BHAI GURDAS COLLEGE OF LAW ( MEMORIAL FOR THE APPELLANT)

IN THE HON'BLE PUNJAB & HARYANA HIGH COURT

IN THE MATTER OF

RAFEEQ APPELLANT

VERSUS
STATE RESPONDENT

MEMORIAL FOR THE APPELLANT

SUBMITTED TO SUBMITTED BY
Ms. JASHANPREET KAUR PARTAP SINGH
Moot Court Incharge Roll No : 19067
B.A.LL.B 9th Sem

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 BHAI GURDAS COLLEGE OF LAW ( MEMORIAL FOR THE APPELLANT)

TABLE OF CONTENT

1. List of abbreviation 3

2. Index of Authorities 4

3. Statement of jurisdiction 5

4. Proposition 6,7

5. Statement of facts 8,9

6. Statement of law 10,11,12,13

7. Issue raised 14

8. Arguments in Advance 15,16,17

9. Prayer 18

10. Power of Attorney

11. Authorities 19 TO 37

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LIST OF ABBREVATION

1. HC High court

2. S.C Supreme court

3. A.I.R All india reports

4. P&H Punjab and Haryana

5. Hon’ble Honourable

6. Vs. Versus

7. Ors. Others

8. Vol Volume

9. SCC Supreme court cases

10. Sec Section

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INDEX OF AUTHORITIES
CASES REFERRED

 Calcutta High Court

 Debaprosad Bose vs The King on 21 December, 1948

 Equivalent citations: AIR 1950 Cal 406, 54 CWN 329

 Author: R Mookerjee

 Bench: R Mookerjee, Dasgupta

 Allahabad High Court

 Mst. Asma And Ors. vs The State on 10 March, 1965

 Equivalent citations: AIR 1967 All 158, 1967 CriLJ 311

 Author: M Beg

 Bench: M Beg

STATUTE REFFERRED

 THE CODE OF CRIMINAL PROCEDURE, 1973

 THE INDIAN PENAL CODE ,1860 (IPC)

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STATEMENT OF JURISDICTION

The High Court has a very wide appellate jurisdiction over all Courts and

Tribunals in India in as much as it may, in its discretion, grant special leave to

appeal of the Constitution from any judgment, decree, determination, sentence or

order in any cause or matter passed or made by any Court.

374. Appeals from convictions.

(1) Any person convicted on a trial held by a High Court in its extraordinary original criminal

jurisdiction may appeal to the Supreme Court.

(2) Any person convicted on a trial held by a Sessions Judge or an Additional Sessions Judge

or on a trial held by any other Court in which a sentence of imprisonment for more than

seven years 2 has been passed against him or against any other person convicted at the

same trial], may appeal to the High Court.

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PROPOSITION

They are neighbours. They developed a relationship of love and affection and

wanted to marry each other. They only impediment to this is was Swaina’s

father who was against inter-religious relationship and marriage. They use to

meet clandestinely and rafeeq used to assure swaina of a married life in the city

once he got a job there, He also promised to convince her father, Mahesh for

their marriage. He one day tried to persuade her father but Mahesh did not

accede to the persuasion. Rafeeq got a job in Mohali and disappointed by the

refusal. He shifts to Mohali for the same. Two months later, he receives a call

from swaina wherein she asks him to meet her at the outskirts of malerkotla.

They meet and she shares her fear that her parents may force her to marry

someone else . They then proceed to a nearby bus stand and leave for Mohali.

While boarding Mahinder, Mahesh’s friend, sees them. Based on the

information gives by mahinder .

Mahesh filed a complaint against rafeeq. Two days later, Rafeeq and Swaina

are caught living together in a small room . the police arrested Rafeeq and

booked him under sec. 361 and 366 of the indian panel code ,1860. Further

they obtained the birth certificate of Swaina from the municipal corporation

which indicated that she was seventeen years old. The trail court convicted the

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appellant of the charges aggrieved by the same the appellant has preferred this

appeal .

Issue to be discussed

1. Whether the conviction under sec. 361 and 366 by the session court

should be set aside ?

2. Whether the ingredients of section 361 are met with two constitute the

offence under this section by the appellant ?

3. Whether the ingredients of section 366 are met with two constitute the

offence under this section by the appellant?

Argue on behalf of appellant / Resplondent

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STATEMENT OF FACTS
For the sake of brevity and convenience of this HON'BLE court the facts of the
present case are summarized as follows:

1. Rafeeq is a Muslim, 22 years old commerce Graduate from G.C.M

Malerkotla. Swaina. Is a Hindu, pursuing her junior college studies.

