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DR.

RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY,


LUCKNOW

2017-18

INDIAN PENAL CODE-II

FINAL DRAFT ON:

Case Analysis: Thakorilal D. Vadgama v State of Gujarat, (1973) 2 SCC 413


TABLE OF CONTENTS

INTRODUCTION .......................................................................................................................... 3

TITLE.............................................................................................................................................. 3

CITATION ...................................................................................................................................... 3

BENCH ........................................................................................................................................... 3

BRIEF FACTS ................................................................................................................................ 4

PROCEDURAL HISTORY INVOLVED ...................................................................................... 5

BRIEF ANALYSIS OF THE PROVISIONS INVOLVED ........................................................... 5

ISSUES THAT AROSE.................................................................................................................. 6

RATIO DECIDENDI ...................................................................................................................... 7

AUTHORS OPINION ................................................................................................................... 8

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INTRODUCTION

The Supreme Court decision in Thakordas D. Vadgama v State of Gujarat is a landmark decision
when it comes to understanding the term whoever takes or entices under section 361 of the Indian
Penal Code. In a Division Bench decision by K.K. Matthew and I.D. Dua JJ, it was held that even
though a minor joins the accused on her own accord, it doesnt amount to taking. The accused
will still be charged for kidnapping under section 361 and 366, if the accused had an intention to
seduce her to engage in illicit intercourse, if there is ample material showing allurement and in
the influence of that allurement she voluntarily leave the lawful custody.

TITLE

Thakorlal D. Vadgama v The State of Gujarat

CITATION

(1973) 2 SCC 413

BENCH

K.K. Matthew and I.D. Dua JJ.

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BRIEF FACTS

1. Kishorilal was a rich industrialist and had a factory in Jamnagar and a residential bungalow
adjoining the factory. Liladhar Jivraj came to reside temporarily near his factory with his
wife Narmada and daughter Mohini. They came in contact with Kishorilal. Mohini was a
15 year old school going girl. Oh her birthday, Kishorilal gave her a very expensive Parker
Pen. He took Mohini and Jivraj along with his Manager and his daughter on Bombay trip
to celebrate Christmas on Dacember, 1965. There he had sexual intercourse with Mohini
while staying in hotel for 2 nights.
2. Mohini started visiting Kishorilals plae on and off. They had sexual intercourse during the
visit. They again went on a trip to Mahabaleshwwar. This time his daughter Rekha also
joined them. Mohinis mother found something fishy between her daughter and
Kishorilals relationship during this trip. After coming back she told about it to Mihinis
father and he scolded Mohini. Kishorilal alleged that he considered Mohini as her daughter
by swearing to God.
3. After all this he again had sexual intercourse with Mohini in his bungalow when she was
coming back after school. Her parents came to know about this and started imposing
restrictions on her. She ws not allowed to go to school alone. Mohinis mother wrote letter
to Kishorilal not to contact her on Seeptember 26, 1966. Apparently after this letter there
was no contact between Mohini and Kishorilal in Jamnagar.
4. Mohini wrote letters to him complaining of ill-treatment by her parents and expressing her
desire to leave her parents house. He assured her that he will provide allowances to her.
On January 16, 1967, mihini ran away from her parents house and came to Kishorilals
place. SHey stayed in his garage. He provided clothes and food and gave her Rs. 250. They
also indulged in sexual intercourse.
5. On Jaunuary 17, 1967, Police came to his bungalow. He had asked Mohini to run away
from the back door and go to the road-side where she was found by the police. Her clothes
were found from his car. Kishorilal was charged under Section 361, 366 and 376 of IPC
for kidnapping and rape.

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PROCEDURAL HISTORY INVOLVED

The Trial Court after perusing the evidence at hand found the accused guilty both for kidnapping
and rape under IPC. On appeal against the decision, Gujarat High Court acquitted him of the
offence of rape but upheld the conviction for the offence of kidnapping. The accused appealed
against the decision in the Supreme Court of India.

