prove any pre-arrangement in pursuance of which she left for Dabra on that particular day and in that particular manner. This appears to be the back-bone of the judgment of the Sessions Court also. In my opinion, that approach is erroneous, for it ignores the fact that taking or enticing may not necessarily be by a single act, but may consist of a continuous process. It is not one particular fact isolated from others, but it is the totality of all the relevant facts to which regard must be had in determining whether a girl was enticed out of the keeping of her guardian within the meaning of S.361 of the Penal Code. Her going to Dabra on the fateful day cannot be detached from the anterior happenings and from what took place beyond Dabra. Her disappearance from Lashkar was only a link in the chain-that chain which had at one end, the unholy promptings and inducements and at the other, her recovery at Shekhupura on the 24th September. All that happened in between these two terminals is to be kept in view as a whole. Whether her going to Dabra on the 18th September is or is not attributable to the hope or desire which the accused had previously excited in her and whether her going there was or was not only for the purpose of meeting the accused for the fulfilment of his promises and pledges-those are the acid tests.

Why did she go to Dabra ? Was not the accused responsible for it ? It was only for him that she took that step. Undoubtedly that was in the context of a secret pledge to marry her and sacrifice his all for her. Three years ago, after getting her acquainted with himself he started exploiting the innocence of her tender age by infusing in her emotions of sex and by using the word love for his intrigue. He began talking love and writing love letters to that girl of 11 or 12 years. And when he found her completely in the grip of his tentacles her mind was prepared for elopement and secret marriage by either throwing feelers himself or by inviting suggestions from her and then expressing his approbation in a very effective manner. These inferences are transparent from the facts found above. In his letters Ex. P-2 and Ex. P-3 are visible the seductive arts of flattery and solicitations.

In the letter Ex. P-2 Sundersingh not only agreed unequivocally that they would run away from Lashkar, but also put it in the form of a determined resolution "chalna zarur hai". He suggested even the day, the hour andhe occasion for getting away, although it seems that the plan did not then materialise. Telling her that if she was with him even for one day and one night their business would be consumated "hamara kam ho jayega". Was the final hit to achieve the goal; the inducement was to find a suitable opportunity for getting away, if the matter was so easy. That these words were said in the context of the proposal for marriage is clear from the sequence of the writing itself. Telling her of his poverty was highly provocative. His letters Ex. P-2 and Ex- P-3 are pregnant with diplomacy of the first order. Outwardly, he makes a show of disapproval of elopement, but in the same breath he makes a declaration of his love in the strongest language and pledges himself to sacrifice his all for her. His expression of gratefulness for "giving her all to him" demonstrates shrewdness so that she may not abandon the ideas of elopement and marriage and may not hesitate to pursue them. In his letter Ex. P-3 is preceptable a clever attempt to shake the natural ties of affection with her father by arousing in her a feeling of injustice and frustration. This was a cunning mode to fortify his persuasion for elopement.

From all this there cannot be a shred of doubt that she went to Dabra because she capitulated to his promptings of confiding love. It was the hope and desire which the accused had excited in her that led her astray from the path of rectitude.

It is not necessary to constitute the offence of kidnapping that brute force or fraud must be employed. The word "take" means to go, to escort or to get into possession, and the word "entice" involves an idea of enticement by exciting hope or desire in the other. Where a minor leaves the house of her guardian willing, still, if the state of mind that brought about the willingness must have been induced or brought about in some way by the accused, it is enticement. The words "takes" or "entices" are comprehensive enough and are of widest import so that no one who is responsible for removing a child from the keeping of his or her guardian, whether physically or by inducement, may escape from the penalty of the law ( see Biseswar Misra Vs. The King, ).

In the case of Purna Chandra Ghosh Vs. Chief Secretary, Government of West Bengal, there was a previous arrangement between the girl and the accused that she would leave her father's house and meet him at a certain place from where he would take her away. In that case also it was the girl who left her father's place. Shri Anand distinguished this case by urging that there is no reliable evidence to suggest that Vimla was to leave her house on the 8th September and was to meet the accused that day at Dabra. In the first place, it is atonce remarkable that the girl having left alone for Dabra should have met the accused soon after reaching that place. If there was no previous arrangement it was really an extraordinary coincidence. In the context of Sundersingh's statement under S.342, Cr. P.C that he got two months'' leave with effect from the 9th September, his letter Ex.P-3 could be presumed to have been written in July or August, 1957, and in that light a pre-arranged plan became visible. However, since that is not the only possible inference deducible from it, I shell rather not accept that suggestion. But that aside, it is not necessary that the previous arrangement should be about a particular date, time or place it is sufficient if the accused had previously made promises that if she would leave the house he would do such and such thing for her. It also does not matter that the accused did not take her from Lashkar.

It is an argument of Shri Anand that Sundersingh was under no obligation to take Vimla to a police station or to her father's house and once she had voluntarily come to him he commited no offence in taking her beyond Dabra. The argument may appear attractive at first, but a little reflection shows that it is devoid of force. It is clear from the statement of the accused under S. 342, Cr.P.C. that he was fully alive to the fact that her reaching Dabra was without her father's consent (vide answer to question No. 51). Still, from Dabra he took her to a distant place or places and kept with himself. Everything apart, the action of the accused in taking her to Shekhupura is culpable. In R. vs. Robb (1864) 4 F & F 59 it was held :

"If a man by previous promises to a girl under 16 as to what he will do if she will leave her parents'' house and go to live with him induces her at length to do so and then receives and harbours her secretly he is liable to be convieted under the statute 24 and 25 Vict. C 100, S. 55, for taking her out of the possession of her parents even though he does not meet her by any previous arrangement and is not otherwise actually a party to her act in leaving."

The 24 and 25 Vict. C 100, S. 55 is analogous to S. 361 of the Indian Penal Code. It provides:

"Whoever shall unlawfully take or cause to be taken any unmarried girl being under the age of 16 years, out of the possession and against the will of her father or mother or of any other person having the lawful care or charge of her shall be guilty of misdemeanour."

Even if it be assumed for a moment that the accused asked Vimla to go back from Dabra, it was but a simluated disapprobation when in the heart of his heart he must have been delighted at the achievement No stronger proof of his guilty mind is possible than his conduct in taking the girl from village to village although his own house was in Kheri, a few miles from Dabra. It is obvious enough that he did not stay at Kheri because ha knew that the girl's father and the police would reach there. Moreover, a plea of dissuasion cannot be a good defence to a charge of kidnapping. In Mammootty Vs. State of Kerala, a girl below the age of 17 who, was in criminal intimacy with the accused went to his shop and entreated him to take her away. The accused then took her to several distant places when ultimately he was arrested by the police. It was held:

"The accused had taken the girl out of the keeping of her lawful guardian within the meaning of S. 361, I.P.C. and he was. Tightly convicted under S. 363, I.P.C. He knew full well that the girl was living with her parents practically next door and even if he was Under no obligation to take her back come he was certainly Under a legal obligation not to run away with her."

The fact that Vimla had written letters (Ex. D-6 and Ex. D 7) to the accused does not absolve him of the liability (see Sayyed Abdul Sattar vs The King, (AIR 1928 Mad. 585).

One fact which leaps to the eye from the provisions contained in S. 363, I.P.C. read with S. 361, I.P.C. is that they are essentially intended to uphold the rights of parents and guardians just as the provisions in Section 498, I.P.C are aimed at safeguarding the rights of the husband (per dictum in Alamgir and Another Vs. The State of Bihar, . The protection is against the infringement of their control and lawful authority over the wards, and that is why consent or willingness of the minor is of no consequence (see The Dist. Mag. Vs. K. Subbanna, . And that seems to be the law of every civilized country. In Corpus Juris Secondus (Vol. I), among others, the following cases arc digested :-

"It is sufficient if such moral force was used as to create a willingness on the girl's part to leave her father's house" (I F & F 648).

"The taking may be by artifice, cajolery, craft, persuasion of promises or purely voluntary surrender of the person taken" (per Beaver J in Com. vs. Walker, 24 Pa Super 14, 16).

"It is sufficient that she did leave of her own volition through cajolery and promises on the part of the abductor (U.S. vs. Reyes, 20 Phillippine 510).

"One cannot evade the statute by artfully avoiding a direct proposal that the female should go over with him, when his conduct is equivalent to such a proposal, and not only suggests but is calculated and designed to induce her to go" Peo vs. Carrier, 46 Mich, 442: 9 NW 487).

"It is immaterial that she made the first proposal that she should go with the accused." (Reg vs. Viswell, 2 Cox C.C. 279).

"There is taking where the accused persuades a female to leave her home, and while under the influence, of such persuasion and as a part of a continuous design, she joins the accused Reg vs. Frazer, 8 Cox C. C. 446, Reg. vs. Mankeltow 6 Cox C. C 143, Reg, vs. Kipps 4 Cox. C.C. 167, State vs. Buzzey 58 Kan, 679; State vs. Jamesen Minn and South vs. State 97 Tenn. 496.