2. They are neighbours. They developed a relationship of love and affection

and wanted to marry each other. They only impediment to this is was

Swaina’s father who was against inter-religious relationship and

marriage.

3. They use to meet clandestinely and rafeeq used to assure swaina of a

married life in the city once he got a job there, He also promised to

convince her father, Mahesh for their marriage.

4. He one day tried to persuade her father but Mahesh did not accede to

the persuasion. Rafeeq got a job in Mohali and disappointed by the

refusal. He shifts to Mohali for the same. Two months later, he receives a

call from swaina wherein she asks him to meet her at the outskirts of

malerkotla.

5. They meet and she shares her fear that her parents may force her to

marry someone else . They then proceed to a nearby bus stand and

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leave for Mohali. While boarding Mahinder, Mahesh’s friend, sees them.

Based on the information gives by mahinder .

6. Mahesh filed a complaint against rafeeq. Two days later, Rafeeq and

Swaina are caught living together in a small room .

7. the police arrested Rafeeq and booked him under sec. 361 and 366 of

the indian panel code ,1860. Further they obtained the birth certificate of

Swaina from the municipal corporation which indicated that she was

seventeen years old. The trail court convicted the appellant of the

charges aggrieved by the same the appellant has preferred this appeal .

Argue on behalf of Appellant/ Respondent.

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STATEMENT OF LAW

Section 361 in The Indian Penal Code

361. Kidnapping from lawful guardianship.—Whoever takes or entices any

minor under 1[sixteen] years of age if a male, or under 2[eighteen] years of age

if a female, or any person of unsound mind, out of the keeping of the lawful

guardian of such minor or person of unsound mind, without the consent of

such guardian, is said to kidnap such minor or person from lawful guardianship.

Explanation.—The words “lawful guardian” in this section include any person

lawfully entrusted with the care or custody of such minor or other person.

(Exception) —This section does not extend to the act of any person who in

good faith believes himself to be the father of an illegitimate child, or who in

good faith believes himself to be entitled to lawful custody of such child, unless

such act is committed for an immoral or unlawful purpose. STATE

AMENDMENT

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(Manipur) —In section 361 for the words ‘eighteen’ substitute the word

‘fifteen’. [Vide Manipur Act 30 of 1950, sec. 3 (w.e.f. 16-4-1950), read with Act

81 of 1971, sec. 3 (w.e.f. 25-1-1972)]. COMMENTS Inducement not immediate

cause The accused was charged for kidnapping a minor girl, below 15 years of

age from the lawful guardianship of her father. It was established that the

accused had an earlier stage solicited or induced minor girl to leave her

father’s protection by conveying or indicating an encouraging suggestion, that

he would give her shelter. Holding the accused liable for kidnapping under

section 363, the Supreme Court said that the mere circumstances that his act

was not the immediate cause of her leaving her parental home or guardian’s

custody would constitute no valid defence and would not absolve him from the

offence of kidnapping. The question truly falls for determination on the facts

and circumstances of each case; Thakorilal D Vadgama v. State of Gujarat, AIR

1973 SC 2314: (1973) 2 SCC 413. Lawful guardian Where facts indicate that a

girl left her father’s protection, knowing and having capacity to know the full

import of what she was doing and voluntarily joined the accused, the offence

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of kidnapping cannot be said to have been made out; S. Varadrajan v. State of

Madras, AIR 1965 SC 942. Use of word ‘keeping’: Meaning of The use of the

word “keeping” in the context connotes the idea of charge, protection,

maintenance and control; further the guardian’s charge and control appears to

be compatible with the independence of action and movement in the minor,

the guardian’s protection and control of the minor being available, whenever

necessity arises. On plain reading of this section the consent of the minor who

is taken or enticed is wholly immaterial: it is only the guardian’s consent which

takes the case out of its purview. Nor is it necessary that the taking or enticing

must be shown to have been by means of force or fraud. Persuasion by the

accused person which creates willingness on the part of the minor to be taken

out of the keeping of the lawful guardian would be sufficient to attract the

section; Prakash v. State of Haryana, AIR 2004 SC 227.

Section 366 in The Indian Penal Code

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366. Kidnapping, abducting or inducing woman to compel her marriage, etc.—

Whoever kidnaps or abducts any woman with intent that she may be compelled,

or knowing it to be likely that she will be compelled, to marry any person

against her will, or in order that she may be forced or seduced to illicit

intercourse, or knowing it to be likely that she will be forced or seduced to illicit

intercourse, shall be punished with imprisonment of either description for a term

which may extend to ten years, and shall also be liable to fine; 1[and whoever,

by means of criminal intimidation as defined in this Code or of abuse of

authority or any other method of compulsion, induces any woman to go from

any place with intent that she may be, or knowing that it is likely that she will

be, forced or seduced to illicit intercourse with another person shall be

punishable as aforesaid].

