The Allahabad High Court acquitted a man previously convicted for offences under Sections 363, 366, and 376 of the Indian Penal Code, arising out of allegations of kidnapping and sexual assault of a minor girl. The Court after carefully examining evidence, held that the appellant and the victim had married with mutual consent and that the prosecution failed to prove that the victim was either enticed or taken against her will. The Court emphasized that in cases of alleged kidnapping of a minor, the mere departure of a minor with an adult is insufficient to establish guilt without clear evidence of inducement or coercion.
Brief Facts:
The case arose when Fazal Ahmad filed a complaint alleging that his 16-year-old daughter was taken away by the appellant and two others. The girl was reportedly taken from her village, first to Kalpi and then to Bhopal, where she allegedly stayed with the appellant for a month. The appellant was charged with kidnapping and rape under Sections 363, 366, and 376 IPC. The victim’s statements, medical examinations, and witness testimonies were recorded, and the trial court initially convicted the appellant, sentencing him to imprisonment under all three sections.
Contentions of the Appellant:
The appellant’s counsel argued that the victim had voluntarily left her home, travelled with the appellant, and married him with her consent. Evidence, including the Nikahnama (marriage certificate) and documents verifying the appellant’s age, supported that both parties were major at the time of marriage. The counsel further submitted that the victim’s ossification test indicated she could have been above 16 years, and that the allegations of kidnapping and rape were unsubstantiated since the physical relationship occurred only after their marriage.
Contentions of the Respondent:
The Additional Government Advocate contended that the offence under Section 363 IPC is established if a minor girl is taken or enticed away, irrespective of her consent. The State argued that since the victim was under 18 years, the appellant could not evade liability for kidnapping or abduction from lawful guardianship.
Observations of the Court:
The Court meticulously examined the evidence, citing precedents including Thakorlal D. Vadgdama v. State of Gujarat and S. Varadarajan vs State Of Madras. The Court noted that “the act of ‘enticing’ and ‘taking’ requires active inducement or manipulation by the accused to remove the minor from lawful guardianship.” It observed that in the present case, the victim voluntarily accompanied the appellant and the alleged departure was premeditated, without any undue influence from the appellant.
Further, the Court considered the provisions of Muslim Personal Law and the Prohibition of Child Marriage Act, as well as Apex Court judgments, including Independent Thought vs Union of India, which struck down Exception 2 of Section 375 IPC prospectively. The Court held that sexual relations post-marriage with a girl above 16 years could not be treated as rape under the law applicable at the time of the incident. The Court emphasized, “There is no evidence to suggest that the appellant induced the minor to leave her guardian or to enter into a marital relationship unwillingly.”
The decision of the Court:
The Allahabad High Court allowed the appeal, set aside the conviction and sentences imposed by the trial court, and acquitted the appellant of all charges under Sections 363, 366, and 376 IPC. The appellant’s bail was confirmed, sureties were discharged, and the trial court record was remitted with directions for compliance as per Section 437-A Cr.P.C.
Case Title: Islam @ Paltoo Vs. State of U.P.
Case No.: Criminal Appeal No. - 6400 of 2007
Coram: Justice Anil Kumar
Advocate for Appellent: Adv. Mayank Bhushan
Advocate for Respondent: Govt. Advocate
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