IN THE HIGH COURT OF BOMBAY AT GOA. CRIMINAL APPEAL NO. 2 OF 2001. Santosh Narayan Bandekar, r/o Bapelli Joida, Karwar, Karnataka. ... Appellant. Versus State. ... Respondent. Mr. S.G. Bhobe, Advocate for the Appellant. Mr. A.P. Lawande, Public Prosecutor for the Respondent State. Coram: P.V. HARDAS, J. Date: 9th January 2002. ORAL JUDGMENT. The appellant stands convicted for an offence punishable under Section 366 of the Indian Penal Code and is sentenced to suffer rigorous imprisonment for three years and to pay fine of Rs. 5,000/- in default to undergo simple imprisonment for two months, by the IInd Additional District and Sessions Judge, Panaji, in Sessions Case No. 36 of 2000, by Judgment dated 29th November 2000, on the allegation that the appellant had kidnapped P.W.3 Sandhya Parab, a minor with an intention to compel her to marry the appellant against her will. It is this conviction and sentence which is assailed before me in the present appeal. 2. The facts necessary for the decision of the appeal are set out hereunder:- P.W.3 Sandhya Parab was a minor girl aged about - 2 - 16 years and 9 months, studying in XI standard in Shri Kamleshwar High School, Korgao. On 6th January 1998, P.W.3 Sandhya boarded the bus at Mapusa at about 3.30 p.m. for going to the house of the appellant/original accused no. 2 in the company of one Siddappa/original accused no. 1. Since Sandhya had not returned in the evening, her father P.W.2 Srikant Parab contacted his brother P.W.4 Prabhakar Parab, who, at the relevant time was a teacher working in the same school. On receiving the message, P.W.4 Prabhakar made enquiries and learnt that P.W.3 Sandhya alongwith her two friends P.W.1 Shubhangi and one Darshana had left school together on 6th January 1998. P.W.4 Prabhakar inquired with the said two girls and learnt that the said two girls and P.W.3 Sandhya had gone to Mapusa and met the appellant and another person and that P.W.3 Sandhya had left with Santosh. Since Sandhya was not found till 9th January 1998, P.W.4 Prabhakar went to the police station and lodged a complaint at Exhibit 11. On receipt of the said complaint, P.W.5 Nandakishore Raikar registered an offence vide Crime No. 4 of 1998 under Section 366 read with Section 34 of the Indian Penal Code against the accused. On the next day P.W.5 Nandakishore proceeded to Joida in Karnataka in search of the appellant. At Joida he met the mother of the appellant, who informed him that the appellant might have gone to Hubli, where the sister of the appellant was residing. After acquainting himself with the address of the sister of the appellant at Hubli, P.W.5 P.I. Nandakishore proceeded - 3 - to Hubli, where he met the sister of the appellant by name Sulaksha wife of Shivanand Kammar. P.W.3 Sandhya was found in the house of the sister of the appellant while the appellant was not present in the house. P.W.3 Sandhya was brought back to Goa and was given in the custody of her father P.W.2 Srikant. Subsequently, the original accused no. 1 Siddappa was arrested at Joida. During the trial original accused no. 1 Siddappa was shown as absconding and the appellant alone was put on trial. The documents at Exhibits 12 and 14 show that the date of birth of P.W.3 Sandhya was 28th April 1981. Thus, on the date of the offence, that is, on 6th January 1998, P.W.3 Sandhya was less than 18 years of age. 3. A charge sheet against the appellant for an offence punishable under Sections 363 and 366 came to be filed. The learned IInd Additional District and Sessions Judge, Panaji, vide Exhibit 5, framed a charge against the appellant for an offence punishable under Sections 363 and 366 of the Indian Penal Code. The prosecution in support of its case examined 5 witnesses. 4. P.W.1 Shubhangi Gaude is a friend of P.W.3 Sandhya with whom she had gone to Mapusa on the day of the incident. P.W.2 Srikant Parab is the father of P.W.3 Sandhya while P.W.4 Prabhakar Parab is the uncle of P. W.3 Sandhya and who had filed the complaint at Exhibit 11. - 4 - P.W.5 Nandakishore Raikar is the Investigating Officer. The appellant, to the substantive charge of kidnapping, has denied his involvement and has claimed that a false case has been filed against him. 5. The learned IInd Additional District and Sessions Judge returned a finding of guilt for an offence punishable under Section 366 and convicted the appellant for the aforesaid offence. The appeal, thus, assails the Judgment of the trial Court convicting and sentencing the appellant. 