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ISSUE RAISED

1. Whether the conviction under sec. 361 and 366 by the session court

should be set aside ?

2. Whether the ingredients of section 361 are met with two constitute

the offence under this section by the appellant ?

3. Whether the ingredients of section 366 are met with two constitute

the offence under this section by the appellant?

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ARGUMENT IN ADVANCE

Whether the conviction under sec. 361 and 366 by the session court should be

set aside ?

The answer to the above question is an impregnable positive.

Whether the ingredients of section 361 are met with two constitute the

offence under this section by the appellant?

„Taking‟ or „enticing‟ a minor „out of the keeping of the lawful guardian‟

constitute the ingredients of this section. However, it is most humbly

submitted that, these ingredients have not been met with as the appellant

has not induced the minor to leave the keeping of her lawful guardian. She

has done so out of her own accord. Furthermore, merely accompanying a

minor does not amount to kidnapping. Also, the ambit of the words „keeping

of the lawful guardian‟ is to be construed in such a way wherein the control

of the guardian over the minor must be compatible with the independence of

the same. Therefore, the appellant is not liable for the offence under Section

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361 of the Indian Penal Code, 1860.

Whether the ingredients of Sec.366 are met with to constitute the offence

under this section by the appellant?

The existence of intent in the mind of the accused to force or compel the

woman to indulge in the activities mentioned in the section is of the utmost

importance to constitute an offence under the same. In the matter at hand,

this intent in the mind of the appellant is absent from the very outset.

Furthermore, as stated above, the accused has not committed the offence of

kidnapping, which is another essential ingredient that has not been met with.

Therefore, the appellant is not liable for the offence under Section 366 of the

Indian Penal Code, 1860.

Where a minor girl alleged to have been taken by the accused person, left her

father‟s protection knowing and having capacity to know the full import of

what she was doing voluntarily joins the accused person; in such a case the

accused cannot be said to have taken her away from the keeping of her lawful

guardian. Something more has to be shown in a case of this kind and that is

some kind of inducement held out by the accused person or an active

participation by him in the formation of the intention of the minor to leave

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the house of the guardian.

The Supreme Court in S.Varadrajan v. State of Madras10 had come to the

positive conclusion that the minor had gone out of the keeping of her

guardian voluntarily and the appellant had no role whatsoever in such minor

walking out of the keeping of the guardian, similar of which is the case herein.

A person who allows such a minor, who is already out of the keeping of her

guardian, to accompany him commits no offence under Section 361.

In Debprosad v. King12 it was held that after the minor left the custody of the

guardian and joined the accused, it was not clear whether the allurement to

run first came from the side of the accused or the minor. In such a case, it is

submitted that there is no kidnapping, for taking and allowing a minor to

accompany are not the same thing. This principle was further reiterated and

upheld by the Apex Court in S.Varadrajan v. State of Madras13. In the matter

at hand, it is absolutely unclear as to, from whom the allurement first came,

hence, this ambiguity does not prove the guilt of the appellant beyond

reasonable doubt.

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PRAYER

Therefore, in light of the issued raised, argument advance and

authorities cited. The counsel for the prosecution most humbly

prays that the Hon’ble Court be pleased to adjudge, hold and

declare:-

It is , therefore, respectfully prayed that the accused may kindly be

acquittal under section 363 and 366 IPC or pass any other order that

the court may deem fit in the light of equity, justice and good

conscience may kindly be passed in against accused.

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Allahabad High Court

Mst. Asma And Ors. vs The State on 10 March, 1965

Equivalent citations: AIR 1967 All 158, 1967 CriLJ 311

Author: M Beg

Bench: M Beg

JUDGMENT M.H. Beg, J.

1. The appellants have been convicted under Sections 363 and 366 I. P. C. by a

Civil and Sessions Judge of Kanpur and sentenced to 3 years' R. I. and 4 years'

R. I. It is alleged that a girl named Shubratan, under 18 years in age, had been

kidnapped by the appellants from the lawful guardianship of her lather

Maqdoom. The father died before the trial but his statement before the

Committing Magistrate was admitted at the trial under Section 33 of the Indian

Evidence Act.

