Pawan Kumar and Another vs State and Others

V.K. Jain, J.—Statement of petitioner No. 2 recorded. She has been identified by ASI Mahabir Singh of Police Station Welcome Colony. According to petitioner No. 2, she had left the house of her father of her own, without any inducement or coercion from petitioner No. 1 and, thereafter, she married him on 27th June, 2009. She further says that she had married petitioner No. 1 of her own, without any coercion, inducement, pressure or threat etc. from him. She maintains that her correct date of birth is 31.5.1991. According to IO, Inspector R.K. Jha, who is present in the Court, as per the School Leaving Certificate of petitioner No. 2, her date of birth is 18.11.1991 and she was about seventeen and a half year old when she left the house of her father.

The FIR was registered u/s 363 of IPC on a complaint made by the father of petitioner No. 2. In order to constitute offence punishable u/s 363 of IPC, there has to be taking or enticing of a minor from the lawful guardianship of her parents/guardian. If the minor, of her own, abandons the guardianship of her parents and joins a boy, without any role having been played by the boy in her abandoning the guardianship of her parents and without her having been subjected to any kind of pressure, inducement, etc. and without any offer or promise from the accused, no offence punishable u/s 363 of IPC will be made out when the girl is aged more than 16 years and is mature enough to understand what she is doing. Of course, if the accused lays a foundation by inducement, allurement etc. and that influences the minor or weighs with her in leaving her guardians custody and keeping and going with the accused then it is difficult to accept that the minor had voluntarily come to the accused.

In Shyam and Anr. v. State of Maharashtra 1995 Cri LG 3974, the prosecutrix was a grown-up girl, though she had not touched 18 years of age. She claimed during trial that she was kidnapped under threat. The evidence produced during trial showed that she was seen going on the bicycle of the accused. The Hon''ble Supreme Court noted that it was not unknown to her with whom she was going and therefore, it was expected of her then to jump down from the bicycle or put up the struggle and in any case raise an alarm to protect herself. As no such steps were taken by her, the Hon''ble Supreme Court felt that she was a willing party to go with the appellants of her own and, therefore, there was no taking out of the guardianship. The appellants were acquitted of the charge u/s 366 of IPC.

In State of Karnataka Vs. Sureshbabu Puk Raj Porral, , it was found that the girl went with the accused voluntarily. It was held by the Hon''ble Supreme Court that the requirement of Section 366 of IPC is that taking or enticing away a minor out of the keeping of the lawful guardianship was an essential ingredient of the offence of kidnapping. It was held that in such a case, it is difficult to held that the accused had taken her away from the keeping of her lawful guardian and something more has to be shown in a case of this nature, like inducement.

In Mahabir Vs. State, , the appellant and the prosecutrix were known to each other. The appellant took the prosecutrix to a place outside Delhi where they stayed for about fifteen days and had sexual intercourse with each other. The appellant was convicted under Sections 366 and 376 of I.P.C. A learned Single Judge of this Court noticed that she had gone to Railway Station, had stood there with the appellant who also went to purchase tickets and then she had travelled with him in a compartment shared by other persons. She had then gone to a house in a tonga and yet she did not lodge any protest and made no attempt to flee despite having ample time and opportunity. The learned Single Judge noted that on the day of reckoning, she surely had crossed mark of sixteen years and since she was all along a willing party, the appellant was acquitted of both the charges against him. Thus, despite the prosecutrix being less than eighteen years of age, the appellant was acquitted not only of charge u/s 376 but also of the charge u/s 366 of I.P.C.

In Piara Singh v. State of Punjab 1998(3) Crimes 570, the High Court found that the prosecutrix was more than sixteen years of age at the time of this incident, though, the case of the prosecution was that she was forteen years of old at that time. Since the High Court came into conclusion that no force was used in having sexual intercourse with him, the appellant was acquitted not only of charge u/s 376 but also of charge u/s 366 and 366A of Indian Penal Code. In this case also, the prosecutrix was not found to be more than eighteen years of age.

In Bala Saheb v. State of Maharashtra 1994 Cri LG 3044, it was found that the prosecutrix accompanied the appellant/accused from her village and stayed with him for two to three days. It was held that these circumstances clearly show that offence u/s 363 or 366 of I.P.C. was not made out.

The case of the petitioner before this Court stands on a much stronger footing as the girl, who is present in the Court herself is saying that no promise or inducement was extended to her by the boy and she of her own had abandoned the guardianship of her parents and had joined him, in order to marry him.

No offence punishable u/s 363 of IPC is made out against petitioner No. 1 merely on account of his having accompanied petitioner No. 2 or having married her with her consent. Hence, FIR No. 130/2009 lodged by her father at Police Station Welcome Colony, u/s 363 of IPC and the proceedings arising there from are hereby quashed.

W.P. (CRL) 905/2009 stands disposed of.