In Thakorlal D Vadgama vs State of Gujarat, an appeal by special leave is directed against the judgment and order of the Gujarat High Court allowing in part the appellant’s appeal from his conviction by the Court of the Sessions Judge, Jamnagar under Section 366 and 376 of Indian Penal Code, 1860. The High Court acquitted him of the offence under Section 375 of IPC but maintained his conviction and sentence under Section 366, IPC.
BENCH: DUA, I.D.
- That the victim in the present case is Mohini who has been kidnapped and raped by the appellant, an industrialist having a factory at Bunder Road, Jamnagar for manufacturing oil engines.Incidentally, Mohini’s parents approached his processing plant and resided temporarily nearby.
- On the occasion of Mohini’s birthday, which was on December 18, 1965, the appellant presented her with a Parker pen. She was a schoolgirl below 15 years of age. She kept the pen for 2-3 days but at the instance of her mother, returned it to the appellant.
- Thereafter, the appellant planned a Baroda trip with Mohini and her father, where he attempted to create an impression in the mind of her father that the appellant will employ him as a manager of the factory to be installed at Baroda.
- During the eve of Christmas, the appellant again planned a trip to Bombay along with the same party where they stayed for about two nights.
- According to the prosecution’s story, it was during these two nights that the appellant is stated to have had sexual intercourse with Mohini.
- During the summer vacation, the appellant again had a trip to Mahabaleshwar, where along with Mohini and her parents, he also took her own daughter, Rekha. After staying there for two days, they proceeded to Mount Abu, where Mohini’s mother suspected the appellant’s connection with Mohini and rebuked her. On being suspected by the girl’s parents, the appellant swear by God that Mohini was just like his own daughter, Rekha.
- Even after this incident, the appellant met Mohini when she was returning from school and took her to his bungalow and had sexual intercourse with her. As soon as Mohini’s parents came to know about it, they rebuked her and also started taking precautions for not sending her alone to the school. In fact, Mohini’s mother wrote a letter dated September 26, 1966, requesting the appellant to desist from his activities of trying to contact Mohini.
- It was contended by the appellant that Mohini composed letters to him complaining of ill-treatment by her parents and expressing her desire to leave her parent’s house. As per the previous arrangement between the parties, Mohini, instead of going to her school, went to the appellant’s factory on January 16,1967. From there she was taken to the attached room and made to write 2-3 letters griping of abuse and ill treatment by her parents on dictation.
- It was alleged that the girl was taken to the appellant’s office at midnight, where he had sexual intercourse with her against her will. The following morning the appellant went to the police station with Mohini in the dicky.
- The police Inspector visited the appellant’s bungalow in the night between the 16th and 17th of January but did not find Mohini there. The officer also went to the appellant’s office and inspected the books of accounts to verify whether there was any entry about the payment of Rs.250 to Mohini, as contended by the appellant.
- On the night of 17th of January, Police Sub- Inspector went to the appellant’s bungalow, and it was that the girl was being traced and was sent for Medical Examination. Mohini’s clothes and articles belonging to her were found from the dicky of the appellant’s car.
- This was the case of the prosecution on the basis of which the appellant was charged with committing the offence of kidnapping and rape under Section 361, 366 and 376 of I.P.C.
1. Whether as per the contention of the appellant that the girl left her parents’ house out of her own accord because of the harsh treatment by her parents and that the appellant kept her in his house out of compassion and sympathy, the charge under Section 366 of IPC was unsustainable?
2. Whether the girl was a minor at the date of the incident and, if so, whether the appellant’s act of committing sexual intercourse with her consent will amount to rape?
After considering the case from all relevant aspects, the Trial Court concluded Mohini was born on September 18, 1951, and that the medical evidence led in the case also showed that she was above 14 and below 17 years of age during the relevant period. Thus, she was accordingly held a minor on the day of the incident, which implies that if the appellant had sexual intercourse with her, even with her consent, he would be guilty of committing the offence of rape.
The contention of the appellant that because of his refusal to appoint Mohini’s father as the manager of the 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, it was the appellant who had made a suggestion regarding the appointment of Mohini’s father as the manager, and hence court found no other valid reason for taking Mohini’s father to Baroda.
It was also concluded by the Trial court, on consideration of the evidence and bearing in mind the common course of human conduct, that it was the appellant who had induced Mohini to leave her parent’s house on the day concerned and to have sexual intercourse with her. It was quoted-
“Even if it were held that it was not the duty of the accused to return Mohini to her parents, it can equally be said that it was not legal by the accused to secretly confine Mohini at his place and have sexual intercourse with her”.
Therefore, the appellant was rightly held guilty under Section 366 and 376 IPC. Under Section 366, he was sentenced to rigorous imprisonment for 18 months and under Section 376 to rigorous imprisonment for two years and also to fine.
The appellant’s conviction for the offence is punishable under Section 366 of IPC and the sentence for that offence was, however, upheld by the High Court. The high court considered the story of the girl natural and so highly probable that it felt no hesitation in accepting it and also took into consideration the attitude adopted by Mohini’s mother. She had discreetly warned the appellant in a dignified and respectful language to stay away from Mohini and rebuked her daughter, too.
However, the medical evidence suggested that there was no presence of spermatozoa when the vaginal swab was examined and it was on this reasoning that the offence under Section 376 as charged was held not to have been proved beyond doubt.
In view of the facts and the circumstances, the High Court concluded that there is no scope for an inference other than the inference that the appellant had taken Mohini out of the keeping of her parents with an intention to seduce her to illicit intercourse. The intention contemplated by Section 366 of IPC is amply borne out and the conviction of the appellant is absolutely correct and has to be maintained.
Thus in the present case, the circumstances in which the appellant and the victim came close to each other and the manner in which he is stated to have given her presents etc. and the letters written by the victim to the appellant furnish very essential background to the offence which the appellant committed.
Regarding Section 366 of IPC, the case of State of Haryana v. Raja Ram AIR 1973 SC 819 was being referred where it was held by the Court that the object of Section 361 is to protect the minors children from being seduced from improper purposes as to protect the rights and privileges of guardians having the lawful charges or custody of their minor wards. The very essence of this offence lies in the taking or enticing of a minor under the ages specified in this section, out of the keeping of the lawful guardian without the consent of such guardian.
The words ‘lawful guardian’ under Section 361 includes any person lawfully entrusted with the care or custody of such minor or another person. This section does not extend to the act of any person who in good faith believes himself to be the father of an illegitimate child, or who in good faith believes himself to be entitled to the lawful custody of such child unless such act is committed for an immoral or unlawful purpose.
It is important to note in the above section that the consent of the minor who is taken or enticed is wholly immaterial: it is only the consent of the guardian which takes the case out of its purview.
The court further clarified the legal position regarding an offence under Section 366 of IPC, the court and stated that if the minor leaves her parent’s house influenced by any promise, offer or inducement emanating from the guilty party then the latter will be guilty of an offence as defined in Section 361 of IPC
Therefore, the appellant has been rightly convicted by both the courts under Section 366 IPC and the appeal was dismissed.
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