PRAKASH versus STATE OF HARYANA

Citation: [2003] SUPP. 6 S.C.R. 436 · Decided: 02-12-2003 · Supreme Court of India · Bench: DORAISWAMY RAJU · Disposal: Dismissed

Judgment (excerpt)

A 
PRAKASH 
v. 
STA TE OF HARV ANA 
DECEMBER 2, 2003 
B 
[DORAISWAMY RAJU AND ARIJIT PASAYAT, JJ.] 
Penal Code, 1860-Sections 361, 363, 366, 376, 511-Kidnapping 
and attempted rape of minor child-Trial Court and High Court convict-
ing the appellant under section 361-Plea of consent of child in going 
C along with accused-Validity of-Held, minor children protected by lawful 
guardians under section 361-Hence, the consent of a minor is immate-
rial-On evidence, the conviction of appellant upheld. 
The appellant and another person were charged for. offe~ces of 
' kidnapping and attempted rape of a 5-1/2 year old· victim under 
D sections 363, 366 and 376 read with section 511 IPC. The incident was 
noticed by her grandmother - PW 5. The trial court convicted the 
appellant and awarded custodial sentence of 3 years for the first two 
offences· and 4 years for the last one. Another person was acquitted 
by the trial court. In appeal by the appellant, the High Court 
E confirmed the conviction for offences under sections 363 and 366 IPC 
and set aside the conviction under section 376 read with section Sl 1 
IPC. 
In appeal, the appellant contended that the appellant was falsely 
F implicated in the offence since there were pending litigations between 
the appellant's family and the family of the father of the prosecutrix; 
that PW 5 was hard of hearing, and could not have heard the cries 
of the victim which no one else has heard; and that the ingredients 
necessary for conviction under sections 363 and 366 IPC have not been 
made out and has not been proved beyond reasonable doubt. 
G 
The respondent-State contended that the evidence of PW ·s is 
'cogent and trustworthy; and that the appellant was convicted based 
on clear evidence. 
H 
Dismissing the appeal, the Court 
436 
-
PRAKASH v. STATE OF HARYANA 
437 
HELD : . t.1. It is highly improbable that for making false A 
implication, a child of 5-112 years would be used as a pawn unmindful 
of the disrepute she would have to suffer in public with a stigma for 
the rest of her life. Evidence of PW 5 has essence of credibility and 
truthfulness. She has explained as to how she chanced upon seeing the 
victim, after hearing her cries. Merely because nobody else has heard B 
it or came forward hearing it cannot be a ground to discard her 
evidence. (440-B-C-D) 
1.2. The object of section 361 is to protect minor children from 
being seduced for improper purposes and to protect the rights and 
privileges of guardians having the lawful charge or custody of their C 
minor wards. The gravamen of this offence lies in the taking or enticing 
of a minor under the ages specified in the section, out of the keeping 
of lawful guardian without the consent of such guardian. The use of 
the word 'keeping' in the context connotes the idea of charge, protec-
tion, maintenance and control. Further the guardian's charge ;md D 
control appears to be compatible with the independence of action and 
movement in the minor, the guardian's protection and control of the 
minor being available, whenever necessity arises. On plain reading of 
the section, the consent of the minor, who is taken or enticed, is wholly 
immaterial. It is only the guardian's consent which takes the case out E 
of its purview. It is not necessary that the taking or enticing must be 
shown to have been by means of force or fraud. Persuasion by the 
accused person which creates willingness on the part of the minor to 
be taken out of the keeping of the lawful guardian would be sufficient 
to attract the section. [441-A-B-C-D-E) 
State of Hmyana v. Raja Ram, (1973) 1 SCC 544 and Thakkorlal 
D. Vadgdama v. Th.e State of Gujarat, AIR (1973) SC 2313, relied on. 
F 
Reg v. Job Timmins (169 English Reports 1260); Reg. v. Robb, 176 
English Reports 466 and Reg. v. Manketelow, 6 Cox Criminal Cases 143, G 
referred to. 
1.3. The trial court and the High Court were justified in convicting 
the appellant on th·e basis of the evidence on record. The sentence 
imposed appears to be liberal when loathsome nature of the offence 
is considered. (443-B-CJ 
H 
438 
SUPREME COURT REPORTS (2003] SUPP. 6 S.C.R. 
A 
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 
B 
390 of 1997. 
~rom the Judgment and Order dated 30.4.96 of the Punjab and 
Haryana High Court in Crl. A No. 164-SB of 1987. 
J.P. Dhanda and Vineet Dhanda for the Appellant. 
Vinay Kumar Garg for the Respondent. 
C 
The Judgment of the Court was delivered by 
ARIJIT PASAYA T, J.

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