Ali Mohamed v. R., Crim. App. 119-A-69, 20/8/69, Platt J.

Ali Mohamed v. R., Crim. App. 119-A-69, 20/8/69, Platt J.

The appellant was convicted of abduction of a girl under the age of 16 years c/s 134 of the Penal Code and sentenced to 9 months of imprisonment. The facts were that Sera d/o Zakaria, found by the Magistrate to be about 12 years of age, had goneto a dance on the night of the 14^th December, 1968, she had gone with her friend Perpetua, and she complained that at about 11 p. m she was called out of the dance hall where she met the appellant. She was then taken to the house of one Dick where the appellant had sexual intercourse with her. Then at about 2 am. She was taken to the house of one Hussein where she spent the night, returning home the next day. It was proved that she was unmarried and her mother testified that Sera had left her house without her knowledge. When she returned home the next day her mother discovered that she had had sexual intercourse with the appellant and ordered her to report the matter to the Police.

Held: (1) “With respect to the learned Magistrate, on Sera’s own evidence …. I am of the opinion that there was no certainty at all that Sera was forced to stay away from home.” (2) “The question then is whether it can be said that even if Sera consented to go to Dick’s house with the appellant, nevertheless, as Sera’s mother had not given her permission, it could still be held to be a case of abduction. It is clear that abduction involves a taking but such taking need not be by force, and it is immaterial whether the girl consents or not. So for instance, an elopement arranged by both parties may still amount to abduction. But he taking must be from the custody of the girl’s parents or guardian without the latter’s consent. It is said that if a girl leaves her father’s house for a mere temporary purpose intending to return to it, she is still in her father’s possession. Consequently, if while she is out the prisoner induces her to run away with him, he is guilty of the offence. (See Archbold’s Criminal Pleadings, Evidence and Practice 36^th Ed. Para 2942, p. 1106) The final question then to be decided is whether the appellant in this case did persuade sera to leave her mother’s house while she was temporarily away from it. For it sera left her mother’s custody on her own account and went to the appellant without any inducement on his part that would not amount to a taking. (See R. v. OLIFER, 10 Cox 402) On this point I must confess that I entertained considerable doubt. From the facts set out above, it seemed probable that Sera being accustomed to the appellant would need no inducement to stay away from home overnight. She had left home on her own accord and she stayed away as she had done previously. In the circumstances of this case, there was nothing to show that the appellant had done more than infringe his moral duty to return her to her mother’s house, apart from Sera’s complaint, which she was ordered to make. Taking into account the fact that it is not clear whether Sera’s evidence could properly have been taken on oath, I considered that the conviction was so doubtful that it could not be allowed to stand.” Appeal allowed.