Allowed

Sandip Subhash Kangulwar v. the State of Maharashtra

Bombay HC3 May 2011APEAL/641/1993

Case brief

AI extract

What is this about?

The High Court, in an oral judgment, acquitted three appellants of offences under Sections 363 and 366 IPC regarding child abduction and abduction of a minor woman for marriage. The court held that since the prosecutrix voluntarily left her home to elope with the appellant, the accused did not entice her or make a false promise to marry.

What did the court decide?

The convictions and sentence under Sections 363 and 366 IPC were set aside; the appellants were acquitted.

Sandip Subhash Kangulwar Vs the State of… — Child Custody and Guardianship | Bombay HC (2011)

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Cri.Appeal 641-1993

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Anand

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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CRIMINAL APPEAL NO.641 OF 1993

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Sandeep Subhash Kungulwar .Appellant
Age : 22 years,
27, Sakhar Peth,
Solapur

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 V/s.

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The State of Maharashtra.Respondent

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 WITH

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CRIMINAL APPEAL NO.700 OF 1993

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1.Shivakumar Kashinath Bijjargi.Appellants
Residing at House No.363,
Sakhar Peth,
District Solapur.

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2.Rachappa alias Rachu Shankarappa
Shabagi
Residing at 155, Gurwar Peth,
District Solapur.

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 V/s.

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The State of Maharashtra.Respondent
(At the instance of Jail
Road Police Station, Solapur)

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Mr.K.Y.Mandalik, Advocate, for the Appellant
in Cri.Appeal No.641 of 1993

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Mr.Madhav Thorat i/b. Mr.V.M.Thorat, Advocate,
for the Appellants in Cri.Appeal No.700 of
1993

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Mrs.Geeta P. Mulekar, APP, for the Respondent
� State in both matters

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Cri.Appeal 641-1993

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CORAM:R.C.CHAVAN, J.

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DATE:3RD MAY, 2011

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ORAL JUDGMENT

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.These two Appeals are directed against

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conviction of the Appellants for the offence
punishable under Sections 363 and 366 read
with Section 34 of the Indian Penal Code and

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sentence of rigorous imprisonment for one

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month on each of the two counts imposed upon

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the appellants by the learned Additional
Sessions Judge, Solapur upon conclusion of
Sessions Case No.270 of 1992.

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2.Facts which are material for deciding

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these two Appeals are as under :-

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The prosecutrix was born on 13th
November, 1974 and had passed her S.S.C.
examination at the relevant time. The

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appellant Shivakumar Kashinath Bijjargi was

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studying in the same School and the victim and
Shivakumar loved each other. The marriage of

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3 Cri.Appeal 641-1993

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the victim was settled by the family members
with one Shivaji Acchugatala. The marriage

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was to be solemnized on 23rd February, 1992.
The victim was called by Shivakumar to one
Hotel Upahar in the morning of 10th February,
1992. There it was decided that the victim
would again come to Hotel Kinara at 4:00 p.m.
Then the victim went back to her home and
accompanied her family members to the house of

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Nimkar for a party. Thereafter, the victim
left her house taking her clothes, went to
Hotel Kinara and then accompanied appellant
Shivakumar to Pune by Hyderabad-Bombay S.T.

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Bus and stayed at a lodge at Pune. The lodge

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manager informed them that a party from

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Solapur had come in search of them. Then they

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left for Ahmednagar, spent a day at Ahmednagar

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S.T.Stand and left by 1:30 a.m. bus for

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Osmanabad and spent some time in Osmanabad and

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then went to Naldurg where also they spent

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some time and then eventually came back to
Boramani Naka at Solapur where they were

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Cri.Appeal 641-1993

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received by police party. An offence had

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already been registered on the report of
brother of prosecutrix by name Tanaji. Since
two other appellants were alleged to have
helped Shivakumar in enticing the victim, all
the three appellants were charge sheeted after
completion of investigation. The role of
Rachappa was said to be advancing Rs.700/-
after getting Gold ring from the prosecutrix

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and getting some document prepared. On
receipt of charge sheet, the learned JMFC,
Solapur committed the case to the Court of
Sessions.

