D.B. CIVIL WRIT PETITION (HABEAS CORPUS) NO.8046/2009 (Hafiz Vs. State of Rajasthan & Ors.) DATE OF ORDER : 28.10.2009 HON'BLE MR. JUSTICE A.M. KAPADIA HON'BLE MR. JUSTICE DEO NARAYAN THANVI Mr. Javed Khan, for the petitioner. Mr. B.K. Mehar, Govt. Advocate. Heard learned counsel for the parties. In this case, the service upon respondent No.3 is not complete, but the learned Govt. Advocate submits that wife of respondent No.3 namely Devi Kanwar, who is mother of the corpus is present today before this Court along with the corpus, therefore, no service is now required for respondent No.3, for which, learned counsel for the petitioner has also no objection. It is submitted by learned counsel for the petitioner that the corpus is a major and the learned Addl. Sessions Judge (Fast Track), Abu Road, Distt. Sirohi vide his judgment dated 02.06.2009 in Sessions Case No.85/2008 has acquitted the petitioner for the charge under Sections 363, 366, 376 IPC for alleged kidnapping and rape with the corpus, in which, the corpus has been shown as major. We have perused the judgment as well as ascertained the desire of the corpus. To bring the case under Section 363 IPC, the age is 16 years and the learned Addl. Sessions Judge (Fast Track), Abu Road, Distt. Sirohi has observed that according to the medical report, the age of the corpus is between 16 to 17 years. Undisputedly, the corpus was minor at the time of kidnapping being above the age of 16 years and below 18 years. That apart finding arrived at the trial cannot be evaluated for -2- adjudicating the Habeas Corpus Petition, where Court has to look into the willingness of the corpus and her relation with the petitioner. According to the Birth Certificate (Annexure R/1) and School Certificate (Annexure R/2), her date of birth is 09.05.1992, therefore, she is a minor. Today, the mother of the corpus is present before this Court along with the corpus and the corpus wants to live with her parents. In view of the willingness of the corpus, this Habeas Corpus Writ Petition lacks merit and the same is dismissed. At the time of issuance of notice, we directed the petitioner to deposit Rs.10,000/- by way of cost with the Registry of this Court, which has been deposited by the petitioner. Registry is, therefore, directed that out of the said amount, Rs.5,000/- shall be paid to the Corpus after due verification and remaining Rs.5,000/- shall be credited to the State exchequer. (DEO NARAYAN THANVI), J. (A.M. KAPADIA), J. ms rathore