6. The evidence of P.W.1 Shubhangi is to the effect that she alongwith P.W.3 Sandhya and one Darshana used to meet during the recess hours and Sandhya used to narrate about her private life. She further stated that on 6th January 1998, during recess time, P.W.1 Shubhangi informed P.W.3 Sandhya that P.W.1 Shubhangi and Darshana were going to Mapusa for reaching a cousin of Darshana. P.W.3 Sandhya also agreed to go alongwith them. Accordingly, all three of them, after school hours, went to the house of Darshana at Gaonkarwada at Korgaon and after having lunch at her place boarded the bus for Mapusa at about 12.30 p.m. and reached Mapusa at about 3.00 p.m.. P.W.1 Shubhangi, P.W.3 Sandhya and Darshana remained at the bus stand while the cousin of Darshana went to her house. At that time one Siddappa came there and invited the three girls for a cup of tea and took them to a cold drink shop known as Hanuman Soda. The - 5 - accused no. 2/appellant was sitting at the said cold drink shop. After some time the server served them with an ice-cream. The three girls did not eat the same. Thereafter the three girls left the cold drink shop and went back to the bus stand. At the bus stand Siddappa was present and a bus proceeding to Panaji had arrived there. P.W.3 Sandhya boarded the bus with Siddappa and when asked by P.W.1 Shubhangi as to where they were going, she told Shubhangi that she was going to Karwar alongwith the appellant. The appellant had earlier informed Shubhangi that he was going to Panaji on his motorbike. P.W.1 Shubhangi questioned P.W.3 Sandhya as to why she was going and P.W.3 Sandhya informed P.W.1 Shubhangi that she was going to Karwar to see the house of appellant. P.W.1 Shubhangi asked P.W.3. Sandhya whether she had informed her mother but P.W.3 Sandhya replied in the negative. P.W.1 Shubhangi then asked P.W.3 Sandhya whether the parents be informed and P. W.3 Sandhya told P.W.1 Shubhangi not to inform her parents and that she would send a letter from Karwar. In the cross-examination P.W.1 Shubhangi has admitted that she was aware that P.W.2 Srikant, father of P.W.3 Sandhya was in the business of extraction and transportation of sand and had four trucks. She also admitted that she was aware that the appellant was driving one of the trucks of P.W.2 Srikant. In the cross-examination P.W.1 Shubhangi further admitted that she was told by P.W.3 Sandhya that the appellant would go ahead - 6 - to Panaji on his motorbike and thereafter she alongwith the appellant would go to Karwar. She also admitted that she did not tell the parents of P.W.3 Sandhya that she had boarded the bus for proceeding to Panaji alongwith Siddappa. The version of Shubhangi is not seriously challenged in the cross-examination. 7. P.W.3 Sandhya had stated that on 6th January 1998 she left her house to attend the school. She had informed her mother that she would not return home during the night and would be staying at the house of her friend Darshana. She further states that she attended the school till 10.30a.m. and then went to the house of Darshana, had her lunch and then alongwith Darshana she left the house at about 1.30 p.m. for Mapusa and reached Mapusa at about 3.30 p.m. She further stated that she had gone to Mapusa as she wanted to see the appellant at his request. She stated that the appellant had told her that he would wait for her (Sandhya) near the Hanuman Temple at Mapusa and, thereafter, they would go to Karwar. She stated that at Mapusa the appellant told her that the two of them alone would go to Karwar and her friends should go home. She stated that she did not heed the advice of her friends of not going to Karwar with the appellant, since the appellant had threatened her that if she would not go alongwith him, he would commit suicide by consuming poison. She stated about meeting Siddappa in the hotel. She also stated that the - 7 - appellant told her that they should go to Hubli to the house of the sister of the appellant by name Sulaksha. She stated that the appellant told her to go to Panaji with Siddappa by bus and that the appellant would meet her at Panaji. P.W.3 Sandhya further stated that on reaching Panaji alongwith Siddappa, she alongwith the appellant and Siddappa proceeded for Londa by bus and reached Londa late at night. The three of them stayed together in a room at Londa and on the next morning at about 7.00 a.m. they left by train for Hubli and reached Hubli in the evening. From Hubli they went to the house of the sister of the appellant. P.W.3 Sandhya stated that she stayed in the house of the sister of the appellant for about a day and the appellant had told her to get married to him but she had declined. She stated that the appellant had taken her alongwith him in order to get married. She fairly admits that the appellant had not tried to establish any sexual relationship with her during her stay with his sister. After about two or three days her paternal uncle came alongwith the police and they returned to Goa. 8. In the cross-examination P.W.3 Sandhya had admitted that there were no talks between her and the appellant from the time he left the job with her father. She admitted that the appellant was working for her father and there was friendship between her and the appellant. This witness has given another admission that she had - 8 - carried a spare churidar set alongwith her on the day of the incident. She