IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 21ST AUGUST 2009 / 30TH SRAVANA 1931 Crl.Rev.Pet.No. 438 of 2009() ----------------------------- CRA.379/2004 of ADDL.SESSIONS COURT (ADHOC), ALAPPUZHA SC.153/2002 of ASSISTANT SESSIONS COURT, CHERTHALA .................... REVN. PETITIONER/APPELLANT/1st ACCUSED: ------------------------------------ JAYAN, S/O. VIJAYAN, NALUTHENGUMTHARA HOUSE, WARD NO.12, PATTANAKKAD PANCHAYATH, PATTANAKKADU P.O. CHERTHALA. BY ADV. SRI.C.K.SAJEEV RESPONDENT/RESPONDENT/COMPLAINANT: ---------------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTRA, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR: SRI JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 21/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J ---------------------------------------- Crl.R.P.No.438 of 2009 --------------------------------------- Dated this 21st day of August 2009 ORDER Petitioner along with four others faced trial in the court of learned Assistant Sessions Judge, Cherthala in S.C.No.153 of 2002 for offences punishable under sections 363, 368, 376 and 406 r/w 34 of the Penal Code (for short, “the Code”). Case is that on 25-10-2000 petitioner/accused No.1 kidnapped PW2 aged 13 years from the lawful custody of her father, the lawful guardian, she was taken to various places and while so, petitioner had sexual intercourse with her. It is the further allegation that in the meantime first accused had removed her gold ornaments and sold the same. Accused Nos.2 to 5 are said to have facilitated and acted in furtherance of common intention with petitioner. Learned Assistant Sessions Judge found accused Nos.2 to 5 not guilty and acquitted them of all the charges. Petitioner was found guilty, convicted for the offences punishable under section 363 of the Code and sentenced to undergo rigorous imprisonment for two years and fine of Rs.500/-. Petitioner was acquitted of other charges. Petitioner challenged his conviction and sentence in appeal. Learned Additional Sessions Judge (Fast Track No-1), Alappuzha while confirming conviction modified the sentence as rigorous imprisonment for one year while retaining the fine part of the sentence. Petitioner is CRL.R.P.No.438 of 2009 2 aggrieved and has come up in revision. It is contended by learned counsel that evidence of PW2, alleged victim is not reliable. Evidence of PW2 does not disclose that petitioner had taken or enticed PW2 from the custody of her guardian and hence conviction and sentence cannot be sustained. Learned counsel has placed reliance on the decisions in Padmanabhan Nair V. Kallyani Amma (1967 KLT 534) and Ram Murti V. State of Haryana (AIR 1970 SC 1020). Learned Public Prosecutor in response contends that there is sufficient evidence to show that petitioner has taken or enticed PW2 from the lawful guardianship of her father, PW1. 2. It is the case of prosecution at the time of incident, PW2 was aged only 13 years. The age of PW2 at the relevant time is attempted to be proved by the evidence of PWs.1, 2, 22 and PW.24 and Exts.P14 and P15 series. Contra evidence is given by DW1. PW2 the alleged victim is the daughter of PWs.1 and 24. Evidence of PW1, 2 and 24 is that at the time of alleged incident PW2 was studying in the 7th standard. PW24 has given evidence that she gave birth to PW2 at Public Health Centre, Thuravoor on 09-08-1987. Ext.P15 is the IP register of that hospital and Ext.15(a) the relevant entry concerning the delivery of PW24 in that hospital as stated by her. Ext.P15(a) is to the effect that a female child was born to Vijayamma (PW24), wife of Dasan Kareethara (PW1). Ext.P14 a certificate issued by PW22, the CRL.R.P.No.438 of 2009 3 medical officer who proved by Exts.15 and 15(a). PW21, Secretary of the local authority says that the birth of the child was not registered in the panchayath. Therefore, evidence in that way is lacking. DW1, a neighbour of PWs.1, 2 and 24 state that Vijayamma (PW24) had given birth to another child on 09-08-1987 and not PW2. When the evidence of PW24 is that she gave birth to PW2 at the P.H.C, Thuravoor on 09-08-1987 and that is corroborated by Ext.P15(a) the version of DW1 is PW24 gave birth to another child that day cannot be accepted. From the above evidence courts below found that PW2 was aged 13 years at the time of alleged incident. 3. PW2, the victim has stated that herself and petitioner/accused No.1 were in love and while so, petitioner wanted her to go to Thuravoor . Accordingly, without going to the school on that day (25-10-2000) at about 9 a.m she reached the temple. Petitioner was waiting for her. From there, petitioner took her in a autorikshaw to some distance and therefrom, they travelled by bus. They reached Kurichi in Kottayam District and stayed in the house of Pws.3 and 4. on 13-10-2000 she was taken to Vendanmedu in Idukki district to the house of accused No.5. There, herself and petitioner stayed for a few days and as per her version slept in the same room. She also stated about petitioner 'raping' her that day. In the meantime petitioner's father (accused No.2) had joined them. Petitioner collected CRL.R.P.No.438 of 2009 4 her gold ornaments. In the meantime she was taken to Kattappana also where she stayed with petitioner for a few days. Then they came back to Thuravoor. Ultimately, at the bus stand at Cherthala they were sighted by the police. That was on 10-11-2000. she identified Mos.2 to 11 as the clothes she was either wearing or carrying while allegedly going with the petitioner. In cross examination PW2 changed her version and stated that she had no love for petitioner. Instead, when she had been to the tailor to stitch her clothe on 25-10-2000 she was taken by autorikshaw man in a autorikshaw and petitioner who joined her told that her that her mother is admitted in the hospital. Thus she was taken to the various places she stated in her chief examination. When she was questioned only she stated about the love affair with the petitioner and the police at the time of interrogation she stated that petitioner had instructed her to say so. It is argued by the learned counsel that as per the evidence of PW2 she has voluntarily gone with petitioner and hence no question of taking or enticing of PW2 is involved. 