PAWAN KUMAR Vs. STATE

JUDGEMENT

(1.) 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 27 th 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.

(2.) The FIR was registered under Section 363 of IPC on a complaint made by the father of petitioner No.2. In order to constitute offence punishable under Section 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 under Section 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 guardian's custody and keeping and going with the accused then it is difficult to accept that the minor had voluntarily come to the accused.

(3.) In "Shyam & Another Vs. State of Maharashtra", 1995 Criminal Law General 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 under Section 366 of IPC.