Raghunath Singh v. State of M.P. (SC) BS682867
SUPREME COURT OF INDIA

Before:- M. Hidayatullah, S.M. Sikri and Raghubar Dayal, JJ.

Cr.A. No. 256 of 1964. D/d. 10.10.1966.

Raghunath Singh - Appellant

Versus

State of M.P. - Respondent

For the Appellant :- G.L. Sanghi, Ravinder Narain, O.C. Mathur of M/s. J.B. Dadachanji and Co.

For the Respondent :- I.N. Shroff, Advocate.

A. Indian Penal Code, 1860 Section 368 Wrongful confinement - `Knowing' or `Knowingly' and `has reason to believe' - Expression - Meaning and usage - Words `knowing' or `knowingly' more forceful than words `reason to believe' - `Knowing' or `Knowingly' insist on a greater degree of certitude in mind of person who said to know or to do act knowingly - Before an offence under Section 368 could be brought home it must be established that accused know that person had been kidnapped or abducted.

[Para 4]

B. Indian Penal Code, 1860 Sections 368, 342, 343, 344 Wrongful confinement - Kidnapping or abduction - Accused was utterly indifferent as to how girl was brought in his house - Held, accused may have had reason to suspect or even to believe that girl was kidnapped but it cannot be said that he knew that accused kept girl in room and kept a watch on her - Held, girl was wrongfully confined but not kidnapped or abducted by accused.

[Para 6]

C. Indian Penal Code, 1860 Section 368 Wrongful confinement - Ingredient - (a) Keeping victim in room and keeping a watch that victim might not run away - (b) Accused knew that victim was kidnapped or abducted.

[Para 8]

D. Indian Penal Code, 1860 Sections 368, 342, 343 and 344 Wrongful confinement - Kidnapping and Abduction - Accused convicted for the wrongful confinement of girl - Girl was in custody of accused for three nights - Held, girl was not confined for more than 2 days - Held, offence fall under Section 342 and not under Section 343 - Sentence of accused reduced for the period of one year - Appeal dismissed.

[Para 8]

Case Referred :-

S. Varadarajan v. The State of Madras, AIR 1965 Supreme Court 942.

JUDGMENT

Hidayatullah, J. - The appellant Raghunath Singh was tried with six others for offences under Sections 366/368 and 376 of the Indian Penal Code by the Additional Sessions Judge of Tikamgarh and was sentenced to rigorous imprisonment for ten years for the offence of rape and for five years for the other offence. The sentences were to run concurrently. On appeal to the High Court of Madhya Pradesh, his conviction and sentence for rape were set aside but bis conviction under section 366/368, Indian Penal Code and the sentence of five years, rigorous imprisonment passed on him were maintained. He now appeals by special leave of this Court.

2. One Mst. Parvati, daughter of Sukku was the prosecutrix in the case. Her age has been found by the High Court to be not below 16 years and not above 18 years. The prosecution case is as follows: On the night between the 3rd and 4th September, 1963, Mst. Parvati was returning at about midnight after answering a call of nature when Bharosa and Acchelal (co-accused of the present appellant) accosted her and told her that Mst. Ladkunvar, the mistress of appellant Raghunath Singh, had sent for her. Mst. Parvati at first did not wish to go but on being assured that she would be allowed to return within a short time, went with them. When she reached the house she met Raghunath Singh who was waiting for her and took her forcibly, at the point of a gun, to an upper storey in a portion of his house known as the Chakki Ghar. There she was made to take liquor against her will and thereafter was raped by Raghunath Singh. She was kept concealed in the house till the night intervening the 5th and 6th September, 1966 and then was taken to Palera by Bharosa and Acchelal. She then passed successively into the possession of the other accused in the case who in their turn, also detained her and raped her. As those persons have not appealed we are not concerned with what happened to Mst. Parvati after she left Raghunath Singh's house. At that place she was not allowed to go out of the house and even when she went out to answer the call of nature, Raghunath Singh used to mount guard so that she should not run away.

3. The learned Additional Sessions Judge believed the story of Mst. Parvati, as summarised above. The High Court differed on the question of rape and held that Mst. Parvati had consented. As a result Raghunath Singh was acquitted of that offence. The High Court, however, upheld the conviction under section 366/368 holding that Mst. Parvati had been concealed or confined by Raghunath Singh knowing that she had been kidnapped or abducted. In this appeal Mr. Sanghi contends that there is no evidence to establish that Mst. Parvati was either kidnapped or abducted and further that it is not established that Raghunath Singh concealed or confined her knowing that she had been kidnapped or abducted.

