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Kunjukunju v. State .
Factual and Procedural Background
The appeal arises from the conviction of the accused, Chathan Kunjukunju, by the Quilon Sessions Court under Section 366 of the Indian Penal Code (I.P.C) and his sentence of rigorous imprisonment for five years. The accused was charged with forcibly taking away Nandini Amma, a girl below 18 years of age belonging to the Nair community, from her lawful guardian, her father, in Noornad Village. The prosecution alleged that on the night of 13-10-1955, the accused and his brother took the girl by force and stealth to the accused’s house and subsequently traveled with her at night to various places. The accused later registered a marriage agreement with her. Complaints by the girl's father to local authorities were initially ineffective, leading to a formal complaint and police intervention, which resulted in the girl being returned to her guardian. The accused's brother was discharged, and the accused was committed to trial under sections 363 and 366 I.P.C. The accused pleaded that the girl had been living with him as his wife for three months prior to the incident and denied taking her by force or stealth. The Sessions Judge found the girl to be a minor under the guardianship of her father, making the consent of the girl immaterial under the law for the offence under section 363, and convicted the accused under section 366 I.P.C.
Legal Issues Presented
- Whether the age of the girl (P.W 5) was below 18 years at the time of the incident, thereby making the accused's act an offence under sections 363 and 366 I.P.C.
- Whether the consent of the minor girl to go with the accused or to marry him could absolve the accused of criminal liability under the relevant sections.
- Whether the accused’s claim of prior intimacy and living together as husband and wife negated the element of force or stealth required for conviction.
Arguments of the Parties
Appellant's Arguments
- The accused asserted that P.W 5 was not a minor at the time of the incident and that she was consenting to live with him as his wife for the preceding five years.
- He denied that he took the girl by force or stealth, claiming she left voluntarily.
- He relied on certain documents, including a registered marriage agreement and a school register copy, to support the claim of the girl’s majority.
Prosecution's Arguments
- The prosecution presented evidence from the girl’s parents and medical examination to establish that P.W 5 was about 15 years old at the time, thus a minor under the law.
- They argued that the girl was under the lawful guardianship of her father and that the accused’s act of taking her away was an offence regardless of her consent.
- They contended that the registered marriage agreement produced by the accused was executed after the incident and could not be given weight.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Christian Olifer (1866) 10 Cox. 402, 404 | Establishes that taking away a minor girl under lawful guardianship is an offence even if the girl consents, if persuasion or inducement by the accused caused her to leave her guardian's custody. | The court applied this principle to hold that the accused was guilty despite any claimed consent by the girl, as she was under lawful guardianship and the accused’s persuasion led to her removal. |
| Timmins, Bell C.C 276 | States that deception by the girl about her age does not absolve the accused from guilt under the statute protecting minors. | The court rejected the accused’s defense that the girl deceived him about her age, affirming that statutory protection of minors overrides such deception. |
| Safdar Roza (1922) 49 Cal. 906 | Clarifies that consent of a girl under 16 years to illicit intercourse or marriage is immaterial under section 366, which is an aggravated form of section 363. | The court relied on this precedent to uphold that the minor’s consent to marriage or intercourse does not prevent conviction under section 366. |
| Ahmed Bepari, A.I.R 1925 Cal. 578 | Confirms that marriage without the consent of lawful guardian is an offence under section 366, even if approved by other family members. | The court used this precedent to reinforce that the accused’s intention and act of marrying the minor without guardian consent constituted the offence. |
Court's Reasoning and Analysis
The court examined the evidence of age through testimony of the girl and her parents, medical reports, and documentary evidence, concluding that P.W 5 was a minor at the time of the incident. The documents produced by the accused to prove majority were found unreliable and obtained after the incident, thus given little weight. The court emphasized that the offence under section 363 I.P.C. is committed when a minor girl is taken away from lawful guardian custody, regardless of her consent. The court applied the principles from cited precedents to reject the accused’s argument that consent or prior intimacy negated culpability. The court further held that the offence under section 366 I.P.C. is an aggravated form of section 363, and the accused’s intention to marry the minor was established through the registered marriage agreement and conduct. The accused’s defense that the girl deceived him about her age was held legally irrelevant. The court found the accused guilty of a deliberate act and maintained the sentence of five years rigorous imprisonment as appropriate in the circumstances.
