GANESH PRASAD SAMAL Vs. THE STATE

JUDGEMENT

(1.) THE Petitioner Ganesh Prasad Samal stands convicted under Section 366, Indian Penal Code, for having kidnapped a girl Kanduri (P.W. 2) from out of the lawful guardianship of Dr. Satpathy (P.W. 1) with the intention of marrying her without her consent. The Petitioner has been sentenced to undergo R.I. for 3 years and to pay a fine of Rs. 200/ - in default to suffer another term of R.I. for 4 months.

(2.) THE occurrence is alleged to have taken place on 29 -11 -1951 at 5 p.m. under the following circumstances as alleged by the prosecution:

(3.) MR . Ray, appearing on behalf of the Petitioner, strongly urged that on finding of the lower appellate Court the case must be taken out of the mischief of the provisions of Section 366 I.P.C. He particularly relies upon the final finding of the lower appellate Court running to the effect. - "After scrutinising the evidence I am of clear mind that the girl being of tender age and probably passionate, yielded easily to the persuasion to marry the Appellant and willingly want in the rickshaw followed by the Appellant, to the P.S." In view of the position, therefore, that it is not a case of taking away the girl with the intention of marrying her without her consent, the accused cannot be convicted under Section 366, I.P.C. The contention of Mr. Ray has considerable force, and on examining the evidence on record we do not find any reason to differ from the finding of the lower appellate Court as indicated above. But that does not entitle the accused -Petitioner to an acquittal. He is liable to be convicted under Section 363, I.P.C. As we have mentioned above the girl is below 18 and that as she was kidnapped from out of the lawful guardianship of P.W. 1 Dr. Satpathy by the accused without the consent of P.W. 1, the offence under Section 363 is complete. Mr. Ray contends that to alter the conviction from one under Section 366, I.P.C. to one under Section 363, I.P.C. will be seriously prejudicial to the Petitioner. To our mind, there is absolutely no question of any prejudice to the accused in the present case. The case is fully covered by the provisions of Section 238, Code of Criminal Procedure, where if the prosecution has not been able to prove all the ingredients necessary for bringing home the charge in a major section but nevertheless proves the facts which come under the provisions of a minor section, the Court has got the power to convict him under the lesser section even though the accused was not a charged. Mr. Ray contends that in the present case Section 366 covers both the cases of kidnapping from out of the lawful guardianship and also from out of India, and therefore, his client has been prejudiced as he had no notice to meet the charge of kidnapping from out of the lawful guardianship. To me, it appears to be a suggestion having absolutely no force. It can never be suggested for a moment that the accused could have the apprehension that be was tried for having kidnapped the girl from out of India. The charge also was placed before us and it does make a (sic) mention of the fact that the accused had kidnapped the girl from out of the lawful guardianship of Dr. Satpathy.