Bombay High Court
The State Of Maharashtra vs Surendra Kumar Mevalal Mehesh on 10 July, 1998
Equivalent citations: 1999(5)BOMCR777, 1998CRILJ3768
Author: Vishnu Sahai
Bench: Vishnu Sahai, T.K. Chandra Sekhara Das
ORDER Vishnu Sahai, J.
1. Through this appeal, preferred under section 378(1) Cr.P.C., the State of Maharashtra impugns the judgment and order dated 26-4-1985 passed by the Additional Sessions Judge, Nasik in Sessions Case No. 72 of 1984 acquitting the respondent for an offence under section 366 I.P.C.
2. In short, the prosecution case as contained in the statement of the prosecutrix is as under:
The prosecutrix Nirmala Pandurang Bachke P.W. 1 lived with her parents in the premises of Artillery Centre, Nasik Road. On the date of the incident i.e. 3-1-1984, she was studying in 9th standard in the Central School. About 2/3 days prior to 3-1-1984 her father under the influence of alcohol abused her and her mother. The respondent who lived in the same locality and knew her from before and used to study in the Central school, told her that since her father was illtreating her, she should elope with him and he would marry her. On the night of 2-1-1984, he gave her a letter Exhibit 9 mentioning therein that she should leave her home on the pretext of going to school and meet him and thereafter the two of them would go to Delhi and marry. She told him the same night, as also the next morning, that she could not come with him but since he threatened that he would commit suicide, she was left with no option but to give in. She kept the letter in her school bag. On 3-1-1984, sometimes in the morning, she started from her house ostensibly for going to the school but, instead went to her cousin sister's place. While she was sitting on the door of the latter, the respondent came on a cycle, signalled to her and made her forcibly sit on the same. In order to avoid an embarassing situation, she relented. Thereafter, he took her to the house of his maternal aunt Anguribai Manulal Pardeshi P.W. 2 at Bhagur. The same evening, she along with the respondent came to Deolali Camp Railway station by a rickshaw. There she told the respondent that she would go back but he insisted that they would go to Delhi. At about 11.30 p.m. the same night they boarded Janta Express and reached Bhusawal at 4 a.m. At Bhusawal, she asked the respondent to take her to Nasik but the respondent made her board a train at 8 a.m. which was proceeding for Agra telling her that they would reach Nasik by 8 p.m. Thereafter, by the said train she and the respondent reached Agra where they stayed at the house of maternal aunt of the respondent. Next day, they went to Delhi. At Delhi, they stayed at the place of the elder sister and brother-in-law of the respondent, one Prabhudayal Bansilal Sore P.W. 3. The prosecutrix has stated all along she was taken by the respondent against her wishes. Prabhudayal Sore sent a telegram to the father of the respondent on 8-1-1984. On 11-1-1984, he (Prabhudayal) received the telegram that the latter was coming to Delhi. Same night, police came, took the prosecutrix and the respondent and brought them to Nasik.
Going backwards, it would be pertinent to point out that on 5-4-1984 Chandrakumar Pandurang Bachke P.W. 8 brother of the prosecutrix lodged a report at Nasik Road Police Station alleging therein that his sister Nirmala Pandurang Bachke was missing.
On the basis of the said report, PHC Popat Narher Sali P.W. 10 registered a case that the prosecutrix was missing.
3. The prosecutrix Nirmala was medically examined on 17-1-1984 at General Hospital Nasik by Dr. (Mrs.) I.S. Matha. Since the genuineness of the medical report has been admitted under section 294 Cr.P.C. Dr. (Mrs.) Matha was not examined. Dr. (Mrs.) Matha found her hymen torn, the vagina admitting one finger easily and absence of injuries on her body. She got radiological examination done to determine her age and on its basis opined that she was aged between 15 to 17 years. She also opined that there were no signs of intercourse within 48 hours.
4. After the usual investigation, the case was committed to the Court of Sessions where a charge under section 366 I.P.C. was framed against the respondent who pleaded not guilty and claimed to be tried. During trial, the prosecution examined 11 witnesses, out of them only one namely the prosecutrix Nirmala Bachke P.W. 1 gave ocular account.
The defence of the respondent was that the prosecutrix on account of the ill-treatment being meted out to her by her father who used to beat her, under the influence of drink, left the house on her own accord, purchased ticket for Delhi and met him at Nasik Road Railway Station where he was to board a train for Delhi. He asked her to go back but she threatened to commit suicide. On the way to Delhi, he also asked her to go back but she did not relent.