Holding and Implications
The appeal is dismissed.
The court upheld the conviction of the accused under Section 366 I.P.C. and the sentence of rigorous imprisonment for five years. The decision confirms that the consent of a minor girl under lawful guardianship is immaterial to the offence of kidnapping or taking away under sections 363 and 366 I.P.C. The ruling reinforces statutory protection of minors against forced or induced removal and marriage without guardian consent. There are no broader legal implications or new precedents established; the judgment directly affects the parties by affirming the accused's guilt and sentence.
N.V Iyengar, J.:— This appeal is by the accused in S.C 63 of 1956 on the file of the Quilon Sessions Court, against his conviction under Section 366 I.P.C and sentence of rigorous imprisonment for five years.
2. Nandini Amma, the girl in question belongs to the Nair Community and was living with her father P.W 1 and mother P.W 6 in their house in Noornad Village. The accused Chathan Kunjukunju is a Pulaya aged about 26 and living in the same village, about a mile away. He had married in his community and had an issue by the marriage. His business consisted of selling song books and he know how to sing. His uncle was residing in the house adjoining that of P.W 1 and this apparently had given him opportunity to get acquainted with P.W 5. According to the Prosecution on the night of 13-10-1955 corresponding to 27-2-1131 at about 10 p.m, P.W 5 got out of the house to answer calls of nature and then the accused and his brother Kumaran together caught cold of her and by force and stealth took her away to the accused's house. The accused subsequently took P.W 5 along with him, to various places travelling only by night and on 27-10-1955 got up a registered agreement of marriage with her vide Ext. D-2 at the Noornad Sub-Registry Office. Meanwhile, P.W 1 made complaints to the Panchayat and the Police but without result. He then filed a complaint on 24-11-1955 Ext. P-1, before the Kunnathur First Class Magistrate-The police soon after secured P.W 5 from the accused's house and in due course she was entrusted back to P.W 1. The case was since then transferred to the District Magistrate (Judicial), Quilon for expeditious trial. After preliminary enquiry the District Magistrate discharged the accused's brother and committed the accused alone to the Sessions Court of Quilon for the offences under sections 363 and 366 I.P.C Before the committing Magistrate's Court, the accused had pleaded that P.W 5 had been intimate with him even during the five years before the occurrence, and they had in fact been living in his house as husband and wife for the three months prior to 27-10-1955. On the night in question he had not taken P.W 5 by force or stealth as alleged; she alone had voluntarily left with him. These pleas he reiterated before the court below. He further denied that P.W 5 had become a major at the date of the incident.
3. Learned Sessions Judge found on the evidence before him that P.W 5, was below 18 years of age on the date of the occurrence and was also then in the keeping of her lawful guardian, P.W 1. So the question whether the girl went away willingly with the accused or was taken forcibly by him was immaterial under law for the offence under section 363. It was clear and indeed admitted by the accused that the object of taking away the girl was with intent to marry her. The offence under section 366 was therefore also made out. But the offence under section 366 was merely an aggravated form of the offence under section 363. So the learned Sessions Judge convicted the accused under section 366 and awarded the sentence of five years as abovesaid.
4. The accused appeared in person before us. He canvassed once again the question of the minority of P.W 5 and also his immunity from conviction on the ground that P.W 5, was a consenting party throughout. Having heard the accused and gone through the records we may say at once that there is absolutely no substance in these pleas.
