HARBANS Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) This is an appeal by special leave against the summary dismissal of his revision application filed by the Appellant in the High Court of Allahabad. The Appellant was convicted along with two others by the Assistant Sessions Judge, Agra, Under Sections 363, 366 and 368 of the IPC. He was sentenced to three years' rigorous imprisonment Under Sec. 363, Penal Code and two years' rigorous imprisonment under the other two sections. The sentences were to run concurrently. The other two accused were also sentenced under the same sections but were awarded two years' rigorous imprisonment each under the three sections and their sentences were also to run concurrently. There was yet one other accused by name Ganga Devi but she was acquitted by the Assistant Sessions Judge of all charges. On appeal, one of the accused (Bishamber) was acquitted on the benefit of doubt. The other accused, viz. the present Appellant and Phullan were acquitted Under Sections 363 and 368 but heir convictions Under Sec. 366 were maintained. As a result the present, conviction of the Appellant is Under Sec. 366 Penal Code only with sentence of two years' rigorous imprisonment. Phullan has hot appealed.

(2.) The facts of the case are simple. One Mundrawati (P.W. 1) a girl under 18 years. Of age had gone on 31-3-1964 to a field in village Behrampur, where she was residing with her parents, to help cutting the crop. According to the prosecution case she was accompanied at the time by Ganga Devi and a young boy by name Cheta. After cutting the crop Ganga Devi and Mundrawati were returning with the bundles of crops when they were accosted by the present Appellant and Phullan. Phullan asked Ganga Devi (his mother-in-law) as to who was with her and she replied that she was accompanied by Mundrawati and Cheta. Phullan then asked Mundrawati to go with him. The girl refused but on the prompting of Ganga Devi the girl was taken on his cycle by Phullan while the Appellant and Bishamber got on to the other cycle. The girl was carried to Agra to the house of the Appellant's brother-in-law Gurbachan Singh. The key of the garage of the house was obtained from Gurbachan Singh and the girl together with Phullan and the Appellant occupied it. It appears that Gurbachan Singh, on seeing that these young men had brought a girl, went to the police station house and made a statement to the police which is recorded as Ex. 1Ka-2. In that he stated that his brother-in-law Harbans Singh had gone to his house in the company of two other men and asked for the key of the garage and he had given the key to him; that after some time when he went to; the garage he found that they had a girl with them and that he was reporting the matter because he was apprehensive that they might have kidnapped this girl. The police thereafter took up the investigation, recorded the statement of the girl and a prosecution was launched against these persons. In addition to the Appellant, Phullan and Ganga Devi they also prosecuted one Bishamber, a rickshaw-puller. Ganga Devi was acquitted in the trial court and Bishamber in the Court of Appeal.

(3.) It is contended before us that the offence has not been legally proved against the Appellant. Mr. C.C. Agarwala, for the Appellant, contends that there is no evidence that the Appellant was responsible for kidnapping this girl and that the girl must be taken to hive gone freely with him. We were taken through the evidence in the case bearing upon the taking of the girl and we are satisfied that there is nothing to establish that the girl had abandoned the guardianship of her, parents before the present Appellant and his companion took her away. In fact the girl had gone to help in the cutting of the crop and her statement is that she had a bundle of 'lie' which she had to throw down when she was taken away from the fields to the garage in Agra. The law is quite clear on the subject of kidnapping. Before the charge can be successfully met the minor must be proved to have left the guardianship voluntarily and without any inducement or blandishment on the part of the person charged. If a minor abandons the guardianship with no intention of returning to it, any person who comes across the minor is not under a duty to return the minor back to the guardian and it is no offence if he does not return the minor but keeps the minor in his keeping; But, if a person either forcibly or by inducement makes the minor go outside the guardianship in which the minor is, the offence of kidnapping is established. In the present case there is nothing to show that on the evening when Mundrawati had gone to cut the crop in the company of Ganga Devi she had abandoned the guardianship of her parents and did not intend to return to them. The evidence of Mundrawati clearly establishes that she was practically forced to accompany Phullan and the present Appellant. In these circumstances, it cannot be said that the Appellant was not responsible for kidnapping Mundrawati. In fact Phullan and the Appellant were directly responsible for taking away the girl from the guardianship of her parents. The girl has been proved to be under 18 years of age and therefore the offence Under Sec. 366, Penal Code was completely brought home. We see no reason to interfere.