N. Jaladu, In Re

1. In this case, the appellants have been convicted under S. 366, I.P.C, of the offence of kidnapping a girl (P.W 1) of about ten years of age from the guardianship of her mother, P.W 2, with intent that she might be compelled to marry against her will. The facts found by the lower Court are that accused 2, a relation of P.Ws 1 and 2 asked P.W 2 and P.W 3 her (P.W 2's) grandmother, to send the girl for three days for Bogikolusu (or present gathering at a festival) but really with the intention of disposing of the girl in marriage to accused 1 without the consent of the girl and P.Ws 2 and 3. P.W 3, the girl's great grandmother, let her Co. More than a week after accused 2 had taken the girl to her village, she led her to another village on a false pretext. She then took her to a temple there where accused 1 was waiting, and there the girl was married to accused, I against her will.

2. The defence was that the girl was taken and married to accused 1 with the consent of P.Ws 2 and 3.

3. We agree with the lower Court in holding that the evidence adduced on behalf of the defence is not worthy of credit and that no consent was given by either P.W 2 or P.W 3 to the marriage. The Sessions Judge convicted both the accused under S. 366, I.P.C He held that “if, as alleged by the prosecution, P.W 2 allowed accused 2 to take her only for Bogikolusu and accused 2 took her and got her married in violation of her legal guardian's authority, the offence of kidnapping is complete.” This statement of the law cannot be accepted as correct.

4. The offence of kidnapping consists in taking or enticing a minor out of the keeping of the lawful guardian of such minor without the consent of such guardian. If a minor is taken with the consent of the guardian and subsequently married improperly without the consent of the guardian to any person, such improper marriage would not by itself amount to kidnapping. So far as accused 1 is concerned it was not alleged by the prosecution that he was a party to the taking away of the girl from the guardianship of P.W 2 nor was it alleged that he took her away from the custody of accused 2. The Sessions Judge finds that he “acted in concert with her and assisted in the kidnapping.” We do not find any evidence that he instigated or aided her in the taking of P.W 1, nor is there any charge or proof of conspiracy as regards this part of the transaction. There is no evidence that, prior to the time of the marriage the girl had been removed by accused 1 from the custody of accused 2 who took her from P.Ws 2 and 3. The offence charged has not been made out against accused 1. His conviction cannot therefore be sustained.

5. It remains to be considered whether accused 2 is guilty under S. 366 or not. P.W 2 said that she refused to consent to accused taking the girl and that she had gone away from the house when she actually took her, but P.W 3 does not corroborate her in this statement; and the girl, P.W 1, clearly says that her mother, P.W 2, sent her. We are of opinion on the evidence that P.W 2 also consented to the girl going with accused 2. But it appears that accused 2 obtained the consent of the girl's guardian by falsely representing that the object of taking her was only to gather presents for a festival. The question is whether in these circumstances it can be said that the guardian gave her consent to the taking of the girl within the meaning of S. 61, I.P.C S. 90, I.P.C, provides: “A consent is not such a consent as is intended by any section of this Code, if the consent is given by a person under fear of injury or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception.” We are of opinion that the expression under a misconception of fact” is broad enough to include all cases where the consent is obtained by misrepresentation; the misrepresentation should be regarded as leading to a (misconception of the facts with reference to which the consent is given. In Section 3 of the Evidence Act, III. (d), that a person has a certain intention is treated as a fact. So, here the fact about which P.W's. 2 and 3 were made to entertain a misconception was the fact that the accused 2 intended to get the girl married. In considering a similar statute it was held in England in Reg. v. Hopkins(1), that a consent obtained by fraud would not be sufficient to justify the taking of a minor: see also Halsbury's Laws of England, Vol. 9, p. 623. In Stephen's Digest of the Criminal Law of England, Edn. 6, p. 217), the learned author says, which reference to the law relating to “abduction of girls under sixteen” thus: “If the consent of the person from whose possession the girl is taken is obtained by fraud, the taking is deemed to be against the will of such a per son.” and he gives the following illustration No. (5): “A induces B to permit his daughter C to go away by falsely pretending that he (A) will find a place for C. A abducts C.” The illustration is founded on the case of Reg. v. Hopkins, already referred to. Although in cases of contracts a consent obtained by coercion or fraud is only voidable by the party affected by it, the effect of S. 90, I.P.C is that such consent cannot, under the criminal law, be availed of to justify what would otherwise be an offence. Accused 2 must therefore be held to have removed the girl from the guardianship of P.W 2 without her consent.

6. In the result, we confirm the conviction and sentence with respect to accused 2 and reverse the conviction of accused 1 and direct that he be set at liberty.

S.N/R.K

7. Order accordingly.