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1 Cr.Appeal.118.2024IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO.118 OF 2024.Ritesh Badrinath Borde,Age: 23 years, Occu.: Labour,R/o. Bajartal, Fulambri,Tq. Fulambri, Dist. Aurangabad .. AppellantVersus1.The State of Maharashtra,2.X. Y. Z. .. Respondents…Advocate for Appellant: Ms. P. R. Jamdhade h/f. Mr. Pawan SalveAPP for Respondent/State: Mr. A. A. A. KhanRespondent No.2-served…CORAM:ABHAY S. WAGHWASE, J.Reserved on:01.08.2024Pronounced on:09.08.2024JUDGMENT:1.Conviction for offence under Section 363 of the Indian PenalCode passed by the learned Special Judge (POCSO), Aurangabad dated07.12.2023 in Special Case (POCSO) No.10/2021 is assailed in theinstant appeal. FACTS LEADING TO TRIAL2.In nutshell, prosecution version is that appellant who residedin front of house of victim a minor, lured her on the promise of marriage 2 Cr.Appeal.118.2024and took her to his house. On report of mother, crime was registered foroffence under Sections 363, 366-A of the IPC and under the provisions ofthe POCSO Act. On conclusion of investigation accused / appellant waschargesheeted and made to face trial. Learned trial judge, who appreciated and analysed theprosecution evidence reached to conclusion that offence of 366-A of IPCand provisions of POCSO Act are not getting established. However,charge of Section 363 of IPC being made out, conviction for the same hasbeen recorded.Aggrieved by the above Judgment of conviction instantappeal has been preferred on various grounds raised in the appeal.SUBMISSIONSOn behalf of the Appellant:3.Alleging false implication learned counsel for the appellantsubmitted, that, there is no cogent, reliable and trustworthy evidence.Learned counsel emphasizes that essential ingredients of attractingoffence of kidnapping are not available in the evidence. That, the girlherself left and no role of taking away victim is established byprosecution in the trial court. That, in fact, victim in her cross admittedthat there was love affair. The learned trial court has also acquitted theaccused of charge under Section 366-A of IPC and under the provisions of 3 Cr.Appeal.118.2024POCSO Act. According to learned counsel, there is improper appreciationof evidence by the learned trial court and findings reached are notsupported by sound reasons.On behalf of the State:4.Per contra, learned APP fo the State would submit thatvictim was minor. She was studying in 9th standard. That, in trial courtthere is no serious challenge to her age. She being minor and accusedhaving taken her away from the lawful custody, offence is clearlyattracted. Prosecution has proved the case beyond doubt and, thus,according to him, learned trial court has committed no error in recordingthe guilt and, hence, he prays to dismiss the appeal for want of merit.EVIDENCE ON RECORD5.It seems that prosecution has adduced evidence of in all 5witnesses. Their role and status and the sum and substance of theirevidence is as under : PW-1 Victim gave her date of birth as 28.06.2005 and deposed that whenshe was studying in 9th standard accused who resided in front ofher house took her to Brijwadi. His father told that she was not ofmarriageable age and to not to perform marriage. Her parents 4 Cr.Appeal.118.2024lodged complaint, Police brought her to police station and she gavestatement and returned home.PW-2 Mother stated that her step daughter studying in 9th standard. On07.06.2020, she left the house without intimating her. In spite ofbeing searched, when she was not found, she lodged report Exhibit33. According to her, when police brought her daughter, sheallegedly told that giving promise of marriage accused kidnappedher. PW-3 Staff and Anganwadi Sevika stated that as per register date of birthof victim is 28.06.2005. PW-4 Father gave date of birth of victim as 24.04.2005 and he placedbirth certificate on record. According to him, when he returnedfrom work, daughter was not at home. She was searched and,thereafter, his wife lodged report and she was found in the houseof accused.PW-5 Police Official, who carried out Spot Panchanam, collected PraveshNirgam Register, handed over investigation to PSI Murade.ANALYSIS6.Case of prosecution is rested on evidence of above 5witnesses. Admittedly, evidence of victim is crucial. Out of charge of 5 Cr.Appeal.118.2024Sections 363, 366-A of IPC and provisions of POCSO Act, on trial,conviction is recorded for Section 363 of IPC, which deals withkidnapping of minor from lawful custody.7.For the sake of brevity and comprehension Section 361 ofIPC is reproduced as under:“Whoever takes or entices any minor under sixteen years ofage if a male, or under eighteen years of age if female, orany person of unsound mind, out of the keeping of thelawful guardian of such minor or person of unsound mind,without the consent of such guardian, is said to kidnap suchminor or person from lawful guardianship.”For establishing the charge, it is incumbent upon theprosecution to prove following essentials:(1) The offence is committed by “taking” or “enticing” a minor orperson of unsound mind.