M. Hidayatullah, J. - (1.) THE Appellant Raghunath Singh was tried with six others for offences under Sections 366/368 and 376 of the Indian Penal Code by the Additional Sessions Judge of Tikamgarh and was sentenced to rigorous imprisonment for ten years for the offence of rape and for five years for the other offence. The sentences were to run concurrently. On appeal to the High Court of Madhya Pradesh, his conviction and sentence for rape were set aside but his conviction under Section 366/368, Indian Penal Code and the sentence of five years, rigorous imprisonment passed on him were maintained. He now appeals by special leave of this Court.
(2.) ONE Mst. Parvati, daughter of Sukku was the prosecutrix in the case. Her age has been found by the High Court to be not below 16 years and not above 18 years. The prosecution case is as follows: On the night between the 3rd and 4th September, 1963, Mst. Parvati was returning at about midnight after answering a call of nature when Bharosa and Acchelal (co -accused of the present Appellant) accosted her and told her that Mst. Ladkunvar, the mistress of Appellant Raghunath Singh, had sent for her. Mst. Parvati at first did not wish to go but on being assured that she would be allowed to return within a short time, went with them. When she reached the house she met Raghunath Singh who was waiting for her and took her forcibly, at the point of a gun, to an upper storey in a portion of his house known as the Chakki Ghar. There she was made to take liquor against her will and thereafter was raped by Raghunath Singh. She was kept concealed in the house till the night intervening the 5th and 6th September, 1966 and then was taken to Palera by Bharosa and Acchelal. She then passed successively into the possession of the other accused in the case who in their turn, also detained her and raped her. As those persons have not appealed we are not concerned with what happened to Mst. Parvati after she left Raghunath Singh's house. At that place she was not allowed to go out of the house and even when she went out to answer the call of nature, Raghunath Singh used to mount guard so that she should not run away. The learned Additional Sessions Judge believed the story of Mst. Parvati, as summarized above. The High Court differed on the question of rape and held that Mat. Parvati had consented. As a result Raghunath Singh was acquitted of that offence. The High Court, however, upheld the conviction under Section 366 /368 holding that Mst. Parvati had been concealed or confined by Raghunath Singh knowing that she had been kidnapped or abducted. In this appeal Mr. Sanghi contends that there is no evidence to establish that Mst. Parvati was either kidnapped or abducted and further that it is not established that Raghunath Singh concealed or confined her knowing that she had been kidnapped or abducted.
(3.) WE are not concerned with whether there is evidence to show that Mst. Parvati was kidnapped or abducted because we are satisfied that there is nothing to establish that Raghunath Singh knew that she had been kidnapped or abducted. The High Court did not believe the evidence of Mst. Parvati that she had informed Raghunath that she was brought on the pretext of meeting Ladkunvar and it is, therefore, difficult now to hold that Raghunath Singh knew that she was taken away from lawful guardianship or abducted. "Abduction" is defined by Section 362 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. "Kidnapping" is defined by Section 361 as taking away or enticing any minor under sixteen years of age if a male, or under 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. It may be mentioned here that in S. Varadarajan v. The State of Madras : AIR 1965 SC 942, this Court laid down that if a minor goes out of the guardianship and fairly gets away, it may be a moral crime not to restore the minor to lawful guardianship but is not an offence if the person taking advantage of the position retain the minor in his custody. These definitions and propositions must be borne in mind before deciding about the guilt of the Appellant under Section 368 of the Indian Penal Code. Section 368 speaks of "knowledge" when it says, "Whoever knowing that any person has been kidnapped or has been abducted, wrongfully conceals or confines such person..." The Indian Penal Code uses two different expressions in its different parts. Sometimes the gist of the offence is dependant on knowledge and the words "knowing" or "knowingly" are used to indicate that knowledge as such must be proved either by positive evidence or circumstantially before mens rea can be established. Sometimes (see for example Sections 212, 411, etc), the expression "has reason to believe" is used. The words "knowing" or "knowingly" are obviously more forceful than the words "has reason to believe" because they insist on a greater degree of certitude in the mind of the person who is said to know or to do the act knowingly. It is not enough if the evidence establishes that the person has reason to suspect or even to believe that a particular state of affairs existed. When these words are used, something more than suspicion or reason for belief is required. Before an offence under Section 368 could be brought home it must be established that accused knew that the person had been kidnapped or abducted.;