J. P. Das, J.
1. This appeal is directed against the judgment dated 20th April, 1992 passed by the learned Additional Sessions Judge, Paralakehemundi in Sessions Case No. 11/188 of 1991/1990, convicting the appellant under section 363 of the Indian Penal Code (I.P.C. in short) and sentencing him to undergo R.I. for five years and to pay a fine of Rs. 2,000/- (rupees two thousand) in default to undergo further R. I. for six months.
2. The prosecution case was that on 14.1.1990, the informant one Babu Sahu Naik orally reported before the Mohana Police Station that his 15 years old daughter Ramani and his son Dusasan had gone to a Bamboo Depot of Gadaharpur for labour work on 5.1.1990. On 10.1.1990 since his daughter fell ill, she was coming back home along with one Malli Naik of the village of the informant when the accused-appellant along with his brother one Sukanta Naik forcibly took her to their village. The said Malli Naik informed this matter to the informant and hearing this, the informant along with his wife proceeded to the village of the accused-appellant and saw their daughter in his house. When the informant wanted to bring back his daughter, the accused-appellant did not leave her and coming back to the village the informant informed the matter to his elder brother and waited for about four days but since his daughter did not come back, reported the matter at the Police Station orally on 14.1.1990. Pursuant to the report, concerned P.S. Case No. 7 of 1990 was registered under sections 363/34 of the I.P.C. and investigation was taken up. In course of investigation, the victim was rescued and was left with her parents after being medically examined, and after completion of investigation, charge-sheet was placed against the present accused-appellant under sections 363 and 366 of the I.P.C. Charges were framed accordingly to which the accused-appellant pleaded not guilty and faced the trial.
3. In course of hearing, seven witness have been examined on behalf of the prosecution as against none preferred in defence. On consideration of the materials placed before the Court during trial, the learned Additional Sessions Judge, Paralakhemundi found and held the accused guilty only under section 363 of the I.P.C. and passed the impugned judgment of conviction and sentence.
4. The appeal memo was filed with the contentions that there was no iota of service that the accused-appellant took the victim forcibly apart from the fact that there were lot of contradictions in the prosecution evidence. It was further submitted that when the learned Trial Court held the accused not guilty under section 366 of the I.P.C. observing that the victim was a consenting party to have accompanied the accused, holding the appellant guilty under section 363 of the I.P.C. is not sustainable in law. It was further submitted that the learned Trial Court also failed to appreciate that the victim was more than 18 years of age despite the specific evidence of the informant father and the met that the evidence of the doctor was not convincing.
5. Since at the time of hearing, learned Counsels for the appellant did not appear, Mr. Prasanna Kumar Mohanty, Advocate was appointed as an Amicus curie and the matter was heard at length. Learned Amicus Curie submitted before the Court that the only point for consideration in the present case is when it was held by the learned Trial Court that the victim was a consenting party and stayed in the house of the accused-appellant without any force or coercion and accordingly the accused-appellant was acquitted of the offence under section 366 of the I.P.C. whether to hold him guilty under section 363 of the I.P.C. is sustainable in law?
6. The aforesaid contention regarding the offence under section 366 of the I.P.C. has been put to rest in the observation of the learned Trial Court in paragraph-11 of the impugned judgment that:
"However in the present case, it has been held that the victim had been with the accused with the consent having intention to many the accused. So the ingredient of the offence under section 366 has not been proved."
After holding as aforesaid, learned Additional Sessions Judge, went on the observe that so far as section 363 of the I.P.C. is concerned, it has been proved that the victim girl was under age and hence, her consent was no consent in the eye of law. The finding of the Trial Court that the victim was a consenting party and had accompanied the accused-appellant to marry him consequentially holding that the offence under section 366 of the I.P.C. has not been made out, has been challenged by the State. The observation that the victim was a minor and hence, her consent was no consent and accordingly holding the accused-appellant guilty under section 363 of the I.P.C. is under challenge before this Court. It was contended by the learned Amicus curie that excepting the evidence of the doctor basing on ossification test, no other material was produced before the Trial Court to hold that the victim was a minor. It was further submitted that the informant-father of the victim stated in his evidence in paragraph-10 of the cross-examination that his elder daughter died since three years, after about 8 to 9 years of her marriage, and by the time of her marriage, the victim-girl was 8 to 9 years old. Thus, as per the own statement of the father of the victim, the victim was of more than 19 years of age. No school document or any other material regarding the age of the victim was placed on behalf of the prosecution. Further, the doctor stated in his evidence that on examination, he opined that the age of the victim was about 14 years and below 16 years. It is the settled position of law that even the opinion of the doctor is to be given with two years of "Plus" and "Minus" benefit in favour of the accused. Apart from that, even assuming that the victim was aged about 16 years, since it has been the observation of the learned Trial Court that she voluntarily accompanied the appellant to many him, there can be no denial that she had already attained the age of discretion. It has been the observation of the Hon’ble Apex Court that when the girl, who though a minor had attained the age of discretion and is on the verge of attaining majority and there is no suggestion that there was application of any fore or blandishment by the accused to compel her to leave the lawful guardianship of her parents, no inference can be drawn that the accused is guilty of taking away of the girl out of keeping of her parents. It was further held that when the victim willingly accompanied the accused, the law does not cast upon the accused the duty of taking her back to her father’s house or even of telling her to accompany him (S. Varadarajan v. State Of Madras ., AIR 1965 SC 942.