4. We are not concerned with whether there is evidence to show that Mst. Parvati was kidnapped or abducted because we are satisfied that there is nothing to establish that Raghunath Singh knew that she had been kidnapped or abducted. The High Court did not believe the evidence of Mst. Parvati that she had informed Raghunath that she was brought on the pretext of meeting Ladkunvar and it is, therefore, difficult now to hold that Raghunath Singh knew that she was taken away from lawful guardianship or abducted. "Abduction" is defined by section 362 as follows:

"Kidnapping" is defined by section 361 as taking away or enticing any minor under sixteen years of age if a male, or under eighteen 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. It may be mentioned here that in S. Varadarajan v. The State of Madras, AIR 1965 Supreme Court 942, this Court laid down that if a minor goes out of the guardianship and fairly gets away, it may be a moral crime not to restore the minor to lawful guardianship but is not an offence if the person taking advantage of the position retains the minor in his custody. These definitions and propositions must be borne in mind before deciding about the guilt of the appellant under Section 368 of the Indian Penal Code. Section 368 speaks of "knowledge" when it says, "Whoever knowing that any person has been kidnapped or has been abducted, wrongfully conceals or confines such person........" The Indian Penal Code uses two different expressions in its different parts. Sometimes the gist of the offence is dependant on knowledge and the words "knowing" or "knowingly" are used to indicate that knowledge as such must be proved either by positive evidence or circumstantially before mens rea can be established. Sometimes (see for example sections 212, 411, etc), the expression "has reason to believe" is used. The words "knowing" or "knowingly" are obviously more forceful than the words "has reason to believe" because they insist on a greater degree of certitude in the mind of the person who is said to know or to do the act knowingly. It is not enough if the evidence establishes that the person has reason to suspect or even to believe that a particular state of affairs existed. When these words are used, something more than suspicion or reason for belief is required. Before an offence under section 368 could be brought home it must be established that accused knew that the person had been kidnapped or abducted.

5. In the present case it is doubtful if Raghunath Singh was in a position to know that Mst. Parvati was compelled by force or by any deceitful means to go from any place. This is so because no part of the conversation which Parvati had with Raghunath Singh has been believed. Even if she was taken away from lawful guardianship by Bharosa and Acchelal (a point we need not decide), there is no evidence to show that Raghunath Singh knew it. The High Court by disbelieving Mst. Parvati's story as to what conversation she had with Raghunath Singh has left a blank which we cannot now fill by speculation.

6. Looking to the entire evidence we find that Raghunath Singh was utterly indifferent as to how the girl was brought to his house. He may have had reason to suspect or even to believe that she was kidnapped or abducted but it cannot be said that he knew that she had been so kidnapped or abducted. The learned Judge in the High Court disbelieved her statement except as to the confinement against her will in a room in the Chakki Ghar and the restraint on her movement. That she was confined is established. A person is said to wrongfully confine another when he wrongfully restrains the person in such a manner as to prevent that person from proceeding beyond certain prescribed limits. Raghunath Singh had kept the girl in the room in the Chakki Ghar and even when he took her out he kept a watch on her so that she might not run away. He thus wrongfully confined Parvati. His act, therefore, satisfies the definition of "wrongful confinement" under Section 340 of the Indian Penal Code from which we have quoted. But that is only one of the ingredients of section 368, Indian Penal Code. The other ingredient of the offence, namely, that Raghunath Singh knew that she was kidnapped or abducted is not established. The only fact that remains is that Raghunath Singh confined Mst. Parvati against her will.

7. The question is whether we can convict him of the offence of wrongful confinement or not. Since section 368 is concerned with wrongful confinement of a person with the knowledge that the person has been kidnapped or has been abducted then even if such knowledge be not established and section 368 does not apply, the offence of wrongful confinement remains still if wrongful confinement is established. We think, therefore, that we can convict Raghunath Singh of the offence of wrongful confinement. This offence is made punishable by three sections, namely, sections 342, 343 and 344. Where the confinement is for three days or more the offence is punishable under section 343 and when it is for 10 days or more the offence is punishable under section 344. Confinement under three days is punishable under section 342. Section 344 is out of the question. Mr. Shroff suggests that as Mst. Parvati was kept confined for three nights the offence should be punished under section 343. In our opinion, section 343 also cannot apply. Mst. Parvati reached the house of Raghunath Singh on the night between the 3rd and the 4th September after midnight and left the house on the night between the 5th and 6th September before midnight. Although she was there for three nights, she was not confined for more than 2 days. The offence, therefore, falls under section 342, Indian Penal Code, and not under section 343.

8. We accordingly set aside Raghunath Singh's conviction under section 368 and the sentence passed on him and instead convict him under section 342, Indian Penal Code. In view of the circumstances of the case, we think that he merits the maximum punishment awardable under that section. We accordingly sentence him to rigorous imprisonment for one year. With this modification, the appeal will stand dismissed.

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