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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.211 OF 2001
The State of Maharashtra … Appellants

Vs.

Hemant Ashokkumar Mittal
R/o. 164/2, Lohgaon, Pune. … Respondent/
(Orig. Accused)

ALONG WITH
CRIMINAL APPEAL NO.215 OF 2001
The State of Maharashtra … Appellants

Vs.

Hemant Ashokkumar Mittal
R/o. 164/2, Lohgaon, Pune. … Respondent
(Orig. Accused)
ALONG WITH
CRIMINAL APPEAL NO.918 OF 2000

Hemant Ashokkumar Mittal
R/o. 164/2, Lohgaon, Pune. … Appellant
(Orig. Accused)

Vs.

The State of Maharashtra … Respondent
…
Ms. A.S. Pai, A.P.P. for the State.

Mr. Abhishek R. Avachat for the Accused.

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CORAM: PRADEEP NANDRAJOG, C.J.
SMT. BHARATI DANGRE, J.

DATED : 22nd AUGUST, 2019.

ORAL JUDGMENT:- [Per: Shri Pradeep Nandrajog, C.J.]

1. Charged for having committed offences punishable under Sections
363, Section366-A and Section376 IPC, the Accused has been acquitted for the offence
punishable under Section 376 IPC and convicted for the offence
punishable under Section 363 and Section 366-A IPC. He has been
sentenced to undergo rigorous imprisonment for a period of one year and
pay fine in sum of ₹ 200/-, in default, to undergo simple imprisonment
for 15 days for the offence under Section 363 and to undergo rigorous
imprisonment for a period of one year and pay fine in sum of ₹ 200/-, in
default, to undergo simple imprisonment for a period of 15 days for the
offence under Section 366-A IPC.

2. Vide Criminal Appeal No.211 of 2001, the State seeks
enhancement of the sentence imposed on the Accused for his conviction
for offence punishable under Sections 363 and Section366-A IPC. Vide Appeal
No.215 of 2001, the State seeks conviction of the Accused for the offence
punishable under Section 376 IPC. Vide Criminal Appeal No.918 of
2000, the Accused seeks his acquittal.

3. We have heard learned counsel for the parties and have perused the
trial court record.

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4. Obviously everything would turn on the testimony of the
prosecutrix, who has been examined as PW-2, for the reasons in Appeal,
learned counsel for the accused relies upon the celebrated decision of the
Supreme Court reported in AIR 1965 SC 942 SectionS. Varadarajan v. State of
Madras Anr. It was a case of love affair between the Accused and the
prosecutrix, who was a minor. She had accompanied the accused smitten
by love. With reference to the word ‘ takes’ in Section 361 IPC, which
defines kidnapping from lawful guardianship, the Supreme Court held
that in such cases, there would be no enticement and thus where love
leads the girl to run away from her parental house would not attract the
offence of kidnapping from lawful guardianship.

5. The testimony of the prosecutrix is to the effect that she was a
student of 9th standard in Air Force School. Two boys named Hemant
Shinde and Amit Patil would try to woo her. She informed her father,
who told her not to worry. The Accused met her in January, 1997. He
started threatening her to have friendship with her. Initially she avoided
but later on responded to his calls. On the fatal day when she eloped with
the Accused on 27th August, 1997, when her brother was asleep, as told
by the Accused, she threw a bag containing her clothes outside the
compound wall of the house and took ₹ 600/- with her. The Accused
was waiting in an auto-rickshaw outside her house and took her to the
Bus Stand in Pune. They proceeded to Shirdi and spent a night in the
lodge. They visited Sai Temple the next day and returned to the lodge.
The accused brought food. They took meals and shifted to another lodge.

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A boy named Gorakhnath informed that he would provide a job and
living accommodation. On 29th August, 1997, accompanied by
Gorakhnath she and the Accused left the lodge. They hired cycles. They
reached a farm where sugarcane was grown. Gorakhnath informed them
that there was a possibility of police visiting and they left the farm.
Taking meals at a Dhaba they stayed in Jangli Maharaj Ashram. From
there they shifted to a lodge. In the lodge, the Accused forced her to
remove her clothes and had sex with her. On 31 st August, 1997, after the
breakfast, they left the lodge to visit a temple and on return she found her
mother and relatives, who took her to Pune. She was examined on 02 nd
September, 1997 by the doctor.