2. The girl had given out her age. In the witness box, as 20 years on 6-8-1963,

but her statement has been rightly disbelieved by the learned Sessions' Judge in

view of the opinions of Dr. G. C. Agarwal and lady Dr. C. Mitra, given after

examination of X-ray plates of the joints of the girl's limbs, and the

unchallenged statement of the father in the committing Magistrate's court. At

the time of the alleged occurrence, round about 18th of June, 1962, the girl must

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have been between 14 and 15 years. The girl was living before her alleged

kidnapping, under the lawful guardianship of her father Maqdoom in Mohalla

Baqarganj in the city of Kanpur.

3. The prosecution case was that on 18-6-1962, when the father of the girl went

out to purchase some vegetables, the girl was fetched from the house of Smt.

Asma, appellant, the wife of Ramzani appellant, who also lives nearby in the

same Mohalla. The father did not find Km. Shubratan when he returned home

from the vegetable market, but, when he called out, the girl came out from the

nearby house of Ramzani and Sm. Asma. According to the prosecution case,

Sm. Asma, appellant, took the girl again to her house at about noon. And then

her husband Ramzani, according to the prosecution case, tried to persuade the

girl to marry the appellant Ayub.

4. As the father could not find the girl after a search all over, he lodged a F. I. R.

six days later, on 24-6-1962, at 7 A.M., at police station Babu Purwa. In this F.

I. R., Maqdoom, the father, expressed his belief that Ramzani and Ayub, who

had their shops near the house of Maqdoom, must have enticed the girl as they

used to come frequently to his house. He also stated that he had, on the

suggestion of Ramzani appellant, gone to look for the girl at the houses of

relations but could not find her. He also stated that the girl had left on the

evening of 18th June, 1962 after telling her blind mother that she was going to

the market. no fact, apart from the friendship of the family with Ramzani and

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Ayub appellants and that th" girl had come out from the house of Ramzani on

the morning of 18th of June, 1962, on being called by the father, was given in

the F. I. R. to suggest that the girl had been kidnapped by the appellants. The

girl was alleged to have been found at 10-15 A.M., on 24-6-1962, shortly after

the lodging of the F. I. R., at the house of Ramzani as a result of the information

said to have been given by an informant. It was alleged that Km. Shubratan

herself opened the door of the house and the appellants Ramzani and Ayub were

also found inside the house.

5. The appellants denied that the girl was recovered from the house of Ramzani.

The appellants Ramzani and Ayub stated that the Station Officer had taken them

from their shops in the meat market and Sm. Asma denied any connection with

the whole affair. The appellant Ayub stated that Maqdoom, the father of the girl,

wanted to many her to an old man and mat the girl herself was not agreeable to

this and had come to his shop, of her own accord, and had asked him to marry

her after representing her age to be 19 years. He stated that he told the girl that

he would be willing to marry her if she would make a statement before a Court

and obtain the consent of her father. He alleged that the girl was beaten and

turned out of the house by the father himself when she told him what she

wanted. Ayub alleged that the father had brought the girl along with him from

her maternal grand-father's house and had got the appellants implicated after

winning over the police.

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6. Apart from the evidence of the recovery of the girl from a house in which the

appellants Ramzani and Ayub were said to have been present, the only evidence

in support of the prosecution case consisted of the statement of the girl and of

her deceased father. The father had no direct knowledge of what had taken place

and is said to have gathered it from the girl. So far as the statements of the girl

herself are concerned, it is clear from the judgment of the trial court that the

court did not believe her statement at the trial because she supported the version

of the accused, which was corroborated by an application (Ext. Kha-1) of the

girl, dated 10-5-1963, wherein the girl had stated that the Mohalla people had

taken her to Ayub and asked him to marry her. The state of feelings between the

father Maqdoom, a vegetable vendor, and the daughter, Shubratan, is evident

from the fact that the father refused to have the custody of the girl after she was

recovered by the police and wanted her to be kept at an orphanage. It is

apparent, after going through the facts revealed by the statements of the girl and

the attitude of the father towards her, that she did not herself care to live under

the guardianship of her father and had left the parental home of her own accord.

The reason why she left the parental home is not clear. It could very well be, as

the appellant Ayub suggested, that the father wanted the girl to marry somebody

against the wishes of the girl herself and that he had got annoyed with her when

she refused. It was even possible that he had turned her out. The delay in

lodging the F. I, R. Indicates his indifference towards her and his refusal to keep

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her under his roof and guardianship on her recovery reveals his displeasure with

her.