admitted that she had not told Darshana that she would spend the night at her house. She also admitted that she was carrying her birth certificate, school leaving certificate and her mark sheet on her way to the school. After giving her admission, P.W.3 Sandhya retracts from it by saying that the appellant borrowed those documents from her while he was working with her father. She admitted that she used to write letters to the appellant but qualified this admission by saying that it was at the instance of the appellant. P.W.3 Sandhya further made a statement that the appellant told her to write a letter to him stating when she would meet him at Mapusa and, accordingly, she had written a letter to him stating that she would meet the appellant at Mapusa on 6th January 1998 at about 3.30p.m.. P.W.3 Sandhya has further admitted that she had written the letter to the appellant at his address at Karwar. 9. The omission in the testimony of P.W.3 that the appellant had told her that P.W.3 Sandhya and the appellant would alone go to Karwar and the friends of P.W.3 Sandhya should go away is duly proved in the evidence of P.W.5 P.I. Nandakishore. The defence has also proved the omission that P.W.3 Sandhya had not stated that the appellant had told her that he wanted to get married to her and that she had declined to get married to the appellant and had expressed that she wanted to go home. According to P.W.3 Sandhya, the - 9 - appellant had stated to her that in the event she did not go alongwith him he would commit suicide by consuming poison. 10. P.W.2 Srikant, the father of P.W.3 Sandhya, stated that since Sandhya did not return home as usual, he requested his brother P.W.4 Prabhakar to make inquiries. P.W.4 Prabhakar had informed him that P.W.3 Sandhya had gone alongwith the appellant. He further stated that he had inquired with P.W.3 Sandhya who had told him that on the pretext of showing her around, Siddappa and the appellant had forcibly taken her to Hubli. In the cross-examination he denied the suggestion that he was aware about the love affair between P.W.3 Sandhya and the appellant and had given a false statement to cover social embarrassment. 11. The appellant in his statement under Section 313 Criminal Procedure Code denied having committed an offence of kidnapping and claimed that a false case had been filed against him. 12. The learned trial Judge relying on the fact that P.W.3 Sandhya on the date of the incident was below the age of 18 years and the fact that the appellant had proposed marriage to Sandhya, convicted the appellant for an offence punishable under Section 366 of the Indian Penal Code by holding that the kidnapping must have been with the intention to force Sandhya to marry him. - 10 - 13. Mr. S.G. Bhobe, the learned counsel appearing for the appellant, has firstly contended that the offence under Section 366 is not made out. He has submitted that there is no suggestion that the appellant had kidnapped P.W.3 Sandhya with an intention to compel her to get married to the appellant against her wish. He has further stated that the statement of Sandhya that the appellant had proposed marriage to her and that she had declined was an omission duly proved from her statement and could not have been relied upon by the trial Court. He has further urged that from the tenor of the answers given by P.W.3 Sandhya, it is clear that she had left the house of her parents and had informed the appellant by a letter that she would meet him at Mapusa at 3.30 p.m. on 6th January 1998. Mr. Bhobe, the learned counsel for the appellant, next submitted that technically an offence under Section 363 could have, at the most, be said to have been made out. According to him, there is no evidence to suggest that after the appellant had left the employment of P.W.2 Srikant, he was ever in contact with P.W.3 Sandhya and, therefore, could not have enticed Sandhya. On the other hand, P.W.3 Sandhya armed with a spare set of clothing and certificates regarding her age, had voluntarily left the house of her parents and had planned a rendezvous at Mapusa with the appellant. The learned counsel, therefore, made a fervent plea that the appellant, who was in jail for a period of 18 days, be released on the period of imprisonment already undergone in - 11 - respect of an offence under Section 363. 14. Mr. A.P. Lawande, the learned Public Prosecutor appearing for the respondent State, tried to support the conviction of the appellant under Section 366. According to him, the kidnapping of P.W.3 Sandhya would only be for the purpose of compelling her to get married to the appellant. 