JUDGMENT Kundan Singh, J.
1. This appeal has been preferred against the judgment and Order dated 28-4-79, passed by Sri V. K. Jain, the then IVth Additional Sessions Judge, Jhansi, in ST. No. 308/77, whereby the appellant has been convicted under Section 366, I.P.C. and sentenced to undergo rigorous imprisonment for a period of four years.
2. The prosecution case, in brief, is that the informant, the father of Km. Munni, had gone to Jhansi on 19-5-73 to collect rent, when in the absence of his wife and other family members, appellant Baldeo came at his house at about 4 or 5 p.m., persuaded Km. Munni, aged about 13 or 14 years, and abducted her. At that time Km. Munni was wearing clothes, payels, nose-needle and Jhala. While leaving the house with a lota in hand on the pretext of going to answer the call of nature, she also took away Rs. 1,000/-from the box of the complainant. She was seen going in the way from the village in the company of the appellant by Deo Shanker Yadav, Harpal Yadav, Kappor and Chunnu.
7. P.W. 2 Smt. Munni stated that appellant was servant of Kapoor Chand and Kapoor Chand was living in the neighbourhood of the house of her father. The appellant used to visit the house of her father and used to persuade her to marry him for which she was not agreeable. On the fateful day, in the evening her father had gone to city and other members of the family including mother and brother had gone to harvest the crop in the field. The accused appellant came at the house and told that her father had called her and she should accompany him. They reached Jhansi Bus Stand and in the way, Kapoor Chand, Reva Shanker and Hardas met her. The appellant brought her from Bus Stand to Moth on a Bus. Thereafter she was taken to village Kumarhar where the son of appellant's maternal uncle was living and she stayed there all night long. On the next day she was taken from village Kumarhar to Moth and then to Samther on a Bus where she stayed in the house of some Mohammedan and was subjected to rape. Thereafter she was taken to Bus Stand Samther where her silver payals were sold off to meet the travelling expenses. Then she was taken from Samther to Railway Station Moth from where she was taken to Jhansi by a passenger train and thereafter she was taken to the house of the appellant's brother-in-law, namely Hira Lal saying that he was going to arrange money and other materials. She admitted that she was recovered from the Railway Quarter of Smt. Kamla and Hira Lal and the appellant had abducted her. She also admitted to have stated under Section 164, Cr. P.C. before a Magistrate that she had gone to answer the call of nature outside the village where she met with Baldeo appellant, who informed her that her father has met with an accident and he has called her. She admitted that she stayed at the Railway Station Moth through out the night and then proceeded to Jhansi by a morning passenger train. It was also admitted by her that she was recovered by the police from the Seepari Bazar at about 11.00 a.m. and the appellant was also arrested. She was handed over to her father.
8. P.W. 4 Ravi Shankar alias Reva Shanker and P.W. 6 Har Das testified the fact that they saw Km. Munni going in the company of the appellant outside the village towards city. P.W. 4 asked Km. Munni as to where she was going but she informed that they were going to the city. P.W. 5 Narayan Das, father of the victim Smt. Munni Devi, stated that on the day of occurrence the victim was aged about 13 or 14 years and he was her natural guardian. At the time of occurrence, the victim was unmarried. On the day of incident he had gone to collect rent and returned at about 4 or 5 p.m. He was informed by his wife that the victim was not traceable and that she had gone somewhere with a brass lota, wearing silver payals in the feet and had also taken away the cash of Rs. 1000/- from the box. The appellant used to visit her house. She was searched in the evening and when not found then a report was lodged at the Police Station in the next morning at 9.25 a.m., which was Ext. Ka-4. His daughter Munni was handed over to his custody on the third day by the police of police Station Kotwali. He also signed the Supurdgi Memo Ext. Ka-5. He had not stated in the statement under Section 161, Cr.P.C. that at the time of the occurrence, his wife and children were in the fields and he could not say how that was mentioned by the Investigating Officer.