BRIEF ANALYSIS OF THE PROVISIONS INVOLVED

Section 359 of the IPC defines the offence of Kidnapping.

359: Kidnapping- Kidnapping is of two kinds: Kidnapping from [India], and kidnapping from
lawful guardianship.

361- Kidnapping from lawful guardianship- Whoever takes or entices any minor under
[sixteen]1 years of age if a male, or under [eighteen]2 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.

Explanation- The words lawful guardian in this section include any person lawfully entrusted
with the care or custody of such minor or other person.

Exception- This section does not extend to the act of any person who in good faith believes himself
to be the father of the illegitimate child , or who in good faith believes himself to be entitled to
lawful custody of such child, unless such act is committed for an immoral or unlawful purpose.

366- Kidnapping, abducting or inducing woman to compel her marriage, etc.- Whoever
kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely
that she will be compelled, to ,marry any person against her will, or in order that she may be forced
or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to
illicit intercourse, shall be punished with imprisonment of either description of a term which may

1
Subs by Act 42 of 1949, sec 2, for fourteen.
2
Subs by Act 42 of 1949, sec 2, for sixteen.

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extend to ten years, and shall also be liable to fine; [and whoever, by means of criminal
intimidation as defined in this Code or of abuse of authority or any other method of compulsion,
induces ay woman to go from any place with intent that she may be, or knowing that it is likely
that she will be, forced or seduced to illicit intercourse with another person shall be punishable as
aforesaid.]3

The word entice connotes the idea of inducement or pursuance by offer of pleasure or some other
form of allurement. This may work immediately or it may create continuous and gradual but
imperceptible impressions culminating after some time in achieving its ultimate purpose of
successful inducement.

Whoever kidnaps or abducts any person in order that such person may be subjected, or may be so
disposed of as to be put in danger of being subject to grievous hurt, or slavery, or to the unnatural
lust of any person, or knowing it to be likely that such person will so be subjected or disposed of,
shall be punished with imprisonment of either description of a term which may extend to ten years,
and shall also be liable to fine.

ISSUES THAT AROSE

The appellant contended that since the girl left her parents' house out of her own accord due to the
harsh treatment of her parents and as the appellant kept her in his house out of compassion and
sympathy for the helpless girl, the charge under s 366 of IPC was unsustainable.

3
Added by Act 20 of 1923, sec 2.

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RATIO DECIDENDI

The Apex Court held upholding the decision of the High Court held that the guilty party laid
foundation by inducement, allurement, or threat and if it has influenced minor or weighed with her
in leaving her guardians custody or keeping her in his custody, then it is prima facie difficult for
him to plead for ignorance. By holding him guilty under section 366, IIPC, the Supreme Court said
that the mere circumstances that his act was not immediate cause of her leaving her guardians
custody would constitute no valid defence and would not absolve him from the offence of
kidnapping. The question truly falls for determination on the facts and circumstances of each case.
The Supreme Court remarked that Mohinis mothers dignified protest letter to the accused
indicated how the mother of the girl belonging to a comparatively poorer family felt, when
confronted with a rich mans dishonourable behavior towards her young, impressionable,
immature daughter, who also suggested to render financial help to her husband in times of need.
The Supreme Court distinguished its earlier ruling in Varadarajans 4 case and explained the
meaning of the expression whoever takes or entices any minor thus:

The word takes does not necessarily connote taking by force and it is not confined to the use of
force, actual or constructive. The words merely mean to cause to go, to escort, or to get into
possession. No doubt, it does mean physical taking, but not necessarily by the use of force or
fraud. The word entice seems to involve the idea of inducement or allurement by giving rise to
hope and desire to the other. This can take many forms, difficult to visualize and describe
exhaustively, some of them may be quite subtle, depending on the success of the mental state of
the person at the time when the inducement is intended to operate. This may work immediately or
it may create continuous and gradual but imperceptible perception culminating after sometime, in
achieving its ultimate purpose of successful inducement. The two words takes and entices are
intended to be read together, so that each takes to some extent its color and content from the other.
The statutory language suggests that if a minor leaves her parental home completely uninfluenced
by any promise, offer or inducement emanating from the guilty party, then the latter cannot be said
to have committed the offence as defined in s. 361 of the IPC. But if the guilty party has laid a

4
S. Varadarajan v State of Madras AIR 1965 SC 942.
foundation by inducement, allurement or threat, etc., and of this gain can be considered to have
influenced the minor or weighed with her in leaving her guardians custody or keeping and going
to the guilty party, then prima facie it would be difficult for him to plead innocence on the ground
that the minor had voluntarily come to him.

