1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CRIMINAL APPEAL NO. 64 OF 1998 Balaji @ Balasaheb s/o. Govind Bandgar, Age 23 yrs., Occu. Nil, R/o. Nipaniwadgaon, Tq. Kallam, Dist. Osmanabad ....Appellant. Versus The State of Maharashtra ....Respondent. Mrs. Renuka Ghule, Advocate for the appellant. Mrs. B.R. Khekale, A.P.P. for the State/respondent. CORAM : P.R. BORKAR, J. DATE : 12th January, 2010 ORAL JUDGMENT : 1. This is an appeal preferred by the accused, being aggrieved by the order of conviction and sentence passed by against him by the Additional Sessions Judge, Ambajogai in Sessions Case No. 66/1996 decided on 24.12.1997 whereby the accused/appellant is convicted of the offence punishable under section 363 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for two years and to pay fine of Rs. 500/-, in default to suffer rigorous imprisonment for three months. The accused/appellant is acquitted of the offence punishable under section 366 and 376 of I.P.C. by the Additional Sessions Judge. 2. Brief facts, giving rise to this appeal may be stated as below :- P.W. 1 Mangal is the daughter of P.W. 2 Atmaram Solunke. P.W. 2 2 Atmaram lodged complaint on 21.2.1996, stating that Mangal, his daughter, who was about 16 to 17 years of age, was working as a labourer and Govind Bandgar and his son Balasaheb (who is appellant) were the Mukadams on the work. It is stated that on 18.2.1996 P.W. 1 Mangal along with other worker went to work of construction of water tank at the sugar factory and came back in the evening and then took meals. At about 8-00 p.m. Mangal went away saying that she would go for answering the nature's call and did not come back and therefore, P.W. 2 Atmaram and his relatives made inquiry with nearby and with relatives, but she was not found. It is also noticed that appellant was also missing. Therefore, the complaint was lodged by Atmaram Solunke that his daughter was kidnapped by the appellant. 3. After above said complaint was lodged, police started investigation and police went in search of Mangal and accused and at about 5-00 p.m. on same day, they found the accused and Mangal in the house of one Govind and that they were taken in to the custody and taken to the police station. On next day i.e. on 22.2.1996 the clothes of prosecutrix were attached under panchanama and she was sent for medical examination. Dr. Naina Shirsat examined her and on the report of radiologist, she opined her age which was stated as 15 + 1 year. Thereafter, other investigation was carried out. School leaving certificate of the prosecutrix was obtained. Finally the chargesheet was sent against the accused for the offences punishable under sections 366, 376, I.P.C. 3 4. In all eight witnesses were examined. The trial Court held that no offence is committed under section 366 and under section 376 of I.P.C., but the offence is committed under section 363 of I.P.C. Accordingly, he passed the order of conviction and sentence against the appellant which is challenged in this appeal. 5. It may be noted that as per section 366, whoever kidnaps or abducts any any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be guilty of the offence punishable under the said section. Section 363 is punishment for kidnapping simplicitor which is taking or enticing any minor under 16 years of age, if a male and under 18 years of age, if a female, out of the keeping of the lawful guardian of such minor. 6. Heard Mrs. Ghule, Advocate for the appellant and Mrs. Khekale, Advocate for respondent/State. P.W. 2 Atmaram has deposed as per his complaint which is at Exh. 21, reproduced earlier. According to his evidence, his daughter has left the house for answering the nature's call and she did not come back and in spite of search, she was not found and from the same time, the appellant was also missing. It is the evidence of P.W. 1 Mangal which is important in this case. In order to prove her age the prosecution has examined Dr. Naina Shirsat at Exh. 39 and she stated 4 that she examined Mangal on 22.2.1996 at about 1 p.m. Thereafter, report of radiologist was obtained and on the basis of the same, Dr. Shirsat opined that age of the patient was of 15 + 1 years. P.W. 2, Atmaram in his complaint, stated that Mangal was 16 to 17 years of age. In his statement, he stated that Mangal was 16 years old. P.W. 3 B. V. Chavan was examined to prove school leaving certificate. The said witness is the Head Master of the Primary School of Zilla Parishad at Waghala. As per the said school leaving certificate birth date of Mangal was 20.6.1980. On the date of incident i.e. on 18.2.1996 Mangal had completed 16 years of age. She was almost 16 and half years of age. Mrs. Ghule, at this stage stated that the girl from rural area, who is working as labourer and earning, can be said to have attained the age of understanding and decision taking. 7. P.W. 1 Mangal in her statement at Exh. 10 stated that she was doing labour work in the premises of sugar factory. It was work of construction of a tank and Govind Bandgar, father of the appellant, was Mukadam. The appellant was also working as Mukadam with his father and at that time the accused was saying that he wanted to marry with her. The accused said her that they should go and do court marriage. Accused also said that they would go to the house of his paternal aunt and accordingly, first they went to Latur and from Latur they went to village Limbal. The witness said that they went there because accused wanted to marry her. At Nimbal there was house of maternal aunt of accused. P.W. 1 Mangal further stated that the accused had taken her for 5 marriage from her village and the accused did not do anything to her. Then witness was declared hostile and was put questions in the nature of cross-examination by