- 1 - IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL APPLICATION NO.367 OF 2009 APPLICATION NO.367 OF 2009 APPLICATION NO.367 OF 2009 The State of Maharashtra ...Applicant vs. Sagar Baban Shinde and another ...Respondents Mr.J.P.Yagnik A.P.P. for the Applicant-State CORAM: CORAM: CORAM: A.S.OKA,J. A.S.OKA,J. A.S.OKA,J. DATE DATE DATE : FEBRUARY 20,2009 : FEBRUARY 20,2009 : FEBRUARY 20,2009 P.C.: P.C.: P.C.: 1. Heard learned A.P.P for the applicant in support of the application under sub section 3 of section 378 of the Code of Criminal Procedure,1973. The 1st respondent (1st accused) was prosecuted for offence under section 376 of the Indian Penal Code and section 366 r/w section 34 of the Indian Penal Code. The date of incident is 21st March 2006. The learned trial Judge has passed an order of acquittal on two grounds. The learned Judge held that the date of birth as reflected in the school record does not appear to be correct and therefore it is not possible to accept that the age of the prosecutrix was less than 18 years on the date of the incident. As far as the offence under section 376 is concerned, the learned Judge has recorded a finding regarding the consent on the part of the prosecutrix. 2. The learned A.P.P. has taken me through the notes of evidence and the impugned Judgment and order. He pointed out - 2 - that there is no challenge to the date of birth of the prosecutrix as reflected from the evidence of the father of the prosecutrix. He submitted that going by the school record, the date of birth of the prosecutrix has to be accepted as 27th September 1989. He submitted that in any event the offence of kidnapping from the lawful custody of the guardian has been clearly established. 3. I have carefully considered the submissions. I have perused the notes of evidence. P.W.2 is the father of the prosecutrix. In the examination in chief he has not deposed about the date of birth or age of the prosecutrix. He stated that he has one son and two daughters. He stated that the prosecutrix is his elder daughter but both the elder and younger daughters were studying in X standard in March 2006. In the cross examination, he disclosed the date of birth of the prosecutrix as 27th September 1989. However, he has not placed on record the birth certificate of the prosecutrix. The prosecutrix in her examination in chief has not disclosed her date of birth. The prosecution examined the Head Master of the concerned school as a witness. The Head Master (P.W. 7) stated that the prosecutrix was studying in his school right from Balwadi to 10th standard. He stated that on 18th June 1992 the prosecutrix was admitted in his school in the 1st standard. He disclosed that as per the school record her date of birth is 27th September 1989. In the cross - 3 - examination he admitted that the pupil has to be completed 5 years of age when he is granted admission to the 1st standard. He submitted that he is unable to tell the basis on which the date of birth of the prosecutrix was entered in the register of the school. Even going by his evidence, if the date of birth of the prosecutrix is taken as 7th September 1989, even before the prosecutrix completed three years, she was admitted in the 1st standard. The learned Judge therefore came to the conclusion that when on 18th June 1992 the prosecutrix was admitted to the 1st standard, her age must be 5 years and therefore, the date of birth as reflected from the record of the school does not appear to be correct. On this aspect, it must be noted that the father of the prosecutrix stepped into witness box and stated that the prosecutrix was her elder daughter and his both daughters the elder and the younger were in 10th standard at the relevant time. In the circumstances, no fault can be found with the finding recorded by the learned Judge that the age of the prosecutrix on the date of incident was more than 18 years. 4. As far as the offence under section 376 of the Indian Penal Code is concerned, the evidence of the prosecutrix shows that she travelled with the 1st accused from place to place. This aspect became crystal clear from paragraphs 15 and 16 of the deposition of the prosecutrix. She has deposed that she was taken by the accused firstly to Wadkhal by State Transport - 4 - Bus from Mangaon. From Wadkhal, she was again taken by State Transport Bus to Pali. From Pali, she was taken by two accused by an auto rickshaw to Pachchapur. From the said place she was taken to Malshiras in District Solapur. There were enough opportunities to the prosecutrix to protest. The learned Judge has noted that on the date of incident, the prosecutrix had made preparation and voluntarily she seems to have gone with the accused. Therefore, the finding regarding consent on the part of the prosecutrix has been recorded by the learned Judge. 5. The findings recorded by the learned Judge are certainly possible findings which could have been recorded on the basis of the material on record. Another view is possible to be taken is no ground for interference in an application for leave to prefer an appeal. Application is rejected. JUDGE JUDGE JUDGE