TMI Blog1973 (5) TMI 100X X X X Extracts X X X X X X X X Extracts X X X X ..... e prosecution version, to the latter part of the year 1965. The appellant, an industrialist, had a factory at Bunder Road for manufacturing oil engines and adjoining the factory was his residential bungalow. During the bombardment of Jainnagar by Pakistan in 1965, Mohini s parents came to reside temporarily at Dhrol near Jamnagar. The appellant came to be introduced to that family and on December 18, 1965, which was Mohini s birth-day, 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. She kept the pen for about 2 to 3 days, but at the instance of her mother, returned it to the appellant. Thereafter, the appellant went to Baroda in his car and he took with him, Mohini, her father Liladhar Jivraj, his manager Tribhovandas, Malti, daughter of Tribhovandas, who was about 12 years old, and Harish, a younger brother of Malati. At Baroda, the appellant negotiated some transaction with regard to the purchase of some land for the purpose of installing a factory there. It appears that there was some kind of impression created in the mind of Mohini s father that he would be employed by the appellant as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by God to that effect. The appellant is stated to have actually taken Mohini s father, Mohini and Rekha to Dattatraya temple in Jamnagar and placing his hands on the heads of Mohini and Rekha swore that they were his daughters. Even after this incident in Dattatraya temple, the appellant once met Mohini when she was returning from her school and took her to his own bungalow in his car. There, he had sexual intercourse with her. It seems that Mohini s parents came to know about this incident and they rebuked her. Mohini s parents also started taking precaution of not sending her alone to the school. From July, 1966 onwards either the maid-servant or Mohini s mother herself would accompany her to the school. The appellant is stated to have made an effort to contact Mohini duringthis period. He called her at his house on Saturday, September 24, 1966. Mohini s mother having come to know of this behaviour on the part of the appellant, wrote to him a letter dated September 26, 1966 requesting him to desist from his activity ties of trying to contact Mohini. Apparently, after this letter there was no contact between Mobini and the appellant in Jamnagar. In October, 1966, however, Moh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e station. He went there in his car with Mohini in the dicky and then he and the police man came back to his bungalow. The police man went inside the bungalow and the appellant parked the car in h is garage. He took Mohini out of the dicky and told her to go to the inner room of the garage. This inner room had four doors. One of them opened on the main road and another in the garage. Feeling thirsty, Mohini went out in the garden and saw a Mall working there whom she asked for water. It appears that at about 6.30 p.m. the appellant came to the inner room and promised to bring some food, water and clothes for Mohini, telling her to wait for him in that room. After some, time, he returned with food, water and clothes. Mohini changed her clothes washed her face and started taking her meal. While doing so, she felt that some motor car had come, into the compound. The, appellant told her that police had come and, therefore, she must leave through the back door and go to the road-side directing her to go towards Gandhinagar and wait there for him. Leaving her food unfinished, Mohini went out and waited near Gandhinagar at a distance of about one furlong from the appellant s garage. It wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... othes, a lady s purse, one comb, 2 plastic buckets full of water, one lantern and some other articles. From the dicky of the appellant s car on search were also found skirt, one blouse, a petticoat and one book and two exercise books as already noticed. All these articles belonged to Mohini. This in brief is the prosecution story. The appellant admitted that he had developed intimate relations with the family of Mohini, but denied having presented to her a parker pen in December, 1965. He also admitted his trips to Baroda and Bombay in December, 1965 when he took with him Mohini, her father Malati, her mother and Malati s brother. He admitted having stayed in Metropolitan Hotel at Bombay but denied that he, Mohini and Malati had slept in one room and that he had sexual intercourse with Mohini during their stay in this hotel. He also denied having sexual inter-course with Mohini in the month of March, 1966. He further denied having purchased skirts and waste bands for Mohini and Malati in Bombay in December, 1965. The trip to Mahabaleshwas during summer vacation and also the trip to Mount Abu were admitted by the appellant but he denied having been found sleeping with Mohini by Mobi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th respect to any matter, which would induce them to charge him falsely. The appellant s explanation that as a result of his refusal to appoint Mohini s father as a Manager of his factory at Baroda, she had, in collusion with the parents, concocted this story was considered by the trial court to be too far-fetched to be worthy of belief. In fact, according to the trial court it was the appellant who had made a suggestion about appointing Mohini s father as his manager at Baroda and this explained why Mohini s father was taken by the appellant to Baroda when he paid a visit to that place for purchasing land. The court found no other cogent reason for taking Mohini s father to Baroda. The trial court in express terms disbelieved the appellant s explanation. That court also-cane to the conclusion, on consideration of the evidence andbearing in mind the common course of human conduct, that it was the appellant who had induced Mohini to leave her parents house on the day in question and to have sexual inter-course with her. The trial court also considered that part of Mohini s statement that when she went to the appellant s place, he told her to return to her school, suggesting that he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to further rigorous imprisonment for six months. The substantive sentences of imprisonment were to run concurrently. On appeal by the appellant, the High Court also considered the matter at great length