SHASHIKANT KANUBHAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This is the appeal filed by the three appellants who were the original accused in Sessions Case No. 55 of 1979. The accused were charged for having committed offences punishable under secs. 366 376 read with sec. 109 of Indian Penal Code. All the three accused were found guilty of the offence punishable under sec. 366 of the Indian Penal Code. Accused No. 2 was also found guilty under sec. 376 of the Indian Penal Code and accused No. 3 was found guilty of the offence punishable under sec. 376 read with sec. 109 of the Indian Penal Code. Each one of them was sentenced to undergo R. I. for a period of 18 months on either count.

(2.) The prosecution case was that the three accused who belong to the Soni Community belonging to Anand came in contact with the two minor girls namely Swatiben Bhailal Patel P. W. 2 (Exh. 15) and Malvikaben Natubhai Patel P.W.4. (Exh. 32). The birth date of Swatiben is stated to be 28/03/1965 and that of Malvikaben to be 12/11/1960 The accused are said to have induced the two minor girls to go with them away from Anand on the promise that accused No. 1 will marry Malvikaben and accused No. 2 will marry Swatiben. They were assured that they will be kept happy and will be well provided for. The girls apparently were lured by these promises of the accused who were themselves young persons. Accused Nos. 1 & 2 are said to be about 19 years or 20 years old and accused No. 3 is about 22 or 23 years old. Accused No. 3 who is the eldest is the uncle of accused Nos. 1 & 2 that is to say that accused No 1 was the brothers son and accused No. 2 was sisters son of accused No. 3. The accused are said to have been taking out the two girls occasionally to see the cinema show. By prior arrangement it was agreed between the accused and the girls that they will meet at Bus-stand on the morning of 11/04/1978 Accordingly the three accused accompanied by the two girls left Anand on the morning of 11/04/1978 and reached Chitodgadh in the evening. From there they proceeded to Jaipur and after staying for a few days there they came to Udaipur. At Udaipur the accused are said to have persuaded the two girls to go through the ceremony of garlanding each other which the girls were told to be in token of the marriage. Accused No. 1 was supposed to have married Malvikaben and accused No. 2 was said to have married Swatiben in presence of accused No. 3. The two girls were made to believe that this was a solemn ceremony and that they were now married couples. The girls were induced to consent to sexual intercourse under a wrong belief of having been married to the concerned accused. The prosecution story further proceeds that having run short of money the accused left Udaipur and proceeded to a place called Ichhapur near Surat. They came back to Surat and they were apprehended by the police in a Cinema house at Surat.

(3.) Mr. K. J. Shethna the learned Counsel for the appellants accused has submitted that the accused cannot be said to be guilty of kidnapping because according to him the two girls had voluntarily terminated the custody of their respective guardians by their own free volition and that the accused has neither induced nor intimidated them to come out of the custody. This submission of Mr. Shethna is not correct. The custody of the minor by the guardian is not dependent on the volition of the minor. It is not open to the minor to walk away and claim that the custody no longer continues. The relationship of guardian and minor is not based on contract. It is created by the law and it can come to an end by the provisions of law. Till the minor attains majority the relationship continues.