VEERESH Vs. STATE OF M. P.

JUDGEMENT

(1.) THE appellant has been convicted under Section 366 of the Indian Penal Code and sentenced to R.I. for one year for having kidnapped a minor girl in order to compel her to marry him.

(2.) THE facts not in dispute are that appellant Veerash is a Harijan boy while prosecution Pratibha is a Kayasth girl and both were residing in the same locality of Raipur. The prosecution case is that on 8 -10 -78, the prosecutrix left her home at about 7 a.m. for going to school as there was some extra class. When she was passing by the side of the house of the appellant, she was called by Premsheela, younger sister of the appellant aged about 11 to 12 years to come to their house. There she was encouraged by other women that she would marry Veerash. For that purpose, she was taken to the Gunj Police Station and on refusal of the Station House Officer for performing the marriage, she was taken to an advocate, C. L. Sagar. Some documents were executed there. When the prosecutrix's brother Dinesh and brother -in -law Harihar Prasad visited the lawyer's office and requested the lawyer to send the prosecutrix back home as she was a minor girl, the lawyer declined saying that she is a major. Then the prosecutrix was taken to the Arya Samaj Temple for performing the marriage. At that time, her father Narayan Pratap and others reached there and took the prosecutrix to their house. A report of the incident was lodged on 24 -10 -78 i.e. 16 days after the incident. After completing the investigation, the appellant was charge sheeted for the offences under Sections 363 and 366 of the Indian Penal Code. In her cross -examination, the prosecutrix was confronted with the letters Ex. D -2 to D -27 written by her to the appellant and the appellant pleaded that since they were neighbours and known to each other for the last 6 -7 years, they fell in love and wanted to marry. But this was not liked by her parents, since he was a Harijan boy. She herself had left her home and ran away to the house of the appellant for performing the marriage. The learned Additional Sessions Judge relying on the evidence of prosecutrix Pratibha (P.W. 10) corroborated by her father Naryan Pratap (P.W. 5) and the fact that she was below 16 years found the case proved against the appellant. However, he has been convicted only under Section 366 of the Indian Penal Code because according to the trial Judge, this section includes minor offences under Section 363 also.

(3.) EX . P -4 is a copy of the Higher Secondary School Certificate showing the date of birth to be 26 -10 -62. Narayan Pratap (P. W. 5), father of the girl, stated that she was borne in village Pandariya, Tahsil and District Bilaspur but he could not say whether there an entry about her date of birth in the Panch record. He was informed by a letter that she was borne on 26 -10 -62. Relying on this evidence, the trial Judge found her age to be just below 16 years on the date of the incident. Of course, the best evidence should have been the entry from the birth register and the prosecution ought to have got the school certificate corroborated by carrying out the ossification test of the girl. But this was not done. Assuming that the girl was just below 16 years still I think, no offence has been committed. Admittedly, 8 -10 -78 was a Sunday and it is difficult to accept that Pratibha (P.W. 10) left for school at 7 in the morning, may be this was an excuse for going to the house of the appellant as they had earlier decided to marry on that day. Her father Narayan Pratap did not verify as to whether there was school on that day. The prosecutrix was taken from the house of the appellant first to the police station, then to the house of an advocate and finally Arya Samaj Temple from where she was taken away by her father. Dinesh Kumar (P.W. 8) is the brother and Harihar Prasad (P.W.9) is the brother -in -law of the prosecutrix. Both visited the office of the advocate after they learnt that she had been taken there and they asked her to come with them but she declined. Her conduct shows that she was a willing party. She was confronted with the love letters (Ex. D -2 to Ex. D -27) and she had to admit that these letters were written by her to the appellant, but gave a lame excuse that she write these letter at the instance of the appellant's brother continuously for the last one year. But she never disclosed this fact on complained to her parents about the appellant) brother getting such letters written by her. She admitted that in the police station, she told the Sub -Inspector that she is willing to marry the appellant. Her father Narayan Pratap admitted that they were neighbours and both the families were on visiting term. He invented a story that her daughter did not offer any resistance because some chemical was applied on her head. But this fact is missing from his report and the earlier case diary statement, nor this is a statement in support of the prosecutrix. The most surprising part is that no report was lodged for 16 days there is no explanation for this day in lodging the report (Ex. P. 1). The Supreme Court in S. Varadrajan v. State of Madras,1 has held that when a college going girl on verge of majority, telephoning accused and meeting him and going with him to Sub Registrar's office for registering marriage agreement, no threat or inducement on the part of the accused the girl's insistence on marrying him and there was no taking of the girl, no offence is committed. There is distinction between taking and allowing a minor to accompany a person. Something more has to be shown in a case of this kind and that is some kind of inducement or threat held out by the accused.