The learned trial Judge has held, as has been streneously urged before us. that his was a case of sheer abandonment of guardian by the minor. We were asked to consider cases like this. A minor disgusted of her domestic circumstances or tired of her parents, leaves her father's roof and goes to another man, and entreats him to give her shelter and that other man provides her with food, clothing and residence. In my opinion, such illustrations can offer no assistance here. It would be appropriate to ask whether the other person had a hand in preparing the girl's mind to take that step by exciting in her any hope or desire. If the answer is in the affirmative, that other person is liable for kidnapping irrespective of his good intentions and sacred motives. But if he is quite unconcerned with her abandoning her parents he commits no offence. A sharp distinction must always be drawn between a case where a minor girl leaves her guardian's roof because she finds it impossible or intolerable to continue to remain there, for instance, by reason of ill-treatment or other domestic circumstances and a case where she leaves the home only to meet the accused in pursuance of a promise and pledge held out by him. In the former case the primary object is to get away from the guardian's keeping and it is secondary to find out such other shelter as may fall to her lot; in the latter the primary aim is to meet the accused in the background of the hope or desire excited by him, and leaving the house is only consequential or incidental. The expression "abandonment of guardianship by the ward" may be permitted to be used in respect of the first category, but not in regard to the second. To interpret otherwise will render the law meaningless, for, then, in every case where physical force is not used and the minor is enticed out of the guardian's keeping it can be aruged that the minor abandoned the guardian. Here is not a case where a minor runs away from her home because of any ill-treatment or torture. It is no bodys case that Vimla was tired of her parents. Assuming that she went to Dabra of her own, there is not the slightest indication of her intention not to return to her father if she did hot find Sundersingh at Dabra. The attending circumstances lead to the contrary. She had gone to the Madhav Dispensary just for the treatment of her ear; it occurred to her abruptly to go to Dabra with the object of meeting Sundersingh and she had only Rs. 2 with her when she left Lashkar. Here going to another place does not amount to abandonment of guardianship, nor is it correct to say that if Vimla reached Dabra she was not in the keeping of her father, "Keeping" is a term of wider import than "Possession". Here the observations in Rashid Vs. The State, , become apposite: -

"In the present case I do not think it is possible to say that Anwari had abandoned her guardian. She had left her parents house only with the object of going away with the appellant and if the appellant had refused to take her away there could be no doubt. that she would have gone back to her parents'' house. In other words, she had left her father's house for a particular purpose and cannot be said to have abandoned her guardian."

Of all cases on which I could lay my hand, the nearest to the present case is R. vs. Christian Olifier reported in Cox's Criminal Law Cases (1864 to 1867) Vol: 10 at pages 402 to 404. In that case the accused was indicated under S. 24 and 25 Vict. C. 100, S. 55, for unlawfully taking away one Elizabeth Tolley, an unmarried girl under 16 years of age, out of the possession and without the consent of her father. There the statement of Elizabeth was:-

"........He then told me if I could get away from home he would marry me. He called on me again on the following Tuesday. Our conversation then was only about) going away and getting married. On Good Friday I left home, and went to Mrs. Houghton's. She was not at home, and I waited till she returned. I then went with her to the Queen's hotel, and the next day I wrote to Mr. Olifier at Mrs. Houghton's suggestion......I and Mrs. Houghton went to Redbill, and the next morning he met us there. ...........On the next morning it. Was arranged that he should meet us on Saturday at Boulongne. He then returned to London, and we went on to Boulongne."

On cross-examination she said, "I did not see him on the Thursday before Good Friday, but I did on the Wednesday. I said nothing to him then about, my intention to leave my home, and he said nothing to me about my going away. I had written to Mr. Houghton on the Wednesday evening, telling her it was my intention to leave my father's house. I had mentioned my intention to leave to Mr. Olifier about three weeks before. I made up my mind to leave my father's house about an hour before I left on Good Friday, but did not communicate that intention to any human being before I went away. On the next day I sent two letters to Mr. Olifier begging him to come to me, but, although I sent the first early in the morning he did not come until four in the afternoon. He did not entreat me then to go home, but he said I had done wrong in leaving so soon. From Boulongne we went to Paris, and from there I wrote home, and said, " I am as innocent as when I left you, and intend to remain so; when I am married I shall come back to you. I left on my own accord, and would not take the advice of anyone. No matter who tries to get me back, it will be of no avail not even the entreaties of the one I love so; I shall love him for his true and honourable intentions to me. It was against his wish I left home, as I ran away. All his persuadings would not get me back. I have done wrong, but it is all my own fault. "........From the first time I saw Mr. Olifier up to the time I saw him last he never took any indecent liberty with me, nor made a hint of the slightest, impropriety or immodesty to me, nor made use of any indecent expression".

In answer to questions from the Court, she said:-

"He objected to my leaving so soon. He said he could get away for six weeks. We were to have gone on Easter Sunday in the First instance but the arrangement was altered, and he said we must wait six weeks. I left my father's house because the prisoner persuaded me to go away. He asked me to wait until he could get away. He did not persuade me to leave at the time I did, but my mother had found out something about Mrs. Houghton, and I was afraid I should not get away at another time. I wanted to go away after he had persuaded me, because he said he would marry me. I liked him I wanted to marry him: that was why I left. I was partial to him. (underlining by me.)

In that case it was held:-"If a girl, acting under his persuasion, leaves her father's house, although he is not present at the moment, yet if he avails himself of that leaving which took place at his persuasion, that would be a taking her out of the father's possession, because the persuasion would be the motive cause of her leaving. Again although she may not leave at the appointed time, and although he may not wish that she should have left at that particular time, yet if, finding she has left, he avails himself of that to induce her to continue away from her father's custody, he is also guilty, if his persuasion operated on her mind so as to induce her to leave."

While addressing us Shri Anand asked "Is it an offence to love a minor girl Indeed it fills me with uneasiness when the sacred word "love" is used as a synonym for "lust" Then again, a girl of 11 or 12 is not to be looked at with an eye of lustful passion. Any way, the answer is simple. Man made law does not punish any body for the inner working of his mind, provided it stops at that and is not put into action. A man may entertain thoughts of most heinous crimes yet he can not be hauled up. You may love anyone you like, but if the object of your love is a girl below 18 years of age the law ordains-to put it blunty - that you shall not have carnal knowledge of her nor shall you take or induce her out of her guardian's keeping. For either of those things, you have to have patience till she attains the age of 18.

This brings me to the question under which section the accused is guilty. In the circumstances of this case a strong suspicion arises that the intention of the accused was to seduce her to illicit intercourse. But there is no evidence that the accused made any indecent attempt on her person during these six days. Even if for that reason the respondent is not convicted under S. 366 I. P. C, the offence under S. 363 read with S. 361 I. P. C. has been fully brought home to him. For the purpose of S. 363 I.P.C. the intention of the offender, his motive, the mears employed by him and the consent of the girl are all irrelevant. I, therefore, hold respondent guilty under S. 363 I.P.C.

Now, I have to consider whether the accused is guilty under S- 411 I P.C. also. Suffice to say that the learned trial Judge has after discussing the evidence of the parties, recorded a finding of fact against the prosecution. In an appeal against acquittal there can be no interference with such a finding unless there are compelling reasons for doing so. No such reasons have been placed before us by the learned Government Advocate. This part of the appeal must, therefore, be dismissed.

The only thing that remains is the question of sentence. I am aware of the view expressed in several decisions of different High Courts that Kidnapping of minor girls must be severely punished. With great respect I fully associate myself with that view. But having regard to the peculiarities of this case I think the ends of justice would be served if the respondent is sentenced to two months'' RI u/s 363 Indian Penal Code.

The result is that this appeal is partly allowed. The judgment and order of acquittal passed by the Additional Sessions Judge are modified. The appeal as regards S. 411, IPC is dismissed. The acquittal under S- 366, IPC is altered to conviction u/s 363, IPC and the respondent is sentenced to suffer rigorous imprisonment for two months.

Letters Ex. P-2 and Ex. P-3 shall remain in the safe custody of the Nazir of this Court, until another order of this Court.

I cannot part with this case without observing that while assessing the evidence of a witness, the learned trial Judge seems to have somewhat prejudiced his mind because of the appearance of a senior counsel. A Judge is to decide a case on its facts; the parties and their counsel must be completely out of his vision. It is then alone that the approach can be objective. The value of the testimony of a witness cannot be assessed according to the standing of the particular counsel who examined him or her.

Khan J.-49. I have had the advantage of reading the judgment of my learned brother, Shiv Dayal J. The accused Sundersingh was charge-sheeted under Sections 366 and 411, Indian Penal Code and on trial was acquitted of both the offences by the learned Additional Sessions Judge, Gwalior. Against the acquital, the State filed this appeal. My learned borther has come to the conclusion that the acquittal under Sec. 411 must be maintained But that the accused respondent is guilty of an offence u/s 363, IPC and has proposed a sentence of two months rigorous imprisonment. While I agree that acquittal u/s 411, should be maintained, because the evidence given by the prosecution is all concocted; I am also of the opinion that there is not sufficient material to sustain a charge u/s 363 either.

