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Criminal Acquittal Appeal No. 52 of 1962, decided on 7th May 1963.

‑Appeal against acquittal Finding of Magistrate upon question relat ing to assessment of oral evidence‑Not to be lightly discarded.

Kidnapping‑ Ingredients : taking or enticing away of minor below 14 years if male and below 16 years if female ; out of keeping ; and without consent of lawful guardian‑Word "keeping" in S. 361‑Wider in import than "possession"‑Mere leaving of parent's house by minor‑Does not terminate lawful keeping of guardian.

Kidnapping‑ Enticing, use of force or fraud not necessary to constitute offence‑Mental attitude of minor immaterial‑Act of "taking" must be with intention to remove minor from, and without consent of guardian.

M. Haleem for A. A.‑G. for Appellant. S. A. Ashfaq for Respondent.

Dates of hearing : 19th April and 7th May 1963.

This is an acquittal appeal by the State against the judgment dated 31‑8‑61 of Mr. Ahmadullah, S. D. M. Cantonment, Karachi, exercising powers under section 30, Cr. P. C. whereby he acquitted the respondent Qamaruddin who had been accused of offences under sections 363, 366 and 376, P. P. C.

2. The prosecution case against the respondent Qamaruddin may briefly be stated : Bilqees, daughter of Sheikh Abdur Rahman P. W. 1, aged about 14 years was living with her parents under the guardianship of her father in a building called Vanzara Building' situated in Ramaswamy Quarters, Karachi. In another tenement of the same building had once lived the respondent Qamaruddin, whose age about the time of the incident was 19 years. The girl Bilqees had been born at Karachi a few months before Partition and her father had lived in this building for a number of years. Qamruddin's father also lived in another tenement of the same building and Qamaruddin was known to the family of Sheikh Abdur Rahman and used to visit his tenement and had actually acted as a tutor of the girl Bilqees and her younger sister Khatoon for some time. Six months before the date of incident in question which took place on 1‑4‑60, Qamaruddin's parents had shifted from the said Vanzara building and had gone to live near Lasbela House. Qamaruddin had, however, a room in Lalukhet adjacent to a tea stall known as Raft Tea Stall'. On 1‑4‑60 at about 7‑30 a.m. Bilqees accompanied by her younger sister Khatoon was going to the Municipal Primary School where the former was studying in the II Standard and latter (Khatoon) in the I Standard. It is the case of the prosecution that as these two girls were on their way to the school Qamaruddin came on a motorcycle rickshaw and told Bilqees that her father was in the garden, by which was meant the Gandhi Garden which is situated near the Ramaswamy Quarters, and had asked him to fetch Bilqees. Bilqees, therefore, boarded the rickshaw but when Khatoon also wanted to join her she was not allowed to do so by the accused. Bilqees was then taken by him in that rickshaw to the room adjacent to Rafi Tea Stall where Qamaruddin was living and there he committed sexual intercourse with Bilqees by putting her under fear of death. After finishing intercourse he told her not to mention this fact to her parents and he brought her in a motorcycle rickshaw near Khopra Mills not very far from the residence of Bilqees and left her there. However, in the mean time Khatoon seeing that her sister had been taken away by the respondent, went to her mother weeping and informed her about this. The mother Mst. Haneefa was so alarmed that she went immediately to a place in Saddar where her husband Sheikh Abdur Rahman was working as mason and told him that Qamaruddin had taken away Bilqees with him in a rickshaw. The father immediately left his work in Saddar and returned to his house where he made inquiries from Khatoon and along with her went to the Gandhi Garden police station, within whose jurisdiction the area fell, and lodged his report. This report was recorded by the Station House Officer Ghulam Rasool P. W. 8, at 9‑15 a.m. It may be reproduced

"I had gone to Saddar early in the morning. At 9 a.m. my wife informed me in Saddar that today at about 8‑30 a.m. both the girls Bilqees and Khatoon had left for school. After a while Khatoon came back running to the house and informed that when they reached near the school, they met Kamoo son of Chanda Water‑Carrier and another person. Kamoo told Bilqees that her father was in Gandhi Garden and she wanted there. Thereupon Bilqees agreed to go with him. I also showed my willingness to go with her, but Kamoo and the other person made Bilqees sit in an auto‑rickshaw. They pushed me and took her away. Kamoo's father had been my neighbour and now he is residing in Lasbela, Kamoo's paternal uncle Nana is also my neighbour and Kamoo visits his house. My daughter Bilqees is aged 13 years and she is studying in 3rd class."

