ROHIT KAUSHAL Vs. STATE

JUDGEMENT

(1.) Petitioner No.2, who is present in the Court, has talked to her parents, petitioner No.4 Shri Jakir Hussain and petitioner No.5 Smt. Tuhina. Thereafter, statement of petitioner No.2 has been recorded. According to petitioner No.2, she left the house of her parents of her own, without any pressure, inducement or coercion from petitioner No.1. According to her, she went to a number of places with petitioner No.1 without any threat, coercion or inducement from him. She claims to have married petitioner No.1 on 8th July, 2009 and according to her, saptpadi was also performed at the time of her marriage.

(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.