My learned brother has stated the facts of the case very elaborately. I shall, therefore, be brief and refer to only such facts which clinch the matter.

Accused Sundersingh and Mst. Vimla conceived a liking for each other. They exchange letters of which Ex. P-3 and Ex. P.-4 are letters which the accused wrote to Vimla and Ex. D.-6 and D.-7 are letters from Vimla to the accused. A perusal of these would show that both liked each other immensely and that it was Vimla, the girl, who proposed elopement and that at one time in the face of parental opposition to their union, (she had broached the question of her marriage with the accused to her father ), she even asked the accused to find out if they could get married according to Arya Samaj rites And of course, the letters contained a lot of sentimental nonsense, which is the usual stuff the love letters are made of. I have cut that stuff out. I am referring to these letters to show the emotional strain from which both suffered and to point out that these letters establish without a shadow of doubt that they were mutually attracted and that at one time the girl suggested and planned a sort of marriage of the Grenta Green type. But the marriage never come off.

The last love letter is dated 12th February 1957 (Ex-D-7 ) and there is nothing on record to show how things progressed during the seven months prior to the incident, which is the subject-matter of this trial. But subsequent events show that they were ill at ease and were sitting on the edge of an emotional volance.

In this back ground of facts let us now examine the prosecution story and see how far the offence of Kidnapping has been made out against the accused.

The prosecution story is that on 18th September 1957, Vimla went to Madhav Dispensary with a servant (Ganga Singh) for getting medicine for her ear trouble and that from there she disappeared. The prosecution has stated that the accused met her there and that riding behind on the carrier, they cycled to Dabra, a place about 30 miles from Lashkar. A report was made on 20-9-57 and Vimla and accused were arrested on 24-9-57 at village Sheikhupura, near about Dabra.

The defence in the case is that the accused had gone on leave and that of her own accord, Vimla followed him to Dabra. Let us see which of the two versions ( the prosecution or the defence story) is correct.

The prosecution story that the accused and Vimla went together on a bicycle and paddled a distance of 30 miles has been discountenanced by the trial Court find my learned brother too in para 18 of his judgment has held "that she went to Dabra alone by herself".

The most important witness in this case is Vimla P. W. 1. In her statement before the Committing Magistrate recorded on 19-2-58 (five months after the incident during which time she lived exclusively under the surveillance of her family) she related how she came to know the accused, how she made a proposal to him to marry her (this is borne out by Ex. D-6 and D-7 produced by the accused). She says that she spoke to her father about their marriage several times, but her father was not agreeable. She was greatly distressed by her father's refusal. She says she did not know the accused had gone on leave; she thought he was busy with some work and therefore she did not see him. In the meanwhile she overheard her brother, Umrish Kumar saying to her mother that the accused had gone on leave and that the girl should be married to some one in his absence. His brother also said that the accused would not come back from leave and that being in the Military, he would go to the Kashmir front. This naturally upset her and she became very unhappy, She began to make plans to meet him. She decided to go to Sundersingh of her own accord. On 18th September, she went to Madhav Dispensary along with her servant Ganga Singh for getting some medicine for her car which was causing her pain. She said that while in the Hospital she wept. Ganga Singh, the servant asked her the.cause of weeping, at first she kept quiet for some time but later on she opened her heart to him and told him about her missing the accused and her anxiety about him. Ganga Singh servant, told her that the accused would not come back from leave and that if she was eager to meet him, she should go where he is. He also told her that she could catch a bus from Kampoo, which will take her to Dabra. It seems that in the beginning the witness felt some weakness in her resolution to go to Dabra, whereupon the servant told her that she has decided between the scandle on which her departure would cause and her eagerness to meet Sundersingh. She decided to meet Sundersingh and with about a couple of rupees which she had with her at the moment she boarded the bus for Dabra. On reaching there she made enquiries about Sundersingh, and, eventually met him. Sundersingh asked her with whom she had come and on learning that she had come alone all the way, he felt surprised and also embarrassed. And when Sundersingh showed anxiety, she asked him if his love was merely superficial and burst into tears. She told Sundersingh that she would not go back to her father's house come what may. In cross-examination she stated that she had liked the accused so much that for his sake she was prepared to make every sacrifice.

This is Mst. Vimla's statement before the Committing Migistrate-five months after the alleged kidnapping and nor recovery. She was all along with her family and during the period, the accused had had no contact with her. But it seems, that when Vimla appeared before the Sessions Court to give her evidence, she became volte-face and turned a complete somer sault, throwing the entire blame on Sundersingh and tried to appear absolutely innocent. The trial Court presumably acting u/s 288 of the Code of Criminal Procedure (though it has not referred to the section) treated the evidence given in the Committing Court as evidence in the case. I myself feel inclined to do so. Her statement before the Committing Magistrate appears to be true and her statement before the Sessions Court is inspired by the consideration to bring solace to her family, which was naturally much aggrieved at the incident. My learned brother in holding that she went alone and by herself to Dabra has also discarded her statement before the Sessions Court to the effect that she was taken to Dabra by the accused on a bicycle and that she carried ornaments with her (para 18 of the Judgment)

As a result of the above discussion, the points which sharply appear in the focus are:-

(i) Both liked each other immensely.

(ii) The girl suggested elopement and marriage.

(iii) That when the accused went on leave, without telling her that he was proceeding on leave to Dabra, she became restless.

(iv) That when she overheard her brother talking to her mother that she may be married against her will in the absence of the accused and that the accused had gone home on leave and that from there he would go to Kashmir, she became more frightened and restless.

(v) That at the Hospital, she wept and it was Gangasingh, the servant who suggested to her to go to the accused to Dabra and told her what bus to take for Dabra.

These lead to an irresistable conclusion that not being able to bear the pangs of separation and also being in dread of being given away in marriage against her will, at the instance of a servant, she went to Dabra of her own accord and this is also admitted by her in her statement before the Committing Magistrate.

The question that now remains to be considered is whether in these circumstances it can be held that it was the accused who enticed her or took her out of the keeping of the lawful guardian ? My answer is in the negative and the reasons are.

I shall first consider the question in the light of English law. In Halsbury''sLaws of England ( 3rd Edition Vol. 10, page 758 ) it is said that if a girl leaves her father of her own accord, the defendant ( accused ) taking no active part in the matter and not persuading or advising her to leave, he cannot be convicted of the offence ( kidnapping ) even though he failed to advise her not to come or to return, and afterwards harboured her; This statement of law is based upon R. vs.Robb ( 1864, 5 F and F. 59 ) In the instant case, the accused went away on leave, without telling the girl that he was going, and, did not leave his address with her either. Moreover when the girl eventually met him at Dabra, he felt embarrassed and anxious, whereupon the girl burst into tears and declared that she would not go back. It was in these circumstances that the accused harboured her. It has been suggested that if the accused had turned her back, she would have returned to her father. But it is a mere guess-work. As a girl of firm determination, she might have as well committed suicide either by throwing herself before a running train or by jumping in a well or in some other way. But it is neither here nor there. It was not the legal duty of the accused to send her back to her parents and as stated in Halsbury's Laws of England ( supra ) even though the accused failed to advise her to return and harboured her, the offence of kidnapping is not a committed,

Russel on Crimes, 10th Edition, page 837 has stated the law to be thus:-

"If, however, the going away was entirely voluntary of the part on the girl, the prisoner could not be guilty of an offence under the statute (kidnapping or abduction.)"

In the instant case, the girl admits that she went to Dabra entirely of her own accord and the circumstances which have been set forth earlier do not support a suggestion that on this particular occasion, the accused either enticed her or took her away. The girl went away because she was overwhelmed by her own emotions and she keenly felt his separation and also wanted to avoid the threatened marriage against her will as suggested by her brother to her mother,

In R. vs. Jarvis (1903 ) 20 Cox, C.C. 249 reported in the English and Empire Digest on page 860 it is said that in order to support a charge of taking an unmarried girl under the age of sixteen out of the possession and against the will of her parents, it must be shown that the prisoner took some active step to cause the girl to leave home; if the suggestion to go away with the prisoner came from the girl and he took the merely passive part of yielding to such suggestion, he is entitled to an acquittal.

This English case seems to be almost on all fours with the case under consideration. Because in the instant case, the suggestion for elopement came from the girl and the suggestion to get married was also hers.

Now I shall consider some Indian authorities on the point. In Lachhiram and Tall vs. The Crown ( AIR 1923 Lahore page 330) Shadilal C. J. observed that if a minor girl leaves her husband's home without any persuasion, inducement or blandishment held out to her by a man so that she has got fairly away from home, and then goes to him, he cannot be deemed to have infringed the law, even if he does not restore her to her lawful guardian. A recent decision on this point is one given by the Kerala High Court Chathu Vs. P. Govindan Kutty, , in which the Lahore decision ( of Sir Shadilal C. J. ) has been followed.

