Bombay High Court

Vinodkumar Anjaiah Gayadha vs The State Of Maharashtra on 11 March, 2021

Bench: V. V. Kankanwadi

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD

                      902 BAIL APPLICATION NO.1468 OF 2020


                           VINODKUMAR ANJAIAH GAYADHA
                                       VERSUS
                             THE STATE OF MAHARASHTRA
                                          ...
                       Mr. R.M. Lone, Advocate for the applicant
                       Mr. S.Y. Mahajan, APP for the respondent
                                          ...

                                   CORAM :      SMT. VIBHA KANKANWADI, J.
                                   DATE :       11th MARCH, 2021.


ORDER :

1 Present applicant has been arrested, in connection with Crime

No.131/2019 dated 28.05.2019 registered with Biloli Police Station, Dist.

Nanded, for the offence punishable under Section 363, 376(3) of The Indian

Penal Code, 1860 and under Section 3 and 6 of The Protection of Children

from Sexual Offences Act, 2012. It appears that the investigation is over and

charge sheet has been filed before the learned Special Judge, Biloli bearing

Special Case No.8/2019. Present application has been filed for regular bail

under Section 439 of The Code of Criminal Procedure, 1973.


2              Heard learned Advocate Mr. R.M. Lone for the applicant and




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learned APP Mr. S.Y. Mahajan for the respondent.


3              It has been vehemently submitted on behalf of the applicant that

perusal of the First Information Report would show that there is no direct

evidence against the applicant. He is aged 31. He has permanent place of

abode. Applicant is an innocent person and he has not committed any crime.

He has no criminal antecedents. His native place is Vinayak Nagar,

Mailardevpally, Pailecheru Keshogiri Rangareddy, Hyderabad. He is in jail

since 01.06.2019. His three applications for regular bail are rejected by the

learned Special Judge. Victim had left the house of her brother-in-law and

accompanied the applicant. She did not even raise alarm while travelling

despite the opportunity of running away. Further, it appears that she

voluntarily consented for the sexual relationship with the applicant. The

victim was knowing the applicant since before the incident and it appears to

be a love affair. Photographs annexed to the application would support the

fact of love affair. Now, the investigation is over, charge-sheet is filed and the

further physical custody of the applicant is not required. He, therefore,

prayed for release of the applicant on bail.

4 Per contra, the learned APP strongly opposed the application and

submitted that the applicant is aged 31. He is presumed to have every

understanding capacity, but then the victim is minor. He has taken

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disadvantage of the innocence of the victim and took her away from the

lawful custody of her guardian. The medical report of the victim supports the

prosecution story. When there is sufficient evidence on record the applicant

does not deserve any kind of sympathy.

5 It is to be noted that the FIR has been lodged by the father of the

victim. It is specifically stated that victim is 15 years of age. The father was

not aware, as to where the girl has gone, and therefore, the FIR came to be

lodged against unknown person under Section 363 of the Indian Penal Code.

Informant stays in Hyderabad; whereas victim was staying with her sister and

her husband at Hipparga Thaddi, Tq. Biloli. No doubt, now, the investigation

is over and charge sheet has been filed, therefore, the further physical

custody only for the purpose of investigation is not required. But, at the

same time, now, we are required to consider what is the evidence, that is

collected against the present applicant. Applicant is aged 31. Applicant says

that he and victim were in love. In a way the applicant is admitting that he

was with the victim since she left the house of her brother-in-law and till they

were apprehended. The FIR has been lodged on 28.05.2019 and the victim

was brought by police on 31.05.2019. The statement as well as

supplementary statement of the victim would show that the present applicant

had sexual intercourse with her for five days at Jetchel, where they stayed.

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She has specifically stated that she was taken away against her wish. She has

also stated so in her statement under Section 164 of the Code of Criminal

Procedure. There are statements of witnesses, who have seen them together

and they had introduced themselves as husband and wife. We cannot forget

the age of the victim. Applicant is double her age. Therefore, there is ample

evidence against the present applicant, apart from the recovery of the clothes,

medical report, statements of witnesses and the panchnamas.

