( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO. 67 OF 2009 Sikandar s/o Sukhdeo Yadav, R/o Saron, Tal. Chakai, Dist. Jamui (Bihar), at present r/o Chandrabhan Colony, Dhule. APPELLANT VERSUS The State of Maharashtra RESPONDENT ..... Mr. C.R. Deshpande, advocate for the appellant. Smt. R.D. Reddy, A.P.P. for respondent/State. ..... [CORAM : V.R. KINGAONKAR, J.] [DATE : 21st July, 2009] ORAL JUDGEMENT : 1. Challenge in this appeal is to judgement and order rendered by learned Sessions Judge in Sessions Case No. 78/2008 whereby the appellant has been found guilty for offences punishable under section 363, 366-A ( 2 ) and 376 of the I.P. Code and is sentenced to suffer rigorous imprisonment for two (2) years and fine of Rs. 1000/-, in default to suffer rigorous imprisonment for two (2) months, on first count, rigorous imprisonment for three (3) years and to pay fine of Rs. 1000/-, in default to suffer rigorous imprisonment for two (2) months on second count and rigorous imprisonment for seven (7) years and fine of Rs. 2000/-, in default to suffer rigorous imprisonment for four (4) months on third count. 2. The background facts leading to the prosecution may be briefly stated as follows : The prosecutrix viz. PW8 Nikita was studying in 9th standard at the relevant time in a High School at Dhule. Her father – PW7 Sanjay resides in a locality called “Udaynagar” situated at Sakri Road at Dhule. The appellant was working as servant of one Chandrabhan Wadhani. House of his master is situated opposite to house of father of the prosecutrix. The appellant developed intimacy with the prosecutrix due to his frequent visits to the locality and also because often, ( 3 ) he used to visit house of his friend which is in the proximity of house of PW Sanjay. The appellant enticed the prosecutrix to talk with him on his mobile phones. He told her that he liked her and was in love with her. On April 25th, 2008, mother of the prosecutrix scolded her when it was learnt that a grocery shop owner had demanded telephone bill outstanding against the prosecutrix. The prosecutrix was mentally disturbed due to such incident. There was no telephone connection at her parents’ house. She used to contact the appellant on cell phone numbers provided by him from land-line of the grocer’s shop. While she was in disturbed state of mind, she noticed that the appellant was standing outside her house on the road. She seized opportunity and went to see him. He urged her to go with him and told that they would marry and live together. She left house of the parents and went with him. She was minor at the relevant time being of 14 years 8 months and 23 days. Her father lodged missing report. Her father (PW Sanjay) lateron came to know that the appellant had taken her away from his house. So, he lodged complaint on April 30th, 2008 alleging that the minor prosecutrix ( 4 ) was kidnapped by the appellant. The police searched for the prosecutrix at Surat where she and the appellant were reportedly residing. They were not found at Surat. Afterwards, they were traced out and were found residing at Daman. The police went to Daman in search of the prosecutrix and the appellant. Both of them were found residing together in a small tenement hired from PW1 Nitin Patel. They were taken in custody. The police prepared panchanama of the spot and collected certain articles like bed-sheet, garments of the prosecutrix, etc. The appellant was clinically examined. So also the prosecutrix was clinically examined. Though no external injuries were found on her genitals or any part of her body, yet, it was noticed by the Medical Officer that the prosecutrix had lost virginity and was capable of sexual intercourse. The police statement of the prosecutrix was recorded. She narrated to the police that she was ravished by the appellant from time to time during the relevant period of her living together with him. The Investigating Officer collected the school record which indicated that birth date of the prosecutrix is July 2nd, 1993. Consequent upon ( 5 ) investigation carried out into the crime which was registered, the police chargesheeted the appellant for offences punishable under section 363, 366A and 376 of the I.P. Code. 3. At the trial, the prosecution examined eleven (11) witnesses in support of its case. The defence of the appellant was that he did not entice the prosecutrix to go with him. He suggested that she had abandoned house of her parents due to ill-treatment meted to her by them. He further suggested that he was taken away by the prosecutrix and they had been to Daman as per her will. It was suggested further that she was not below 16 years of age at the relevant time. One of the limb of his defence was that he was juvenile at the relevant time and, therefore, should have been tried by the Juvenile Court and not by the Court of Sessions. The learned Sessions Judge found that the appellant was major at the relevant time and, therefore, benefit of the Juvenile Justices (Care and Protection of Children) Act, 2000 was not available to him. The learned Sessions Judge also held that the appellant enticed the ( 6 ) prosecutrix to go with him and thereby committed offence of kidnapping. The learned Sessions Judge noticed that the prosecutrix was below 16 years of age and, therefore, her consent was totally immaterial. Her version that the appellant committed sexual intercourse with her without her consent was, therefore, accepted. In keeping with such findings, the appellant came to be convicted and sentenced as described hereinbefore. 