ARUN KUMAR Vs. STATE OF U.P.

JUDGEMENT

(1.) THIS is an appeal against the judgment and order of Sri M.C. Jain, Additional Sessions Judge, Kanpur dated 19 -9 -1975 convicting the appellant under Sections 366 and 376 of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for 5 years on the first count and 7 years on the second. Bereft of details, the prosecution case is that Meena Kumari a minor girl aged 13 years had been abducted from her parents house by the appellants who took her to Lucknow and Delhi where he had sexual intercourse with her. When he was not left with enough money, he was brought back to Kanpur and while they together were going to the house of the parent of Meena Kumari, the police took them into custody.

(2.) THERE is on record the extract of the birth register of the Nagar Mahapalika, Kanpur marked Ex Kh. 3 wherefrom it follows that a daughter was born to the father of Meena Kumari P.W. 1 on 25 -3 -1966 Meena Kumari admittedly is the eldest issue Raj Deo Singh. There, is nothing to indicate that any daughter of Raj Deo Singh had been born earlier that Meena Kumari and had died. The age of Meena Kumari at the time of the incident thus was about 18 years and not 13 years as indicated in the first information report more so, when from the medical report too it follows that her private parts were well developed and the report of the Radiologist shows that her epiphysis of the knee and wrist joint had fused with their respective diaphysis. The several letters addressed by Meena Kumari to the appellant also reveal that she had become mature and at the time of the incident was determined to live and die with the appellant. She had professed her deep love for him in the letters, la the first information report which the mother of Meena Kumari had lodged, she did not make the allegation that the Meena Kumari had been taken away of the appellant. She was only pointed to have disappeared. The counsel for the appellant cited the case of S. Varadarajan v. State of Madras, : AIR 1965 SC 942 wherein it was held that the going of the college girl on verge of majority to meat the accused and accompanying him without any threat or inducement with the desire to marry him would not constitute any offence under Section 361 as it would not amount to taking away from her parent's guardianship. The above case is applicable to the facts of this case on all fours and as such the conviction of the appellant under Section 366 of the Indian Penal Code could not be upheld.