STATE OF HARYANA versus RAJA RAM

Citation: [1973] 2 S.C.R. 728 · Decided: 27-10-1972 · Supreme Court of India · Bench: J.M. SHELAT · Disposal: Appeal(s) allowed

Cited by 1 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

728 
STATE OF HARYANA 
I'. 
RAJA RAM 
October 27, 1972 
[J. M. SHELAT, Y. V. CHANDRACHUD AND I. D. DuA, JJ.] 
B: 
Indian Penal Code (Act 45 of 1860), S.<. 361 and 366-Scope of. 
One J, the coacC'Used in the case, had tried to become intim..te. with 
the prosecutrix, a girl of fourteen, and to seduce her to go and live with 
him. 
When her father forbade J to visit his house, J started sending 
messages to the prosecutrix through the respondent. 
On the day of the 
occurrence, the respondent went to see the prosecutrix and asked her 
to visit his house, and IMer, on the same day, sent his daughter to fetch 
the prosecutrix. 
When she came the respondent informed her that she 
should come to his house at about midnight when she would be taken 
to J. That night, when the prosecutrix came to his house, the respondent 
took her with him and handed her over to J. 
On the question, whether the respondent was guilty under S. 361, 
I. P. C., of the offence of kidnapping from lawful guardianship, the trial 
Court convicted him, but the High Court set aside the conviction. 
In e,;ipeal to this Court, 
HELD : The acquittal o'f the respondent by the High Court vcas clearly 
errone.ous both on facts and in law and considering the nature of the 
offence there was clear failure of justice justifying interference by this 
Court unde'r Art. 136. [,737 A·Bl 
· 
Th object of S. 361, I.P.C., is to protect minor children from being 
seduced for improper purposes and to protect the rights and privileges of 
guardians having l21wful charge or custody of their 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 the lawful guardian 
without the consent of such guardian. 
The use of the word 'keeping' 
connotes the idea of charge, protection, maintenance ~nd control; further, 
the guardian's charge and control are compatible with the independence 
of action and movement in the minor, the guardian's i.irotection and cor.-
trol of the minor being avail2ble, whenever necessity arise.s. 
The con-
sent of the minor who is taken or enticed is wholly immaterial; ft is only 
the guardian's consent, that would take a case out of the purview of the 
section. It is not necessary that the taking or enticing must be shown to 
have been by means of force or fraud. Persul:(>ion by. the accused person 
which creates willingness on the part of the minor to ·be taken out of 
the keeping of the lawful ilJardian would be sufficient to attract the 
section. [7340-E] 
In the present case, the respondent's action was the proximate cause 
of the prosecutrix going out of the keeping of her father, a,nd, but for his 
persuasive offer to take her to J, the prosecutrix would not have gone 
out of the keeping of· her father who was Jier lawful guardian, as she 
actually did. 
The respondent actively participated in the formation of 
the intention of the p'°'ecutrix to 1C21ve her father's house, and the facts 
that the respondent did not go to her house to bring her and that she was 
easily persuaded to go with him would not prevent the respondent from 
G 
II 
A 
B 
, 
HARYANA STATE v. RAJA RAM (Dua, J.) 
7Z9 
being guilty of the offence. Her consent or willingness to accompany the· 
respondent would be immaterial &nd it would be equally so even if. the· 
proposal to go with !he respondent had emanated from her. There 1s a 
distinction between lr.tking and allowing a minor to- accompany a person, 
but the instant case is not one of the ptosecutrix herself leaving her· 
father's house wit'hout any inducement by the respondent who merely 
allowed her to accompany him. [734E~H; 735A-G] 
Reg. v. Job Timming; 169 E.R. 1260, Reg. v. Handley & anr., 175· 
E.R. 890'; Reg. v. Robb. 176 E.R. 466, Reg. v. Manketeloy, _6 Cox Crim. 
Cases 143 and Shantiranjan Majumdar v. Abhoyandanda Brahamachari & 
Ors. Cr. A. No. 21 of 1960 decided on the 14th September 1964, referred' 
to. 
CRIMINAL APPELLATE JuR1smcnoN : 
Cr. A. No. 214 of 
c 
1969. 
Appeal by ~pecial leave from the judgment and order dated 
March 18, 1969 of the Punjab & Haryana High Court at Chandi-
garh in Criminal Appeal No. 951 of 1968. 
Harbans Si!1gh and R. N. Sachthey, for the appellant. 
D 
Ram Sarup and J. C. Ta/war, for the respondent. 
E 
F 
G 
H 
The Judgment ot the Court was delivered by 
Du A, J .-In 1his appeal by special leave the State of Haryana 
has assailed the judgment of a learned single Judge of the High 
Court 

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