9. P.W. 7 Indra Kishore Misra, Head Muharrir was examined to prove the F.I.R. lodged by Narayan Das at 9.25 a.m. at the Police Station. On the basis of the F.I.R., he prepared chick report Ext. Ka6 and made entry in the G.D. regarding the registration of the case in G.D. No. 13 (Ext. Ka-7). P.W. 8 Ram Charan was examined in order to prove the recovery of the victim from the Railway Quarter of Hira Lal and Smt. Kamla, at the pointing out of Baldeo appellant, regarding which Recovery Memo Ext. Ka-8 was prepared. P.W. 9 Sub-Inspector Kotwali Jhansi was examined to prove the arrest of other accused persons, namely Kunjee Lal, Gajadhar, Smt. Gomti, and the supplementary Charge-sheet filed against the accused Kunjee Lal, Gajadhar and Smt. Gomti and Babu Khan (deceased). P.W. 10 Constable Chhedi Lal was examined to prove that Km. Munni was taken by him to Sadar Hospital for her medical examination and that the medical examination reports were deposited at Police Station Kotwali. P.W. 11 Sri Shyam Narain Khare, the then executive Magistrate, was examined to prove the statement of Km. Munni recorded under Section 164, Cr.P.C. P.W. 12 Bankey Bihari Lal Jaiswal, Sub-Inspector, investigated the case. He recorded the statement of Ravi Shanker Yadav, arrested Baldeo appellant and interrogated him and at his pointing out, recovered Km. Munni from the Railway Quarter No. RB 1/772 B. He prepared Recovery Memo Ext. Ka-8. At that time Hira Lal and his wife Smt. Kamla were also present there. They too were taken into custody by him. The peticoat and Blouse of Km. Munni were also taken into custody and then she was sent for medical examination.
13. Sri V. S. Singh, learned counsel for the appellant argued that Km. Munni on the day of incident had abandoned the lawful guardianship of the parent of her own accord on the pretext of going to ease herself and accompanied the appellant, hence she was a consenting party and therefore, no offence whatsoever was committed by the appellant. The learned counsel for the appellant also vehemently contended that no case was made out under Section 366, I.P.C. against the appellant. He demonstrated that the prosecutrix was not a minor below the age of 18 years on the date of incident when she was taken away by the appellant, therefore, the appellant had not committed the offence of abduction by taking her out of the lawful guardianship of her father nor was she compelled for illicit intercourse against her will. He also argued that even if it is assumed for the sake of argument that she was about 17 years old at the time of incident, she was a lady of discretion and understanding and was at the verge of attaining majority and she had left her father's house with a lota in the presence of her family members on the pretext of going to ease herself and had taken away the cash of Rs. 1000/- from the box, therefore, it cannot legitimately be inferred that she was induced by the appellant before her taking away.
14. Sri N.P. Singh, learned State counsel argued that on earlier occasion also the appellant persuaded the girl to marry him but she did not agree. On the day of occurrence by deceitful means of informing the girl that her father has met with an accident and he had called her, the appellant persuaded the girl to accompany him and that was done to commit rape on her. He also stressed that according to the statement of Km. Munni she was subjected to rape and as she was below 18 years of age her consent to go with the appellant out of the keeping of her natural guardian was of no consequence and the kidnapping of the minor girl from the lawful guardianship of her father with the object of having inter-course with her was proved, hence the offence under Section 366, I.P.C. against the appellant was fully established.
15. I carefully examined the evidence on record and heard the learned counsel for the appellant and the State at length. For conviction and sentence under Section 366, I.P.C., the girl must be kidnapped or abducted with the intention to have illicit intercourse with her against her will either by the accused himself or by any other person. In this connection, I may refer to the definition of the words 'Abduction' and 'Kidnapping'.
'Abduction' has been defined in Section 362, I.P.C. as follows:--
Whoever by force compels, or by any deceitful means induces any person to go from any place, is said to abduct that person." Similarly, 'Kidnapping' of a minor from a lawful guardianship is defined in Section 361, I.P.C. as under:--
Whoever takes or entices any minor under 16 years of age if a male, or under 18 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.
16. So far as the taking away of the prosecutrix out of the keeping of the lawful guardian is concerned, the age of the girl has to be determined first. According to the prosecution version, she was aged about 13 or 14 years at the time of incident, but on the basis of the X-ray reports the Doctor has found her to be 16 or 17 years old because the Doctor found Epiphysis around elbow joints fused and around the lower ends of radius and ulna not fused. I may point out here that, according to Modi Medical Jurisprudence on Toxicology, distal end of ulna is fused at the age of 19 (18-19) years. If the lower end of radius and ulna were not found fused by the Doctor, it means that she was less than 19 years of age. The learned counsel for the appellant relied upon two Supreme Court decisions reported in AIR 1982 SC 1297 : (1982 Cri LJ 1777) and AIR 1989 SC 1329 and on the basis of those decisions he argued that one can take judicial notice of the fact that the margin of age as ascertained by Radiologist may be two years either side and in this manner, it cannot be said that the girl was minor at the time of incident and even if it is assumed so, She had attained the age of discretion and was on the verge of attaining majority as has been held in the case of Warad Rajan v. State of Madras reported in AIR 1965 SC page 942 : (1965 (2) Cri LJ 33).