The S H O. registered an offence under section 363, P. P. C. and took the statement of Khatoon who had accompanied her father. Khatoon, it may be stated, was aged about 10 or 11 years at that time When Sheikh Abdur Rahman was still at the Thana, a man came from his house and told him that Bilqees had been returned. Thereupon the Sub‑Inspector accompanied him to his house and there he recorded the statement of Bilqees.

The shalwar of the girl was seized by the Sub‑Inspector as per memo. Exh. 8/3 and then the investigating officer proceeded along with the girl to the room of the accused in Lalukhet near the Rafi Tea Stall where he was found and arrested. His pant was also seized as per seizure memo. Exh. 8/2. Both these appeared to be stained with semen and pieces cut out of these two garments namely, the shalwar and the pant, were sent to the chemical Examiner and were found to contain human sperms. The report of the chemical examiner in respect of these two garments is Exhs. 8/4 and 8/5 respectively. Bilqees was sent for medical examination and was first examined by P. W. 6 Dr. Saeeduzzaman Khan, incharge C. M. U. Civil Hospital, Karachi at 1 p.m. on the same day. He did not find any external marks of injury on her person. At that time he found that she was menstruating and so he was not able to take her vaginal smear. On the examination of her private parts he found that her hymen had been torn but the tears were old and healed and the vagina admitted two fingers easily. In the opinion of the doctor the girl was used to sexual intercourse. In his report he said that it was not possible to support or contradict the allegation of rape. The doctor's report is Exh. 6/1. On the following day, that is the 2nd of April 1960, Bilqees was examined by the Police Surgeon Major A. Hassan with regard to her age. He got her examined radiologically and also performed the physical test. He found her to be four feet and nine inches in height weighing 5 stones and 10 pounds. She had 28 permanent teeth but the wisdom mollars had not yet errupted. Her axillary hairs were soft, black and sufficient. Her pubic hairs were thick and profuse and black. Her breasts were fully developed. She informed the doctor that she had been men struating for the last 5 months. Taking into consideration the clinical and radiological factors Major Hassan gave his opinion that the girl was aged 14 years. His report is Exh. 7/1.

3. At the trial the prosecution case rested upon the testimony of the father Sheikh Abdur Rehman, P. W. 1, Bilqees herself P. W. 2 and her younger sister Khatoon P. W. 3. All these three supported the prosecution version as given above. There was then the evidence of the two doctors Saeeduzzaman and Major Hassan and the investigating officer Ghulam Rasool. There were also the report of the chemical examiner regarding the presence of human sperm on the shalwar and the trousers of the girl and the boy. There was some more oral evidence but that is not of much significance.

4. The respondent in his statement under section 342, Cr. P. C. denied every allegation which had appeared in the prosecution evidence but to the last question as to why the case was instituted against him and why the witnesses were deposing against him, he said that Bilqees had come to his house of her own accord and that he had admonished her and returned her. He added that she had come after leaving her house.

5. The learned Magistrate formulated the following five points for determination in the case :‑

"(1) Whether Mst. Bilqees was aged under 14 ,years of age

(2) Whether the accused deceived her into going with him by misrepresenting to her that her father had sent for her

(3) Whether the accused had intended to force or seduce her to illicit intercourse

(4) Whether the accused committed rape on Bilqees

(5) Whether the accused kidnapped Mst. Bilqees aged 13 years from the lawful guardianship of her father "

