[-1-] IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE SIDE JURISDICTION APPLICATION NO.1542 OF 2007 The State of Maharashtra ..Applicant Vs. Bajirao Shripati Kamble ..Respondent .... Ms.M.M.Deshmukh, APP for the Applicant-State Mr.S.A.Ingawale for Respondent-Accused .... CORAM: F.I.REBELLO AND CORAM: F.I.REBELLO AND CORAM: F.I.REBELLO AND SMT.V.K.TAHILRAMANI,JJ. SMT.V.K.TAHILRAMANI,JJ. SMT.V.K.TAHILRAMANI,JJ. DATE DATE DATE : APRIL 08, 2008 : APRIL 08, 2008 : APRIL 08, 2008 P.C.: P.C.: P.C.: 1. Heard the learned Advocate for the Applicant and the learned APP for the State. 2. The State of Maharashtra has preferred this application for leave to file appeal against the judgment and order dated 8th December, 2006 passed by the learned Adhoc Additional Sessions Judge, Kolhapur in Sessions Case No. 47 of 2006. By the said judgment and order, the learned Sessions Judge acquitted the Respondent-original accused of the offence under Sections 363, 366A and 376 of IPC. It is the prosecution case that the Respondent-accused has kidnapped Kalpana who was [-2-] below 18 years and thereafter, he has indulged in forcible intercourse with Kalpana. The Respondent-accused has also been acquitted under Sections 366A of IPC. Section 366A of IPC reads as under: . "Whoever, by any means whatsoever, induces any minor girl under the age of eighteen years to go from any place or to do any act with intent that such girl may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable with imprisonment which may extent to ten years, and shall also be liable to fine." 3. It is not the prosecution case that the accused had kidnapped Kalpana with a view that she should be seduced to illicit intercourse with another another another person. The prosecution case is that the accused had kidnapped Kalpana with a view to have sexual intercourse himself with Kalpana. In such case, we are of the opinion that the learned Sessions Judge [-3-] has rightly acquitted the Respondents of the charge under Section 366A of the IPC. 4. Now we shall deal with the acquittal of the Respondent under Sections 363 and 376 of IPC. It is an admitted fact that the victim girl was over 17 years of age at the time of the incident. The victim girl has admitted that she had love affair with the accused since she was studying in IX standard. She had written many love letters to the accused. She has also stated that they had taken oath to marry each other infront of God at Swayambhuwadi as well as in the temple of Jotirling at Sangrul. She has also admitted that one Pachakte from her school had told her that she should not keep any love affair in the school but the victim girl told him that she has concern only in the school hours and not in the remaining period. The victim girl has also admitted that clerk by name Bhate was sent to her house for informing her mother about the love affair between her and the accused person. Thereupon, her mother told Kalpana not to engage in any such love affair in the school but she did not listen to her mother. The victim girl has further admitted that she told [-4-] the accused that if he did not marry her she will show the love letters sent by him to her mother and she will commit suicide. The victim girl has also admitted that even though she was knowing that marriage could not be performed without completing 18 years of age, she had disclosed to her mother her desire to marry with the accused. It is an admitted fact that her mother had rejected the proposal of marriage sent by the accused. The victim girl has admitted that the fact that she was leaving the house and running away with the accused was known to one Tanubai who is the mother of her friend Chhaya. The victim girl had personally informed about her desire to run away with the accused to Tanubai. The sister of the victim girl also had knowledge about her love affair with the accused. Admittedly, Kalpana had taken three dresses with her when she went away from the house. Kalpana went to the bus stand by hiding herself. From her village, they went to Kolhapur. From there they went to Goa. She stayed at Goa with the accused in three different hotels. Thus, the evidence of the prosecution shows that she ran away from her house with the accused with the intention to marry her. It was also known to her that the [-5-] accused was married to some other girl. The evidence of the prosecutrix clearly shows that no coercive threats or force or deception had been used on the part of the accused to induce her or to compel her to accompany the accused. On the other hand, her evidence shows that she herself had given threats to the accused that if he did not marry her, she will commit suicide. Thus, her evidence clearly shows that she was in love with the accused and she had intense desire to marry the accused and hence, she left the house of her mother of her own accord and went with the accused. 