Uttarakhand High Court
Monu vs State Of Uttarakhand on 23 April, 2024
Author: Ravindra Maithani
Bench: Ravindra Maithani
THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Appeal No.668 of 2019
Monu ...........Appellant
Vs.
State of Uttarakhand ......... Respondent
Presents:-
Mr. Siddhartha Bankoti, Advocate for the appellant.
Mr. Vipul Painuli, Brief Holder for the State of Uttarakhand.
JUDGMENT
Hon'ble Ravindra Maithani, J. (Oral)
The challenge in this appeal is made to the
judgment and order dated 27/29.11.2019, passed in
Sessions Trial No.53 of 2016, State vs. Monu, by the court
of Additional Sessions Judge/FTSC Haridwar ("the case").
By it, the revisionist has been convicted under Sections
363, 366-A, 376(2)(n) IPC and Sections 5(l), 5(j)(ii)/6 of The
Protection Of Children From Sexual Offences Act, 2012
("the Act") and sentenced as follows:-
i. Under Section 363 IPC, to undergo rigorous
imprisonment for a period of three years with a
fine of Rs.5000/-. In default of payment of fine,
to undergo rigorous imprisonment for a further
period of three months.
ii. Under Section 366-A IPC, to undergo rigorous
imprisonment for a period of five years with a
fine of Rs.10,000/-. In default of payment of fine,
to undergo rigorous imprisonment for a further
period of six months.
iii. Under Section 6 of the Act, to undergo rigorous
imprisonment for a period of ten years with a
fine of Rs.50,000/-. In default of payment of fine,
to undergo rigorous imprisonment for a further
period of one year.
2. Heard learned counsel for the parties and
perused the record.
3. The prosecution case, as unfolded is as
follows: On 27.04.2016, a report was lodged by PW1, the
father of the victim. According to it, the victim had left her
home at 07:00 PM on 21.04.2016 to answer the call of
nature, but she did not return. When a search was made
Sushil, a villager had told it to the informant that he had
seen the victim going along with the appellant and one
Mangi. The FIR records that the victim is a minor and the
appellant had enticed her and taken her away. Based on
this report, an FIR was lodged under Sections 363, 366-A
IPC and a case was registered. Subsequently, the victim
was recovered, her statement under Section 164 of the
Code of Criminal Procedure, 1973 ("the Code") was
recorded. She was medically examined on 02.06.2016
when she stated her age to be 18-19 years. She was
pregnant at that time. The victim told it to the doctor at the
time of medical examination that she on her own had gone
with the appellant. She told that the appellant is her
husband. The Investigating Officer collected record with
regard to the date of birth of the victim and after
investigation has submitted a charge-sheet under Sections
363, 366-A, 376 IPC and Sections 3, 4(l)/6 of the Act. On
15.09.2016, charge under Sections 363, 366-A, 376(2)(n)
IPC and Sections 5(l)/6 of the Act were framed against the
appellant. On 23.02.2019, additional charge under
Sections 5(j)(ii)/6 of the Act was framed against the
appellant.
4. In order to prove its case, the prosecution has
examined eight witnesses namely, PW1, father of the
victim, PW2 Sushil Kumar, PW3 the victim, PW4 mother of
the victim, PW5 Dr. Nisha Gupta, PW6 Lady Constable 305
Reena Devi, PW7 SI Tina Rawat, Investigating Officer, PW8
Smt. Vimla Devi, Principal of the school. The appellant was
examined under Section 313 of the Code. According to him,
he was falsely implicated. He has stated that the victim
never studied in the school. The victim on her own had left
her home. She is major. She has been made to give false
evidence.
5. In his defence, the appellant examined two
witnesses namely, DW1, Shankardeep, and DW2, Vimla
Devi. Even DW2, Vimla Devi, had already been examined
as PW8. The right course would have been to recall PW8 or
the defence could have proved their documents when PW8
was examined. But, this was not done and Smt. Vimla
Devi, Principal has been again called as defence witness.
6. After hearing the parties, by the impugned
judgment and order, the appellant has been convicted and
sentenced, as stated hereinabove. Aggrieved by it, instant
appeal has been preferred.
7. PW1 is the father of the victim. He has stated
that on 21.04.2016, the victim has left her home to answer
the call of nature, but she did not return. Subsequently,
when a search was made, Sushil had told it to this witness
that he had seen the victim going alongwith the appellant
and Mangi. They searched for the victim for 5-6 days, but
they could not trace her. Thereafter, FIR was lodged. This
witness has proved the FIR Ex. A1.
8. PW2 Sushil Kumar had stated that on the
date of the incident, at about 7:00 - 7:30 PM, he had seen
the appellant alongwith the victim going towards a bridge.
9. PW3 is the victim. She has stated that on
21.04.2016, she was 16 years of age. She was called by the
appellant. She left her chunni and slippers near a canal, so
that her parents could assume that she had died of
drowning. She has stated that subsequently, the appellant
took her to Roorkee and from there to Delhi. There they
stayed as husband and wife. When they were out of money,
they came back to Manglore, where the police caught them.