The cases, cited above both English and Indian, lay the correct position of the law to be that in fastening the criminal liabilities on the prisoner, the Court has to decide whether there was any inducement on the part of the prisoner, and that if it appears that the girl of her own free-will without any persuasion from the prisoner abadoned the guardianship of her parents and joined the prisoner, the prisoner cannot be convicted of the offence of kidnapping. In the instant case, it was nothing but love that impelled the girl herself to go to Dabra and faced with a situation like this, the accused harboured her. Unless "love" which exercises a sort of magnetic force and creates a desire to be close to each other can be looked upon as being tantamount to "enticement" which I suggest it is not, I hold that no offence is committed if a girl inspired by feelings of love, leaves her parents to avoid a forced marriage against her will and goes to a person of her liking and he harbours her. 67. The learned counsel for the appellant Mr. Dey has cited the following rulings :- (1) AIR 1928 Mad 585, (2) In Re: V. Abdul Azeez and Another, , (3) Purna Chandra Ghosh Vs. Chief Secretary, Government of West Bengal, , (4) Dolgobinda Rath Vs. The State, . The facts of all these cases are different from the circumstances of the present case, and as observed by their Lordship of the Supreme Court ( Pandurang, Tukia and Bhillia Vs. The State of Hyderabad, ) each case must rest on its own facts. This is an appeal against acquittal. In Aher Raja Khima Vs. The State of Saurashtra, , their Lordships have observed that in an appeal against acquittal interference is not justified on the mere ground that the High Court may take a different view of the evidence, and, that if the trial Court has taken a reasonable view of the case, the order of acquittal shall not be interfered with. 68. In result, for reasons stated above, I would dismiss the appeal.

OPINION

Sharma J-69. The respondent Sundersingh S/o Sardarsingh an employee in the Army Medical Corps attached to the Military Hospital at Gwalior was tried for offences under Ss. 366 and 411, IPC by the Addl-Sessions Judge Gwalior, who by his judgment dated the 29th of September 1958 acquitted him of both charges. On an appeal against the order of acquittal being prefered by the State it was heard by a Division Bench of this Court. A difference of opinion having arisen between the learned Judges who constituted the Bench the case has now come up before me.

The facts giving rise to the case for the prosecution may briefly be stated as follows. The prosecutrix Vimla alias Kapuribai, a girl aged about 13 years, was living with her father Prahlad Das in Chanakothar in the Kampoo area at Lashkar. The accused who resided in the Military lines clandestinely used to meet this girl since some time prior to the incident, and was on terms of illicit intimacy with her.

On the 18th of September, 1957 Vimla approached her father Prahlad Das at about 7 a. m. and sought his permission to go to the hospital for treatment of her ear-trouble. The father agreed to let her go to the hospital along with his servant Gangasingh. Sometime later Gangasingh returned alone to the house and informed Harishchandra, her brother, that the girl had disappeared from the hospital Harishchandra unsuccessfully searched for the girl at various places. At about 2-30 p. m. while he was going to the Gwalior Railway Station he met Dhaniram tongawalla who on being asked gave the information that he had seen a girl wearing a blue "sari" being taken on a cycle by Sundersingh towards Shitholi Railway Station. Harishchandra, therefore, took a taxi and went to Shitholi where he met a Sardarji who stated that a girl wearing a blue "sari" has been seen by him being carried on a cycle towards Antari. At Antari Harishchandra learnt that the girl had been taken towards Dabra. Even at Dabra Harishchandra could not trace the girl and so he returned home at about 9 p. m. on that evening. Harishchandra informed his father, who had gone out on some business during the day and had returned home at about 5 p. m., about the disappearance of the girl. Prahlad Das in his turn stated that cash and ornaments were also missing from his box. On the next day Harish chandra again went to Dabra where he reached at about 3 p. m. He made inquiries from Sundersingh's elder brother who is alleged to have given him to understand that if he reported the matter to the police the girl would in all probability be murdered. Harischandra thereupon returned to Gwalior. On the next day Harish chandra accompanied with his maternal uncle P.W. 11 Kailashchandra again went to Dabra. Kailashchandra handed over a written report ( Ex P-15 ) at police station Dabra. In this report it was stated by him that the prosecutrix had been kidnapped by the present respondent and was carried away by him on a cycle to Dabra. It was further stated therein that the present respondent's brothers Budhsingh and Mohansingh were suspected of keeping the girl in concealment. A list of the ornaments alleged to have been taken away by the girl was also given in this report. On the basis of this written report a Coznamcha report Ex.P-16 was entered in the general diary and Kailashchandra's signatures obtained thereon,

In the early hours of the 24th of September, 1957 the along with the accused was found by P.W. 11, Kailaschandra, PW. 9, Krishna lal Mishra, P. W. 12, Sukhendra singh and P.W. 16, Raghurajsingh Shastri sleeping on a mattress in a sugarcane field at the outskirts of the village Shekhupura The accused on seeing the police tried to run away, but was caught at the spot and was placed under arrest.

On the 27th of September, 1957 the accused offered to point out the place where the ornaments of the girl lay concealed. He thereafter took the police and the Panchas to his own house at Kheri. On reaching there the key of the house was obtained by the accused from an inmate of the house and on opening the house the accused dug out from the floor a bundle which on being opened was found to contain the ornaments detailed in the seizure-memo Ex. P-12. On a search of the house being taken 22 currency notes of the denomination of Rs 10/-were seized from an earthen pot under seizure memo Ex. P-13.

A cycle was seized from the house of Balwantsingh, Sundersingh's brother-in-law, at Shekhupura. This cycle, it may be noted, was admittedly hired by the accused from PW. 6--Gangaram at Gwalior in the month of September, 1957. The girl was sent for her X-ray examination to P.W. 2 Dr. Razdan Radiologist, who certified that she was between 10 to 13 years of age P.W 3 Indirabai then sister, in-charge of the maternity home at Lashkar, produced an entry Ex P-6 in the Births Register according to which Vimla's mother was delivered of a female child on 14-4-1944.

The accused was, on the facts stated above, prosecuted and tried for offences under Ss. 366 and 411, IPC with the result already noted above.

In her examination before the Committing Court Vimla took upon herself the entire blame for her conduct. She stated that she was hopelessly in love with Sundersingh and had actually made an offer to marry him. She stated that she had asked for her father's permission to do so, but that her father had declined to give his consent. When she learnt that Sundersingh had proceeded on leave she lost patience altogether and resolved to go to Dabra in order to meet him. She further deposed that she went to the hospital on the 18th of September, 1957 and after confiding her sorrow to Gangasingh sought his advice as to what she should do. Curiously enough Gangasingh suggested to her that she should follow her lover. She boarded a bus at about 10 am. for Dabra. She did not take with her any ornaments. On reaching Dabra she inquired about the accused from one or two persons and then, as it were, by sheer good-fortune she met Sundersingh while he was moving about in the town. She told him of her resolve to live with him. The accused at first tried to make her see sense, but on finding her adamant relented and took her along with him. While on their way they mad; sojourn at one or two villages and eventually reached Shekhupura where Sundersingh took her to a house. According to her it was at that place that the early morning of the 24th of September, 1957. She denied that the letters Exs. P-2 and P-3 were in the handwriting of the accused. On being cross-examined she readily admitted that she had been tutored by the Investigating Officer and had been threatened that if she did not give evidence against the accused she would be murdered. Curiously enough none of these threats seem to have prevailed with her inasmuch as her statement before the Committing Court was as favourable to the accused as she could possibly make it.

The accused on being examined u/s 342, Cr. P. C stated that Vimla met him at Dabra and insisted on living with him. He, therefore, took her to the house of a relative of his.

In the Sessions Court the prosecutrix took a complete somersault. She admitted that she had made her former deposition at the instance of the accused. She stated that the accused used to meet her when she went to the school and for play at a place in front of shop close to her house, that he used to talk to her and wrote the letters Exs. P 2 and P-3 to her. It was he who suggested to her that she should marry him and if she was to decide to live with him she should also bring some valuables and cash in order to enable them to make the two ends meet. According to her deposition in the Sessions Court the accused had before proceeding on leave told her that he would meet her on the morning of the 18th of September, 1957 at the Madhav Dispensary. The prosecutrix admitted that she stole ornaments and cash from her father's box 2/3 days prior to the day on which she left her father's place. On the morning of the 18th of September 1957 she left her father's house with a bag containing the ornaments and cash With the intention of running away with the accused She met the accused at that place and was asked by him whether she had brought anything with her. On being assured by the girl that she had valuables and cash in the bag which she carried the accused took her on foot for some distance and thereafter seated her on his cycle. He carried her to Dabra and thence to other places The accused had told her that if they stayed longer at any particular place the police would be able to trace their whereabouts On the night of the 23rd of September 1957 the accused told her that the police were searching for them and that they should, therefore, go to a neighbouring village. On the girl's refusal to comply with this request he persuaded her to go to a sugar-cane field outside the village. They therafter went and slept in the same bed in a sugarcane field, where they were found by the police in the early hours of the next morning as already stated above.

