- 1 - rng IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE SIDE CRIMINAL REV.APPLICATION NO.386 OF 2009 Sailesh Lalli Diwakar ... Applicant vs 1.The State of Maharashtra & anr .. Respondents .. Mr.R.C.Mishra for Applicant Mr.Y.S.Shinde APP for Respondents. CORAM: A.S.OKA, J DATED: 6th July, 2009 P.C.: 1. Heard learned counsel appearing for the revision applicant and the learned APP for the State. On the last date, the parties were put to notice that the Revision application will be heard finally at admission state. 2. The FIR was lodged by one Smt.Indravati Bachan Yadav alleging commission of offences under sections 363, and 376 of the Indian Penal Code against the applicant. The FIR was lodged by the mother of the prosecutrix on 22nd April,2008. In the FIR allegation of the 1st informant is that age of the prosecutrix victim girl Pramila was 17 years. On 9th April,2008 at 10.15 a.m., she proceeded to her school and left the school at 3 p.m. but, did not return to her house. Her friend Babita - 2 - disclosed to the 1st informant that Pramila had come to the school in the morning but, she did not attend the school. On 11th April, 2008 a missing complaint was filed by the 1st informant. The FIR was lodged after the 1st informant learnt that the petitioner had kidnapped her daughter. During the investigation, the police recorded the statement of the husband of the 1st informant. He stated that after the first information was lodged, on 24th April,2008 he himself and his wife along with police travelled to the place of residence of the petitioner in a village at District Allahabad where his daughter Pramila was found staying with the petitioner. The statement of the said Pramila was recorded. She stated that the petitioner used to do the work of ironing and she used to give clothes to the petitioner for the purpose of ironing. She has stated that she developed contact with the petitioner and this resulted into a love affair between herself and the petitioner. She stated that for a period of five to six months, she used to accompany the petitioner to Juhu beach at Bombay. She stated that five months back she stayed with the petitioner for three to four hours when she accompanied the petitioner to his house at Madh Island. She stated that at that time, the petitioner had sexual intercourse with her. Thereafter, from time to time with her consent, the petitioner had sexual intercourse with her. - 3 - 3. In January, 2008 her father was intending to get her married elsewhere. In February 2008, she contacted the petitioner on cell phone and suggested that they should run away and get married. The petitioner agreed and accordingly on 9th April,2008 the petitioner and the said Pramila decided to run away. As per the understanding reached between them, at about 9.45 a.m. on 9th April, 2008, she left her residence and at a bus stop the petitioner was waiting for her. She stated that thereafter they proceeded to Kurla terminus and by a train, reached the native place of the petitioner in Uttar Pradesh and on 12th April, 2008 they married and thereafter they started living as husband and wife at the place of residence of the petitioner. 3. The petitioner applied for discharge before the Sessions Court. By the impugned order dated 5th February 2009 the said application has been rejected. 4. The learned counsel appearing for the revision applicant has relied upon a certificate dated 22th April, 2008 issued by the Municipal School at Andheri, which records the date of birth of Pramila as 5th January 1991. He has also relied upon the medical certificate forming part of the charge sheet which is dated 28th April, 2008 which records the age of the victim as 16 to 17 years by keeping plus or minus of six months on either side. He - 4 - submitted that this was clearly a case of consent because the age of the said Pramila was more than 16 years at the relevant time. He submitted that there was no enticing on the part of the petitioner and the said Pramila on her own offered to go with the petitioner. He, therefore, submitted that a clear case of grant of discharge was made out. 5. The learned APP on instructions has stated that the certificate dated 22nd April, 2008 issued by the Municipal School is a part of the charge sheet which discloses that the date of birth of the said Pramila is 5th January, 1991. He further submitted that admittedly the said Pramila was below the age of 18 years when the incident took place and hence an offence punishable under section 363 of IPC is made out and the petitioner has to face trial for the said offence. 6. I have carefully considered the submissions. I have perused the documents forming part of the charge sheet. It must be noted here that on 22nd April, 2008 when the FIR was lodged, the said Pramila disclosed her age as 17 years The father of Pramila in his statement has disclosed her age as 16 years. 7. The report of the Medical Officer records that on 28th February 2008, the age of the said Pramila was 16 to - 5 - 17 years with plus or minus of six months on either side. The certificate issued by the head master of the Municipal school at Andheri in which the said Pramila was enrolled as a student discloses that the date of birth of the said Pramila was 5th January, 1991. The said document forms the part of the charge sheet. 8. A perusal of the statement of the petitioner recorded on 28th April, 2008 discloses that the first incident of physical relationship between the petitioner and herself was somewhere in November or December, 2007. The allegation of commission of offence punishable under section 363 is based on the incident of 9th February, 2008. 9. As far as section 376 of IPC is concerned, statement of Pramila clearly discloses that there was a consent on her part. Going by the certificate issued by the school authorities as well as the medical opinion, when the offence under section 376 of Indian Penal Code was alleged to have been committed, the age of said Pramila was certainly more than 16 years. Going by the statement of Pramila, this is a case of clear consent. The prosecution has not at all made out a case that clause fifthly of section 375 of IPC is applicable in this case. In the circumstances taking the prosecution case as it is, no offence under section 376 of Indian - 6 - Penal Code was made out and the learned Judge ought to have passed an order of discharge in so far as the offence is concerned. 10. The other offence alleged is punishable under section 363 IPC. Section 361 of Indian Penal Code which reads thus: Whoever takes or entices any minor under sixteen years of age if a male or under eighteen years of age if a female or any person of unsound mind out of the keeping of the lawful guardian of such minor or person of unsound mind without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship. 11. In the present case, the said petitioner has stated that on her suggestion the petitioner agreed that both of them should run away and should get married. The said Pramila on her own met the petitioner and voluntarily travelled with him to Uttar Pradesh and married the petitioner. Therefore, taking the prosecution case made out in the statement of Pramila as correct, there was no element of taking or enticing on the part of the petitioner. In the circumstances, offence under section 361 of Indian penal code was not made out. 12. A perusal of the impugned order shows that the learned Sessions Judge has not at all considered the statements and the other material placed on record - 7 - forming part of the charge sheet. Taking the statements recorded during the investigation as true and correct, it was obvious that the offences under both the sections were are not made out. Hence, the Revision Application must succeed. Hence, I pass the following order : O R D E R (i) The impugned judgment and order dated 5th February 209 passed by the 5th Ad-Hoc Additional Sessions Judge, Bombay below Application at Exhibit 5 in Sessions Case No.735 of 2008 is quashed and set aside. (ii) Application for discharge made by the petitioner is allowed. (iii) Petitioner stands discharged. A.S.Oka, J - 8 - - 9 -