7. The learned Sessions Judge disbelieved the statement of the girl given at the

trial and preferred to rely upon the previous statement g iven by her in the

Committing Magistrate's Court. The girl explained that her previous statement

was due to the pressure of the police. The learned Sessions Judge held that the

story of police pressure was incredible and that her statement before the

Committing Magistrate was preferable to her statement at the trial. Nevertheless

the fact remains that the learned Sessions Judge found that the girl had made a

statement at the trial supporting the accused, and she had been declared hostile

by the prosecution. The learned Judge also believed that the girl had made an

application (Ext. Kha-1) on 11-5-1963, although he held that the application

seems to have been made under the influence of the accused.

8. The learned Judge also held that the consent of the girl was immaterial as she

was a minor. He relied upon: Bhagwati Prasad v. Emperor AIR 1929 All 709(2)

and Sultan v. Emperor, AIR 1930 All 19(2). In the course of arguments before

me, reliance was placed on behalf of the State particularly on Sultan's case, AIR

1930 All 19(2) (supra) in which a Division Bench of this Court laid down:

"It may be observed here that Section 366 I. P. C. Is an aggravated form of

Section 363 I. P. C. The consent of the girl does not exonerate the seducer. The

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underlying policy of the section is (1) to uphold the lawful authority of parents

or guardians over their minor wards; (2) to throw a ring of protection round the

girls themselves & (3) to penalise the sexual commerce on the part of persons

who corrupt or attempt to corrupt, the morals of minor girls by taking improper

advantage of their youth and inexperience."

9. Reliance was also placed, on behalf of the State, on Rashid v. State, AIR

1953 All 412 where it was held, by Harish Chandra, J., that even if a girl leaves

her guardian voluntarily this cannot amount to an "abandonment" of her

guardian by her.

10. On the other hand, reliance was placed on behalf of the accused on:

Emperor v Ram Chandra, AIR 1914 All 376(1) and on Ewaz Ali v Emperor,

AIR 1915 All 390. The facts of both these cases were distinguished by Harish

Chandra, J. In Rashid's case AIR 1953 All 412 (Supra) on the ground that those

were cases of "abandonment" of the guardian by the minor herself. Absence of

the girl's "animus revertendi" was held to constitute "abandonment" of her

guardian by her.

11. Another case cited before me was Nura v. Rex, AIR 1949 All 710 in which

it was held, relying on the two earlier cases of Ram Chandra, AIR 1914 All

376(1) (supra) and Ewaz Ali, AIR 1915 All 390 (supra), that a person who

treats a minor girl, who had voluntarily left the roof of her guardian, with

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kindness, does not thereby commit a criminal offence. This case was also

discussed by Harish Chandra, J. In Rashid's case, AIR 1953 All 412 (supra)

with an indication of dissent from the view taken there.

12. It appears to me that the acts and intentions of those charged with "taking"

the minor out of lawful guardianship matter more than the acts and intentions of

the minor. Even without "animus revertendi" (or intention of returning) the

minor may continue to be in the lawful guardianship of a parent. But, the fact

that the minor leaves the guardian of her own. accord and the fact that she seeks

the aid and shelter of others against unkindness of a guardian are relevant and

useful in judging the meaning of the actions of the accused in relation to the

minor. The actions and attitude of the guardian are also important facts to be

considered in determining whether the guardian himself had not, for the time

being, abandoned the minor or driven her out due to his unkindness.

13. On the facts of the case, before me, it is certainly doubtful whether the girl

had not actually "abandoned" the parental roof for the time being due to parental

neglect and unkindness and sought shelter from others who, out of good will

towards her, had given her advice and protection. no doubt, a person giving

advice or protection to a minor girl in such circumstances runs grave risks of

criminal prosecution. But, where the fads of a case raise a reasonable doubt

whether the girl had not actually left her parent and guardian (perhaps

'abandonment" is too strong a word) of her own accord and sought the

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protection of strangers against an unkind parent, who was trying to thrust an

unwanted husband upon her, the accused are entitled to get the benefit of doubt

on the question whether there was really any "taking" by them and not an

attempt just to help a runaway and abandoned minor. The line may be difficult

to draw sometimes, but it is there.

14. In the present case, the girl was certainly not taken away by any force or

fraud. It is apparent from the F. I. R. Itself that she left her father's house

voluntarily. It is also apparent from her declarations and subsequent conduct

that she wanted to marry the appellant Ayub, whose wife she is now said to be.