The first question which has to be determined in the present case is as to whether either, and if so which, of the two versions of the prosecutrix is true. In this connection it would be pertinent to consider the surrounding circumstances of the case as also the facts proved by other evidence in so far as they lend assurance to one or the other of her two conflicting versions.

It must be observed at the outset that the story set up by Vimla in the Committing Magistrate's Court bristles with inherent im-probabilities. It is proved beyond any doubt by the evidence of P.W. 2, Dr. Razdan and P W 3 Indirabai that the prosecutrix was at the time of the commission of the offence not above 13 years of age. In her statement before the Committing Magistrate Vimla gave out her age to be 17 years. The letters Exs.P-2 and P-3 have been proved by the evidence of P-W. 10 Shri Beharilal Saxena, handwriting expert, to be in the handwriting of the accused. The prosecutrix in her statement before the Committing Magistrate's Court stoutly denied that these letters were written and given to her by the accused. Thirdly the prosecutrix in her statement before the Committing Court stated that she had no ornaments with her or on her person at the time when she left her father's place. I shall discuss later the evidence relating to the fact of production by the accused himself of a number of ornaments which indisputably belong to Prahlad Das. Lastly I consider it highly improbable that the girl should set out in search for the accused, of whose place of residence she was not aware, and then by sheer co-incidence find the accused moving about at Dabra within a few minutes of her arrival at that place This story is so inherently improbable as to be altogether unworthy of credit. The fact that the accused himself set up a similar version in his statement in the Committing Magistrate's Court would lend support to the version of the prosecutrix in the Sessions Court to the effect that this highly incredible account was given by her under the instructions received from the accused. I have, therefore, no hesitation in holding that Vimala's statement before the Committing Magistrates Court is a tissue of lies which were put into her mouth most probably by the accused himself in order to help him to escape from the legal consequences of his act. When a girl of immature age is placed in such a situation and makes two contradictory statements one of which is evidently intended to help the accused, it is not proper to discard both of her versions on the ground that she is a self-confessed perjurer. The evidence of girl of such tender age, who on account of her infatuation at first makes an all out effort to save the person who had been responsible for ruining her life but later in her cooler moments on realising her mistake tries to revert to truth should not be discarded altogether from consideration. I do not mean to suggest that any version which she sets up against the accused at a later point of time should be readily accepted. All that I wish to observe is that it would be wrong and would in no sense be conducive to justice to discard both of her versions without making any attempt to sift the grain from the chaff.

The trial Court has mentioned two principal grounds in support of its finding that the evidence of Vimla in the Sessions Court cannot be relied on. In the first place the learned Addl. Sessions Judge has mentioned in para 18 of his Judgment that the girl declined that she and Sundersingh had taken "one another in embrace when the police had thrown torch-light on them in the sugar-cane field." The learned Addl. Sessions Judge has observed that all the prosecution witnesses who had been examined on this point had deposed to this effect. I am afraid this observation is not borne out at least by the evidence of P.W. 17, Shri Raghu-rajsingh Shastri, who merely stated that on seeing the police Vimla and the present respondent both got up. Vimla had stated in her deposition that she was lying asleep at the time when the police arrived at the spot and that she was awakened from her sleep by the accused. She did not deny that she shared the same bed with the accused. I fail to see how a statement by her to the effect that she did not embrace the accused when the police threw torch-light on them while she was lying asleep can provide any basis for a conclusion that she was not telling the truth even at the trial. I consider this ground to be entirely devoid of substance. As shown above the other prosecution evidence on the point is not so uniform in nature as the learned Addl. Sessions Judge seem to have thought it to be. In para 19 of his Judgment the learned Addl. Sessions Judge further observed that ''if the girl had been corroborated by other evidence on some of the incriminating points it could have been presumed that the corroboration was involuntary. But the corroboration being on practically every such point yields a strong suspicion that the change might have happened keeping the principle of credibility of evidence on the basis of corroboration in view." I confess. I am unable to understand that the learned Addl. Sessions Judge means by an ''involuntary corroboration.'' Even on putting the best interpretation on what the learned Addl. Sessions Judge has expressed in a rather confused manner. I think that what he meant to say was that because the prosecution was assisted by a private counsel the girl was made to effect suitable changes in her statement before the Committing Court in order to bring it in conformity with the rest of the evidence on record. I have no hesitation in observing that there is nothing on the record of this case which contains even a remote suggestion to this effect. I am afraid the entire approach to the case made by the learned Addl. Sessions Judge appears to be conditioned by distrust and suspicion based on grounds for which as I shall presently show no rational basis could be found in the evidence on record. The statement made by Vimla in the Sessions Court to the effect that she had realised that her dissgraceful conduct had caused pain to her parents and that she did not wish to do anything to addl. to it was construed by the learned Addl. Sessions Judge to mean that her second statement was the outcome purely of a desire on her part to "bring solace to her aggrieved parents." It must be observed that this observation of the learned Addl. Sessions Judge shows a biased approach to the evidence of the prosecutrix. To my mind the statement of Vimla on this point, gives, if anything an indication of the penitent mood in which she was at the time of giving her evidence in the Court of Sessions. It is, I am afraid, not possible to attach much significance to this statement one way or other. These grounds which were so emphatically relied on by the learned Addl Sessions Judge in doubting Vimla's version must, in my opinion, be discarded from consideration altogether.

The learned Addl. Sessions Judge thereafter proceeded to consider whether Vimla's statement was corroborated by other reliable evidence. Having doubted her version on such fragile grounds he proceeded to analyse the rest of the evidence in a similar spirit. Prahlad Das has stated that the girl had approached him in the morning in order to secure his permission to go to the hospital for her treatment. Harishchandra also stated that Vimla had gone there in the company of Gangasingh. The learned Addl. Sessions Judge observed that they were both interested witnesses and their evidence could afford no corroboration of the testimony of the prosecutrix. If Vimla had not gone to the hospital on that morning in the company of Gangasingh, 1 for one fail to see why Gangasingh should have been expelled from his service. I do not also see any reason for Prahlad Das and Harishchandra for making a false statement on oath on a point of such trivial importance. The girl did go out that morning and disappeared from somewhere. How does it matter whether she had gone to the hospital and disappeared from there or she slipped away from some other place ? Then again the learned Addl. Sessions Judge has referred to the fact that the girl had not stated in the Committing Magistrate's Court that she had been previous by instructed by the accused to meet him at the Madhav Dispensary. Having himself held that in her statement before the Committing Court she had gone all out to help the accused the omission on her part to state this fact can easily be understood. This kind of approach to a case of this nature is to my mind wholly unrealistic in nature. Sundersingh would not make a statement to the girl in the presence of others fixing the time and place at which they should meet for their intended elopement. What corroboration could ever be found on such a point is a matter which does not call for any discussion. The prosecution has placed on record a letter Ex P.-2 which has been proved by expert evidence to be in the handwriting of the accused. Reference was made in this letter to the fact that they should go to some other place. The learned Addl. Sessions Judge discarded this piece of evidence from consideration on the short ground that the letter does not bear any date and its contents made it clear that the suggestion made therein by the accused for the intended elopement could not have reference to the date on which the girl actually disappeared. Here again I must say the approach made by the learned Addl. Sessions Judge to the evidence is unrealistic in nature. A girl of such immature age does not decide to leave her parental home all at once. She could be impelled to take such a drastic step only as a result of continued persuation and blandishment. That suggestions were made in the past by the accused to the girl to flee from her father's house is borne out by the letter Ex. P-2. The crucial question to be determined in this case was and still is whether the girl was carried by the accused from the hospital on a cycle as alleged by the prosecution or as alleged by the accused in both Courts and also deposed to by the girl herself in the Court of the Committing Magistrate, she went of her own accord to Dabra in a bus and by a sheer coincidence met the accused at that place.