15. The evidence of P.W.3 clearly reveals that after the appellant ceased to be in the employment of P.W.2 Srikant, the appellant never contacted P.W.3 Sandhya. In fact, P.W.3 Sandhya admits to have written a letter to the appellant informing the appellant that she would meet him at Mapusa at 3.30 p.m. on 6th January 1998. No doubt she states that this was done at the instance of the appellant. It is unbelievable that the appellant would have asked her to write such a letter particularly giving the date and time. Apart from this, she has admitted that she had not met the appellant after he had ceased to be in the employment of her father. From the tenor of the answer given by P.W.3 Sandhya, it is apparent that she was in love with the appellant and had written a letter to him informing him that she would meet him at Mapusa on 6th January 1998. She had, accordingly, probably taking her friend into confidence, devised a scheme by which she alongwith her friends were at the Mapusa bus stand on 6th January at 3.30 p.m. and had set up a rendezvous with the appellant. The - 12 - fact that she was carrying a spare set of clothes and certificates denoting her age, is a clear indication that she had left the house of her father of her own free will with a desire to get married to the appellant. May be the appellant may have proposed marriage to her earlier and she had conceded or agreed to get married to the appellant. It is quite clear from the evidence that P.W.3 Sandhya was not enticed from the custody of the lawful guardianship of her parents by the appellant with the intent to get married. In fact, even according to P.W.3 Sandhya, the appellant had proposed marriage to her when they reached Hubli. This vital piece of evidence has been brought out in the cross-examination by way of omission. This omission is duly proved by the Investigating Officer P.W.5 Nandakishore. This omission which goes to the root of the charge cannot, therefore, be relied upon. Apart from this, there is nothing on record to suggest that P.W.3 Sandhya had been kidnapped by the appellant with an intent to compel her to get married to him against the wishes of P.W.3 Sandhya. The conduct of the appellant also belies the findings arrived at by the learned trial Court. The appellant was in the company of P.W.3 Sandhya only for one day and thereafter the appellant had gone to Karwar. P.W.3 Sandhya was staying at the residence of the sister of the appellant and had not complained to her even once that the appellant had brought her forcibly for the purpose of solemnizing marriage with her. From the evidence it is clear that an offence under - 13 - Section 366 of the Indian Penal Code as against the appellant is not made out. The appellant will have to be acquitted of the charge for an offence punishable under Section 366 of the Indian Penal Code. 16. P.W.3 Sandhya was, admittedly, a minor on the date of the incident, that is, on 6th January 1998. Her date of birth as per Exhibits 12 and 14 is 28th April 1981. She was 16 years and 8 1/2 months at the time when the offence was committed. The appellant had taken P.W.3 Sandhya, who was under the age of 18 years out of the keeping of the lawful guardian without obtaining the consent of the parents of P.W.3 Sandhya. The appellant is, therefore, guilty of having committed an offence as defined under Section 361 of the Indian Penal Code and punishable under Section 363 of the Indian Penal Code. The facts of the case are peculiar in themselves as it obviously emerges from the evidence that P.W.3 Sandhya had herself abandoned the custody of her parents. As discussed by me earlier, she had voluntarily gone with the appellant. This is evident from the testimony of P.W.1 Shubhangi when she states that P.W.3 Sandhya had boarded the bus and had told Shubhangi not to inform the parents of P.W.3 Sandhya. In a sense, the learned counsel for the appellant is right in saying that the appellant is guilty of an offence punishable under Section 363 of the Indian Penal Code merely because P.W.3 Sandhya is below the age of 18 years. She was a matured - 14 - girl studying in the XIth class and nearly 17 years of age. In such circumstances, the submission of the learned counsel for the appellant that the appellant be released on the sentence which he has already suffered seems to be a submission worth consideration. The appellant, it appears, has been in custody for 18 days, which is also confirmed by the learned Public Prosecutor appearing for the State. 17. In view of the peculiar facts of the case, according to me, the appellant can be released on the period of imprisonment he has already suffered. 18. In the result, therefore, the appeal is partly allowed. The conviction and sentence for an offence punishable under Section 366 of the Indian Penal Code is, hereby, quashed and set aside and the appellant is acquitted of the charge under Section 366 of the Indian Penal Code. The appellant is, however, convicted for an offence punishable under Section 363 of the Indian Penal Code and is released on the period of imprisonment already undergone. In addition to the substantive sentence, the appellant is sentenced to pay fine of Rs. 2,000/-. The appellant is granted time of one month for payment of fine. (P.V. HARDAS) JUDGE. ed’s.