He answered all the questions in the negative. On the question of age the learned Magistrate found that Bilqees was aged about 14 years and he added that by her looks she did not appear to be above 14 years of age. On the questions 2 and 3 he disbelieved the story that the girl had been deceived by the respondent Qamaruddin into going with him or that he had done so with the intention of forcing or seducing her to illicit intercourse. Though the learned Magistrate doesn't say so specifically but it appears from his judgment that he took the view that the girl Bilqees had gone to the room of the respondent of her own accord. He gave no finding on the point of rape and this may be due to the fact that he did not hold that the girl was below 14 years of age and that she had gone to the accused willingly and had been on terms of intimacy with him. Likewise, he has given no finding on the fifth question, namely "whether the accused had kidnapped Mst. Bilqees "

6. We agree with the learned Magistrate that the offence under sections 376 and 366, P. P. C. "had not been established beyond a reasonable doubt." As for the offence of rape the girl was not proved to have been under 14 years of age and having regard to the relations between the parties the question of inducement and seduction was not also free from doubt. We agree with the learned Magistrate in his conclusion which in his own words are :‑

"Therefore, the prosecution has not proved beyond all doubt then the accused had either induced, seduced or deceived Bilqees into going away with him."

But this did not conclude the matter because the question still remained to be considered whether Bilqees, who was a girl under 16 years of age, had not been taken out of the keeping of the lawful guardian, namely her father, because if this can be held to be established against the accused he will still be guilty under section 363, P. P. C. The learned Magistrate has not clearly directed himself to the answering of this question though it was his duty to do so. He had actually formulated this question for determination. It is true, it can be gathered from his judgment that he appeared to be of the opinion that the girl bad gone herself to the accused but nowhere he had addressed himself to the question of kidnapping as defined by section 361, P. P. C. and which is made punishable under section 363, P. P. C. The minority of the girl in relation to the offence of kidnapping was not even mentioned. The learned counsel for the State has addressed us mainly upon this question and this we shall now proceed to examine.

7. Section 361 reads as follows :‑

"361, P. P. C.‑Whoever takes or entices any minor under fourteen years of age if a male, or under sixteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship."

The most important point to consider in connection with this aspect of the case is whether the respondent Qamar uddin had met Bilqees while she was on her way to school along with her sister and took her with him to his room near the Rafi Tea Stall. That she had reached there is not disputed. The question is whether she had been taken there by the accused. As regards the question of the age of the girl we are satisfied from the evidence of Dr. Major Hassan based, as it was, upon the clinical and radiological tests that she was about 14 years of age and that in any case she was below 16 years. Her birth certificate, it is true, has not been produced, but it may well be that the investigating officer was satisfied with the medical certificate given by Dr. Major Hassan with regard to the question of her age. Dr. Hassan is a doctor of very wide experience in these matters as a police surgeon and the reasons that he has given for his conclusion based as they were also upon the radiological test are sufficient to reach the conclusion as we have with regard to the fact that Bilqees was under 16 years of age and thus a minor within the meaning of section KI, P. P. C. The learned Magistrate himself found that she was about 14 years of age and the learned counsel for the respondent did not seriously contest this finding.

8. The learned Magistrate dealing with the evidence of Bilqees and Khatoon with regard to the allegation that Bilqees had been taken away on a motor rickshaw by the respondent observed as follows :‑

"There is no iota of other evidence that she was seen going with the accused in a motor rickshaw. There was no corrobo ration either by circumstances or by substantial evidence that the accused had taken her away. In the absence of any such corroboration I would not give credence to the testimony of Bilqees and Khatoon who have perjured in respect of the aforesaid photographs to conceal the facts that they had thick relations with the accused."