In the first place it must be borne in mind that in the report which was lodged by Kailashchandra on the evening of the 20th of September, 1957 it was stated that the girl had been carried away on a cycle by Sundersingh. Till that time the accused had not been arrested, nor had any trace been found of the girl. The learned Addl. Sessions Judge was led to think that the report Ex. P.16 at Dabra police station was prepared sometime after the arrest of the accused on the morning of the 24th of September, 1957. I shall, therefore, pause here for a moment to consider whether this conclusion of the learned Judge is justified by materials on record. A copy of the report Ex. P-16 which has been placed on the record of this case no doubt mentions the date of the report to be 21-9-1957. It also bears on it an outward number which bears the date 24-9-1957. It was, therefore, argued in the trial Court, and the argument was repeated with great vehemence before me that the report was made and transmitted to the Madhoganj police station by the Dabra police on the 24th of September, 1957 after the arrest of the accused. I sent for the original Roznamcha of the Madhoganj police station in order to verify the date on which the receipt of the report Ex. P-16 is entered in the police records. It contains an entry dated 22-9-1957 with regard to the receipt of Ex. P-16 at the Madhoganj police station. P.W. 17 Shri Raghurajsingh Shastri stated on oath that he received Ex. P-16 from the Dabra police station on 22-9-1957, that he registered the offence on its basis, prepared a sketch-map of Prahladas's house and started investigation. On 23-9-1957 he recorded the statement of Mevasingh and proceeded to Dabra where he arrived on the same evening. Raghurajsingh Shastri accompanied the police party by which the girl and the accused were found in the sugarcane field on the outskirts of village Shekhupura. How could all this have happened if the report Ex. P-16 had not been received by Raghurajsingh on 22-9-1957 ? The date in the outward number on Ex P-16, therefore, appears to be erroneous. Neither Shri Shastri nor any other witness was questioned by the defence on its basis. The contents of the report could be used only for the purpose of corroborating or contradicting the witnesses concerned therewith. It is not permissible to refer to such documents in order to discredit the evidence on oath of witnesses without giving them an opportunity to explain the alleged discrepancy. It is alleged that the date of the report in Ex. P-15 has been over written. Its maker Kailashchandra was, however, not questioned on this point. The outward number on Ex. P-15 and the date on Ex. P-15 must, therefore, be excluded from consideration.

It follows from the fact that receipt of Ex. P-16 is mentioned in the general diary at Madhoganj police station on 22-9-1957 that the report Ex. P-15 had been lodged prior to that date. In this context it become indisputable that the report was lodged prior to the arrest of the accused. The facts that in this report the name of Sundersingh as well as that he carried away the girl on a cycle were mentioned would suggest that the prosecution story to this effect cannot be said to have been developed after the arrest of the accused. It would also lend support to the conclusion that Harischandra had from some source acquired information to this effect which was transmitted by him to Kailashchandra. Harishchandra has deposed that he had in the course of the inquiries made from various persons on the 18th and 19th of September, 1957 came to the conclusion that the accused had taken away his sister on a cycle. The fact that a cycle, which the evidence of Gangaram shows, was hired by the accused on the morning of the 18th of September, 1957 at Lashkar, was seized by the police form Balwantsingh's house at Shekhupura is another circumstance which lends support to the version of the prosecutrix. I shall discuss Gangaram's evidence at a later stage as also the grounds on which the learned trial Judge refused to place reliance on it. For the present it is sufficient to observe that the learned Additional Sessions Judge after discrediting Vimla's testimony on such flimsy grounds as have been referred to above proceeded to demolish the rest of the prosecution evidence in a similar manner in order to arrive at the conclusion that the prosecution had failed to make out its case against the accused.

P.W.6 Gangaram, who owns a cycle shop at Kampoo Road, Lashkar, deposed that on the 18th of September, 1957 at about 7 a.m. Sundersingh hired a cycle from him. The witness produced an entry Ex. P-7 in his cycle-Register in respect of this transaction. The trial Court has in para 24 of its judgment observed that the presence of the accused at Lashkar in the morning of the day of the incident "even if believed could at the most create a suspicion which could not be substituted for proof in the absence of other reliable evidence that the accused had taken away the girl on his cycle". The learned Judges who heard the appeal have not held the testimony of this witness to be unreliable. The mere suggestion of the accused that his signature on Ex. P-7 was obtained in the police station without anything to support it cannot be accepted. In his statement in the Sessions Court the accused stated that the entry Ex. P-7 was written by the Sub-Inspector at the thana and he was required to affix his signature thereto. Gangaram, however, categorically stated that the entry had been written at his own shop by him at the time when the cycle was given on hire. Not a single question was put to Gangaram in cross-examination which could even remotely suggest that the Sub-Inspector filled up the columns in Ex. P-7. If this had really been the case the defence could not have omitted to question Gangaram as well as the alleged author of the entry regarding the same. Yet another fact to which the trial Court failed to attach due significance is that Gangaram lodged a report against the accused on the basis of which a case was registered against him. Even before the challan could be filed in the Court the accused hastened to compound the offence. Would he have been in such a hurry to do so if the entry on the basis of which a report had been lodged by Gangaram against the accused had itself been fabricated in the manner now suggested by the accused ? The hurry with which the case was compounded go to show that the accused did not till that stage consider it necessary to challenge the truth of Gangaram's version. The question whether the accused had signed the entry or not is to my mind not very material in view of the fact that the accused himself admits the fact of having taken the cycle on hire from Gangaram. He has merely pleaded that he took the cycle on hire for a period of two months with effect from the 1st of September, 1957 before he proceeded on leave. It is significant to note that no suggestion was made by the defence to this effect in the cross-examination of Gangaram. This plea of the accused must, therefore, be held to be the result of an afterthought. If this had been so there would have been an entry to this effect in Gangaram's Cycle-Register. It was observed by the trial Judge that Gangaram's conduct in not reporting the matter till he was summoned by the police creates suspicion against him. In the first place Gangaram was not questioned Why he did not report earlier to the police about the accused having taken away the cycle for a day and having not returned it. Gangaram knew, it may be noted, the accused to be a military employee. He had his shop in the same locality and may have had no reason to suspect that his cycle would not be returned at all or that the accused would dishonestly convert it to his own use. It is besides not unlikely that having heard rumours about the case of kidnapping he wanted to keep away from the police. If Gangaram had been questioned on this point he could have given any or all of the aforesaid explanations for his silence. But the defence not having done so, it was, in my opinion, unfair to question the credibility of Gangaram's version on such grounds as are mentioned by the learned trial Judge in para 24 of his judgment.

I see no reason to disbelieve Gangaram's testimony and would, therefore, hold that the accused was at Lashkar on the morning of the 18th of September, 1957 and he hired a bicycle from Gangaram on that day at about 7 a.m. The accused had on his own showing proceeded on leave on 9-9-1957. He has not stated what brought him back to Lashkar on the morning of the 18th of September, 1957. The cycle which he had hired was, after his arrest, seized by the police from the house of his brother-in-law Balwantsingh at Shekhupura.

The significance of the evidence of Gangaram has not been fully realized. Corroboration of the testimony of the prosecutrix in the Sessions Court need not be on every material particular; nor is it necessary that corroborative evidence should itself be sufficient to form the basis of an order of conviction. Once it is held that the accused was present at Lashkar on the morning of the 18th of September, 1957, that he hired a cycle from Gangaram which he did not return to him till he was arrested at Shekhupura and that the cycle itself was found at Shekhupura, the statement made by the prosecutrix in the Court of Sessions is amply corroborated in material particulars, even if reliance is not placed on the direct evidence to show that the girl was carried away by the accused on that cycle. The girl's deposition to this effect can, in my opinion, be safely acted upon in view of the assurance of truth lent to it by the fact noted above which have been proved by independent evidence

It would be pertinent at this stage to consider the evidence of two of the defence witnesses. DW. 1 Ramnarain stated that a girl had on 18-9-1957 travelled with him in the motor-bus running between Gwalior and Dabra Seven or eight days later he saw the girl at Dabra along with Sundersingh being taken by the police. On getting down from the bus at Dabra the girl had inquired from him about Sundersingh and was told by him that Sundersingh lived at Kheri. The witness did not state how he remembered the date on which he had travelled from Gwalior to Dabra. He gave his evidence nearly an year after the alleged journey. Vimla was not confronted with Ramnarain and asked if she had travelled with him and inquired from him about Sundersingh. The witness has also not stated that he informed Sundersingh about the fact that the girl had travelled with him from Kampoo. One is left to imagine how Sundersingh came to know that this witness could give evidence favourable to him. He was not produced by Sundersingh before the police during investigation, nor was his name disclosed by him in his examination u/s 342. Cr.P.C. in the Committing Magistrate's Court or in the Court of Sessions.

For all the reasons stated above I am of the opinion that Ramnarain is a got-up witness. His story that the girl, without having any reason to suppose that he knew sundersingh, inquired from him about Sundersingh is on the face of it inherently improbable

D.W.3 Bhagwandas is another chance witness who claims to have seen the girl at Dabra Mandi at some distance from the bus-stand. It is indeed surprising that though the girl had already learned from D.W.1 Ramnarain about Sundersingh's place of residence, she should still ask Bhagwandas as to where she could find Sundersingh This witness claimed to have seen the girl once again at Dabra only 4 or 5 days later. According to Ramnarain she was seen at Dabra Mandi after 7 or 8 days. The girl must evidently have been brought to Dabra Mandi on 24-9-1957. Bhagwandas did not state that he ever informed Sundersingh about the fact that the girl had inquired from him about his (Sundersingh's) whereabouts.