6 Here, we are at the prima facie stage. Note of the recent

pronouncement by the Hon'ble Apex Court is required to be considered. In

Criminal Appeal No.1919 of 2020, Anversinh @ Kiransinh Fatesinh Zala vs.

State of Gujarat, decided by Three Judge Bench of Hon'ble Supreme Court on

12.01.2021, it has been observed -

"17. The ratio of S. Varadarajan (supra), although attractive at first glance, does little to aid the appellant's case. On facts, the case is distinguishable as it was restricted to an instance of "taking" and not "enticement". Further, this Court in S. Varadarajan (supra) explicitly held that a charge of kidnapping would not be made out only in a case where a minor, with the knowledge and capacity to know the full import of her actions, voluntarily abandons the care of her guardian without any assistance or inducement on part of the accused. The cited judgment, therefore, cannot be of any assistance without establishing: first, knowledge and capacity with the minor of her actions; second, voluntary abandonment on part of the minor; and

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third, lack of inducement by the accused."

7 As regards the defence of consensual affair taken by the accused

is concerned, it has been observed -

"12. A perusal of Section 361 of IPC shows that it is necessary that there be an act of enticing or taking, in addition to establishing the child's minority (being sixteen for boys and eighteen for girls) and care/keep of a lawful guardian. Such 'enticement' need not be direct or immediate in time and can also be through subtle actions like winning over the affection of a minor girl. However, mere recovery of a missing minor from the custody of a stranger would not ipso-facto establish the offence of kidnapping. Thus, where the prosecution fails to prove that the incident of removal was committed by or at the instigation of the accused, it would be nearly impossible to bring the guilt home as happened in the cases of King Emperor v. Gokaran and Emperor v. Abdur Rahman.

13. Adverting to the facts of the present case, the appellant has unintentionally admitted his culpability. Besides the victim being recovered from his custody, the appellant admits to having established sexual intercourse and of having an intention to marry her. Although the victim's deposition that she was forcefully removed from the custody of her parents might possibly be a belated improvement but the testimonies of numerous witnesses make out a clear case of enticement. The evidence on record further unequivocally suggests that the appellant induced the prosecutrix to reach at a designated place to accompany him.

14. Behind all the chaff of legalese, the appellant has failed to propound how the elements of kidnapping have not been made out.

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His core contention appears to be that in view of consensual affair between them, the prosecutrix joined his company voluntarily. Such a plea, in our opinion, cannot be acceded to given the unambiguous language of the statute as the prosecutrix was admittedly below 18 years of age.

15. A bare perusal of the relevant legal provisions, as extracted above, show that consent of the minor is immaterial for purposes of Section 361 of IPC. Indeed, as borne out through various other provisions in the IPC and other laws like the Indian Contract Act, 1872, minors are deemed incapable of giving lawful consent. Section 361 IPC, particularly, goes beyond this simple presumption. It bestows the ability to make crucial decisions regarding a minor's physical safety upon his/her guardians. Therefore, a minor girl's infatuation with her alleged kidnapper cannot by itself be allowed as a defence, for the same would amount to surreptitiously undermining the protective essence of the offence of kidnapping.

16. Similarly, Section 366 of IPC postulates that once the prosecution leads evidence to show that the kidnapping was with the intention/knowledge to compel marriage of the girl or to force/induce her to have illicit intercourse, the enhanced punishment of 10 years as provided thereunder would stand attracted."

8 Therefore, taking into consideration the above said legal position

and the fact that there is ample evidence against the present applicant,

benefit of alleged love affair cannot be given to the applicant. Further fact,

that is, required to be noted from the statement of the victim is that on

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23.05.2019 at 12.00 hours at night applicant came to her and took her with

him. She states that she had informed him about her location. But the

applicant is the person, who had come down to Hipparga Thadi and took her

with him. The present applicant had sexual intercourse with her for five days

at Jetchel, where they stayed, as per her statement. This amounts to active

role played by him. Therefore, when there is ample evidence against him, he

does not deserve discretionary relief to be released on bail. He was not