1 Cri.Appeal 641-1993 Anand IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.641 OF 1993 Sandeep Subhash Kungulwar .Appellant Age : 22 years, 27, Sakhar Peth, Solapur V/s. The State of Maharashtra .Respondent WITH CRIMINAL APPEAL NO.700 OF 1993 1. Shivakumar Kashinath Bijjargi .Appellants Residing at House No.363, Sakhar Peth, District Solapur. 2. Rachappa alias Rachu Shankarappa Shabagi Residing at 155, Gurwar Peth, District Solapur. V/s. The State of Maharashtra .Respondent (At the instance of Jail Road Police Station, Solapur) Mr.K.Y.Mandalik, Advocate, for the Appellant in Cri.Appeal No.641 of 1993 Mr.Madhav Thorat i/b. Mr.V.M.Thorat, Advocate, for the Appellants in Cri.Appeal No.700 of 1993 Mrs.Geeta P. Mulekar, APP, for the Respondent  State in both matters 2 Cri.Appeal 641-1993 CORAM : R.C.CHAVAN, J. DATE : 3RD MAY, 2011 ORAL JUDGMENT . These two Appeals are directed against conviction of the Appellants for the offence punishable under Sections 363 and 366 read with Section 34 of the Indian Penal Code and sentence of rigorous imprisonment for one month on each of the two counts imposed upon the appellants by the learned Additional Sessions Judge, Solapur upon conclusion of Sessions Case No.270 of 1992. 2. Facts which are material for deciding these two Appeals are as under :- The prosecutrix was born on 13th November, 1974 and had passed her S.S.C. examination at the relevant time. The appellant Shivakumar Kashinath Bijjargi was studying in the same School and the victim and Shivakumar loved each other. The marriage of 3 Cri.Appeal 641-1993 the victim was settled by the family members with one Shivaji Acchugatala. The marriage was to be solemnized on 23rd February, 1992. The victim was called by Shivakumar to one Hotel Upahar in the morning of 10th February, 1992. There it was decided that the victim would again come to Hotel Kinara at 4:00 p.m. Then the victim went back to her home and accompanied her family members to the house of Nimkar for a party. Thereafter, the victim left her house taking her clothes, went to Hotel Kinara and then accompanied appellant Shivakumar to Pune by Hyderabad-Bombay S.T. Bus and stayed at a lodge at Pune. The lodge manager informed them that a party from Solapur had come in search of them. Then they left for Ahmednagar, spent a day at Ahmednagar S.T.Stand and left by 1:30 a.m. bus for Osmanabad and spent some time in Osmanabad and then went to Naldurg where also they spent some time and then eventually came back to Boramani Naka at Solapur where they were 4 Cri.Appeal 641-1993 received by police party. An offence had already been registered on the report of brother of prosecutrix by name Tanaji. Since two other appellants were alleged to have helped Shivakumar in enticing the victim, all the three appellants were charge sheeted after completion of investigation. The role of Rachappa was said to be advancing Rs.700/- after getting Gold ring from the prosecutrix and getting some document prepared. On receipt of charge sheet, the learned JMFC, Solapur committed the case to the Court of Sessions. 3. The learned Additional Sessions Judge to whom the case was made over, charged the appellants for the offence punishable under Sections 363, 366 and 468 read with Section 34 of the Indian Penal Code. Since the appellants pleaded not guilty, they were put on trial at which the prosecution examined in all six witnesses in its attempt to bring home 5 Cri.Appeal 641-1993 guilt of the appellants. After considering the prosecution evidence in the light of defence taken that the victim herself had left her house because she did not want to marry with Shivaji Acchugatala, the learned Additional Sessions Judge held the appellants guilty of the offence punishable under Sections 363 and 366 read with Section 34 of the Indian Penal Code and sentenced them as mentioned earlier. He acquitted them of the offence punishable under Section 468 read with Section 34 of the Indian Penal Code. Aggrieved thereby, the appellants are before this Court. 4. I have heard the learned Counsel for the appellants and the learned APP for the respondent  State. With the help of both the learned Counsel I have gone through the evidence on record. There can be no doubt that the victim had not completed 18 years of age on the date of the incident. She was 6 Cri.Appeal 641-1993 about 17 years and 3 months, since as per her Birth Certificate which is at Exhibit 20, she was born on 13th November, 1974. The victim herself, who had examined as P.W.2, stated that she knew Shivakumar. She had accompanied Shivakumar to Hotel Upahar on the morning of the incidental day. As agreed, in that meeting, she went to Hotel Kinara at 4:00 p.m.after taking a bag and her clothes. From there she stated having accompanied Shivakumar to Pune by Hyderabad-Bombay S.T.bus, reached Pune at 1:30 p.m., stayed in a lodge where her name was recorded as Anita Shivakumar Bijjargi. From there they went to Ahmednagar, spent a day on the S.T.Stand, and then at about 1:30 a.m. left Ahmednagar for Osmanabad and then came back to Solapur. She admitted in her cross examination that she as well as Shivakumar were in love with each other. She admitted that she used to give false excuses in order to leave her house to see Shivakumar. She admitted that she accompanied Shivakumar 7 Cri.Appeal 641-1993 in the Auto Rickshaw without raising any objection. She admitted that she left for Hotel Kinara after ensuring that nobody was watching her. Her brother P.W.1 Tanaji Shivaji Mutkari had stated that her marriage was settled with one Shivaji Acchugatala and that the marriage was scheduled to be held on 23rd February, 1992. Thus, elopment on 10th February, 1992 was in the nick of time. 5. Considering the evidence given by the prosecutrix herself, it cannot be said that appellant Shivakumar or any other appellant had enticed her or had made her leave custody of her parents on any promise to marry. The learned Counsel for the appellants rightly pointed out that the Certificate issued by the Medical Officer after examination of the prosecutrix clearly shows that there was no sexual intercourse and her hymen was intact which should testify to the character of the appellant Shivakumar. It is not clear as to 8 Cri.Appeal 641-1993 why the learned Judge should have, in the face of categoric admissions of the prosecutrix, chosen to convict the appellants for the offence punishable under Sections 363 and 366 read with Section 34 of the Indian Penal Code. 6. The Appeals are, therefore, allowed. Conviction of the appellants for the offence punishable under Sections 363 and 366 read with Section 34 of the Indian Penal Code and sentence of rigorous imprisonment for one month on each of the two counts imposed upon the appellants is set aside. They are acquitted of the said offence. Their bail bonds stand cancelled. (R.C.CHAVAN, J.)