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3.The learned Additional Sessions Judge

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to whom the case was made over, charged the
appellants for the offence punishable under
Sections 363, 366 and 468 read with Section 34

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of the Indian Penal Code. Since the

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appellants pleaded not guilty, they were put

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on trial at which the prosecution examined in
all six witnesses in its attempt to bring home

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5 Cri.Appeal 641-1993

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guilt of the appellants. After considering
the prosecution evidence in the light of

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defence taken that the victim herself had left
her house because she did not want to marry

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with Shivaji Acchugatala, the learned
Additional Sessions Judge held the appellants
guilty of the offence punishable under
Sections 363 and 366 read with Section 34 of

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the Indian Penal Code and sentenced them as
mentioned earlier. He acquitted them of the
offence punishable under Section 468 read with

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Section 34 of the Indian Penal Code.

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Aggrieved thereby, the appellants are before
this Court.

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4.I have heard the learned Counsel for

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the appellants and the learned APP for the
respondent � State. With the help of both the

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learned Counsel I have gone through the

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evidence on record. There can be no doubt

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that the victim had not completed 18 years of

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age on the date of the incident. She was

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6 Cri.Appeal 641-1993

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about 17 years and 3 months, since as per her

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Birth Certificate which is at Exhibit 20, she

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was born on 13th November, 1974. The victim

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herself, who had examined as P.W.2, stated

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that she knew Shivakumar. She had accompanied
Shivakumar to Hotel Upahar on the morning of
the incidental day. As agreed, in that
meeting, she went to Hotel Kinara at 4:00
p.m.after taking a bag and her clothes. From

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there she stated having accompanied Shivakumar
to Pune by Hyderabad-Bombay S.T.bus, reached
Pune at 1:30 p.m., stayed in a lodge where her

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name was recorded as Anita Shivakumar
Bijjargi. From there they went to Ahmednagar,
spent a day on the S.T.Stand, and then at
about 1:30 a.m. left Ahmednagar for Osmanabad
and then came back to Solapur. She admitted

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in her cross examination that she as well as
Shivakumar were in love with each other. She
admitted that she used to give false excuses

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in order to leave her house to see Shivakumar.
She admitted that she accompanied Shivakumar

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7 Cri.Appeal 641-1993

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in the Auto Rickshaw without raising any

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objection. She admitted that she left for
Hotel Kinara after ensuring that nobody was
watching her. Her brother P.W.1 Tanaji
Shivaji Mutkari had stated that her marriage
was settled with one Shivaji Acchugatala and
that the marriage was scheduled to be held on

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23rd February, 1992. Thus, elopment on 10th
February, 1992 was in the nick of time.

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5.Considering the evidence given by the
prosecutrix herself, it cannot be said that
appellant Shivakumar or any other appellant

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had enticed her or had made her leave custody

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of her parents on any promise to marry. The
learned Counsel for the appellants rightly
pointed out that the Certificate issued by the

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Medical Officer after examination of the

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prosecutrix clearly shows that there was no
sexual intercourse and her hymen was intact

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which should testify to the character of the
appellant Shivakumar. It is not clear as to

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8 Cri.Appeal 641-1993

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why the learned Judge should have, in the face
of categoric admissions of the prosecutrix,
chosen to convict the appellants for the
offence punishable under Sections 363 and 366
read with Section 34 of the Indian Penal Code.

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6.The Appeals are, therefore, allowed.
Conviction of the appellants for the offence
punishable under Sections 363 and 366 read
with Section 34 of the Indian Penal Code and
sentence of rigorous imprisonment for one
month on each of the two counts imposed upon

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the appellants is set aside. They are
acquitted of the said offence. Their bail
bonds stand cancelled.

Sandip Subhash Kangulwar v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

Sandip Subhash Kangulwar v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

What the court decided

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