1 crap­2560­10 jdk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 2560 OF 2010 (FOR LEAVE TO FILE APPEAL) IN CRIMINAL APPEAL NO. OF 2010 The State of Maharashtra ..Applicant [Ori.Complainant] Vs. Rakesh Govindram Saini ..Respondent .... Mr. H.J.Dedia APP for the Applicant-State .... CORAM : SMT.RANJANA DESAI AND SMT.V.K.TAHILRAMANI, JJ. DATE : AUGUST 17, 2010 ORAL ORDER [PER SMT.V.K.TAHILRAMANI,J.]: 1 The applicant-State of Maharashtra has filed this application for leave to file appeal against the judgment and order dated 13.7.2009 passed by the learned Addl. Sessions Judge, Kolhapur in Sessions Case No.34 of 2008. By the said judgment and order, the respondent i.e. original accused came to be acquitted of the offences under Sections 363, 366 and 376 of the IPC. 2 The prosecution case briefly stated is that the prosecutrix is the daughter of complainant Shobha. Complainant and her family 2 crap­2560­10 including the prosecutrix were residing at Kolhapur. The accused was earlier residing in front of the house of the prosecutrix, hence, he was acquainted with her since two years prior to the incident. It is alleged that the prosecutrix was 14 years old at the time of the incident. It is further alleged that five months prior to the incident, the prosecutrix was alone in her house, the accused called her and had sexual intercourse against her will. However, she did not disclose this fact to any person. On 12.11.2007 the complainant, her husband and her son left the house in the morning for their work. In the afternoon, the prosecutrix went to the grocery shop. Accused met her there and asked her to accompany him to Jaipur as he intended to marry her. She then went home, took her clothes in a bag and accompanied the accused. Both of them then went by rickshaw to the S.T. stand Kolhapur. From there they went to Pune. From Pune they travelled to Ahmedabad in Gujarat State and then to Jaipur in Rajasthan. In the meanwhile, as the prosecutrix was missing, her brother lodged report in the police station about her being missing. The complainant learnt from her neighbour that they had seen the accused and the prosecutrix talking infront of the house of the accused, hence, they suspected the accused. The accused and the prosecutrix were brought from Jaipur on 21.11.2007. Complainant Shobha then lodged complaint against the respondent-accused. 3 crap­2560­10 Accordingly C.R.No. 152 of 2007 came to be registered against the accused for the offences punishable under Sections 363, 366 and 376 of the IPC. After completion of investigation, the charge sheet came to be filed against the respondent-accused. 3 Charge under Sections 363, 366 and 376 came to be framed against the respondent-accused. The accused pleaded not guilty to the said charges and claimed to be tried. The defence of the accused is that of total denial and false implication. 4 We have heard the learned APP for the applicant-State of Maharashtra. We have perused the judgment and order passed by the learned Sessions Judge. We have also perused the evidence which was produced by the learned APP. After carefully considering the matter, for the reasons stated herein below, we are of the opinion that the judgment and order passed by the learned Sessions Judge does not call for any interference. 5 In order to prove an offence of kidnapping from lawful guardianship, the prosecution has to prove that : i) the victim kidnapped was a minor below 16 years if male, or below 18 years if female, ii) the 4 crap­2560­10 victim kidnapped was in the keeping of lawful guardian, iii) accused took or enticed away the victim from such keeping of lawful guardian and iv) the accused did so without consent of the lawful guardian. Thus, in order to sustain the charge under Section 363 of the IPC, it is absolutely necessary that the prosecutrix was a minor at the relevant time. Complainant PW 1 Shobha who is the mother of the prosecutrix has stated that at the time of the incident, the prosecutrix was studying in 9th standard. This witness is illiterate and has no knowledge about the date of birth of the prosecutrix. The prosecutrix herself has not stated anything about her date of birth. Thus, in order to prove the date of birth, the prosecution has mainly relied on the evidence of PW 6 Rajendra Patil who is the Head Master of the school where the prosecutrix had taken admission for the first time on 15.6.2007 in the 8th standard. PW 6 Patil stated that date of birth of the prosecutrix written in the register is 17.10.1993 and the entry was taken from the school leaving certificate brought by the student at the time of admission. It is to be noted that this witness has not personally recorded the entry in the register of the school. He did not claim to have any personal knowledge about the date of birth of the prosecutrix. He has not disclosed the name of the person who have taken entry in the register. In the case of Birad Mal Sighvi Vs. Anand Purohit, reported in AIR 1988 SC 1796 : 1988 Supp SCC 5 crap­2560­10 604, the Supreme Court has observed that the date of birth mentioned in a school register or a school leaving certificate has no probative value unless either the parents are examined or the persons who have special knowledge of the date of birth of the person and on whose information, the entry has been made, have been examined. We may reiterate that the prosecutrix herself has not stated her date of birth. 6 The learned Judge observed that he had an occasion to see the prosecutrix and he observed that the prosecutrix was a grown up girl. Thus, in view of the above facts, we find no error in the conclusion of the learned Judge that the prosecution failed to prove that the prosecutrix was below 18 years of age at the time of the incident. 