Bombay High Court
The State Of Maharashtra vs Akash Gopal Sharma on 17 October, 2018
4.crl.appln.7104.16.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
4 CRIMINAL APPLICATION NO. 7104 OF 2016
THE STATE OF MAHARASHTRA
VERSUS
AKASH GOPAL SHARMA
...
Advocate for Applicant : Mr. K. D. Munde (Public Prosecutor)
Advocate for Respondent No. 1 : Mr. Choudhary S. S.
...
CORAM : K. L. WADANE, J.
DATE : 17th October, 2018 PER COURT :
1. Heard learned APP for the applicant-State and Mr. Chaudhari, learned counsel for the accused-respondent.
2. Initially, accused Nos. 1 to 3 were tried. During the pendency of the trial the accused No. 3 died. It is the allegation of the prosecution that on 03.02.2011 all the accused persons have kidnapped a minor girl aged about 14 years from the lawful guardianship of the applicants i.e. PW - 1 - mother Dwarkabai Balaji Kalaskar and PW-3 father Balaji Dadarao Kalaskar.
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4.crl.appln.7104.16.odt
3. The learned APP as well as Mr. Chaudhari both of them have submitted that to establish the offence, oral evidence of PW 2 - victim is only material because PW-1 and PW-3 have no direct knowledge about the alleged kidnapping of their daughter by the accused persons. On perusal of the oral evidence of PW-2, it reveals that on the day of incident i.e. on 03.02.2011, she left the home for going to the school and had been to the house of Shivani who is stated to be the sister of accused No. 1 Akash. She stayed their for whole day. As it was evening, she wanted to return to her home but all the accused have not allowed her. Then the accused No. 1 Akash taken the victim and Shivani to Hadap Sawargaon, where they stayed in the house of one Diksha, who is friend of Shivani. On 04.02.2011, the accused Nos. 1 and 3 have stayed at Hadap Sawargon for some time and returned to Jalna on 07.02.2011. On perusal of the cross-examination, it appears that the prosecutrix and the sister of accused No. 1 namely Shivani having friendly relation and therefore, from the cross-examination, it appears that the victim and Shivani have taken photographs together on the occasion like birthday.
4. On the aforesaid circumstances, it appears that the victim as well as the accused persons having conversant with each other. Their 2/4 ::: Uploaded on - 22/10/2018 ::: Downloaded on - 24/10/2018 23:27:22 :::
4.crl.appln.7104.16.odt were friendly relation of the prosecutrix with sister of accused No. 1. On perusal of the entire oral evidence of the prosecutrix, nowhere, it is mentioned that the accused No. 1 or the other accused persons have induced and kidnapped her from the lawful guardianship of PW-1 and 3. To establish the offence of kidnapping the ingredient of Section 361 of the Indian Penal Code are to be established that to beyond reasonable doubt. The provisions of Section 361 reads as follows:
361. Kidnapping from lawful guardianship . - Whoever takes or entices any minor under [sixteen] years of age if a male, or under [eighteen] years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship.
Explanation.--The words "lawful guardian" in this section include any person lawfully entrusted with the care or custody of such minor or other person.
Exception --This section does not extend to the act of any person who in good faith believes himself to be the father of an illegitimate child, or who in good faith believes himself to be entitled to lawful custody of such child, unless such act is committed for an immoral or unlawful purpose.
5. Here in the present case, one of the most material ingredient about taking or enticing any minor under the age of 18 year in case of 3/4 ::: Uploaded on - 22/10/2018 ::: Downloaded on - 24/10/2018 23:27:22 :::
4.crl.appln.7104.16.odt female is conspicuously absent. I have gone through the reasons recorded by the trial court, taking into the legal position, he has rightly acquitted the accused. Therefore, there is no substance in the application therefore, it is liable to be dismissed. Hence it is dismissed.
(K. L. WADANE, J.) habeeb 4/4 ::: Uploaded on - 22/10/2018 ::: Downloaded on - 24/10/2018 23:27:22 :::