Sm. Asma was not even present when the girl was said to have opened the door

for the police officer who recovered her. It is rather unlikely that the two

appellants, Ramzani and Ayub, would have left their meat shops in the market

and gone to Ramzani's house at 10-15 A.M. unless the girl had called them there

to listen to her tale of sorrow and distress. It is not established satisfactorily at

all that the appellants made any attempt to take the girl out of lawful

guardianship. It is also not proved that the girl was actually kept by any of the

appellants at any place during the period for which she was missing and that she

had not gone to one of her several relations. In these circumstances, I hold that

the appellants are entitled to get the benefit of doubt.

15. In the result, I allow this appeal

and set aside the convictions and sentences of the

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appellants who are on bail. They need not surrender.

Their bail bonds are cancelled.

Calcutta High Court

Debaprosad Bose vs The King on 21 December, 1948

Equivalent citations: AIR 1950 Cal 406, 54 CWN 329

Author: R Mookerjee

Bench: R Mookerjee, Dasgupta

JUDGMENT R.P. Mookerjee, J.

1. This is an appeal by Debaprosad Bose who had been found by a majority of

jury guilty Under Section 366, Penal Code, and accepting the said majority

verdict, the Additional Sessions Judge, 24 Parganas, convicted him and

sentenced to two years rigorous imprisonment.

2. The prosecution case is that a certain family of Banerjees lived in the Park

Circus area and subsequently shifted to Hazra Road, to a house belonging to a

relation. The owner of the house occupied the second floor and the ground floor

was occupied partly by Banerjee and another portion of the same floor by the

accused Debaprosad Bose and his family. The two families occupying the

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ground floor were on friendly terms. It is alleged that taking advantage of the

friendly relationship, the Accused Debaprosad had enticed the youngest

daughter of Banerjee. It is stated that on 10th September 1947, the daughter had

left the house on the plea of going to school but instead of going there, went to

Deshapriya Park nearby in accordance with previous arrangements with the

accused. From there she was taken to the Lakes and then to Kalighat and some

form of marriage ceremony was alleged to have been gone through. Later on

she was taken by the accused to Jogbani in the district of Pa men to the house of

one Dr. Dhar, a brother-in-law of the accused. The accused and the girl were

arrested by the police at Jogbani on 14th September 1947 and were brought

down to Calcutta. After investigation Debaprosad was committed to the Court

of Session, charged with offence Under Section 366, Penal Code, The accused

pleaded not guilty but the defence as may be ascertained from the trend of the

cross-examination of the prosecution witnesses was that the girl was above 16

years at the time of the occurrence and that further she had not been enticed

away by the accused but she had voluntarily left her father's house and had

married him.

3. On behalf of the appellant it is argued that there are serious mis-directions in

the Judge's address to the Jury.

4. In the first place, the learned Judge while placing the evidence as to the age

of the girl stated "if the accused comes out with a positive version of his own it

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is for him to prove it. This does not necessarily mean that he himself lead the

defence witnesses. The accused may prove his case from cross-examination of

the prosecution witnesses or from the surrounding circumstances of the case and

the failure to prove the version of his case will not relieve the prosecution of the

burden of proving the guilt of the accused and the prosecution will have to

succeed on the strength of his own case."

The conclusion arrived at in the first sentence quoted above that the onus is on

the accused if he comes out with a positive version of his own is wholly

misconceived. Though towards the end of that paragraph reference is made to

the onus on the prosecution to prove the guilt, there was a clear misdirection as

in the beginning as the learned Judge had rested the onus on the accused. In any

view, this introduced a confusion which a lay Jury could not very well

appreciate.

5. While referring to the elements necessary for attracting the provisions

of Section 366, Penal Code, the learned Judge did not clearly indicate the effect

of the girl leaving her father's place with the intent not to return again and

thereafter meeting the accused at Dashapriya Park from where she was taken

away by the accused. It is urged that the Jury was not given any indication of

the legal position that to make out an offence Under Section 366, Penal Code,

kidnapping must be from lawful guardianship and if the girl had already left the

protection of her guardian it was for consideration whether the person taking her

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away subsequently from another place was sufficient to make out an offence of

kidnapping.

6. There are other items in the charge which also had been commented upon but

it is not necessary for our present purpose to enter into greater detail at this

stage as in our opinion, the first two points made, are sufficient for holding that

the Judge's charge to the Jury was bad for misdirection on material points which

had affected the proper trial in the Court of Session.

7. We have therefore to consider whether on an examination of the legal

position and the evidence in the case, the conviction can stand. Two points

require careful consideration: (1) whether the essential conditions to prove

kidnapping had been made out and (2) whether the prosecution has been able to

prove that the age of the girl was less than 16 years.