5. On the question of age the evidence afforded by the parents P. Ws. 1 and 6 and also of the girl herself as P.W 5 was that she was only about 15 years old at the time of the occurrence. There were also registered documents, Exts. P. 4 to P. 6 executed for and on behalf of P.W 5 also through guardian referring to her age, consistently with the above position. P.W 3, medical officer examined P.W 5 and submitted report Ext. P. 7 on 1-12-1955 finding her age to be between 15 to 17 at the time. The accused relied on the other hand on Exts. D. 1 and D. 2. Ext. D. 2 is the registered udampadi of marriage dated 27-10-1955 between the accused and P.W 5. The age of P.W 5 is mentioned there as 20. But that document was brought about by the accused after the occurrence, P.W 5 being after all illiterate. No importance can therefore be attached to it. Ext. D. 1 purports to be a certified copy of a school register showing the date of birth of ‘Nandinikutty’ the pupil concerned, to be 14-3-1113. This copy is seen to have been obtained on 7-12-1955 after the incident here. The name also did dot tally with that of P.W 5. Even otherwise it was not of much help to the accused seeing that the girl referred to there would still be less than 18 years old on the relevant date, 27-2-1131. The court below was therefore right in its finding as to the minority of P.W 5 at the time of the occurrence.
6. The only other question is whether the consent of P.W 5, whether in going with the accused or in marrying him afford protection to him. There can be no doubt that P.W 5 was in the keeping of her legal guardian viz., her father at the time. In Ext. P. 11, statement of the accused in the Committing Court, this fact was even admitted. If so, the taking or enticing of P.W 5 so as to kidnap her within the scope of section 361 is achieved even though she is a consenting party to it. Bramwell, B stated the law in Christian Olifer, (1866) 10 Cox. 402, 404,
“I am of opinion that if a young woman leaves her father's house without any persuasion, inducement, or blandishment held out to her by a man, so that she has got fairly away from home, and then goes to him, although it may be his moral duty to return her to her parent's custody, yet, his not doing so is no infringement of this Act of Parliament, for the Act does not say he shall restore her, but only that he shall not take her away. It is, however, equally clear that, if the girl, acting, under his persuasion, leaves her father's house, although he is not present at the moment, yet, if he avails himself of that leaving which took place at this persuasion that would be a taking her out of her father's possession, because the persuasion would be the motive cause of her leaving. Again, although she may not leave at the appointed time and although he may not wish that she should have left at that particular time, yet, if finding she has left, he avails himself of that to induce her to continue away from her father's custody, in my judgment, he is also guilty, if his persuasion operated on her mind, so as to induce her to leave.”
7. And even the fact that the girl deceived the accused by over-stating her age would be no defence for as Erle, C.J, said in Timmins, Bell C.C 276,
“The Statute was passed for the protection of the parents, and for preventing unmarried girls from being taken out of the possession of their parents against their will; and it is clear that no deception or forwardness on the part of the girl in such cases can prevent the person taking her away from being guilty of the offence created this section.”
8. And for purpose of section 366 also the minor's consent to the marriage or illicit intercourse is not of any significance. In Safdar Roza, (1922) 49 Cal. 906 Sanderson, C.J observed:
“It is further conceded that the offence dealt with by section 366 is merely an aggravated form of the offence created by section 363; and it would therefore, seem to follow that when the matter under consideration, in relation to section 366, is the seduction to illicit intercourse of a girl under 16 years of age, as in this case, her consent or intention would be just as immaterial as it would be in connection with the offence dealt with under section 363. One object of the sections under consideration is not only to protect the rights of parents and others having the lawful guardianship of girls under the age of 16, but also to protect the girls themselves and to prevent persons taking improper advantage of their youth and inexperience.”
9. So in Ahmed Bepari (A.I.R 1925 Cal. 578) a Mohammadan girl of ten or eleven years of age was married without consent of her lawful guardian under Mohammadan Law, but with the full approval of the minor's mother and it was that the accused were guilty under this section. Here the accused has admitted that himself and P.W 5 lived as husband and wife for some time before the incident and he also got a marriage udampadi between himself and P.W 5, registered subsequently. The intention to take P.W 5 for purpose of marrying her must therefore be held to be established. The conviction under section 366 is therefore well sustained. There is no doubt that the accused was guilty of a deliberate act. He also contested that the girl should not be taken away from him. The punishment of five years awarded to the accused cannot in the circumstances be considered to be too severe.
10. In the result the appeal fails and is dismissed.
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