4. The offence of kidnapping from lawful guardianship is defined in section 361 of the Code as 'whoever takes or entices 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 CRL.R.P.No.438 of 2009 5 the consent of such guardian is said to kidnap such minor or person from the lawful guardianship.' PW2 was aged 13 years at the time of alleged incident. PW1 is her father. PW2 being female under the age of eighteen was during the relevant time in the keeping of her lawful guardian, PW1. There is no case or evidence that to take PW2 with him petitioner has obtained the consent of PW1. what then remained is whether the evidence of PW2 can be accepted and if so petitioner had taken or enticed PW2 from the keeping of PW1. 5. It is true that as regards her relationship with petitioner, she gave a different version in cross examination. She stated that she had no affair with him. But that in my view does not affect the evidence of PW2 since in cross examination she stuck to her version that on 25-10-2000 she was taken by petitioner to Kurichi in Kottayam district and then to various other places in Idukki district and they came back to Cherthala on 10-11-2000. in the meantime as evidence of PW2 goes herself and petitioner had stayed together at various places. On going through that evidence I find no reason to disbelieve her version about her going with and staying with petitioner at different places. 6. The decisions relied by learned counsel ofcourse say and, the relevant section also insists, that there must be taking or enticing CRL.R.P.No.438 of 2009 6 of the victim by the offender to make him liable for kidnapping under section 363 of the Code. 'Taking' need not necessarily be always with force. This court in State of Kerala V. Jose (1981 (1) KLT 296) has stated' “the word 'takes' means, physical taking though it need not necessarily be by use of force or fraud. The word 'entice' involves inducement or allurement by giving rise to hope or desire in the other. That may be by immediate action or by a continuous and gradual process in achieving the purpose of successful inducement. It is enough for the prosecution to establish that though no active part was played by the accused immediately before the minor left the guardian, he laid the foundation by an earlier solicitation or persuasion. If evidence is lacking regarding immediate and earlier inducement the accused cannot be held guilty. If the minor voluntarily left the guardian and joined the accused and he only helped her in her design not to return to her guardian's house by taking her along with him he cannot be said to have taken or enticed her even though the part played by him could be regarded as helping fulfillment of her intention. But that falls short of inducement and cannot amount to taking. The two words taken together means that if the girl leaves home uninfluenced by any permise, offer or inducement the offence of kidnapping cannot be said to be made out. If atleast on one point of time there was inducement, allurement or threat, etc and it could be considered to have influenced the minor and weighed with her in leaving home and joining him, the accused cannot plead innocence. An earlier solicitation or inducement of any manner to leave her father's protection by conveying or indicating an encouraging suggestion that he would give her protection and CRL.R.P.No.438 of 2009 7 shelter will be sufficient. These are the main guidelines on the basis of which the evidence will have to be analysed.” In this case, there is no case or evidence that PW2 wanted to leave her house for ever or had any other purpose while going along with petitioner. There is also no case or evidence that any of the house were she had stayed with the petitioner in the different districts belonged to her or any of her relatives. It is to be remembered that PW2 aged about 13 years was with petitioner from 25-10-2000 to 10-11-2000. Her evidence is that she had no money with her and she could not have returned. It is also her evidence that when she started weeping, petitioner consoled her and took her for a cinema and stating that her worry will be over on seeing a cinema. Thus, it is evident that it is not on account of any will or pleasure of PW2 that she accompanied or went with petitioner. Necessarily there must be have some allurement or inducement of some sort from petitioner, be it an offer for marriage or anything else. Viewed in the background of this case and the situation in which PW2 was placed I am inclined to accept the case of prosecution that inducement given by the petitioner persuaded her to go with him. I am satisfied that the act of the petitioner amounted to taking or enticing of PW2 from the keeping of her lawful guardian, PW1. That satisfied the definition of kidnapping under section 361 of the Code with is punishable under section 363 of CRL.R.P.No.438 of 2009 8 the Code. I find no reason to interfere with the conviction of petitioner. 7. Learned Additional Sessions Judge was inclined to modify the substantive sentence as rigorous imprisonment for a period of one year while retaining the fine of Rs.500/-. Learned counsel made a fervent plea for leniency in the matter of sentence. It is submitted by learned counsel that PW2 herself is sent in marriage some time after the incident and petitioner is a family man having wife and two female children. It is stated by learned counsel that petitioner is the only bread winner of his family and that the incident happened at a time he was aged about 26 years. Learned counsel submits that considering the facts and circumstances leniency may be shown to the petitioner. 8. No doubt, offence committed by the petitioner is serious in nature and it affected the girl who was aged 13 years at the relevant time. I am inclined to take into consideration the subsequent developments. The incident happened in the year 2000 and now, PW2 as well as petitioner are having a normal life though not together. Even the evidence of PW2 indicated that she had some affair with the petitioner at a time when he was a bachelor. Considering these circumstances I am inclined to think that simple imprisonment for a period of four months and fine as ordered by the courts below is sufficient in the ends of justice. Resultantly this revision petition is allowed to the extent that CRL.R.P.No.438 of 2009 9 while retaining the sentence of fine awarded by the court below substantive sentence is modified as simple imprisonment for four months. It is directed that the period of detention if any undergone by the petitioner will be set off against the substantive sentence. THOMAS P JOSEPH, JUDGE Sbna/