Isabella Mariam

The High Court of Bombay at Goa Single Bench of Justice Shreeram V. Shirsat upheld the conviction of a 34-year-old man for offences under Sections 363 and 376 of the IPC and Section 4 of the POCSO Act, dismissing his appeal against the trial court’s judgment. The Court affirmed the findings that the accused had enticed a 16-year-old girl from the lawful custody of her mother and committed penetrative sexual assault while staying with her outside the State. Rejecting the defence of consensual relationship and alleged investigative lapses, the Court held that the victim was a minor and her consent was immaterial in law. The conviction and sentences imposed by the Special POCSO Court were confirmed.

The appellant challenged the judgment of the Fast Track Special Court, POCSO at Panaji, by which he was convicted for offences under Sections 363 and 376 of the IPC and Section 4 of the POCSO Act and sentenced to terms of rigorous imprisonment with fines. The prosecution case originated from a complaint lodged by the mother of the victim, stating that her daughter aged 16 years and 9 months had gone missing from the construction site where they were residing. Suspicion was expressed that an unknown person had kidnapped her.

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Investigation led to the arrest of the appellant. The prosecution examined eleven witnesses, including the victim, her mother, medical officers, investigating officers, and the school headmistress. The victim deposed that the appellant asked her to run away and threatened to commit suicide if she did not meet him. She travelled with him outside Goa and stayed with him in Ahmedabad, where she stated that he had sexual intercourse with her. Medical examination recorded evidence of vaginal penetration and old healed hymenial tears. The defence alleged false implication, consensual relationship, improper investigation, and lack of corroboration. The State contended that the victim was a minor and that consent was legally immaterial.

The court recorded the victim’s account of how she left home after the accused contacted her: "the Appellant told her that he will wait for her at Panaji bus stand on 11/12/2021 and if she does not come, he will commit suicide." It noted: "PW 1 has categorically deposed that out of fear she went with him."

Referring to the victim’s prior statement, the court stated: "She has further corroborated the said fact in her 164 statement recorded on 21/1/2022 wherein she has stated that on 11/12/2021, the Appellant called her and told her that he was waiting for her at Panaji bus stand and threatened her by saying that if she does not come, he would commit suicide." It added: "She has deposed that as she got scared, she took the money from the house and waited for the bus at 10:30 hours."

On whether the victim went on her own, the court observed: "what emerges out of the categorical admissions given by the PW 1- victim, is that she has left the house not on her own accord but at the instance of the Appellant and the Appellant by putting the victim under fear that the he would commit suicide, if she does not come, has induced and enticed her to leave the house." It further stated: "The victim out of fear and under coercion has left the house."

The court then recorded: "Inducement or for that matter, enticement by the Appellant, that if she does not come with him, he will commit suicide has created a fear in the mind of the victim pursuant to which the victim has taken the step to leave the house." It concluded on this point: "This is a clear case of enticing by the appellant and taking her out of the custody of her lawful guardian."

On the requirement of force, the court stated: "To establish the offence, it was not necessary for the prosecution to prove that the Appellant should have forcibly taken her out of the custody of the lawful guardian, but that she was “caused to go” by the influence which was created in her mind by the Appellant and which indeed caused her to leave the custody of the lawful guardian is itself sufficient to come to conclusion that the victim was enticed and taken away from the custody of the lawful guardian without the consent."

Finally, the court recorded its finding on proof of kidnapping: "It is thus proved beyond reasonable doubt that the Appellant by putting the victim under emotional duress and coercion that he will commit suicide has influenced her mental state and which has weighed on her mind to cause her to leave the house from the custody of her mother, proves beyond reasonable doubt that the Appellant has committed the offence punishable under section 363 IPC."

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The Court directed that “the Appeal stands dismissed and the conviction of the Appellant is upheld. Appeal stands disposed of accordingly. Pending applications, if any, also stand disposed of.”

Advocates Representing the Parties

For the Appellant: Adv. Sahil Samir Sardessai
For the Respondent: Mr. Pravin N. Faldessai, Additional Public Prosecutor

Case Title: Shobhit Kumar v. State
Neutral Citation: 2026:BHC-GOA:292
Case Number: Criminal Appeal No. 318 of 2023-F
Bench: Justice Shreeram V. Shirsat