the learned A.P.P. The witness Mangal further stated that the accused had a sexual intercourse with her, but she consented as the accused had promised to marry her. She also said that in her community in marriage father of a girl has to pay a dowry to a boy who is marrying with the girl. She also stated that her father was not in a position to pay dowry because of the poor financial condition. She also stated that due to poor financial condition her marriage could not be performed. She went with accused with her consent as he had promised to marry with her. Then she admitted that after going to village Limbal with accused, she had repented. It may be noted that this part is recorded after the witness was declared hostile. So leading questions were allowed with the permission of the Court. She then said that from Limbal police brought her back to her village. Witness denied portion marks 'A', 'B', and 'C' from her statement before police. She further admitted that after police brought her, took her in custody and produced before the Court, she was sent to remand home and the accused had come to meet her in remand home 2-4 times. He also promised that he would marry her after the case was over and that he would treat her properly. The suggestion was also accepted that the accused would marry after his acquittal from this case. It may be noted that these are the suggestions which are accepted by the witness after she was declared hostile. Witness also stated that she has hope that the accused would marry her after the decision of the case. She also stated that the accused 6 should not be punished in the case. 8. In the cross examination by the accused, in para 7, witness Mangal stated that one has to cross so many houses before coming out of the village and she did not disclose anybody in the village about the incident. She further stated that on that night up till 1.00 a.m. she along with accused stayed outside the village. Nobody met her in the way after she left the house and reached to the place where they stayed up to 1.00 a.m. She also stated that she alone left the house. Thereafter they went to bus stand at village Saigaon Sugaon and they were there up to 5-00 a.m. Hotels were open. Then they reached to Latur at about 1 to 1-30 p.m. At Latur she told the accused that they should perform the Court marriage. So the evidence of Mangal shows that she was also desiring to marry with accused and both had decided to ran away and marry. There is nothing on record to show that the accused had no desire to marry with her until they were taken in to the custody by the police. Question arises whether the ingredients of section 361 of I.P.C. are fulfilled. 9. The learned Advocate cited the case of S. Varadarajan Vs. State of Madras, 1965 (2) Cri. L.J. 33. In that case in para 7, Their Lordships observed that when the girl (who though a minor had attained the age of discretion and is on the verge of attaining majority and is a senior college student) herself telephones the accused to meet her at a certain place, and goes there to meet him and finding him waiting with his car gets into that car of her own accord, and the accused takes her to various 7 places and ultimately to the Sub-Registrar's Office, then it cannot be said that it is taking away or enticing. In that case, the fact that the girl accompanying the accused all along is quite consistent with her own desire to be the wife of the accused in which the desire of accompanying him wherever he went is of course implicit. Their Lordships in para 9 and 13 considered the distinction between taking and allowing a minor to accompany a person. In this case P.W. 1 Mangal left her house at her own volition, under pretext of answering the nature's call. She went outside the village, stayed with the appellant till 1-00 a.m. Then both of them went to bus stand and then reached to Latur at about 1-00 to 1-30 p.m. Mangal was working girl who alongwith other workers was going to place of work and doing the labour work. At the age of 16 and half years, she has attaineded the age of discretion. She also stated that due to poor financial condition of her father, he could not arrange her marriage. There is nothing on record to show that the accused did not wish to fulfill his promise to marry her. So in this case, P.W. 1 Mangal and accused decided to go together and marry. It is not case of taking or enticing. There is nothing on record to show that promise to marry was false and never intended to be fulfilled and so it was enticing. 10. The case of Lawrence Kannandas Vs. The State of Maharashtra, 1983 Cri. L. J. 1819 is also cited before this Court. It is also observed in that case that the girl came out of her house on her own. She went to school on her own. Before going to school she had in fact smuggled her wearing apparels into the house of one of her friends. She left her 8 parental house on that day with clear intention, not to return back and in the facts of the case, the Court held that the accused has not committed the offence punishable under section 376 of I.P.C. The facts of the present case are quite similar and therefore, the benefit of doubt goes to the accused. The reference is also made to the case of State of Kerala Vs. Rajayyan and others, 1996 Cri. L.J. 145 in which there is similar situation. 11. In these circumstances, the appeal must succeed. Hence, the appeal is allowed. The order of conviction and sentence against the appellant/accused under section 363 of Indian Penal Code is hereby quashed and set aside and the accused is acquitted of the offence punishable under section 363 of Indian Penal Code. Fine amount, if already deposited, be refunded to the appellant. The bail bond of the accused/appellant stands cancelled. [ P.R. BORKAR, J. ] ssc/criapl64.98