(2) The person kidnapped must be;(a) Under the age of 16, if male or(b) Under the age of 18, if female or(c) a person of unsound mind(3) The “taking” or “enticing” must be out of keeping the lawfulguardian of such minor.(4) “Taking” and “enticing” must be without consent of guardian.8.In the case of State of Haryana Vs. Raja RamMANU/SC/0262/1972; AIR 1973 SC 819, the words “takes”, “entices”, 6 Cr.Appeal.118.2024“keeping out of lawful guardian” are dealt and discussed and it has beenheld that the word “entices” means, inducement or allurement by givingrise to hope or desire.9.In the light of above requirement, evidence in the case inhand is re-evaluated. From the evidence of victim, her father, PW-3, thereis material showing that date of birth of victim is 24.04.2005. Occurrencehas taken place on 07.06.2020. Therefore, obviously, going by such date,victim is shown to be minor. Now, it is to be seen, whether there is act ofkidnapping as contemplated under law.10.Again, on visiting victim’s evidence, at Exhibit 31, it isemerging that according to her, accused resided in front of their house.She merely deposed that prior to 4 years, he took her by giving assuranceof marriage to his house at Brijwadi. But, father of accused told that sheis not of marriageable age. Her mother, PW-2, in her testimony, at Exhibit32, stated that her daughter left the house without intimating her. Somuch is the only evidence. In cross, she has answered that, they both came to brigwadifrom Phulambri by bus and she did not tell anyone when she came withaccused. She also answered that she had love affair with him. 7 Cr.Appeal.118.202411.It is pertinent to note that accused allegedly resided in frontof complainant’s house. Except testimony of victim recorded in July20230 that he took her by assuring marriage, there is no material that hecalled her, they both met anywhere and, then, he took her. There is noevidence about persuading her of enticing or alluring her. She hasadmitted that she has love affair with him. Mother speaks that herdaughter left the house. In the considered opinion of this court, in thiscase, though, victim is minor, she has admitted about her love withaccused and, even, the requirements of “taking” or “enticing” are notcogently proved. Facts in the case are similar to the one in the case oflandmark Judgment of S. Varadarajan Vs. State of Madras reported in AIR1965 SC 942. Here, role of accused regarding enticing her or alluring heris not getting cogently proved. As stated above, mother has stated thatdaughter left the house. Merely because victim is below 18 years of age,offence cannot be said to be complete. The observations in S. Varadarajan(supra), which is the landmark Judgment also needs to be considered. Therefore, herewith above quality of evidence on record,essential ingredients for bringing home the charge of Section 363 of IPCare not cogently brought on record. 8 Cr.Appeal.118.202412.Learned trial court seems to have accepted prosecutionversion primarily on the ground that she is below 18 years of age.Evidence of very informant / mother that victim left the house has beenlost sight of by the learned trial judge. Consequently, interference iscalled for. Appellant succeeds. Hence, following order.ORDERI)Criminal Appeal No.118 of 2024 is allowed.II)The conviction awarded to appellant Ritesh Badrinath Bordein Special Case (POCSO) No.10 of 2021 by the learned SpecialJudge (POCSO), Aurangabad, on 07.12.2023 for the offencepunishable under Section 363 of the Indian Penal Code, standsquashed and set aside.III)The appellant stands acquitted of the offence punishableunder Section 363 of the Indian Penal Code.IV)The bail bonds of appellant stand cancelled. V)The fine amount deposited, if any, be refunded to theappellant after the statutory period. [ABHAY S. WAGHWASE, J.]marathe