17. So far as taking her out of the lawful guardianship is concerned, I have to examine the evidence on record as to whether she had been taken out by deceitful means from the lawful guardianship of her parents by the appellant or she of her own accord had a bandoned the shelter of her parents and voluntarily accompanied the appellant. In this connection, I may refer to the evidence on record. The prosecutrix Munni (P.W. 2) stated that in the absence of her father, mother and other family members at her house, the appellant came and informed her that her father had met with an accident and had called her and accordingly, she accompanied the appellant. She stated before Sri Shyam Narain Khare, Executive Magistrate, P.W. 11 in her statement under Section 164, Cr.P.C. that she had gone to ease herself outside the village where the appellant informed her that her father had suffered an accident and he had called her. P.W. 4 Ravi Shanker and P.W. 6 Hardas saw the girl going in the company of Baldeo from the village Nagaria Ke-Kuwan towards Jhansi City. P.W. 4 Ravi Shanker alias Reva Shanker asked the girl as to where was she going, whereupon she told that they were going to Jhansi City. P.W. 5 Narayan Das, father of the victim stated that he was informed by his wife that Munni had gone with a Brass Lota, Silver Payals and a cash of Rs. 1000/-. He denied to have given any statement before the Investigating Officer under Section 161, Cr.P.C. that his wife and other children were in the fields at the time of occurrence and he could not give out any reason why the Investigating Officer had recorded that statement. In the F.I.R., the informant alleged that his daughter had left his house with a lota saying that she was going to answer the call of nature but she was abducted by the appellant on a persuation and that she had taken away a cash of Rs. 1000/- from a box and at the time of going from the house she was wearing clothes, a gold nose-needle and jhala.
18. From the evidence mentioned above, it can only be deduced that the girl had left the house of her father voluntarily to join the company of the appellant. So far as exercise of deceitful means by the appellant is concerned, I am not ready to believe that she was informed either at the house of the informant or outside the village when she had gone to answer the call of nature that her father had suffered an accident and he had called her. She had gone from the village to Bus Stand and thereafter to Moth and several other places by bus or train but she did not complain to any body that the appellant by deceitful means that her father had met with an accident and he had called her, abduct the girl from her house. In the absence of any allegation about the complaint, it would be legitimate to infer that she had wilfully left the house of her father and voluntarily joined the company of the appellant and permitted him to take her from place to place. No doubt, the part played by the appellant could be regarded as facilitating the fulfilment of the desire of the girl but that cannot be regarded as active or overt act of the appellant for inducement or deceitful means. It was also argued by the learned counsel for the appellant that the girl was a consenting party. In this connection, I have referred the evidence above that she came out of the shelter of her father of her own accord and wilfully accompanied the appellant and permitted him to take her from place to place. She had not made any complaint to anyone even from the initial stage of leaving the village upto the place where she was recovered.
19. The order of the learned trial Judge acquitting the accused-appellant from the charge of rape under Section 376, I.P.C. is not happily worded but appears to be based on the probability that she was more than 16 years old and after sexual intercourse at Samther she did not raise any alarm on any of Bus Stands or the Railway Stations or while travelling, nor in the Railway Quarter from where she was recovered, hence from the conduct of the girl only inference which can be drawn is that she was subjected to sexual inter-course with her consent.
20. In view of the above discussion, I am constrained to hold that Km. Munni had attained the age of discretion and she was on the verge of reaching the age of majority, she had left the house of her father without any persuasion or blandishment or deceitful means and that she voluntarily joined the company of the accused-appellant and permitted him to take her away from one place to another and have even sexual intercourse with her consent. Thus the prosecution has miserably failed to bring home guilt against the appellant on the evidence on record and consequently he is entitled to his acquittal on the charge under Section 366, I.P.C. also.
21. Accordingly, the appeal succeeds and is allowed. The conviction and sentence awarded by the Court below under Section 366, I.P.C. are set aside. The appellant is on bail. He need not surrender. His bail bond is cancelled and sureties discharged.