AUTHORS OPINION

The trial court found no reason for Mohini to put her life at stake and fabricate the story, and so
did it said about her father, who, the accused contended was alleging him falsely because he did
not appoint him as the manager in his factory. In fact, the trial court found that it was the appellant
who offered Mohinis father a job and thats why he took him and Mohini on a visit ot Baroda.
The court booked the accused under ss. 366 and 367 of the IPC, and was awarded rigorous
imprisonment of 18 months under section 366 and to rigorous imprisonment for 2 years and a fine
of rupees 500/- under section 367 and in default, to further imprisonment for six months. The
substantive sentences of the imprisonment were to run concurrently. On appeal by the accused, the
charges under s. 376 were dropped and the accused was acquitted under that section as the evidence
found was not beyond reasonable doubt. He was punished under section 366 alone, in a very
exhaustive and lengthy, but well-reasoned judgment of the High Court.

The accused contended that since Mohini wanted to leave her parents home and stay with him,
without any co-ersion or fraud on his part, he should be considered innocent. But, since he tried to
mislead the police and Mohinis father, when he came along with the police, he was meaning to
take Mohini away from the lawful custody of her guardians. Therefore, as per the s 366 of IPC,
his contention was rejected, as the Court quoted from Christian Olifier5 case:

Although she may not leave at the appointed time and although he may not wish that she should
have left at a particular time, yet if, finding she has left, he avails himself of that to induce her to
continue away from her fathers custody, in my judgment he is also guilty, if his persuasion
operated on her mind so as to induce her to leave.

5
10 Cox. 420.
The court also referred to State of Rajasthan v Raja Ram6 where the court had considered the
meaning and scope of S. 361 of IPC.

The court also took Mohinis mothers letter to the accused into consideration, where she had, in
a decent language asked the accused to stay away from her daughter.
The court held:

1. The legal position with respect of an offence under section 366, IPC is clear. In State of
Haryana v Raja Ram. It was observed by this Court that the object of Section 361 seems
as much to protect the minor children from being seduced for improper purposes as to
protect the rights and privileges of guardians having the lawful charges or custody of their
minor wards. The gravamen of this (kidnapping) is the 'taking' or 'enticing' of a minor girl
under the ages specified in the section, out of the keeping of the lawful guardian without
his consent and section 366 provides for punishment of whoever kidnaps a woman for
illicit intercourse or for the purpose of marriage against her will.
2. The word 'takes' in section 361, IPC does not necessarily connote taking by force and it is
not confined only to use of force, actual or constructive. This word merely means "to cause
to go", "to escort" or "to get into possession". The word "entice" means to involve the idea
of inducement or allurement by giving rise to hope or desire in the other. If the minor leaves
her parental home, influenced by any promise, offer or inducement emanating from the
guilty party then the latter will be guilty of an offence as defined in IPC.

In the present case, the circumstances in which the appellant and the victim came close to each
other and the manner in which he is stated to have given her presents etc. and the letters written by
the victim to the appellant furnish very important and essential background to the offence which
the appellant committed. Therefore, the two courts below have rightly convicted the appellant
under sec 366, IPC. State of Haryana v. Raja Ram referred to and S. Varadarajan v. State of
Madras7, distinguished. Thus, the Supreme Court observed that the appellant had taken Mohini
out of the lawful custody of her parents with an intention that she may be seduced to illicit
intercourse.

6
AIR 1973 SC 819.
7
AIR 1965 SC 942.