I have already held above that the entire story about this girl of thirteen having gone all by herself to Dabra without knowing where the accused lived and then suddenly met him in the bazar soon after she had got down from the bus is so inherently improbable as to deserve its being totally rejected. Vimla was not questioned about Bhagwandas also in her cross-examination.

P.W. 16 Dhaniram tongawalla knew Sundersingh and Vimla by name from before. He stated that he saw Sundersingh carrying the girl on a cycle towards Shitholi Railway Station. Sometime later Harishchandra met him and on being asked by him the witness told him that he had seen the accused taking away Vimla on cycle. This fact was deposed to by Harishchandra also. Harishchandra was, however, confronted with the portion marked A to A in his statement Ex. D-2 to the Police in which he had stated that Dhaniram told him that he had seen Vimla being carried by a certain person on a cycle towards Shitholi Railway Station Though Harishchandra admitted having made this statement to the police, he maintained that he had given out Sundersingh's name in the course of his statement. The question which arises for consideration is whether Harishchandra's statement to the police can be made use of for discrediting Dhaniram, P.W. 17 Shri Raghurajsingh Shastari SIP Madhavganj questioned this witness on the 22nd of September, 1957. Raghurajsingh was not asked whether apart from the portion marked A to A in Ex. D-2 Kailashchandra had mentioned Sundersingh by name as the person who was seen taking his sister away on a cycle. Harishchandra had prior to his examination by Raghurajsingh stated to Prahlad Das and Kailashchandra the fact that Sundersingh had been seen taking away Vimla on a cycle towards Dabra. This fact was also mentioned by Kailashchandra in his report Ex, P-15 to the police. It would thus appear that the statement of Harishchandra to the effect that he had told the police that Sundersingh was seen taking away Vimla on a cycle is very probably true. Shri Mishra S.I. ought to have been questioned whether Harishchandra had mentioned Sundersingh's name. At any rate an omission in Kailashchandra's statement to the police can in no case be made use of in order to discredit Dhaniram-especially when Kailashchandra in his statement on oath supports Dhaniram by saying that the latter had stated that Sundersingh was the person who was seen carrying Vimla on a cycle. It would also be pertinent to bear in mind that the material point to be considered is whether Vimla was carried away on a cycle or she travelled by herself in a bus as deposed to by her in the Committing Magistrate's Court. Dhaniram knew Vimla well and could not therefore, have made a mistake as to her identity. The conduct of Harishchandra in going to Shitholi and from there to Dabra confirms the fact that he had learnt as a result of inquiries made by him on 18-9-1957 that his sister had been carried away on a cycle in that direction. Once it is believed that Vimla was seen being taken by a person on a cycle there could be no doubt that that person could be no other than the accused. The accused had hired a cycle early that morning. Vimla disappeared from the hospital and if she was seen being carried on a cycle by a certain person it is no one's case that that person was anyone other than the accused.

I am for the reasons stated above of the opinion that the trial Court acted illegally in discarding Dhaniram's version on the ground of omission by Harishchandra to state to the police in precise terms that information received by him from Dhaniram.

P.W. 13 Badria, Dhaniram's brother stated that Dhaniram left for Bhopal some 16 or 17 days ago saying that he was being harassed by certain sepoys. Badria himself went to Bhopal, but his brother had left that place also, P.W. 15 Deviprasad went to Bhopal in order to effect service of a summons on Dhaniram. He learnt from one Ramkishan that Dhaniram had left for some unknown destination some 4 days ago. The prosecution has, therefore, established that Dhaniram was not to be found. The trial Court, was, therefore, justified in admitting the statement made by Dhaniram in the commuting Court in evidence at the trial under the provisions of Section 33 of the Evidence Act.

Section 158 of the Evidence Act lays down that when the statement of any person is admitted in evidence under the provisions of S. 32 or S. 33 of that Act all matters may be proved either in order to contradict or to corroborate it which might have been proved if that person had been called as a witness and had denied upon cross-examination the truth of the matter suggested. A copy of Dhaniram's statement to the police having been supplied to the defence it could have been made use of in order to impeach his credit if any portion thereof was cantradictory to the statement made by the witness on oath. No such thing was, however, done in the present case, I am, therefore, of the opinion that the trial Court erred in not relying on the statement made by Dhaniram in the Committing Magistrate's Court to the effect that he had seen the present respondent, carrying away Vimla on a cycle towards Shitholi Railway Station on the afternoon of 18-9-1957.

As already observed by me above even if it were believed that Dhaniram could identify only Vimla his evidence would not only give a direct lie to Vimla's statement in the Committing Court but would also lend substantial support to her version at the trial to the effect that it was the accused who took her away from the hospital and carried her on a cycle to Dabra.

P. W. 5 Mewasingh saw a girl wearing a blue "sari" accompanying a certain person. The evidence of this witness was disbelieved on the ground that he omitted to state to the police that the person who had got down had taken water to drink from this witness. This omission being purely on a matter of detail could not be proved. (See Tehsildarsingh Vs. State of U. P. AIR 1959 S. C. 1012 and AIR 1937 50 (Nagpur) ).

The evidence of this witness who was discovered by Harishchandra in a very natural manner and who was examined by Shri Shastri S, I. even before the arrest of the accused ought not, in my opinion, to have been rejected on the grounds mentioned by the learned trial Judge. Mewasingh's evidence also goes to show that a girl wearing a blue "sari" was seen by him going with a person at Shitholi Railway Station and that they proceeded along the railway line in the direction of Dabra. It is not disputed that when Vimla left her father's house she was wearing a blue "sari". She was seen being carried on a cycle by Dhaniram and later by Mewasingh. The evidence of these two witnesses lands support to Vimla's version in the Sessions Court in material particulars.

In his letter Ex. P-2 Sundersingh made a definite suggestion to the girl that if she wanted to elope with him she should bring cash with her. He gave her an assurance therein of his undying love for her and insisted that she should not fail to come since "go they must". This letter does not bear any date but there is no doubt that it was sent at a time when Vimla used to attend the school. The intended elopement did not, however, materialise. In: another letter Ex. P-3 the accused stated that he would be able to get leave for two months in the next month. We know that he proceeded on two months leave with effect from the 1st of September, 1957. There can, therefore, be no doubt that the letter Ex. P-3 was written sometime in July or August 1957. In this letter he suggested in unmistakable terms that they would go somewhere as soon as he could secure leave from his department. This letter makes it clear that the accused had impressed on the mind of the prosecutrix that he was irretrievably in love with her and was willing to risk his life for her sake. He was agreeable to running away with her; but had no means of his own. Evidently, therefore, Vimla knew that if she wanted to run away with the accused she should carry with her money in order to meet the expenses necessary for their escapade. The letters Exs. P-2 and P-3 were discarded by the trial Court from consideration on the solitary ground that do not contain anything in them to show that the suggestion for elopement contained therein had reference to the date on which the offence in the present case was committed.

Bramwell B. in James Jarvis (1903) 20 COX 249 observed as under:-"It is, however, clear that if the girl, acting under his persuasion, leaves her father's house, although he is not present at the moment yet if he avails himself of that leaving which took place at that persuasion, that would be the motive cause for her leaving. Again, although she may not leave at the appointed time, and although he may not wish that she should have left at that particular time, yet if, finding she has left, he avails himself of that to induce her to continue away from her father's custody, in my judgment he is also guilty, if his persuasion operated on her mind so as to induce her to leave,"

The accused had taken leave and gone to his village Kheri on 1-9-1957. I have held that he came back to Gwalior sometime prior to 18-9-1957. How could the girl know that she will meet the accused at the Madhav Dispensary in readiness to take her away ? The girl had not of her own volition decided to leave her father's roof and just go anywhere. She started from her house with the definite intention of running away with the accused. The persistent protestations of love proceedings from the accused could not but have had their effect on her mind. In order to determine whether the girl left her father's house as a result of persuasion, suggestion, inducement or blandishment from the accused, the entire surrounding circumstances of the case have to be carefully weighed. The accused was an utter stranger to the family of the girl; he was 23/24 years old at the time of the commission of the offence. Some two or three years prior to the girl's disappearance he started following her whenever she went out of her house. He picked up an acquaintance with her on the road side and by slow degrees won her affection. When all this was started the prosecutrix was an immature girl of 10/11 years. In his letter Exs. P-2 and P-3 the accused was obviously at pains to impress upon the mind of the girl that his life would be miserable without her. Since a marriage in the ordinary way was not possible they started planning for their elopement In these circumstances it is to my mind wholly immaterial from whom the suggestion for their elopement first proceeded. The fact that the accused prepared her mind to do so is enough to fasten liability on him for taking the girl out of the keeping her lawful guardian. He insisted that go they must he suggested that she should bring money with her as he had none of his own. Can it be said, in these circumstances that he was merely playing a passive part in the matter ? By pleading his abjectness in not having her by his side was he not prompting her to leave her paternal roof and come to live with him ? To me it appears to be beyond all doubt that by his importunities the accused eventually succeeded in inducing her to leave her father's house and run away with him. A person who by amourous entreaty persuades a minor girl to remove herself from the keeping of her lawful guardian, out of feelings of "love" which he himself has in a sedulous manner aroused in her mind and then avails of her leaving by taking her from place to place with a view to render it difficult for her guardian to trace her where-abouts must, in my opinion, be held to have taken her out of the keeping of her lawful guardian. In such a case there is such an immediate connection between the man's love making and the girl's decision to live with him as would render the former liable for the girl's consequent removal from the keeping of her lawful guardian, if he avails of her leaving by carrying her away with him. No hard and fast rule can be laid down as to the circumstances which should be considered sufficient for holding whether the accused is guilty of such "taking" as is punishable under the law. Each case has to be decided on its own facts.