8. Under Section 361, Penal Code : "whoever takes or entices any minor . . .

under 16 years of age if a female .... out of the keeping of the lawful guardian of

such minor ... without the consent of such guardian it said to kidnap such minor

or person from lawful guardianship."

9. To attract the provisions of Section 361, there must be a positive act of the

person taking away the minor from and out of the keeping of the lawful

guardian. It is urged that if the girl voluntarily goes away with a man or if she

leaves the protection of her guardian and then is subsequently taken away by a

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person from another place that person does not commit an offence of

kidnapping the girl.

10. In order to support a conviction for kidnapping a girl from lawful

guardianship the ingredients to be satisfied are : (l) That the girl was under 16

years of age. (2) Such minor was in the keeping of a lawful guardian. (3) The

accused took or enticed such person out of such keeping and such taking was

done without the consent of the lawful guardian.

11. We shall consider later on the question whether the prosecution has been

able to prove that the girl was under 16 years of age. It is admitted that while the

girl was staying with her father she was in the keeping of a lawful guardian. The

question which we have to decide is whether on the evidence the accused had

taken or enticed the person out of such keeping and if so, whether the evidence

is clear that that was so done without the consent of the lawful guardian.

12. About the question whether the accused took the girl out of the keeping of a

lawful guardian may now be considered. The word 'taking' as used in this

section does not mean a continuing or continuous act. The 'taking' which

constitutes an offence is completed as soon as the girl is removed from the

keeping of the lawful guardian. (Nemai Chattoraj v. Queen-Empress, 27 Cal.

1041 at p. 1017 : (4 C. W. N. 645 F. B.), Rekha Rai v. King Emperor, 6 Pat. 471

: (A. I. R. (15) 1928 Pat. 159 : 28 Cr. L. J. 820) and Emperor v. Tika, 26 ALL.

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197: (l Cr. L. J. 561)). The mere fact that a minor leaves the protection of her

guardian does not put her out of the guardian's keeping. If, however, it is proved

that a minor had abandoned her guardian with no intention of returning back she

cannot, thereafter, be deemed to continue in the keeping of the guardian. What

will be deemed to be sufficient to constitute an abandonment of a guardian by a

minor girl depends on the facts of each particular case. It cannot be that

whenever a child, being taken to task by the guardian, leaves the guardian's

house with the mental reservation that he or she will not be returning back to be

under that guardian it must in the eye of law be taken to put an end to the

protection of the guardian at the sweet will of the minor. If it is shown that such

conduct is due to a mere petulant outburst in consequence either of a quarrel

with her relations or because of the guardian repremanding her for her conduct

that will be a relevant question to be considered for deciding whether her

conduct was sufficient to put an end to the ties of guardianship. Vallient v.

Eleazar, 30 C. W. N. 215 : (A. I. R. (13) 1926 Cal. 467 : 26 Cr. L. J. 977).

13. Even where there is some evidence that the girl, at the time when she left the

protection of her guardian, did not intend to come back to her father's place but

the evidence further discloses that but for something which the accused

consented to do and did ultimately do the minor would not have, in the natural

course of events, left the house of her father then there would be a sufficient

taking by the accused in the eye of law for attracting the provisions of Section

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363, Penal Code: Abdul Sathar v. Emperor, 54 M. L. J. 456 : (A. I. R. (15) 1928

Mad 585 : 29 Cr. L. J. 635).

14. We have now to apply the principles stated above as applicable to the facts

of the present case. The evidence as led shows that there was between the girl

and the accused am arrangement from before that she would leave her father's

house to meet the accused in the Park from where she would be taken away.

When under this arrangement she was leaving the protection of her father, even

if it be with the intention of not returning again, that will not be sufficient to put

an end to the ties of guardianship. The importance and significance of the

previous arrangement between the girl and the accused must not be overlooked.

We have to consider the surrounding circumstances under which the incident

took place and then come to a conclusion whether the girl would have left the

father's house had it not been for the previous arrangement with and the

readiness of the accused to take her away, though not from the doorsteps of the

father's house but from some distance. On the facts of this present case, we must

hold that the previous arrangement with and the promise by the accused made it

possible for the girl to leave her father's place. The expression of the intention

of not returning to her father's place was due to the "enticing" by the accused

and she must be held to have been taken away by the accused from the keeping

of a lawful guardian, and if it be found that she was below 16 on the date when

she was taken the accused would be guilty of the offence charged.

