SALIM RAFIK SHAIKH Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE appellant-accused was chargesheeted for offences punishable under sections 363, 366 and 376 of I. P. C. on the accusation that the prosecutrix Rupali aged between 15 to 17 had been kidnapped and subjected to rape. However, the learned Judge held that accused and prosecutrix Rupali were in love with each other and the prosecutrix was the consenting party to the sexual intercourse and therefore, the appellant-accused was acquitted for the offence punishable u/s. 366 and 376 I. P. C. as the age of the prosecutrix held to be proved between 15 to 17 yrs. However, the appellant-accused has been convicted for the offence punishable u/s. 363 of I. P. C. and sentenced to suffer R. I. for two years and to pay fine of Rs. 500/- in default, to suffer R. I. for two moths, by his judgment and order dated 30.9.1995 in Sessions Case No.263 of 1995.

(2.) HAVING gone through the record and proceedings of this case, the accused person held not guilty for the major offence punishable u/s. 376 of I. P. C. as the girl Rupali was in love with the accused person and she was the consenting party to the sexual intercourse and her age held to be proved between 15 and 17 years. It is the evidence that the girl Rupali was the consenting party to leave the house with the accused with an intention to marry with him and there was no evidence regarding inducement. Under section 363 of I. P. C. , kidnapping of a female under 18 years of age either she is a consenting party or not, offence is completed. In the instance case, the prosecution story reveals that the appellant-accused and girl Rupali were in love with each other. The girl Rupali left the house of her father-the complainant on 15.2.1994 on her own and joined the appellant-accused and stayed with him for 1 1/2 months in the rental house. The father of the girl did not file any complaint for a pretty long time i. e. for 1 1/2 months knowing him fully well that his daughter had left the house and joined the accused person and were staying together. The trial court has also held that the girl Rupali was in love with the accused person and was a willing party to sexual intercourse during their stay together and therefore, the appellant-accused was acquitted for an offence punishable u/s. 376 of I. P. C. Though apparently, the girl Rupali was a willing party to leave the house of her father who is her lawful guardian, with an intention to join the appellant-accused and to marry with him but as her age was below 18, they could not marry. Under these circumstances, the offence under section 363 technically held to be proved as she was below 18 years but if charges u/s. 363, 366 and 376 I. P. C. clubbed together, it is ridiculous to hold the accused guilty for the offence punishable u/s. 363 I. P. C. i. e. for kidnapping the girl who is found to be the consenting party and acquitting him for a major offence punishable u/s. 376 of I. P. C. not on technical ground but the girl found to be the consenting party for sexual intercourse. Therefore, in my opinion, having regard to the facts and circumstances of this case, the appellant-accused should not be connected with the offence and his conviction requires to be set aside. In the result, the appeal is allowed. The order of conviction and sentence dated 30.9.95 passed by the learned Addl. Sessions Judge, Pune in Sessions Case No.263 of 1995 is set aside. The appellant is acquitted for the charge levelled against him and he be released forthwith, if he is not required in any other case. Appeal allowed. .