It has next to be considered whether Vimla carried any ornaments with her when she left her father's house on the morning of the 18th of September, 1957:

It is clear from the letters Exs. P/2 and P/3 that Vimla was told not to venture on an elopement with the accused unless she had money with her-the accused had taken pains to impress this fact cleary on her mind. I have already held above that the trial Court acted wrongly in holding that the report Ex-P/ 15 was longed sometime after the arrest of the accused on the early morning of 24-9-1957. A number of ornaments were mentioned in the report as having been taken away by the girl, whether prahlad Das had given a list of ornaments to Kailashchandra and if so, why the latter stated that he gave the list of ornaments in Ex-P/ 15 as far as he could from memory arc mere matters of detail to which much significance cannot reasonably be attached. The accused contended that the ornaments which are alleged to have been recovered at his instance were really carried by Prahlad Das to his (accused's) house at Kheri and were produced by Prahlad Das before the police. No question was, however, put to Prahlad Das in cross examination about this remarkable theory. He was not asked if he had carried any ornaments with him to Kheri, nor was any suggestion made that the muddemal ornaments were produced by him before the police. PW.8-Lal-chand categorically stated that Prahlad Das had not accompanied the police to the house the accused at Kheri, when he along with the police went there in order to recover the ornaments which the accused had stated had been buried by him in his own house. No. question was put to Lalchand which could even remotely suggest that Prahlad Das had produced the ornaments before the police, PW. 9-Shri Mishra also deposed to the same effect, without subjecting the evidence on record to a close and intelligent analysis the trial Court lent its faith on purely hyphothetical grounds to the version of the accused.

For the reasons stated above it must be held that the suggestion made by the accused in his statement to the effect that Prahlad Das had produced the ornaments before the police is clearly the result of an afterthought, when an accused person offers to produce the property and does to himself, there is no house search as such to which the provisions of S. 103 Cr.P.C might apply.

It was held by their Lord ships of the Privy Counsil in AIR 1946 16 (Privy Council) ) that to a case where the accused himself offers to produce a certain property the provisions of S. 165 Cr P.C have no application. The same reasoning would hold good with regard to the question of applicability of the provisions of S. 103 Cr. P.C to seizure of property which is produced by the accused himself. I would, therefore, hold that the trial Court acted illegally in doubting the evidence regarding the fact of production by the accused of the girl's ornaments from the place of their concealment in his own house, on the ground of noncompliance with the provisions of S. 103 of the Code of Criminal procedure.

The fact of Production of property by the accused himself would be relevant even apart from the provisions of S. 27 of the Evidence Act. (see.. Ramkishan Mithanlal Sharma Vs. The State of Bombay, .

I find nothing in the cross-examination of PW.8-Lalchand to show that he is an interested witness. Relying on the evidence of Lalchand and Shri Shastri I would hold that the prosecution has proved that the accused himself dug out from the ground inside his own house the muddemal ornaments which admittedly belonged to Prahlad Das. where the accused produces the property from a place where they lay concealed which was within his exclusive knowledge he must be deemed to be in possession thereof even if there are other occupants of the house. I would like to refer to the observations made by their Lordships of the Supreme Court in Balbir Singh Vs. State of Punjab, ) that the appellant, however, mode a statement to the sub--inspector of police to the effect that he had buried the gold ear-rings hear a "papal" tree and the ear-rings were recovered from the place pointed out by the appellant. The learned Sessions Judge drew a distinction between possession and knowledge, and held that the appellant mere y knew where the ear-rings had been concealed but he did not possess them. This distinction drawn by the learned Sessions Judge was hot justified on the evidence in the record, and the statement of the appellant that he had buried the gold ear-rings was admissible in evidence u/s 27 of the Evidence Act. In our view, the learned Judges of the High Court rightly held that the recovery of the gold ear--rings was a circumstance which connected the appellant with the crime in question."

It must, therefore, be held that the ornaments detailed in the seizure-memo Ex.P-12 were discovered in consequence of information supplied by the accused and that they were dug out by the accused himself and produced before the police. From this finding the conclusion would follow that Vimla carried those ornaments with her at the time when she left her father's house on the morning of 18-9-1957. She could not have thought of taking the ornaments with her unless she was sure of meeting the accused at the hospital. It would thus appear that her testimony in the Court of Sessions to the effect that they had previously fixed the time and place where she should meet the accused is borne out by the surrounding circumstances of this case. The accused had told her that she should bring cash with her and she did so in consequence of this inducement. Here in another circumstance which would go to show that the girl removed herself from the keeping of her lawful guardian under the influence of the accused and because of his readiness to take her away with him in case she came with money to enable them to meet the necessary expenses

There is, however, no evidence to show that the accused knew that the ornaments had been stolen by the girl from her father's box. The accused could well have thought that the ornaments belonged to the girl herself and were in her own possession from before. It would, therefore, not be safe to infer that he knew that the ornaments had been removed by the girl from her father's possession without his consent.

I would, therefore, uphold the order of acquittal on the charge under S 411 IPC.

I have already held above that the evidence on record establishes that the accused "took" Vimla-a minor girl out of the keeping of her lawful guardian. The accused stated in the Sessions Court that he was on 18-9-1937 going to his brother-in-law's place at Shakhupura when he accidentally met Vimla in the Bazar at Dabra Mandi. He further stated that since the girl was insistent on accompanying him he took her to Shekhupura in a motorbus. The girl, however, had deposed even in the Committing Magistrate's Court that the accused took her to two other villages where they halted for the night and the third place to which she was taken was a house at Shekhupura. Obviously the accused thought it necessary to improve upon the stand taken by him in the Committing Magistrate's Court by adding to it the further detail that he took the girl by bus directly from Dabra Mandi to Shekhupura as he was already going to that place on some business of his own. Even in the statement of the girl before the Committing Magistrate which, as I have pointed out above, was made by the girl purely out of a desire to help the accused to escape from the legal consequences of his act, it was not thought necessary to suggest that Vimla was taken in a bus directly from Dabra to Shekhupura. It thus becomes clear that this improvement was not thought of during the pendency of the committal proceedings. In the Sessions Court the girl repeated the same statement that they halted at two villages on their way to Shekhupura. It would thus follow that the accused took the girl from place to place and on the night of the 23rd of September, 1957; he asked her logo with him to another village saying that the police were on the look out for them. When the girl did not accede to this request the accused pursuaded her to go and asleep with him in a sugarcane field out side the village-Shekhupura. They were found sleeping together at that place by the police early next morning. The accused pursued this girl for a number of months, in order to arouse in her feelings of "love" for him. When they had become sufficiently intimate with each other he impressed on her mind that he could not live without her. He even went to the length of suggesting that even if they could escape for 24 hours they could accomplish their object. When he took the girl along with him he did not put her up at his usual place of residence at Kheri; but took her from place to place. It is indisputable that he shared the same bed with her for six consecutive nights. I wonder if in the fact of this admitted position one should require a doctor to state that the accused fulfilled his carnal desire when he eventually got the long-awaited opportunity. If his love was of a platonic type why should he have found it-necessary to take her from place to place? Is it possible to credit this ordinary youth with self restraint of such a high degree as would be necessary to avoid a sexual union during the six nights they slept with each other? The girl admitted that she slept with him on these nights. The accused did not deny the fact that they did so and yet the trial Court would not conclude that the natural consequences must have taken place except on the basis of her own statement to this effect or medical testimony.

I have no doubt in my mind that the trial Court was wrong in holding that the facts on record do not establish ''that the intention of the accused in removing the girl out of the keeping of her lawful guardian was to seduce her to illicit intercourse.

For the reasons stated above, I would have convicted the accused of the offence under S 366 I.P.C. Since, however my learned broher Shiv Dayal J also has held him to be liable only under S. 363 IPC. I would convict him accordingly, inasmuch as the same result would for all practical purposes, be achieved by awarding to the accused a heavier sentence than has been proposed by my learned brother.

I would, therefore, convict the accused-respondent of an offence u/s 363 I.P.C. and sentence him oundergo rigorous imprisonment for six months.