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15. With regard to the question whether the girl was under 16 on the date she

was taken away the evidence stands as follows: According to the mother of the

girl she was about 13 and is alleged to have attained puberty, the January

previous. This is supported by the father of the girl. The age mentioned in the

admission form Ex. 9 when she was admitted in the Lake School for girls makes

her at the time of the occurrence a little over 13 years. The mother cannot give

the dates of birth of any one of her other children and the statement that this

daughter had attained puberty only in January previous is falsified by the letter

Ex. A which shows that she had attained puberty much earlier and while the

family was living in Linton Street in the Park Circus area and before they had

removed to the place of occurrence. It is not possible to come to a definite

conclusion about her age on the evidence of the parents themselves as there pre

contradictions and there was a deliberate attempt by the parents to under-State

the age. The statement of the age in the admission form EX. 9 was filled up by

Ramola, a cousin of the girl, and that cousin was not a competent person to state

the age; the statement by the mother that she was present at the time of her

admission cannot be accepted as correct, as had she been present it would not

have been Ramola but the mother who would have been required to sign the

declaration form.

16. The father of the girl stated that a Post Office Savings Bank Account had

been opened in the name of this daughter and had that Pass Book been produced

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in Court it could have been ascertained as to what date had been given by the

father in the Post Office. Such a statement for opening an account in the Post

Office is required under the Post Office Rules to be made by the guardian

himself and that would have been a very important piece of evidence but that

has not been produced. The birth certificates of this girl or of the other children

were also either not available or not produced. The oral evidence as given by the

parents is not in our opinion sufficient to prove the age of the girl being less

than 16.

17. We are, therefore, left with the evidence of the Radiologist Dr. Brojeswar P.

W. 6 who took a number of skiagrams of the girl. His opinion is that the girl is

between 15 and 16 and below 16. This evidence does not support the case as

made by the parents that the age was near about 13. As found in the various

books of medical jurisprudence Hindu girls in Bengal generally attain puberty

between the ages of 12 and 14 and taking the attainment of puberty as and when

Ex. A was written her age at the relevant time will be between 15 and 17.

18. The ossification test for determining the age of a girl has been applied in

different parts of the world and various charts have been published by different

authorities giving the result of the examination of a large number of cases.

Ossification is a sign for determining age as is found in particular subjects when

the ossification is completed. It must, however, be stated that owing to variation

in climatic, dietetic, hereditary and other factors of the people of different places

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it is not possible to formulate & uniform standard for determination of age of

the union of epiphyses for the whole of the sub-continent of India. The result of

investigations in Europe, America and Australia would not be of much

assistance as in the case of Indians the union of epiphyses takes place 2 to 3

years in advance of the age-incidence in Europe and in the case of females it is

stated to be even earlier than in males.

19. Even in India we have different tables prepared by the authorities in

different provinces and even in Bengal there are at least 2 if not 3 different

tables giving different results. The ossification of particular bones which takes

place-before 14 will not be of material assistance in determining the age of a

girl who is nearer 16 and even in the case of the bones of which the appearance

and fusion take place near about 16 are not of much assistance as there is a

variation between tables given by Dr. Galetaun and Dr. Basu. Different results

are reported to have been obtained by the experts and we have not been told to

what extent the data used by them were responsible for the different results. The

tables appearing from pp. 30 to 33 in-Modi's Medical Jurisprudence and

Toxicology 9th Edn. indicate the risk of fixing age in the present case only on

the ossification result particularly when the age is found to be near about 16. It

becomes impossible to be dogmatic that the age will be a few months below 16

or few months above 16.

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20. In a criminal trial the accused must get the benefit of doubt and there can be

no conviction unless it can be clearly and unequivocally stated that the age of

the girl was below 16. In view of the expert evidence in this case and

particularly of the absence of any authoritative table applicable to Bengali girls

we must hold that the accused would have the benefit of doubt and be acquitted.

We may indicate in passing that the factum of any marriage ceremony having

been at all gone through, far less being legal or sufficient in law, has not been

proved.

21. We cannot leave this case without certain observations about the provisions

contained in Sections 361 to 363, Penal Code. It is up to this Provincial

Government to take up immediately the duty of carrying on investigation about

appearance and fusion of the epiphytes of Bengali boys and girls so that there

may be one authoritative table on which experts may depend and the Court may

rely upon such tables. The question whether an offence under these provisions

had been committed or not depends upon the determination of the age and

sufficient data should be made available to assist the Court to -administer

justice.

22. The result is that the appeal is allowed. The conviction and the sentence of

the appellant are set aside and he is acquitted of the charge made against him.

The appellant will be dig-charged from his bail bond.

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