We have considered these observations and the reasoning of the learned Magistrate with great care because he had the benefit of seeing the witnesses and the finding of a trying Magistrate upon a question relating to the assessment of oral evidence is not to be lightly discarded. We are also conscious of the fact f that the initial presumption of the innocence of the accused has been strengthened by a finding in his favour by the trial Court and that the Court of appeal does not lightly interfere with such a finding. But let us examine the evidence and the circumstances, of the case. There can be no doubt that the respondent was fairly intimate with the girl Bilqees, to whom and her younger sister Kbatoon he had actually given tution for some time. He had also lived and grown in the same building, though in a different tenement, in which his and Bilqee's parents lived. The photo graphs, Exhs. D/2 to D/8, produced by the accused not only

Support this but two of them, i.e. Exh. D/4 and Exh. D/8, show that the girl was on terms of affectionate intimacy with the respondent. It may well be that this was not the first time that she had sexual intercourse with the respondent. In fact, the evidence of Dr. Saeeduzzaman would support this. When these photographs were put to Bilqees and Khatoon they said that these were not distinct enough to enable them to say that it was of them. In this they were not telling the truth. But it is easy to understand the conduct of young girls faced with such a situation in a public place where they are examined as witnesses. That is the reason which has weighed mostly with the learned Magistrate in disbelieving their story with regard to the incident of the morning in question. There are however compelling circumstances which go to show that the girl Bilqees had been taken by the respondent to his room on the said morning. The distance between the Ramaswamy Quarters and Lalukhet where the Rafi Tea Stall is situated is about 2 miles. Both these girls were studying in the Municipal Primary School and they would normally go to the school in the morning. The fact that Bilqees was accompanied by Khatoon is established by Khatoon going and telling her mother that Bilqees had been taken away by the respondent. That she did give this information is further supported by the alarm caused by it to the mother who went to the place of work of the father and informed him of it and he promptly came home, made inquiries from Khatoon and took her to the police station and lodged the report at 9‑15 a.m. The Sub‑Inspector actually examined Khatoon after recording the F. I. R. The report has been reproduced above in the judgment and therein the fact that Bilqees had been taken away by the respondent has been clearly stated and this obviously was based upon the information given by Khatoon. This turned out to be true because Bilqees had admittedly gone to the place of the respondent from where she returned a little while later. It was at the police station that information of the return of Bilqees was received while Abdul Rahman and Khatoon were both still there. The truthfulness of the information given by Khatoon was borne out by these facts. How could Khatoon give such an information if she had not seen Bilqees being taken away by the respondent If Bilqees had disappeared herself, as was suggested by the defence, then it is difficult to see how such a report would be promptly made upon the information given by Khatoon who, according to her, was accompanying Bilqees to the school. A small chit of paper was produced by the accused at the trial. This is Exh. D/9. It is dated 31st March 1960 and purports to be a short communication by Bilqees on the respon dent and is to the effect that though Bilqees had called Qamar through Khatoon but he had not come and if he did not come how she herself (that is Bilqees) would go to him on the following day. When this chit was put to Bilqees in cross‑examination she promptly stated that this was written by her at the dictation of the accused. We are satisfied that this is a true explanation. Bilqees was living in Ramaswamy Quarters and the respondent was in Lalukhet. There is no explanation how this letter reached the respondent. He himself gives no explanation of it. Then the statement in the letter that the respondent had been called through Khatoon the previous day of the incident itself appears to be untrue, because how would Khatoon go all this distance to convey this message. No question was put to Khatoon on this point and Bilqees herself was merely shown this letter and when she gave this explanation the matter was not pressed any further. As we have said, it appears reasonable to believe that this letter was got written by the respondent when he had taken Bilqees to his room in Lalukhet. He was guarding himself against any possible accusation. It also appears to us that if Bilqees had decided to go by herself to Lalukhet to the accused or if this visit was by previous arrangement she would have either slipped away from her home or from the school on the quiet. She would not do so to the knowledge of Khatoon. But if it was said that Khatoon was in their confidence then this is belied by the subsequent conduct of Khatoon who promptly came and reported this to her mother. All these circumstances strongly give support to the evidence of Bilqees and Khatoon that it was the accused‑respondent who met Bilqees while on the way and took her to his solitary room in Lalukhet. We are also satisfied, upon Bilqees' evidence, that an act of sexual intercourse was committed on her by the respondent in his room that morning. This is supported by the finding of semen on her own shalwar and also on the pant of the respondent. It would be too much of a coincidence to find the garments of both of them stained with semen. It is true that when Dr. Saeeduzzaman examined her she had started menstruating. But this evidently must have commenced after the act of intercourse. It is known that a woman and particularly a timid girl such as Bilqees is likely to break into menstruation by a shock. In our opinion, therefore, it has been established beyond a reason able doubt that it was the respondent who had taken Bilqees while she was on her way to school to his room in Lalukhet where he had a sexual intercourse with her and then brought and left her near the Khopra Mills from where she came home. The question which then falls for consideration is whether in doing so he committed an offence of kidnapping as defined by section 361, P. P. C.

