JUDGMENT:

Pradeep Nandrajog, J.

1. Charged for having committed offences punishable under Sections 363, 366-A and 376 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 Rs. 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 Rs. 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 366-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.

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 S. 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 Rs. 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. 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 31st 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 02nd 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 02n