Udai Bairagi @ Guddu vs State N.C.T. Of Delhi
2013 Latest Caselaw 3807 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                  DECIDED ON : 29th August, 2013

+                   CRL.A. 285/2001 & Crl.M.B.No.1794/2010

       UDAI BAIRAGI @ GUDDU
                                                            ..... Appellant
                         Through : Mr.S.K.Rai, Advocate.

                         versus

       STATE N.C.T. OF DELHI
                                                      ..... Respondent
                         Through : Mr.M.N.Dudeja, APP for the State.

CORAM:
MR. JUSTICE S.P.GARG

S.P.GARG, J. (ORAL)

1. Udai Bairagi @ Guddu (the appellant) challenges a

judgment dated 04.04.2001 of learned Additional Sessions Judge in

Sessions Case No.55/1999 arising out of FIR No.156/1999 registered at

Police Station Ambedkar Nagar by which he and Meena were convicted

under Section 366/34 IPC. By an order dated 09.04.2001 they were

sentenced to undergo RI for three years with fine `500/-.

2. Allegations against the appellant were that he and Meena

kidnapped prosecutrix 'X' (assumed name) aged 16 years on 08.03.1999

with the intention to compel her to marry Guddu. During the course of

proceedings the prosecutrix was recovered, Meena and Udai Bairagi @

Guddu were arrested and statement of prosecutrix was recorded under

Section 164 Cr.P.C. After completion of investigation, a charge-sheet was

filed in the court. Both were duly charged and brought to trial. The

prosecution examined 11 witnesses to prove the charges. In their 313

statement the accused persons pleaded false implication. On appreciating

the evidence and after considering the rival contentions of the parties, the

Trial Court by the impugned judgment held both of them guilty under

Section 366/34 IPC and sentenced them. It is relevant to note that Meena

has already undergone the sentence awarded to her and her appeal was

disposed of earlier.

3. On perusal of the evidence, it reveals that the prosecutrix had

leveled allegations of kidnapping only against Meena. She appeared

before the court as PW-3 and deposed that on 08.03.1999 at about 12.00

noon Meena who lived in her neighbourhood called her in her house on

the pretext to arrange luggage as she was going to her village. She offered

a cup of tea and on consuming it, she started feeling giddy. She was made

to sit in a TSR and thereafter she became unconscious. When she regained

her senses in train and inquired from Meena as to where she had brought

her, Meena told that she was going to marry her with accused Udai

Bairagi @ Gudu (the present appellant). She told Meena that she would

not marry him in any condition and insisted her to take her back to Delhi.

Thereafter, she was brought back to Delhi. At New Delhi Railway Station

her parents met them and apprehended both Meena and Udai Bairagi @

Guddu. Her statement (Ex.PW3/A) was recorded before the Magistrate.

In her entire deposition, the prosecutrix did not level any allegations

against Guddu for kidnapping. When she went to Meena's house Guddu

was not present there. She did not depose if Guddu was present in the

TSR when she was taken forcibly to railway station. In the cross-

examination she clarified that Meena was alone in her house when she had

gone there. When she regained consciousness in the train, she found

Meena sitting by her side and there was no one else accompanying

Meena. She further elaborated that Guddu used to live in her

neighbourhood but she had no conversation with him any time and he met

them only when they were returning to Delhi. She did not attribute any

role whatsoever to Guddu in the kidnapping. Mere presence of Guddu in

the train on their journey back to Delhi is not enough to infer that he

shared common intention with Meena who kidnapped her with an

intention to marry. Guddu was not a member of the family of Meena who

lived with her husband and four-five children. Meena took the prosecutrix

to her native place and Guddu had no concern with the said place. No

overt act was assigned to Guddu in the entire incident. He never

expressed his willingness to marry the prosecutrix. There are no

allegations that he conspired with Meena to kidnap 'X' and thereafter to

marry her. The prosecution did not establish if Guddu had any relationship

with Meena and if so what was it.

4. Since there are not allegations of kidnapping against Guddu

his conviction under Section 366/34 IPC cannot be sustained. The appeal

is allowed and the conviction and sentence of the appellant-Udai Bairagi

@ Guddu are set aside. Bail bond and surety bond of the appellant stand

discharged. Trial Court record be sent back forthwith.

5. Crl.M.B.No.1794/2010 also stands disposed of.

(S.P.GARG) JUDGE AUGUST 29, 2013 sa