RAJAPPAN Vs. STATE OF KERALA

JUDGEMENT

(1.) THIS appeal has been referred to us by our learned brother Velu Pillai, J. , on the ground that the decision in Chathan Kunjukunju v. State (1958 K. L. T. 833) requires reconsideration.

(2.) THE appeal is against the conviction of the appellant under S. 366 of the Indian Penal Code and sentence of rigorous imprisonment for 5 years passed against him by the learned Additional Sessions Judge of Parur. THE charge against him was that he kidnapped Pw. 5, the minor daughter of Pws. 1 & 2, from the lawful guardianship of Pw. 1 on the night of 10-9-58. Pw. 6 had been living with her father, mother, her father's mother Pw. 3, her elder sister Pw. 4 and her younger sisters. THE accused is a tapper by profession and lives near the house of Pw. 1. For about 3 years before the occurrence, the accused was tapping cocoanut trees in the compound in which the house of Pw. 1 is situated. On the night of 10-9-58 at the time the inmates of the house retired for the night, Pw. 5 was in the house. When Pw. 3 woke up at about 4 a. m. , she found Pw. 5 missing and she cried out. Hearing the cry, the other inmates woke up. Pw. 9, a neighbour of Pw. 1, came to the house, and on enquiries was told by Pws. 1 & 3 that Pw. 5 was taken by the accused at night. Pws. 1 & 9 then went to the house of the accused. THE house was locked. THEy went to the Parur bus stand. No information was received from there and so they returned to their house by about 6 a. m. THEn information was received that Pw. 5 was in the accused's house. Pws. 1 &9 again went to the accused's house. Pw. 5 was in the house. She was requested to return to Pw. 1's house, but she refused to accede to the request of the father. Pw. 1 complained in the Parur Police Station, but the Sub-Inspector of police, Pw. 12, it is stated, did not take any action. By 7 a. m. , the accused and Pw. 5 hired a car and proceeded to Alwaye. Pw. 5 was enrolled as a member of the S. N. D. P. Yogam and after obtaining Ext. P. 15 Vivahapatrika they were married in the presence of Pw. 10 who was in charge of the Advaithasramam, at about 11. 15 a. m.

(3.) ACCORDING to the accused, he used to go for tapping the trees in the compound of Pw. 1. His case is that he did not take Pw. 5 on the night of 10-9-58 as alleged by the prosecution. He would have it that Pw. 5 voluntarily went to his house at 8 a. m. , on 11-9-58, that after some time Pws. 1 & 9 went there, that Pw. 1 asked her to return with him when Pw. 5 told Pw. 1 that she was pregnant and that the accused was going to marry a girl from his own community and if that was done her future would be blasted and so she would not go back to Pw 1's house. The accused and his parents advised Pw. 5 to go back with Pw. 1. Pw. 5 still refused and then Pw. 1 asked the accused to marry her according to the customs prevailing in his community. It is also stated that when Pw. 5 refused to go with Pw. 1, he went to the house of Dw. 1, Kumaran. Kumaran got velayudhan Vaidyan, who also advised Pw. 5. But she would not heed to the advice to go with Pw. 1, The accused stated that he married Pw. 6 as desired by Pw. 1. He examined 3 witnesses. Dw. 1 is Kumaran. He stated that at about 7-30 a. m. , on 11-9-58 , he learnt that pw. 5 was in the house of the accused. He sent Velayudhan Vaidyan to ascertain whether that fact was true. Dw. 2, Anthony Kochappu stated that he was giving tuition to Pws. 4 & 5 and he was going to the house of Pw. 1 and teaching them. ACCORDING to him, Pws. 4 & 5 were admitted in the D. D. S. School, that it was he who took the application form to Pw. 1 and that they together filled up the form. He says that Pw. 1 produced the horoscopes of Pws. 4 & 5 and that they decided that the correct age of the children need not be shown and their date of birth should be reduced by 2 years. Dw. 3 is a neighbour of pw. 1. She stated that at about 8 a. m. , on 26th Chingom 1134 corresponding to 11-9-58, she saw Pw. 5 going through the lane in front of her house.