5. The victim girl was over 16 years of age. Looking to the evidence of the victim girl as discussed above, we are of the opinion that the sexual intercourse has taken place by consent. The victim girl being over 16 years of age, looking to the evidence on record, it is clearly a case of consent and hence, the learned Sessions Judge has rightly acquitted the Respondent of the offence under Section 376 of IPC. 6. As far as the offence under Section 363 of IPC is concerned, there is nothing in the evidence of [-6-] the victim girl to infer that any inducement or threat was given by respondent-accused or any misrepresentation was made by respondent-accused which caused her to accompany him. Even though the victim girl was not a major, but, she had attained the age of discretion. The evidence on record shows that she has willingly accompanied the accused. There was no threat or inducement on the part of the accused to force her or to compel her to accompany him. The Supreme Court in the case of S.Varadrajan Vs. State of Madras S.Varadrajan Vs. State of Madras S.Varadrajan Vs. State of Madras reported in AIR AIR AIR 1965 SC 942 1965 SC 942 1965 SC 942 has observed that: ".. where the minor alleged to have been taken by the accused person left her father’s protection knowing and having capacity to know the full import of what she was doing voluntarily joints the accused person. In such a case we do not think that the accused can be said to have taken her away from the keeping of her lawful guardian. Something more has to be shown in a case of this kind and that is some kind of inducement held out by the accused person or an active participation [-7-] by him in the formation of the intention of the minor to leave the house of the guardian." 7. Looking to the evidence on record in the present case, the respondent-accused by no stretch of imagination can be said to have "taken" the victim girl out of the keeping of her lawful guardianship. The fact of the victim girl accompanying the accused all along appears to be out of her own desire to accompany the accused. Under these circumstances no inference can be drawn that the respondent-accused is guilty of taking away the victim girl out of the keeping of her mother. From the evidence on record, it is clear that the victim girl has willingly accompanied the respondent-accused. 8. Similar facts arose in the case of Shyam and Shyam and Shyam and another Vs. State of Maharashtra another Vs. State of Maharashtra another Vs. State of Maharashtra reported in AIR AIR AIR 1995 SC 2169 1995 SC 2169 1995 SC 2169. In the said case also the prosecutrix was below the age of majority. The Supreme Court observed that the prosecutrix did not put up any struggle or raise an alarm while being taken away by the accused and the prosecutrix [-8-] appears to be a willing party to go with the accused on her own. The Supreme Court set-aside the conviction under Section 366 IPC. The Supreme Court further observed that the victim girl has not reached the age of majority, but, she was in the age of discretion, sensible and aware of the intention of the accused. At no point of time she has made any attempt to raise an alarm to put up a struggle or to escape. The Court further observed that the victim girl was a willing party to go with the accused on her own and in that sense there was no "taking" out of the guardianship of her mother. Observing that the culpability of the accused in these circumstances was not established, the accused persons came to be acquitted of the offence of abduction. 9. The facts in the present case and in the case of Shyam Shyam Shyam (supra) are similar, hence we are of the opinion that there was no error on the part of the learned Sessions Judge in acquitting the Respondent-accused. 10. The view of acquittal under Sections 363, 366A and 376 of IPC taken by the learned Sessions Judge [-9-] is a reasonable and possible view. Hence, no interference is called for. Application for leave to appeal is rejected. [SMT.V.K.TAHILRAMANI,J.] [F.I.REBELLO, J.] [SMT.V.K.TAHILRAMANI,J.] [F.I.REBELLO, J.] [SMT.V.K.TAHILRAMANI,J.] [F.I.REBELLO, J.]