Bench:

Dua, I.D.

Issue:

The main issue for this situation was that whether the appealing party argues innocence against the charge of kidnapping since there was no quick taking by him respondent left her legal guardianship voluntarily.

Facts:

• The appellant, an industrialist, had a factory at Bunder Road for manufacturing oil engines. During the bombardment of Jamnagar by Pakistan in 1965, Mohini’s parents came to reside temporarily at Bhrol near Jamnagar. The appellant came to be introduced to that family and on December 18, 1965, which was Mohini’s birthday, the appellant presented her with a parker pen. It may be pointed out that Mohini was at that time a school-going girl below 15 years of age.
• The trial court held that in the present case, the inducement given by the appellant operated on Mohini’s mind to stay in his house and do as he told her to do. The appellant was accordingly held guilty under Sections 366 and 376, I.P.C. On appeal by the appellant, the High Court observed: Having come in contact with the family of Mohini in about November 1965, the appellant cultivated a relationship with them to such an extent that he took Mohini and her parents out on trips in his car, spending lavishly by staying in hotels in Ahmedabad, Bombay, Mahabaleshwar, and Mount Abu. He also presented Mohini with a parker pen on December 18, 1965. Within a few days thereafter he purchased by way of gift to Mohini skirt, silver / waist-band which as per unchallenged testimony of Mohini was worth about Rs 12. He was found by the side of Mohini in Mohini’s bed by Mohini’s mother at Mount Abu, his connection with Mohini was suspected and despite that as the letters of Mohini show he was in correspondence with her without the knowledge of her parents. Mohini was a school-girl of immature understanding having entered her 16th year less than a month before the incident. Out of emotion, she wrote letters to the appellant exaggerating incidents of rebuking by her mother and beating. She however was quite normal from January 1967.
• The appellant having come to know about the frame of her mind disclosed from the letters of November and December 1965, took the chance to take away this girl from her parents. With that view, he told Mohini about 4 days before 16th January 1967 to come to his house and added that he will keep her with him permanently. This possibly caught the imagination of the girl and the result was that on 16th January, she left her father’s house with bare clothes on her body and with school books and went straight to the appellant.
• The appellant to see that her view to his factory during day time may not arouse suspicion of other invented the story of giving Rs 250 to Mohini and also got written 3 letters by Mohini addressed to himself, the District Superintendent of Police, Jamnagar, and Mohini’s father. He kept her in the garage of his bungalow for 2 days, tried to secret her from the police and her parents, and had already made attempt on the 16th to put the police and parents of Mohini on wrong track. There is no scope for an inference other than the inference that Mohini was kidnapped from lawful guardianship, intending to seduce her to illicit intercourse. The intention contemplated by Section 366 of the Indian Penal Code is amply borne out by these circumstances.

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Appellant's Contentions:

l  The appellant’s main argument was that it was Mohini who, feeling unhappy and perhaps harassed in her parents’ house, left it on her own accord and came to the appellant’s house for help which he gave out of compassion and sympathy for the helpless girl in distress. Mohini’s parents were, according to the counsel, unreasonably harsh on her on account of some erroneous or imaginary suspicion which they happen to entertain about the appellant’s attitude towards their daughter or the relationship between the two, and that it was primarily her parents’ insulting and stern behavior towards her which induced her to leave her parental home. If he had at an earlier stage solicited or induced her in any manner to leave her father’s protection, by conveying or indicating or encouraging suggestion that he would give hershelter, then the mere circumstance 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.

Judgment:

On considering all the matters in detail the court took into consideration the circumstances in which the appellant and Mohini came close to each other and how he started to have given her presents and tried to be intimate with her. These circumstances, among others, show that the main substratum of the story as revealed by Mohini in her evidence is probable and trustworthy and it admits of no reasonable doubt as to its truthfulness. Therefore, no hesitation in holding that the conclusions of the two courts below concerning the offence under Section 366, I.P.C. is unexceptionable. The evidence of the constant behaviour of the appellant towards Mohini for several months preceding the incident on the 16th and 17 January 1967, completely brings the case within the passage at p. 248 of the decision cited. The court had ample material showing earlier allurements and even of the appellant’s participation in the formation of Mohini’s intention and resolve to leave her father’s house. The appellant’s conviction was therefore upheld.

Relevant Paragraphs:

The expression used in Section 361, I.P.C. is “whoever takes or entices any minor”. The word “takes” does not necessarily connote taking by force and it is not conned only to use of force, actual or constructive. This word merely means, “to cause to go”, “to escort” or “to get into possession”. No doubt it does mean physical taking, but not necessarily by use of force or fraud. The word “entice”seemsto involve the idea of inducement or allurement by giving rise to hope or desire in the other. This can take many forms;some of them may be quite subtle, depending on theirsuccess on the mentalstate of the person at the time when the inducement isintended to operate. This may work immediately or it may create continuous and gradual but imperceptible impression culminating aftersome time, in achieving its ultimate purposes ofsuccessful inducement. The two words “take” and “entices”, as used in Section 361, I.P.C. is in our opinion, intended to be read together so that each takes to some extent it's color and content from the other. The statutory language suggests that if the minor leaves her parental home completely uninfluenced by any promise, offer, or inducement emanating from the guilty party, then the latter cannot be considered to have committed the offense as defined in Section 361, I.P.C. But if the guilty party haslaid a foundation by inducement, allurement or threat, etc. and if this can be considered to have influenced the minor or weighed with her in leaving her guardian’s custody or keeping and going to the guilty party, then prima facie it would be difficult for him to plead innocence on the ground that the minor had voluntarily come to him.

The letters were written by her to the appellant mainly in November 1966 and in December 1966 and also the letter was written by Mohini’s mother to the appellant in September 1966 furnish very important and essential background in which the culminating incident of January 16 and 17, 1967 has to be examined. The suspicion entertained by Mohini’s mother is also in our opinion, relevant in considering the truth of the story as narrated by the prosecutrix. This letter indicates how the mother of the girl belonging to a comparatively poorer family felt when confronted with a rich man’s dishonorablebehavior towards her young, impressionable/immature daughter; a man who also suggested to render financial help to her husband in time of need.