DR.

RAM MANOHAR LOHIA NATIONAL

LAW UNIVERSITY

CRIMINAL LAW II
THAKORILAL D. VADGAMA V. STATE OF GUJARAT : CASE COMMENT
Submitted to:

Submitted by:

Mr. K. A. PANDEY

SHRESHTHA

(ASSOCIATE PROFESSOR)

ROLL NO. 131

Dr. RMLNLU

B.A.LL.B(H) 4th sem.

ACKNOWLEDGMENT
I owe a great many thanks to a great many people who helped and supported
me during the making of this project.
I would like to Mr. K.A. PANDEY SIR for guiding and correcting me during this
assignment.
I would like to thank Dr. Ram Manohar Lohiya National Law University for giving
me this opportunity to work on this project.
I would also like to thank my family for their endless support throughout the
making of this project.
Lastly, I thank my friends for their support, for their help in collecting the
material and for critically going through the project and correcting the mistakes.

CITATION
AIR 1973 SC 2313

TITLE
Appellants:

Thakorlal D. Vadgama
v.

Respondent: The State of Gujarat

COMPOSITION OF BENCH
2 Judges Bench:- I.D. Dua and K.K. Mathew, JJ

COUNSELS
For Appellant:

R.H. Dhebar and S. K. Dholakia, Advs

For Respondents:

R.L. Kohli and S.P. Navar, Advs

INTRODUCTION
Even though a minor joins the accused on her own accord, then it doesnt amount to taking but
accused will still be charge for kidnapping under section 361 and 366, if he 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.
FACTS OF THE CASE
1.

Kishorilal was an industrialist and had a factory at Bunder Road. Jamnagar for
manufacturing oil engineer & had 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 15 year old school going girl.
On her birthday, Kishorilal gave her very expensive Parker Pen. He took Mohini and
Jivraj along with his Manager and his daughter on Bombay trip to celebrate Christmas on
December, 1965. There he had sexual intercourse with Mohini while staying in hotel for
2 nights. He also used to purchase clothes to Mohini during the trip.

2.

Mohini started visiting Kishorilals place on and off. They had sexual intercourse during
the visit. They again went on a trip to Mahabaleshwar. This time Kishorilals 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
Mohinis father. He scolded Mohini.. Though Kishorilal alleged that he consider Mohini

as her daughter by swearing to God.

3. After all this he again had sexual intercourse with Mohini in her bungalow when she was
coming back from school. Her parents came to know about this and imposed restriction
on her. She was not allowed to go to school alone. Mohinis Mother wrote letter to
Kishorilal not to contact her on September 26, 1966. Apparently, after this letter there
was no contact between Mohini and the kishorilal in Jamnagar.
4. Mohini wrote letters to him complaining of ill-treatment by her parents and expressing
her desire to leave her parent's house. He assured her that he will provide allowance to
her. On January 16, 1967, Mohini ran away from her parents house and came to
Kishorilals place. She stayed in his garage. He provided clothes and food and gave her
250 rs. They had sexual intercourse also.
5. On 17 January 1967, Police came to Kishorilal bungalow. Mohini ran away from the back
door and went to road-side where she was found by Police. Mohinis clothes were found
from his car. Kishorilal charged under Section 361, 366 and 376 of IPC for kidnapping
and rape.
LAWS : The principle laws in question in this appeal are, sections 361 & 366 of IPC.
Section 361: Kidnapping from lawful guardianship.Whoever takes or entices any minor
under 1[sixteen] years of age if a male, or under 2[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, 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.
Section 366: 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 for a term which may 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 any 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 also be punishable as aforesaid.

ISSUE
The main issue in this case was that can the appellant plead innocence against the charge of
kidnapping since there was no immediate taking by him, respondent left her lawful custody on
her own accord?
JUDGEMENT
Trial court convicted Kishorilal for both rape and kidnapping. Gujarat High Court acquitted him
against the offence of rape but convicted him for kidnapping. He filed an appeal in Supreme
Court against the order of High court. Apex Court upheld the decision of High court by saying
that guilty party laid foundation by inducement, allurement or threat and if it has influenced
minor or weighed with her in leaving her guardian's custody or keeping or going to guilty party
then prima facie difficult for him to plead for innocence. By Holding the accused liable under
section 366, the Supreme Court saisd that the mere circumstances that his act was not imidiate
cause of her leaving her guardians custody would constitute no valid defence and would not
absolve him fro the offence of kidnapping. The question truly falls for determination on the facts
and circumstances of each case.
ample material showing earlier allurements and even of the appellant's participation in
the formation of Mohini's intention and resolve to leave her father's house. The appellant's
conviction must, therefore, be upheld.1
CASE COMMENT
1 Thakorilal D. Vadgama v. State of Gujarat, A.I.R.1973S.C.2313.

Supreme Court had rightly decided the case by upholding the decision of Gujarat High court and
convicting the appellant under section 366 of IPC. Section 361 uses the expression whoever
takes or entices any minor. The word takes no doubt, means physical taking but not
necessarily by use of force or fraud. The word entice seems to involve the idea of inducement
or allurement by giving rise to hope or desire in the mind of other. This may work immediately
or it may create a continuous and gradual but imperceptible impression culminating after some
time in achieving its ultimate purposes of successful inducement.
Taking or enticing away a minor out of keeping of a lawful guardianship is an essential
ingredient of the offence of kidnapping. The two word read together suggest 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 considered to have committed the
offence of kidnapping.2
In the present case, appellant made the argument that Mohini left her parental home on her own
accord, he did not take neither he induce her to left her home and come to his place. His only
mistake was that he gave her 250 rs and provided food and shelter. Court by rejecting this
argument rightly pointed out that if the guilty party has laid down a foundation by inducement,
allurement and this act have influenced the minor to leave her guardians custody or keeping or
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.
What appellant had done on the several occasions was enticement. He showered the girl by gift,
taking her to trips. The girl was immature and not in position to understand all this. It is obvious
that she would not be happy by the scolding and restrictions imposed on her. When she told this
to the appellant, he allured her and gave her hope that he will take care of her and provide her
alimony. Appellant extended certain promises which leave certain marks on girls child and lead
her to ran away. It is not necessary that lurement offered immediately before crime. The appeant
had at earlier stage solicited or induced her in a way that he will provide her shelter. So there was
no taking by the appellant but there was enticement which made the appellant punishable under
section 361 & 366 of IPC.
2 S. Varadarajan v. State of Madras, A.I.R. 1965 S.C. 942.

REFERENCES
1. Indian Penal Code (45 of 1860)
2. Criminal Law: Cases and Materials by KD Gaur
3. http://www.manupatrafast.com/