7. In the instant case, the victim was not a child of tender years, who was unable to think for herself but, as already stated, was on the verge of attaining majority and was capable of knowing what was good or what was bad for her. It was the prosecution case that when the victim and her friend after getting down from the bus were on the way to their village, the present appellant along with another person forcibly took away the victim on a bicycle and kept her in his house. It was further alleged that the father and mother of the victim went to the house of tire accused-appellant to bring back their daughter but the accused-appellant did not allow her to go. All these allegations of the prosecution have been disbelieved by the learned Trial Court on detailed evidence on record to conclude that there was no force applied by the accused-appellant and the victim was a consenting party to have accompanied the accused and to have stayed in his house till she was brought by the police.
8. It was observed in the case of S. Varadarajan (supra), referring to a decision of this High Court reported in A.I.R. 1949 Orissa 22 that mere passive consent on the part of person in giving shelter to the minor does not amount to taking or enticing of the minor but the active bringing about of the stay of the minor in the house of a person by playing upon the weak and hesitating mind of the minor would amount to "taking" within the meaning of section 361 of the I.P.C. But a stated earlier, in this case, there was neither any force applied nor there was evidence to show that the accused detained the victim in their house by exercising any force or by playing upon the weak mind of the victim. It was also held in the said decision that even assuming that a minor cannot in law abandon the guardianship of her lawful guardian, the accused person in whose company he is later found cannot be held guilty of having taken her out of the keeping her guardian unless something more is established. In a subsequent judgment passed by the Hon'ble Apex Court Shyam and another v. State of Maharashtra, AIR 1995 SC 2169 in similar circumstances, it was observed that:
"The prosecutrix cannot be said to have been tied to the bicycle as if a load while sitting on the carrier thereof, she could have easily jumped off. She was a fully grown up girl may be one who had yet not touched 18 years of age, but, still she was in the age of discretion, sensible and aware of the intention of the accused Shyam, that he was taking her away for a purpose. It was not unknown to her with whom she was going in view of his earlier proposal. It was expected of her then to jump down from the bicycle, or put up a struggle and, in any case, raise an alarm to protect herself. No such steps were taken by her. It seems she was a willing party to go with Shyam the appellant on her own and in that sense there was no "taking" out of the guardianship for her mother."
9. Similarly, in a case Chaitan Charan Jena v. State of Orissa, (1990) 2 OCR 161, it was held by this Hon'ble Court in similar circumstances that whatever may be the age of the victim at the time of incident, if it was found that she had attained sufficient maturity of understanding and she had attained the age of discretion so as to have the capacity to know the full import of what she was doing and it was found that she voluntarily accompanied the accused, in such circumstances, it cannot be said to be a case of kidnapping.
10. In view of the aforesaid facts and the positions of law, I am of the considered view that in the instant case after acquitting the accused-appellant of the offences under section 366 of the I.P.C. to hold him guilty under section 363 of the I.P.C. in the peculiar circumstances of the case is not sustainable in law. Accordingly, the appeal is allowed, the impugned judgment of conviction and sentence passed by the learned Additional Sessions Judge, Paralakhemundi in S.C. Case No. 11/91/S.C. Case No. 188/90 GDC is set aside and the accused-appellant is set at liberty. The bail bound furnished by the accused-appellant at the time of filing of the appeal stands discharged.
Before parting, I must put a word of appreciation on record for the able assistance provided by Mr. Prasanna Kumar Mohanty, learned Advocate as Amicus curiae for disposing this matter.
Appeal allowed.
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