6. The reasons to acquit the Accused for the offence punishable under
Section 376 IPC is the fact that during cross-examination, she was
confronted with her statement recorded by the Investigating Officer
under Section 161 Cr.P.C. in which she had not stated that on the
intervening night of 30th and 31st August, 1997, the Accused had forcible
sexual intercourse with her.

7. As deposed to by the prosecutrix, she was examined by Dr. Kavita,
PW-3, a Medical Practitioner on 02nd September, 1997, who gave the
report (Ex-23) and as deposed to by the witness and as recorded in Ex-23,
the hymn was found torn with inflammation and tenderness, suggesting
sexual intercourse in the recent past.

8. This aspect has obviously been overlooked by the Court of

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Sessions.

9. The testimony of the prosecutrix and her statement recorded under
Section 161 Cr.P.C. have to be evaluated by the Court in the context of a
young girl eloping with a boy, with whom she was in love. Trapped by
police when her parents lodged the complaint she had a feeling of love
and affection for the boy and caught hands down would only state to the
police facts of her running away with the boy sans such acts committed by
them which would attract penal laws. The pressure of the parents versus
the love for the boy would make her speak half truth. But when her
custody was restored to the parent and as time passed by, she deposed the
full truth.

10. Therefore, it has to be held that the Accused had sex with the
prosecutrix with her consent, which would be irrelevant and has to be
ignored for the reasons at the time of the incident the age of the
prosecutrix was 14 years.

11. This will require Criminal Appeal No.215 of 2001 filed by the State
to be allowed. Acquittal of the accused for offence under Section 376
IPC is liable to be set aside and he is liable to be convicted for the offence
punishable under Section 376 IPC. But at the same time, keeping in
view the decision of the Supreme Court in S. Varadarajan,(supra), the
Accused would be entitled to be acquitted for the offence punishable
under Sections 363 and Section366-A IPC.

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12.   At the time when the Accused and the prosecutrix were in love and

did the act which, to the misfortune of the Accused, attracted the penal

laws, his age was 16 years and 2 months. The Juvenile Justice (Care and

SectionProtection of Children) Act, 2010 followed by the Act of 2015 had not

come into force. Under the two Acts, the age of juvenility was enhanced

from 16 years to 18 years. In the decision reported as (2009) 13 SCC 211

SectionHari Ram vs. State of Rajasthan  Anr ., even in pending matters before

the Trial Court or in the Appeal, the benefit of the said Acts has to be

accorded to the Accused and thus deciding the three appeals today, it

would be our duty to extend the benefit of Juvenile Justice Act, 2010 and

2015 to the Accused. As per clause (g) of sub-section (1) of Section 18 of

the Juvenile Justice Act, the Accused can, at best, be directed to be sent to

the Special Home for such period not exceeding three years so that the

Accused can be reformed. It would be futile, therefore, to pass an order as

contemplated by law for the reasons as of the year 2019, the age of the

Accused is 38 years.

13.   Thus, Criminal Appeal No.211 of 2001 filed by the State is

dismissed. Criminal Appeal No.918 of 2000 filed by the accused is

allowed.        His conviction and sentence imposed for the offences

punishable under Sections 363 and Section366-A IPC are set aside. Criminal

Appeal No.215 of 2001 filed by the State is allowed by setting aside the

acquittal of the Accused for the offence punishable under Section 376

IPC. He is convicted for the said offence but we impose no sentence and

do not direct the Accused to be sent to a Special Home to be kept for any
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period inasmuch since the object of law is to reform a juvenile accused.

As of today the accused is no longer a juvenile but the dichotomy would

remain. His conviction will have to be treated with reference to the fact

that he was a juvenile when the offence was committed.               Thus, no

sentence is imposed upon him for the said offence. The three appeals are

disposed of.

(SMT. BHARATI H. DANGRE, J.)                          (CHIEF JUSTICE)

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