The trial Judge did not accept the evidence of the prosecutrix, found the defence suggestion to be more probable and acquitted the respondent.
Hence, this appeal.
5. We have heard Mr. P.R. Singhal, Additional Public Prosecutor for the State of Maharashtra-appellant and Mr. C.H. Purswani for the respondent. We have also perused the depositions of the prosecution witnesses; the material Exhibits tendered and proved by the prosecution, the statement of the respondent recorded under section 313 Cr.P.C., and the impugned Judgment. We have not even an iota of doubt in our mind that the view taken by the trial Judge was on the facts of this case and the only correct view and this appeal should be dismissed.
6. A reading of the statement of the prosecutrix Nirmala clearly shows that she eloped with the respondent. In her statement, she stated that she and the respondent lived in the premises of Artillery Centre; were in love with one another since about a year prior to the incident; used to study in the same school; her father under the influence of alcohol used to abuse her; often beat her; and on two to three occasions prior to the incident had turned her out from the house.
In her cross-examination she stated at the time of leaving for the school, she had kept her dress in her school bag. She also admitted therein that she had not told the Investigating Officer in her statement recorded under section 161 Cr.P.C. about the respondent sending her a chit Exhibit 9 prior to her disappearing from the house and that he had threatened to commit suicide in case she did not accompany him.
Her cross-examination further shows that she had tons of time to raise cries and tell people while she was being taken from Deolali Camp to Delhi on a train that she was being forcibly taken. In our Judgment, absence of the same on her part shows that she had gone with the respondent of her own accord.
In this connection, it would be pertinent to refer to the evidence of Prabhudayal Sore P.W. 3 who stated during the trial that when he asked her, she started weeping and saying that her father was ill-treating her and of her own accord, came to Delhi when she learnt that the respondent was also coming there. Another circumstance, which establishes the elopement is that the prosecutrix Nirmala in her examination-in-chief did not state that the respondent had intercourse with her on the terrace of the brother-in-law's house against her wishes.
7. In our view, the facts and circumstances mentioned in the preceding para unequivocally show that the prosecutrix had eloped with the respondent.
8. Mr. P. R. Singhal, learned Counsel for the appellant strenuously urged that in-as-much as the prosecutrix Nirmala was below 18 years of age, the respondent was guilty of kidnapping her and the trial Judge erred in not convicting him for an offence under section 366 I.P.C. We regret that we do not find merit in his submission for the reasons stated hereinafter : --
"In our view it cannot be definitely said that Nirmala was below 18 years of age at the time of the incident. In this connection, it would be pertinent to point out to two circumstances.
(a) Dr. (Mrs.) Matha opined that on the basis of radiological examination she was aged 15 to 17 years and since it is well-settled that there could be a margin of two years either way, the possibility of her being over 18 years on the basis of the medical evidence, cannot be excluded.
(b) The second reason is that the evidence of Harnabai Pandurang Bachke P.W. 7, the mother of the prosecutrix also probablises the same inference. She deposed that she had six issues, two sons and four daughters, Nirmala the prosecutrix was the youngest amongst them. In her cross-examination, she stated that her eldest issue was her son Suresh aged 28 years and there was a difference of about two years between her other issues. In this view of the matter also the possibility of the prosecutrix being over 18 years cannot be excluded."
9. Even assuming that the prosecutrix was marginally below 18 years of age, as contended by Mr. Singhal, still the respondent would not be guilty for an offence punishable under section 366 I.P.C. To make out an offence of kidnapping, it has to be established that a girl-below 18 years of age was kidnapped or taken out from the lawful guardianship. Section 361 I.P.C. provides that in order to constitute an offence of kidnapping, there should be taking away or enticement. In the instant case, there was neither taking away nor enticement. The prosecutrix Nirmala on her own accord had gone with the respondent. Our view is supported by the decision of Supreme Court S. Vardarajan appellant v. State of Madras respondent, has in para 9 held that where a minor 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 her 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 telephonic 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.
In our view, on the facts of this case, the ratio laid down in would have full application.
10. For the said reasons, in our view, the impugned order of acquittal suffers from no infirmity.
In the result, this appeal is dismissed. The respondent is on bail. He need not surrender. His bail bonds stand cancelled and sureties discharged.
11. Appeal dismissed.