9. The requirements of section 361, P. P. C. are :‑

(i) Taking or enticing away of a minor ;

(ii) such minor must be under 14 years of age if a male or t3 under 16 years of age if a female ;

(iii) the taking or enticing must be out of the keeping of the lawful guardian and without his consent.

There can be no doubt that Bilqees was still within the lawful keeping of her father even though she had left her home and was on her way to school. The word keeping' has been advisedly used by the Legislature and is of a much wider import than possession'. This lawful keeping is not terminated merely when C a child leaves its parents' house. Such leaving would normally be deemed to be with the consent of the guardian, whose keeping will continue constructively notwithstanding the physical going out of the minor from such keeping. The object of this section isl to protect both the rights of the parents and guardian with regard to the custody of the minors on one hand and the children of tender age from being abducted or seduced on the other. In order to constitute an offence of kidnapping it is not necessary that there must be enticement or use of force or fraud in the act of taking. To cause a minor to go or to escort him would amount to taking and in this the mental attitude or the physical conduct of the minor is of no relevance. The consent of the minor to the taking does not stop the act from coming within the mischief of section 361, P. P. C. A minor girl may be invited to an act of sexual intercourse and may willingly allow herself to be taken to a place for the performance of such an act and even though the act may not fall within the scope of section 376 it would still be an offence of kidnapping in so far as the girl, provided she is below 16 years of age, is taken out of the lawful keeping of the guardian. But from this it does not follow that whenever a person escorts a minor or causes him to go from one place tol another he necessarily comes within the mischief of section 361. In order to constitute the offence of kidnapping the act of taking must be with the intention of removing the minor out of the keeping of the lawful guardian and this must be without his (guardian's) consent. There may be a case of innocent escorting of a minor or causing him to go : for instance, a friend of the guardian may meet the ward in the Bazar and may take him to his house for giving him some refreshment. But that would not constitute kidnapping because though such a person has physically taken the minor from one place to another he has not done so with the intention of removing out of the lawful keeping of the guardian, and in the case of such a taking the implied consent of the guardian would be presumed. I here has been some difference of judicial opinion with regard to cases in which a minor has abandoned his home and is then taken by another person. On the one hand, it has been held that a minor girl cannot throw off the guardianship by her own volition and on the other hand it has been held that where such a minor voluntarily leaves the roof of her guardian and come across another person who deals with her without employing any force or fraud the latter would not be held liable. We are, however, of the opinion that in all such cases the real question is whether there is an intention to take the minor out of the lawful keeping of the guardian. If this is established then the offence of kidnapping would be made out, however, short the period of taking may be and provided of course the taking is not with the consent of the guardian either express or implied.

10. Applying the above principle to the facts of the present case there can be no doubt that when the respondent accosted Bilqees on the way and took her with him on rickshaw to his room he did take her out of the lawful keeping of her guardian Abdur Rahman. There can be no case of an implied consent of the guardian in the present case because we have seen that as soon as the mother came to know of it she rushed to the father and the latter went and lodged a prompt report with the police. The consent or the willingness of Bilqees in accompanying the respondent does not take the case out of the mischief of kidnapping as defined by section 361, P. P. C. We, therefore, set aside the judgment of acquittal passed by the learned Magistrate in so far as it relates to the offence of kidnapping and we convict the respondent Qamaruddin under section 363, P. P. C. Having regard to all the circumstances of the case we sentence him to rigorous imprisonment for one year. He shall be taken into custody and sent to imprisonment to serve out the sentence.

K. B. A.

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