4. Mr. C.R. Deshpande would submit that the genesis of the incident is not properly established by the prosecution. He would submit that age of the prosecutrix would be approximately 17/18 years and, therefore, she was on verge of becoming major. He contended that solitary version of the prosecutrix (PW Nikita) should not have been relied upon by the Court of Sessions. He further argued that version of DW1 Ramadevi who happens to be mother of the appellant, could be accepted as she referred to birth date of the appellant and testified that he was minor at the relevant time. It is also argued that there is no element of enticing away the prosecutrix nor any false ( 7 ) representation was made to her by the appellant so as to take her away from lawful custody of the parents. Mr. Deshpande would, therefore, submit that the present case does not fall within the ambit of section 363 or 366-A of the I.P. Code. He would submit that entire conduct of the prosecutrix reveals her being a consenting party to the sexual intercourse and that it was at the most a sexual escapade of the two young persons of opposite sex. Hence, he urged to allow the appeal and set aside the impugned judgement of conviction and sentence. As against this, Smt. R.D. Reddy, learned A.P.P. supports the impugned judgement. 5. Before I embark upon scrutiny of the evidence on record, it is worthwhile to note that the fact that the prosecutrix and the appellant eloped together on April 25th, 2008 is rather uncontroverted. They together went from place to place and were found living together in a rented room at Daman is also uncontroverted fact. There is also no dispute about the fact that the appellant was serving at cloth shop of PW6 Chandrabhan Wadhani. He was required to visit Surat alongwith his ( 8 ) master during course of the business, from time to time and was, therefore, accustomed to the city of Surat. The appellant adopted defence of simple denial during his statement under section 313 of the Criminal Procedure Code. Still, however, he submitted written statement as a part of such statement. His written statement is to the effect that the prosecutrix had obtained his cell number and she had told him that she very much liked him. He had always told her that he had come from another State (Bihar) for his livelihood and she should not trouble him. She had taken him to watch movies on 4-5 occasions. He further stated that in the relevant morning, she contacted him on cell phone and informed him that she shall visit railway station at about 11.00 a.m. She told him that she was beaten up by her parents because telephone bill was demanded by the grocery shop owner and, therefore, she had abandoned house of her parents. Though he tried to convince her that she shall not abandon house of the parents, yet, she was not ready to listen his advice. She threatened that she would commit suicide by plunging herself on railway ( 9 ) track in front of a running train. It was under such circumstances that she went with him to Surat and resided and he was constrained to accommodate her to reside with him. He further narrated that he was himself a juvenile and, therefore, should not be tried before the Court of Sessions. 6. It is in the wake of above background that the evidence tendered by the prosecution may be scrutinized. 7. There cannot be duality of opinion that age factor in such cases is of much significance. The version of PW7 Sanjay, who is father of the prosecutrix, reveals that her birth date is July 2nd, 1993. There is no substantial reason to dislodge version of PW Sanjay in this context. It is significant to note that cross- examination of PW Sanjay would not bring anything material on record to discard his testimony. His version reveals that he was married in 1990 and thereafter, the prosecutrix and two (2) sons were born out of the wedlock. His version reveals that he is working as Village Development Officer in Panchayat ( 10 ) Samiti, Dhule. His testimony is corroborated by the recitals of his F.I.R. (Exh-39) wherein he gave birth date of the prosecutrix as July 2nd, 1993. His version shows that the prosecutrix was studying in Kamlabai Kanya Vidyalaya, Dhule. The school record is duly proved by PW9 Savita Kamble, who is Headmistress of the said school. Her version reveals that the birth date of the prosecutix was recorded in general register (Exh-45) and on such basis, the school leaving certificate (Exh-47) was issued. The school leaving certificate indicates that birth date of the prosecutrix is July 2nd, 1993. Thus, there is clinching evidence to show that the prosecutrix was below 15 years of age at the relevant time. The version of PW Savita Kamble, the Headmistress, has remained unimpeached inspite of cross-examination. The prosecution also placed on record birth certificate issued by the Village Development Officer of Gram Panchayat, Saundane. It is well settled that the entries in the school record are admissible in evidence and cannot be lightly brushed aside. The prosecutrix was subjected to clinical examination after she was brought back to Dhule. The version of PW11 Dr. ( 11 ) Raghuwanshi corroborates the medical certificate (Exh-53). The age of the prosecutrix as shown in the medical certificate was of 14 years and 10 months as on the date of the clinical examination i.e. 07-05-2008. The medical evidence shows that there was old tear and the prosecutrix was habituated to sexual intercourse. Considered together, the prosecution evidence is sufficient to establish that the prosecutrix was below 15 years