MANU/OR/0306/1994

Equivalent Citation : 1995 CriLJ 1416

IN THE HIGH COURT OF ORISSA
Criminal Revn. No. 367 of 1992
Decided On: 21.10.1994
Appellants: Biswanath Mallick
Vs.
Respondent: State of Orissa
Hon'ble
Dr. Arijit Pasayat, J.

Judges/Coram:

Counsels:
For Appellant/Petitioner/Plaintiff: S.S. Das and R.C. Mishra, Advs.
For Respondents/Defendant: D.K. Mishra, Addl. Standing Counsel
Subject: Criminal
Catch Words
Mentioned IN
Acts/Rules/Orders:
Indian Penal Code 1860, (IPC) - Section 10, Indian Penal Code 1860, (IPC) - Section
361, Indian Penal Code 1860, (IPC) - Section 362, Indian Penal Code 1860, (IPC) Section 363, Indian Penal Code 1860, (IPC) - Section 364, Indian Penal Code 1860,
(IPC) - Section 365, Indian Penal Code 1860, (IPC) - Section 366
Case
Note:
Criminal - Conviction - Sections 363, 366 of Indian Penal Code, 1860 - Court
convicted Accused for an offence kidnapping - Hence, this Petition - Whether,
order of Trial Court was maintainable - Held, victim (P. W. 2) had nowhere
stated that there was any intention for compulsion to marry against her will By merely finding that Accused abducted or kidnapped woman charge under
Section 366 could not be held to have been proved - It was further necessary
to find that he abducted or kidnapped woman for any of purposes mentioned in
Section 366 - In absence of such finding charge failed - Hence, conviction
under Section 366 of IPC was not maintainable - Petition allowed.
Ratio

Decidendi

"When charges framed against Accused is not proved then Accused cannot be
convicted."
ORDER
Arijit Pasayat, J.
1. Petitioner Biswanath Mallick (also referred to as 'accused' hereinafter) calls in
question legality of his conviction for commission of offences punishable under
sections 363/366 of the Indian Penal Code, 1860 (in short, 'IPC') and sentence of two
years' rigorous imprisonment and fine of Rs. 100/-, in default to undergo two months'
rigorous imprisonment on each count. The conviction and sentence as awarded by the
learned Assistant Sessions Judge, Kendrapara were affirmed in appeal by the learned
Additional Sessions Judge, Kendrapara.
2. Prosecution version as unfolded during trial is as follows :

On 9-12-1989, around midnight Kalyani (P.W. 2) had gone out to attend call of
nature. She was forcibly "kidnapped by the petitioner, who took her first to Cuttack
subsequently to Bhubaneswar and lastly to Jeypore, Information was lodged at the
Police Station by Kalyani's father Baishnao (P.W. 1) on 11-12-1989. During
investigation the victim was rescued from house of one accused's relations and
was given in the custody of her parents (P.Ws.. 1 and 3). The victim girl and the
accused were medically examined on police requisition. On completion of
investigation, charge-sheet was submitted and the accused-petitioner faced trial.
3. The accused-petitioner pleaded innocence and stated that he was falsely implicated.
4. Nine witnesses were examined to further the prosecution case. As indicated above,
P.W. 2 is the victim and P.Ws 1 and 3 are her parents. P.W. 7 is the doctor who examined
the victim and the accused and P.W. 9 is the Investigating Officer.
5. On consideration of the evidence on record, the learned trial Judge found the
petitioner guilty, and convicted and sentenced him, which got seal of approval in appeal.
6. In support of the revision application, Mr. S. S. Das learned counsel for petitioner
submitted that the age of the victim was more than 18 years, and in any event she had
attained the age of discretion, and therefore, even if the stand taken by the informant
that the age of the victim girl was 17 years 8 months and 7 days on the date of
occurrence, the same is of little consequence. It is further stated that the evidence on
record clearly shows that the victim had done with the accused on her own volition, and
there was no compulsion for marriage. It was further submitted that the sentences
awarded are also high. Learned counsel for State on the other hand submitted that the
courts below have elaborately analysed the evidence and while exercising revisional
jurisdiction it is impermissible to make fresh assessment unless the conclusions are
shown to be perverse and unreasonable.
7. So far as offences punishable under Sections 363 and 366, IPC are concerned, it is

