FATHIMA BEEVI Vs. STATE

JUDGEMENT

(1.) The appellant who was tried before the Sessions Judge of Quilon for offences under S.366A and 376 read with S.114, Indian Penal Code, was convicted under S.363, Indian Penal Code, and sentenced to undergo rigorous imprisonment for one year. She has preferred this appeal from jail.

(2.) The case for the prosecution may be briefly stated: Pw. 1, a minor girl aged 14 studying in the Kilikolloor Koikal Middle School, was proceeding from her fathers house to that of her uncle at Karikode on 5th July 1958 at about 4-30 P. M. At that time she used to stay with her uncle for the prosecution of her studies. On the way she met the first accused, a woman aged 20, who had a child aged about 3 years with her. The first accused asked her where she was going. When she replied that she was going to Karikode, the first accused said that they could proceed together as she was also going there. They went together to Kilikolloor Railway Station which was beyond Pw. 1s uncles house. The first accused is alleged to have smeared some powder on Pw. 1s face when they were in the premises of the railway station. They left the station and walked to Kundara where they arrived at about 9-30 P. M. The first accused collected some money from some people for bus fare and then they took the bus to Kottarakara, and spent the night at the State Transport Bus Stand. The next morning they met the third accused at a place near the bus stand and he is stated to have taken them to the house of a dhobi (Pw. 6). The third accused provided them with breakfast and lunch, and in the evening he sent them to a cinema theatre. When they left the theatre at about 10-30 P. M., the third accused is stated to have taken them to a rocky hillock nearby, where four others were waiting. From there they all proceeded to the house of the second accused. The only other inmate of that house was an old woman. Pw. 1 and the child who was with the first accused were given one room in the house to sleep and the first accused occupied the adjacent room. It is alleged that Pw. 1 who was sleeping suddenly woke up when she saw a man committing rape on her. She cried out and the old woman came inside the room with a light. The person who was committing rape then escaped. However, Pw. 1 identified him as the second accused when the light was brought in. Some neighbours had gathered there by that time and they took Pw. 1 and the first accused to a neighbouring tea-shop; The next morning Pw. 1, the first accused and the child went to the railway station at Kottarakara and they were walking along the railway lines to the west when they met Pw. 19, a railway gangman. Pw. 1 complained to him that she was being taken from place to place by the first accused and that she was finding it difficult to walk. On his advice Pw. 1 proceeded to the police station at Kottarakara and gave a statement (Ext. P1). When the first accused saw that Pw. 1 was proceeding to the police station she left the place with the child. The Head-constable (Pw. 24) who was present at the station took Pw. 1s statement (Ext. P1) and he got Pw. 1 examined with the aid of a woman. Ext. P2 is the mahazar regarding the bodily condition of Pw. 1 at that time. He registered a case and sent Pw. 1 for medical examination. He forwarded to the Magistrate the first information report (Ext. P10) stating the names of accused 1 and 3 only and mentioning that four other unidentified persons were also associated with them in the commission of the offence. After further investigation another report (Ex. P1 3) was sent implicating the second accused also. Finally a case was charged against accused 1 to 3. The Additional Sub-Magistrate, Kottarakara, who conducted the preliminary enquiry committed the accused to the court of sessions where charges were framed against the first accused under S.366A and 376 read with S.114, Indian Penal Code. The second accused was charged with the offence of rape (S. 376) and the third accused with an offence under S.376 read with S.114. The learned Sessions Judge found that rape was not proved and he acquitted accused 2 and 3. In view of the finding that rape was not proved it was held that the first accused was not guilty under S.366A. However, the learned Sessions Judge convicted the first accused under S.363 and sentenced her as stated above. The appellant was represented by counsel engaged by the State.

(3.) The prosecution case is that while Pw. 1 was proceeding to Karikode she met the first accused on the way and that thereafter they proceeded together to Kilikolloor and then to Kottarakara. There is no evidence that the first accused induced Pw. 1 to go with her to Kilikolloor or Kottarakara. No doubt, Pw. 1 stated that the 1st accused smeared some powder on her face while they were at Kilikolloor. It appears from the judgment of the court below that the suggestion was that this was a powder having some mysterious power of enticing people. This part of the case does not appear to have impressed even the learned Judge. In Chathu v. Govindankutty ( 1957 KLT 613 ) reference has been made to Maynes commentary on the Indian Penal Code where it is stated that if a girl leaves her home without any persuasion or inducement held out by the prisoner so that she got fairly away from home and then goes to him, his not restoring her to her home is no infringement of the law. The case law on the point had been elaborately discussed in that case, and it was held that to sustain a conviction the prosecution had to prove that the accused had some active part in the minor leaving her guardians house. The offence under S.363 is not a continuing one, and it really consists in the initial act of taking her from the keeping of her lawful guardian. Such evidence is completely absent in this case. As pointed out earlier there was no charge that the first accused took Pw. 1 from the keeping of her lawful guardian. The conviction under S.363 must therefore be set aside.