and in a very exhaustive judgment, the appellant s conviction under s. 376 was set aside and he was acquitted of that offence. This acquittal was ordered because the charge being only for sexual intercourse on the night of January 16, 1967, the evidence of Mohini in support of that offence was not accepted as safe and free from all reasonable doubt, in the absence of independent corroboration. In adopting this approach the High Court seems to us to have been somewhat over indulgent, and unduly favourable to the appellant with respect to the offence under s. 376, I.P.C. But there being no appeal against acquittal, we need say nothing more about it. The appellant s conviction for the offence punishable under S. 366, I.P.C. and the sentence for that offence were, however, upheld. The High Court felt that the story of Mohini with regard to the appellant s call about 3 or 4 days before the incident in question was so natural and so highly probable that it felt no hesitation in accepti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er room of the appellant s premises were planted, was rejected outright. The High Court in a very well-reasoned judgment with respect to the offence under s, 366, I.P.C. came to the conclusion that the appellant had taken Mohini out of the keeping of her parents (her lawful guardian) with an intention that she may be seduced to illicit inter-course. This is what the High Court observed Have come in contact with the family of Mohini in about November 1965 the appellant cultivated 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 18th December, 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 ₹ 1,2/-. He was actually found by the side of Mohini in Mohini s bed by Mohini s mother at Mount Abu. His connection with Mohini was suspected and in spite of that as the letters of Mohini show he was in correspondence with her without the knowledge of her parents. Mohini was a school girl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and the probabilities inherent in such a situation. They gave to the appellant all possible benefit of the circumstances which could have any reasonable hearing in his favour, but felt constrained to conclude that the appellant was proved beyond reasonable doubt guilty of the offence under s. 366, I. P. C. The appellant s main argument was that it was Mohini who feeling unhappy and perhaps harassed in her parent s 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 happened to entertain about the appellant s attitude towards their daughter or about the relationship between the two, and that it was primarily her parent s insulting and stern behaviour towards her which induced her to leave her parental home. It was contended on this reasoning that the charge under s. 366, I.P.C. was in the circumstances unsustainable. The legal, position with respect to an offence under s. 366, I.P.C. is not in doubt. In State of Haryana v. Raja Ram(A.I.R. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not necessarily by use of force or fraud. The word entice seems to involve the idea of inducementor allurement, by giving rise to hope or desire in the other. This can take many forms, difficult to visualise and describe exhaustively; some of them may be quite subtle, depending for their success on the mental state of the person at the time when the inducement is intended to ,operate. This may work immediately or it may create continuous and gradual but imperceptible impression culminating after some time, in achieving its ultimate purposes of successful inducement. The two words takes and entices , as used in s. 361, I.P.C. are, in our opinion, intended to be read together so that each takes to some extent its colour ,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 offence as defined in s. 3 6 1, I.P.C. But if the, guilty party has laid a foundation by inducement, allurement or threat, etc. and if this can be considered to have influenced the minor or weighed: with her ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have all proceeded on their own facts. We have enunciated the legal position and it is unnecessary to discuss the decisions cited. We may however briefly advert to the decision in S. Varadaraja v. State of Madras(1965) 1 S.C.R. 243), on which Shri Dhebar placed principal reliance, Shri Dhebar relied on the following passage at page 245 of the report : It will thus be, seen that taking or enticing away a minor out of the keeping of a lawful guardian is an essential ingredient of the offence of kidnapping. Here, we are not concerned with enticement but what, we have to find out is whether the part played by the appellant amounts to taking , out of the keeping of the lawful guardian of Savitri, We have no doubt that though Savitri had been left by S. Natarajan at the house ofhis relative K. Natarajan, she still continued to be in the lawful keeping of the former but then the question remains as to what is it which the appellant did that constitutes in law taking . There is not a word in the deposition of Savitri from which an inference could be drawn that she left the house of K. Natarajan at the instance or even a suggestion of the appellant. In fact she candidly admits that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... guardian s house by taking her along with him from place to place. No doubt, the part played by the accused could be regarded as facilitating the fulfilment of the intention of the girl. That part, in our opinion, falls short of an inducement to the minor to slip out of the keeping of her lawful guardian and is, therefore, not tantamount to taking . It is obvious that the facts and the charge with which we are concerned in the present case are not identical with those in Varadarajan s case (supra). The evidence-of the constant behaviour of the appellant towards Mohini for several months preceding the incident on the 16th and 17th January 1967 completely brings the case within the passage at S. 248 of the decision cited. We have before us 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 must, therefore, be upheld. In so far as the question of sentence is concerned, we are wholly unable to find any cogent ground for interference. The conduct and behaviour of the appellant in going to the temple and representing that Mohini was lik ..... X X X X Extracts X X X X X X X X Extracts X X X X
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