Decided on March 15,1967



- (1.) The accused in C. C. 12/66 on the fib of the Sub Divisional Magistrate, Adoor, is the Revision Petitioner. He had married the daughter of the complainant. The complaint was that on 4-1-1966 the accused went to the house of the complainant at about 9-30 A, M. and took his sister inlaw aged 15 from the lawful guardianship of the complainant without her consent and while she was away from the house. The complaint was filed on 13 1 1966 and it was alleged that the accused had committed offences under S.363 and 342 I. P. C The accused contended that he had not taken or enticed the girl from the lawful guardianship of the complainant, and that she voluntarily left the house of the complainant and came to his house.
(2.) The learned Magistrate found on the evidence that the accused has committed the offences and sentenced him to undergo R. I. for 2 years for the offence punishable under S.363 and to R. I. for 3 months for the offence punishable under S.342. The accused filed an appeal against the convictions and sentences. In the appeal the learned Sessions Judge found that there is no evidence to show that the accused committed the offence punishable under S.432 and acquitted the accused of that offence, but confirmed the conviction and sentence for the offence under S.363.
(3.) The question for consideration is whether the accused took away or enticed the girl from the lawful custody of Pw. 1. The evidence of Pws. 1 to 3 was relied on for that purpose by the courts below. Pw. 1 is the mother of the girl, and the complainant. She swears that she went to the market at about 8. 30 A. M. on 4-1-1966 and that when she returned from the market she did not find the girl in the house although she was there in the house when she left for the market. Pw. 2 swears that he saw the accused and the girl on the public road some distance away from the house of Pw. 1. Pw. 3, whose evidence was relied upon by the appellate court for coming to the conclusion that the accused went to the house of Pw. 1 on that day at about the time and took away the girl, does not swear to that effect. What he swears to is that he saw the girl and the accused on the public road, the former walking behind the latter. The evidence, therefore, is totally insufficient to make out an offence under S.361. In order to make out an offence under S.361 it is necessary that the prisoner should have taken away, the girl from the lawful custody of the guardian. Some overt act of taking or enticing on the part of the prisoner must be proved before it can be held that an offence under the section has been committed. In Chathu v. P. Govindan Kutty 1957 KLT 613 the ingredients of the offence of kidnapping have been considered and this is what Koshi C. J., sitting in Division Bench with Vaidialingam J. has said, after referring to the relevant decisions: "These authorities show that to sustain a conviction the prosecution had to prove that the respondent had some active part in Malukutty leaving her father's house and taking shelter in his house." It appears to me that so long as there is no evidence that the accused had some active part in the girl leaving her mother's house and taking shelter in his house it cannot be said that the accused has committed an offence under S.361. There is no evidence to prove that the accused enticed the girl out of the custody of the complainant. The girl was going to the house of her sister who has been married to the accused. It may not therefore be possible to say that the girl has been taken out of the custody of her mother. In law the girl still remained under the custody of her lawful guardian. It may also be noted that the girl who is alleged to have been kidnapped has not been examined in this case. One is at a loss to understand why so important a witness has not been examined for the complainant. I do not think that the conviction of the accused of an offence punishable under S.363 was justified. I therefore set aside the order of conviction and sentence. The accused is set at liberty. The petition is allowed.;

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