[-1-] IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL REVN.APPLN.NO.172 OF 1992 Prakash Ramrao Salunkhe ] Aged about 25, residing at ] Manoor, Taluka Vaijapur, ] at present Khirad, Taluka ] Kalwan, Dist.Nasik ]..Applicant Vs. State of Maharashtra ]..Respondent ... Mr.M.S.Karnik advocate for applicant Ms.A.A.Mane A.P.P. for the State Mr.Harshad Inamdar Adv.for Respondent-orignial complainant ... CORAM: SMT.V.K.TAHILRAMANI,J. CORAM: SMT.V.K.TAHILRAMANI,J. CORAM: SMT.V.K.TAHILRAMANI,J. DATE : DECEMBER 2, 2008 DATE : DECEMBER 2, 2008 DATE : DECEMBER 2, 2008 ORAL JUDGMENT: ORAL JUDGMENT: ORAL JUDGMENT: 1. Heard the learned advocate for the applicant-original accused, the learned advocate for the respondent-original complainant and the learned A.P.P. for the State. 2. By judgment and order dated 30.6.1992 in Sessions Case No.304 of 1991, the learned IVth Sessions Judge, Nasik convicted the applicant-accused for the offence under Section 363 [-2-] of IPC and sentenced to RI for three months and fine of Rs.500/- in default SI for 15 days. Hence, this revision. 3. The prosecution case is that the applicant kidnapped the prosecutrix. At the time of incident, the prosecutrix was below 18 years of age. 4. The learned advocate for the applicant has stated that the prosecutrix was in love with the applicant-accused and due to said fact, she went away with the applicant on her own accord and there was no force or inducement on the part of applicant and hence, the applicant cannot be held guilty under section 363 of IPC. In support of his contention, he has placed reliance on the decision in the case of Varadrajan Vs. State of Madras Varadrajan Vs. State of Madras Varadrajan Vs. State of Madras reported in AIR 1965 SC 942 AIR 1965 SC 942 AIR 1965 SC 942 wherein it is observed that: "It would, however, be sufficient if the prosecution establishes that though immediately prior to the minor leaving the father’s protection no active part was played [-3-] by the accused, he had at some earlier stage solicited or persuaded the minor to do so. If evidence to establish one of those things is lacking, it would not be legitimate to infer that the accused is guilty of taking the minor out of the keeping of the lawful guardian merely because after she has actually left her guardian’s house or a house where her guardian had kept her, joined the accused and the accused helped her in her design not to return to her guardian’s house by taking her along with him from place to place." 5. In the present case, there is no material to show that the applicant forced the prosecutrix to accompany him or that he induced her to accompany him on the basis of any false representations nor is there any material to show that the prosecutrix accompanied him on account of some inducement on the part of the accused. Not only that, no active part was played by the accused to take the prosecutrix from her father’s protection. There is no material to show that even at any earlier stage any part was played by the accused in making prosecutrix leaves the house of her father. On the [-4-] other hand, the material on record shows that the prosecutrix who is resident of village Khirad went to meet the accused at Palasdara. From there, both of them went in one jeep to Abhana. From there, they went in a bus to Kalwan. From Kalwan they went by ST bus to Deola. Again from Deola both of them went to Yeola. From Yeola, they went to Nagarsol by ST bus. Both of them stayed at Nagarsol. Thereafter, they went to Manoor by Railway. From there both of them went to village Garas. In her evidence, the prosecutrix has not stated that the applicant had forced her to go with him or threatened her to go with him or induced her in any manner to go with him. The evidence on record clearly shows that the prosecutrix willing went to meet the accused at village Palasdara. Where the minor leaves her father’s protection knowing and having capacity to know the full import of what she is doing, voluntarily joins the accused person, the accused cannot be said to have taken her away from the keeping of her lawful guardian. Something more has to be shown in a case of this kind and that is some kind of inducement held out by the accused person or an active participation by him in the formation of the intention of the minor [-5-] to leave the house of the guardian. It has been so observed in the case of Varadrajan (supra). 6. The material on record shows that the prosecutrix had capacity to know full import of what she was doing and she has voluntarily joined the accused at village Palasdara. In such case, the accused cannot be said to have taken her away from the keeping of her lawful guardian. There is no material to show that there was any inducement on the part of the accused or any active participation on his part so as to cause the prosecutrix to leave the house of her father. 7. The learned advocate for the complainant has stated that the prosecutrix was in love with the applicant-accused and due to said fact, she went away with the applicant on her own accord and there was no force or inducement on the part of applicant and hence, the applicant cannot be held guilty under section 363 of IPC. He has further stated that as on today both the parties are living harmoniously in village Khirad. 8. Looking to the material on record and the facts [-6-] and circumstances of this case, in my view, the learned Sessions Judge has not properly considered the material on record. Looking to the material on record and in view of the decision in the case of Varadrajan (supra), the conviction of the applicant-accused under Section 363 of the IPC would have to be set aside. 9. Accordingly, conviction and sentence dated 30.6.1992 imposed on the applicant-accused under Section 363 of IPC by the learned IVth Addl. Sessions Judge Nasik in Sessions Case No.304 of 1991, is set aside and accused is acquitted thereunder. Bail bonds of the applicant-accused shall stand cancelled. 10. Rule made absolute accordingly. [SMT.V.K.TAHILRAMANI, J.] [SMT.V.K.TAHILRAMANI, J.] [SMT.V.K.TAHILRAMANI, J.]