The High Court rejected the State's application for leave to appeal against an acquittal under Sections 363 and 366 IPC. Finding the victim was of age of discretion and willingly accompanied the accused, the court held there was no 'taking' and the acquittal was a reasonable view.
Application for leave to appeal rejected.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO.28 OF 2008
[FOR LEAVE TO APPEAL]
IN
CRIMINAL APPEAL NO. OF 2007
The State of Maharashtra. ..Applicant.
Versus
Pravin Ashok Rakh. ..Respondent.
..
Smt.V.R.Bhosale, APP, for the Applicant-State.
Mr.Vikas Shivarkar, Adv. for the Respondent.
CORAM : F.I. REBELLO AND
SMT.V.K.TAHILRAMANI,JJ.
DATED : APRIL 02, 2008.
P.C.:-
1. Heard the learned APP for applicant-State and
the learned Advocate for respondent-accused.
2. By judgment and order dated 29th September, 2007
passed in Sessions Case No.256 of 2006, the learned
Ad-hoc District Judge-2 & Additional Sessions Judge,
Pune acquitted the respondent-accused of the offence
under Sections 363 & 366 of Indian Penal Code.
3. Being aggrieved by the order of acquittal of
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respondent-accused under Sections 363 & 366 of IPC,
the applicant-State has preferred this application
for leave to appeal.
4. We have perused the impugned judgment and order
as well as the evidence produced by the learned APP.
5. The prosecutrix was below the age of majority.
The evidence on record shows that on 27.9.2005 the
victim girl left her home to go to school. However,
instead of going to school she went with the accused
and from there they went to Chinchwad and from there
to Lonavala. At Lonavala they stayed at village
Aundhe in a rented room as husband and wife for a
period of about five months. During that period,
both of them worked on a construction site. In the
meantime, father of the victim girl on finding her
missing and being told that she was last seen in the
company of respondent-accused, lodged a complaint
against the respondent-accused.
6. After residing at Aundhe, Lonavala for a period
of five months, both the victim girl as well as the
respondent-accused telephoned their respective
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brothers. From the telephone calls, the victim girl
and the respondent-accused came to be traced and they
were caught by the police and brought to Pune.
7. There is nothing in the evidence of the victim
girl to infer that any inducement was given by
respondent-accused or any misrepresentation was made
by respondent-accused which caused her to accompany
him. Even though the victim girl was not a major,
but, she had attained the age of discretion. The
evidence on record shows that she has willingly
accompanied the accused. There was no threat or
inducement on the part of the accused to force her or
to compel her to accompany him. The Supreme Court in
the case of S.Varadrajan Vs. State of Madras
reported in AIR 1965 SC 942 has observed that,
".. where the minor alleged to have been
taken by the accused person left her
father’s protection knowing and having
capacity to know the full import of what
she was doing voluntarily joints the
accused person. In such a case we do not
think that the accused can be said to have
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taken her away from the keeping of her
lawful guardian. Something more has to be
shown in a case of this kind and that is
some kind of inducement held out by the
accused person or an active participation
by him in the formation of the intention
of the minor to leave the house of the
guardian."
8. Looking to the evidence on record in the present
case, the respondent-accused by no stretch of
imagination can be said to have "taken" the victim
girl out of the keeping of her lawful guardianship
i.e. father. The fact of the victim girl
accompanying the accused all along appears to be out
of her own desire to accompany the accused and she
stayed with him as his wife. Under these
circumstances no inference can be drawn that the
respondent-accused is guilty of taking away the
victim girl out of the keeping of her father. From
the evidence on record, it is clear that the victim
girl has willingly accompanied the
respondent-accused. The Supreme Court in the case of
S.Varadarajan (supra) has observed that law does not
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cast upon the accused the duty of taking her back to
her father’s house or even of telling her not to
accompany him.
9. Similar facts arose in the case of Shyam and
another Vs. State of Maharashtra reported in AIR
1995 SC 2169. In the said case also the prosecutrix
was below the age of majority. The Supreme Court
observed that the prosecutrix did not put up any
struggle or raise an alarm while being taken away by
the accused and the prosecutrix appears to be a
willing party to go with the accused on her own. The
Supreme Court set-aside the conviction under Section
366 IPC. The Supreme Court further observed that the
victim girl has not reached the age of majority, but,
she was in the age of discretion, sensible and aware
of the intention of the accused. At no point of time
she has made any attempt to raise an alarm to put up
a struggle or to escape. The Supreme Court further
observed that the victim girl was a willing party to
go with the accused on her own and in that sense
there was no "taking" out of the guardianship of her
mother. Observing that the culpability of the
accused in these circumstances was not established,
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the Supreme Court acquitted the accused persons of
the offence of abduction.
10. The facts in the present case and in the case of
Shyam (supra) are similar, hence we are of the
opinion that the view of acquittal taken by the
learned Sessions Judge is a reasonable and possible
view.
11. It is well settled that if the view of acquittal
could have been reasonably arrived at then mere
circumstance that the lower Court would have taken a
different view, would be no ground to interfere. In
this connection, useful reference can be made to a
decision of the Supreme Court in the case of
C.Anthony Vs. K.G.Raghavan Nair, (2003) 1 SCC 1. In
the case of C.Anthony(supra), the Supreme Court has
observed that unless the findings of the trial Court
are perverse or contrary to the material on record,
the High Court cannot in Appeal substitute its
findings, merely because another contrary opinion was
possible on the basis of material on record. As
stated earlier, the view taken by the learned
Sessions Judge is a reasonable and possible view,
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hence, no interference is called for. Application
for leave to appeal is rejected.
(F.I.REBELLO,J.)
(SMT.V.K.TAHILRAMANI,J.)
2 issues framed by the court
Whether the prosecution established the element of 'taking' a minor from her guardian's keeping under Section 366 IPC given her willingness to accompany the accused.
Whether the High Court could interfere with the acquittal when a reasonable and possible view was taken by the Sessions Judge.
Colour shows how this judgement treated each authority
S.Varadrajan Vs. State of MadrasDistinguished¶22
AIR 1965 SC 942 · Who else cites this
Shyam and another Vs. State of MaharashtraRelied on¶29
AIR 1995 SC 2169 · Who else cites this
C.Anthony Vs. K.G.Raghavan NairReferred¶33
(2003) 1 SCC 1 · Who else cites this
1 provisions across 1 enactments
The State of Maharashtra
Pravin Ashok Rakh
F.I. REBELLO
SMT.V.K.TAHILRAMANI
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court