necessary to note their essential ingredients, Section 363 provides for punishment in
case of kidnapping of any person from India or from lawful guardianship. Kidnapping
from lawful guardianship has been defined in Section 361. Essential ingredients of the
said section are four in number, i.e., (i) taking or enticing away a minor or a person of
unsound mind; (ii) such minor must be under sixteen years of age, if a male, or under
eighteen years of age if a female; (iii) the taking or enticing must be out of the keeping
of the lawful guardian of such minor or person of unsound mind; (iv) such taking or
enticing must be without the consent of such guardian. If the girl is less than 18 years
of age, it is immaterial whether the girl consents or not. The taking need not be by
force, actual or constructive. There must be a taking of the child out of the possession of
the guardian. The Explanation to Section 361 provides that the words 'lawful guardian'
in the said section include any person lawfully entrusted with the care or custody of such
minor or other person. The word 'take' means to cause to go, to escort or to get into
possession. It implies want of wish and absence of desire of the person taken. There is,
however, a distinction between taking and allowing a minor to accompany a person.
The word 'entice' involves an idea of inducement or allurement by exciting hope or
desire in the other. The inducement or allurement may 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 achievement of
its ultimate purpose of successful inducement. The offence of kidnapping from lawful
guardianship is complete when the minor is actually taken from lawful guardianship. The
act of taking is not in the proper sense of the term a continuous act; when once the boy
or girl has been actually taken out of the keeping, the act is a completed one.
Enticement is an act of the accused by which the person kidnapped is induced of his or
her own accord to go to the kidnapper. It is not necessary that the taking or enticing
should be shown to have been by means of force or fraud. Enticement need not be
confined to any single form of allurement. Anything which is like to allure the minor girl
would be sufficient. Where the minor kidnapped is a girl under eighteen years of age, it
is no defence that the accused did not know the girl to be under eighteen, or that from
her appearance or conduct she appeared to have attained the age of eighteen. There is
an essential distinction between taking and enticing. The mental attitude of the minor is
immaterial in the case of taking when an accused takes a minor with him, whether he or
she is willing or not, the act of taking is complete and the condition is satisfied. But the
word 'entice' involves an idea of inducement or allurement. One does not entice another
unless the latter attempts to do a thing which she or he would not otherwise do.
8. Significantly the word 'possession' has not been used in the IPC, but the language
used is 'out of the keeping, of the lawful guardian'. The word 'keeping' connotes the fact
that it is compatible with independence of action and movement in the object kept. It
implies neither apprehension nor detention but rather maintenance, protection and
control, manifested not by continual action but as available on necessity arising. The
word 'lawful' has been deliberately used in its wider connotation, and it is distinguishable
from the word 'legal'. That has necessitated insertion of the Explanation.
9. So far as Section 366 is concerned, the essential ingredients are : (i) kidnapping or
abducting any woman; (ii) such kidnapping or abducting must be (a) with intent that
she may be compelled or knowing it to be likely that she will be compelled to marry any
person against her will; or (b) in order that she may be forced or seduced to illicit

intercourse or knowing it to be likely that she will be forced or seduced to illicit

intercourse. The second part of the section requires two things. (1) By criminal
intimidation or abuse of authority or by compulsion inducing any woman to go from any
place; and (2) such going must be with intent that she may be, or with knowledge that
it is likely that she will be, forced or seduced to illicit intercourse, with some person. The
word 'woman' has been defined in Section 10. It includes a minor female. If the girl was
eighteen or over, she could only be abducted and not kidnapped, but if she was under
eighteen she could kidnapped as well as abducted if the taking was by force or the
taking or enticing was by deceitful means. The intention of the accused is the basis and
the grave men of offence under Section 366. The volition, the intention and the conduct
of the woman do not determine the offence; they can only bear upon the intent with
which the accused kidnapped or abducted any woman and the intent of the accused is
the vital question for determination in each case. Kidnapping and abduction are two
distinct offences. The ingredients of the two offences are entirely different. Kidnapping
except kidnapping from India is an offence against guardianship. It consists of enticing
or removing a girl from the keeping of the lawful guardian without her consent.
Abduction is an offence as defined in Section362 when a person is by force compelled or
by deceitful means induced to go from any place. In abduction the person abducted may
be a minor or a major. Kidnapping is punishable per se in terms of Section 363.
Abduction on the other hand is not punishable per se, and is punishable only when
accompanied by a particular purpose as contemplated in sections 364 to 366. But as
kidnapping also may be for the same purposes, Sections 364 to 366 deal with both
kidnapping and abduction for the purposes stated therein and prescribe the
punishments.
10. In the case at hand the victim (P. W. 2) has nowhere stated that there was any
intention for compulsion to marry against her will. By merely finding that the accused
abducted or kidnapped the woman the charge under Section 366 cannot be held to have
been proved. It is further necessary to find that he abducted or kidnapped the woman
for any of the purposes mentioned in Section 366. In the absence of such finding the
charge fails. In that view of the matter, the conviction" under Section 366, IPC is not
maintainable, and is accordingly set aside. Consequentially the sentence awarded is
vacated.
So far as conviction under Section 363, IPC is concerned, I find that the courts below
have elaborately analysed the evidence and have come to a definite finding that the age
of the victim girl was less than eighteen at the time of commission of offence. Great
emphasis has been laid on the evidence of the doctor who has stated that the girl may
have 18 years of age at the time of her examination. The same is a statement relating
to a probability, which may not have factually correct. Evidence on record clearly shows
that the girl was less than eighteen. The school records show her age to be so. The oral
evidence of the parents is also to the similar effect. While exercising revisional
jurisdiction it is impermissible to reassess the evidence. Unless the conclusions are
perverse or are of such nature that no reasonable man would arrive at such conclusions,
or are contrary to material on record. This is not a case of that nature. Conclusion of the
courts below that the girl was less than eighteen is irreversible. The ingredients
necessary to constitute an offence under Section 361 have been clearly brought home
against the accused I find no reason to accept the submission that the evidence is
deficient to bring home the accusations. It is alternatively submitted by the learned
counsel for the accused-petitioner that the occurrence took place about five years back
in the meantime the accused and the victim girl are leading happy marital life, and it

would not be proper to send the accused back to custody. Considering aforesaid facts
and period spent by petitioner in custody. I reduce the sentence to the period already
undergone. The sentence of fine and default sentence are, however, maintained.
The prayer for revision is allowed to the extent indicated above.

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