of age at the relevant time. 8. Coming to the version of PW8 Nikita, it is amply clear that the appellant developed acquaintance with her during month of January, 2008. Her version purports to show that he gave her his three (3) cell numbers and asked her to contact him on the said cell numbers. Her version further shows that she used to visit the grocery shop called “Gaurav General Stores” and used to contact the appellant on phone by using coin box. He used to tell her that he liked her and was in love with her. Her version shows that he used to tell her that they shall go to some other place and get married. Her version further shows that on day of the ( 12 ) incident, her mother learnt about telephone calls made by her from the grocery shop and, therefore, she was annoyed. Her mother scolded her. She, therefore, went at the gallery and started weeping. She noticed that the appellant was standing outside the house. He called her out of the house. She, therefore, went out of the house and then, again the appellant told her that he liked her very much and wanted to marry her. She narrated that the appellant instructed her and, therefore, both of them went to railway station at Dhule in an auto-rickshaw. Thereafter, they travelled from Dhule to Surat. She narrated as to how he committed intercourse with her in the relevant night. The appellant took her to Daman and purchased a neckless of black bids alongwith some other articles. He hired a room under pretext that they were married couple. He committed sexual intercourse with her during the relevant period. Her version reveals that the articles and the garments were seized by the police under panchanama (Exh-28). She denied the suggestion that she had tendered flowers to the appellant and told him that she was in love with him. She admitted that he had ( 13 ) received cell numbers of the appellant and used to contact him. Her version reveals that she did not inform any one before going alongwith the appellant to Dhule railway station for onward journey. She did not tell any of the passengers on way from Dhule to Baroda in the public transport bus. There is no reason to discard version of the prosecutrix regarding commission of sexual intercourse by the appellant with her during the relevant period. She denied the suggestion that at Daman, they garlanded each other and thereafter, she started wearing a neckless of black bids (----). 9. True, there is no tangible evidence to infer that the prosecutrix was subjected to forcible sexual intercourse. There appears no medical evidence to show that she was assaulted by the appellant. What emerges from the record is that she left house of her parents on her own accord after the appellant assured to marry her. The evidence on record reveals that both of them eloped together. He took her to Daman and desired to cohabit with her. The prosecutrix was not competent to give her consent for the sexual intercourse. The consent of ( 14 ) minor, who was taken away or enticed is wholly immaterial in such a case. This Court in “Maroti s/o Undaraji Wankhede v. State of Maharashtra” 2003 (1) Mh.L.J. 900, held that it is not necessary that the taking away or enticing must be shown to have done by means of force or fraud. It is further held that the consent of minor, who is taken away or enticed is wholly immaterial. This Court observed that persuasion by the accused person which would create willingness on part of the minor to be taken out of the keepings of the lawful guardian would be sufficient to attract the provisions of of section 363 of the I.P. Code. 10. It is not necessary to deal with the other evidence on record. For, it comprises of version of PW1 Nitin and PW2 Virendra who are panchas and other police officers, etc. The version of PW Nitin would establish that the appellant had hired one room out of his building at Daman. The appellant agreed to pay rent of Rs. 1200/- p.m. The room was let out to the appellant on 05-05-2008. His version shows that the appellant was ( 15 ) accompanied by a girl at the relevant time. The learned Sessions Judge has duly considered the evidence adduced by the prosecution. I am in general agreement with the appreciation of the evidence as done by the learned Sessions Judge. 11. The learned counsel for the appellant seeks to rely on certain observations in “S. Varadarajan v. State of Madras” (AIR 1965 S.C.C. 942), “Balasaheb v. The State of Maharashtra” (1994 CRI.L.J. 3044), “Ashok Bhaurao Gaikwad v. State of Mharashtra” 2009 ALL MR (Cri.) 131, “Shyam and another v. State of Maharashtra” (AIR 1995 S.C. 2169), and “The State of Maharashtra v. Surendra Kumar Mevalal Mehesh” 1998 ALL MR (Cri) 1142. I have gone through the cases referred by the learned counsel. In “State of Maharashtra v. Surendra Kumar Mevalal Mehesh” (supra), the possibility that the prosecutrix could be over 18 years of age was not excluded. In case of “S. Varadarajan v. State of Madras” (supra), the prosecutrix was on the verge of attaining majority. There are cases and cases. Herein, ( 16 ) it is duly established that the prosecutrix was below 15 years of age at the relevant time. Hence, the case-law referred to by the learned counsel is hardly of any assistance to the fact situation obtained in the present case. 12. The learned counsel for the appellant would further submit that the appellant was minor at the relevant time and should have been tried by the Juvenile Court. He invited my attention to statement of DW Ramadevi. It is worthy to be noted that the appellant did not place on record any