7 Now it is to be seen whether the respondent-accused took or enticed the prosecutrix from lawful guardianship. The evidence of the complainant who is the mother of the prosecutrix, does not help the prosecution because she has stated that when the prosecutrix left the house on 12.12.2007, there was no one present in the house. The evidence of the prosecutrix shows that she used to contact the accused on his mobile and also used to meet him of her own accord. She had also offered him a rose on the occasion of valentine day on 14.2.2007 6 crap­2560­10 and told the accused that she loves him. The prosecutrix has categorically admitted that she told the accused that she cannot live without him. When Sangita who is her relative, suggested that the prosecutrix should run away with the accused, the accused told the prosecutrix that instead of running away, it is better that they discuss the matter with the family members of both sides. The evidence of the prosecutrix shows that her family was against her marriage with the accused. Two days after such discussion with the accused, she learnt from Sangita that the accused was going to his home town in Rajasthan. Hence, she contacted the accused on his mobile from a coin-box. During that conversation, the prosecutrix told him that they should run away, however, accused told her that he will discuss the matter with his family and he will return back after 10 to 12 days. Thereafter, he disconnected his mobile. This occurred two days prior to the incident. Hence, on 12.11.2007 when the prosecutrix saw the accused standing at the bus stand, she reached there along with a plastic bag containing her clothes. The prosecutrix has categorically stated that as the accused had disconnected his mobile phone, she felt that the accused would go away and hence, she left her house and decided to accompany the accused and accordingly, they went to Jaipur. On this point, we would like to refer the case of Shyam Vs. State of Maharashtra, reported in 7 crap­2560­10 1995 Cril.Law Journal, 3974, wherein it is observed as under: “ Prosecutrix not putting up struggle or raising alarm while being taken away by accused and appearing to be willing party to go with accused on her own, accused cannot be convicted for abduction. ” 8 We may also refer the case of Balasaheb Vs. State of Maharashtra reported in 1994 Cri. Law Journal 3044, wherein it is observed as under: “ Prosecutrix going with accused on or her own, staying with him for two days in his house with his relatives and neither trying to escape nor making any grievance to his relatives, such conduct shows her consent ” . 9 We may also refer to a decision of this Court in State of Maharashtra Vs. Surendra Kumar Mavalal Mahesh, reported in 1999 (5) Bom.C.R. 777, the facts wherein were similar to facts in the present case. Therein, this Court held that the prosecutrix had eloped of her own free will, hence, no offence of kidnapping was made out. Even assuming that the prosecutrix was below 18 years of age, we may make useful reference to the decision of the Supreme Court reported in AIR 1965 S.C. 942 S. Varadrajan Vs. State of Madras. In paragraph 9 of 8 crap­2560­10 the said decision it was held that where a minor girl knowing and having the capacity to know the full import of what she is doing voluntarily, joins the accused, she could not be said to have been taken or enticed from lawful guardianship. In the case before the Supreme Court also, the girl was below 18 years of age but since she and the accused were having an affair, which included telephone conversation, the Supreme Court took the view that inspite of the fact that she was below 18 years of age when the accused took her away, no offence of kidnapping would be made out. The ratio laid down in the said case, would fully apply to the present case. 10 During the period that the prosecutrix left her house and accompanied the accused to Jaipur, it is not the case of the prosecutrix that the accused had committed rape on her during this period or he compelled her to marry any person against her will. Thus, from all the evidence on record especially that of the prosecutrix, it is apparent that the prosecution failed to prove the offences under Sections 363 and 366 of the IPC. 11 The accused has also been charged for committing rape on the prosecutrix. The case of the prosecutrix is that five months prior to 9 crap­2560­10 the incident i.e. five months prior to 12.11.2007, when the prosecutrix was alone at home, the accused called her to his house in the afternoon and had sexual intercourse with her without her consent. It is difficult to believe that the prosecutrix was not a consenting party. Firstly, because the incident occurred in the afternoon. The house of the accused is surrounded by other houses. If at all the prosecutrix was not a consenting party, she would have raised hue and cry, however, there is no material to show that she had done so. If at all, she was not a consenting party, she would have immediately disclosed this fact to her mother. However, she has not stated about this act of accused to her mother or to anyone else. Thus, silence on the part of the prosecutrix speaks volumes and it shows that if at all the incident occurred, she was a consenting party. The prosecutrix Vaishali has stated in her evidence that at police station, police asked her to go home, but she refused and told that she was going to marry the accused. She has categorically stated in her evidence that when her parents came to the police station, she told her mother not to lodge the complaint against the accused. Vaishali specifically admitted during her cross-examination that at the instance of Dattaji Tipugade she told the incident of sexual intercourse five months prior to the incident. All these facts create great doubt in the mind about the truthfulness of the prosecution case. 10 crap­2560­10 12 In view of the evidence on record, we find that the view taken by the learned Sessions Judge is a reasonable and possible view. Hence, we are not inclined to interfere in the judgment and order of acquittal. 13 In view of the above, leave to file appeal, is refused. Consequently, the appeal is dismissed. [SMT. RANJANA DESAI, J.] [ SMT. V.K.TAHILRAMANI, J.]