documentary evidence about his age. The statement of DW1 Ramadevi reveals that the date of birth of the appellant could not be subscribed by her on basis of any tangible record. She stated that she had entered his birth date in a note-book. However, the said note-book was not before the Court. She was unable to locate the birth dates of other children. The appellant is the fourth son and the other three (3) children’s birth dates were not spelt out by her. Her evidence was found to be interested and unreliable. I agree with the observations of the learned Sessions ( 17 ) Judge in this behalf. There is election identity card of the appellant on record. The date of birth shown in the election identity card (Exh-17) would also go to show that the appellant was more than 21 years of age at the relevant time. 13. Considering the relevant circumstances and the evidence on record, it will have to be said that the charge for offence punishable under section 363 and 376 of the I.P. Code is duly established by the prosecution. The only defect in the impugned judgement is that the appellant is erroneously convicted for offence punishable under section 366A of the I.P. Code. A plain reading of section 366A of the I.P. Code would make it manifest that the said provision is attracted only when a minor girl is kidnapped/abducted or procured with intent that such a girl is likely to be forced or seduced to illicit intercourse with another person. The intention of the accused is required to be that the minor girl shall be used for sexual intercourse with somebody else than him. Thus, wherever it is a case that a minor girl is enticed to go away with the accused with ( 18 ) intent to marry her or with intention to keep sexual relationship with him or exploit her for obtaining sexual pleasures, the charge for offence punishable under section 366A cannot be slapped on him. Needless to say, the impugned order of conviction and sentence for offence punishable under section 366A of the I.P. Code will have to be set aside. 14. So far as sentence awarded to the appellant is concerned, the learned counsel for the appellant would submit that the sentence is too harsh. He would point out that the appellant had purchased a neckless of black bids and some articles for the prosecutrix and both of them were residing like husband and wife. He would also point out that it was suggested to the prosecutrix that there was exchange of garlands. What appears from the record is that the prosecutrix was taken away from lawful custody of her parents by the appellant on account of their immature love affair. It emerges from record that the prosecutrix used to contact the appellant on his cell numbers by using land-line connection after visiting the grocery shop. Needless to ( 19 ) say, the love affair was brewing since January, 2008 and culminated in their elopement in the last week of April, 2008. The prosecutrix was not competent to give her consent, but there was no element of physical force nor she was defrauded by the appellant. Under these circumstances, the learned Sessions Judge should have taken lenient view while awarding the sentence to the appellant. In my opinion, substantive sentence of rigorous imprisonment of one (1) year and fine of Rs. 500/-, in default to suffer rigorous imprisonment for period of one (1) month for offence punishable under section 363 of the I.P. Code and rigorous imprisonment for period of two (2) years and fine of Rs. 2000/-, in default to suffer rigorous imprisonment for period of four (4) months for offence punishable under section 376 of the I.P. Code would suffice the purpose in the peculiar circumstances of this case. This lenient view is required to be taken in view of special circumstances as a special case which shall not be treated as precedent for any future case of the like nature. 15. For the aforestated reasons, the appeal is ( 20 ) partly allowed. The impugned order of conviction and sentence for offence punishable under section 366A of the I.P. Code is set aside. The appellant stands acquitted for the offence punishable under section 366A of the I.P. Code and the fine amount, if any deposited by the appellant in respect of offence under section 366A of the I.P.Code, be refunded to him. The impugned order of conviction of the appellant for offence punishable under sections 363 and 376 of the I.P. Code is, however, maintained. The sentence awarded to the appellant for offence punishable under sections 363 and 376 of the I.P. Code is modified. Instead of sentence of rigorous imprisonment for two (2) years and to pay fine of Rs. 1000/-, in default to suffer rigorous imprisonment for two (2) months, for offence punishable under section 363 of the I.P. Code, the appellant is sentenced to suffer rigorous imprisonment for one (1) year and fine of Rs. 500/-, in default to suffer rigorous imprisonment for one (1) month and instead of sentence of rigorous imprisonment for seven (7) years and to pay fine of Rs. 2000/-, in default to suffer rigorous imprisonment for four (4) ( 21 ) months, for offence punishable under section 376 of the I.P. Code, the appellant is sentenced to suffer rigorous imprisonment for two (2) years and remaining part of sentence of fine and sentence in default is maintained. The remaining part of the impugned order of sentence and order in respect of disposal of muddemal articles and that of handing over of mobile is maintained. The appellant is granted set-off as per provisions under section 428 of the Criminal Procedure Code. [ V.R. KINGAONKAR ] JUDGE NPJ/CRIAPL67-09