She has stated that she studied upto Class II. She has
proved her statement under Section 164 of the Code, which
is Ex. A2.
10. PW4 is the mother of the victim. She has also
corroborated the statement of PW1, the father of the victim.
11. PW5, Dr. Nisha Gupta, did medically examine
the victim on 02.06.2016. According to her, the victim was
pregnant for two and a half months. She proved the
medical examination report Ex. A3.
12. PW6, Lady Constable Reena Devi, proved
some police documents.
13. PW7, Sub Inspector Teena Rawat, is the
Investigating Officer. She has proved the document
submitted by her during investigation and proved the
charge sheet.
14. PW8, Smt. Vimla Devi, is the Principal of the
school, where according to the prosecution, the victim had
studied. According to her, the victim had taken admission
in the school in Class II on 01.07.2008 and her name was
removed from scholar register on 17.03.2009 due to
continuous absence. According to this witness, the date of
birth of the victim is 02.02.2000. She has proved the copy
of the scholar register Ex-A.8.
15. DW1 Shankar Deep has proved the birth
certificate of the victim which is Ex. B1, which records the
date of birth of the victim as 03.05.1994. This date of birth
certificate was issued on 23.09.2015. This man is Village
Development Officer.
16. DW2 in fact, is the same witness, who had
already been examined as PW8 Smt. Vimla Devi. She had
come with the record of the same school, which she has
proved as PW8 and has stated that the victim had taken
admission in their school in Class 1st on 11.08.2005. Her
date of birth, according to this witness is 02.02.2000. It
may be noted that when examined as PW8, Smt. Vimla
Devi has stated that on 01.07.2008, the victim had taken
admission in their school in Class II, which means for two
different classes, in the same school, twice the entries of
the victim was made in the scholar register.
17. Learned counsel for the appellant would
submit that the prosecution has utterly failed to prove its
case beyond reasonable doubt. He would argue only on the
question of age of the victim. According to learned counsel,
the prosecution has failed to prove that the victim was
minor on the date of alleged incident. He would submit
that PW1 the informant in his examination has admitted
the existence of family register, which has been proved as
Ex-B.3 by DW1, in which the birth year of the victim was
recorded as 1992. He would also submit that the birth
certificate was issued as per law, records the date of birth
of the victim as 03.05.1994, which casts doubt about the
minor status of the victim. He would also submit that
victim as a witness has stated that for the first time, when
she went to the school, she was eight years of age. It is
argued that as per DW2 Smt. Vimla Devi, the victim had
taken admission in Class 1st in the school on 11.08.2005,
which means, that the date of birth of the victim is
sometimes in the year 1997 and if it is so, the victim was
not minor on the date of alleged incident.
18. Learned counsel for the appellant would also
submit that date of birth recorded in the school register per
se may not be proof of it. It has to be shown that as to what
is the basis of the date of birth so recorded in the school
register. Learned counsel would submit that PW1, the
father of the victim has not stated that he got the date of
birth recorded in the school register of the victim. It is
argued that, in fact, according to PW1, he did not get the
victim admitted in the school. Reference has been made to
the statement of the PW4, the mother of the victim, when
she has stated that she cannot tell the date of birth of the
victim. Moreover, it is argued that both, PW1 the informant
and PW3 the victim have stated that whatever date of birth
they are able to tell about the victim, is based on the school
record. Learned counsel would submit that the School
Transfer Certificate which was proved by the PW8 Smt.
Vimla Devi was procured on the same date, when the FIR
was lodged on 27.04.2016.
19. It may be noted that, in fact, no School
Transfer Certificate has been proved. The extract of scholar
register Ex. A8 has been proved.
20. In support of his contention, learned counsel
has placed reliance upon the principles of law, as laid
down in the cases of Alamelu and another Vs. State, (2011)
2 SCC 385, Ravinder Singh Gorkhi Vs. State of U.P., (2006)
5 SCC 584 and P. Yuvaprakash Vs. State, Rep. by
Inspector of Police, 2023 SCC OnLine SC 846.
21. In the case of Alamelu (supra), the Hon'ble
Supreme Court discussed the admissibility and evidentiary
value of the transfer certificate and observed as follows:-
"40. Undoubtedly, the transfer certificate, Ext. P-
16 indicates that the girl's date of birth was 15-6-1977.
Therefore, even according to the aforesaid certificate, she
would be above 16 years of age (16 years 1 month and
16 days) on the date of the alleged incident i.e. 31-7-
1993. The transfer certificate has been issued by a
government school and has been duly signed by the
Headmaster. Therefore, it would be admissible in
evidence under Section 35 of the Evidence Act, 1872.
However, the admissibility of such a document would be
of not much evidentiary value to prove the age of the girl
in the absence of the material on the basis of which the
age was recorded. The date of birth mentioned in the
transfer certificate would have no evidentiary value
unless the person, who made the entry or who gave the
date of birth is examined."
22. In the case of Ravinder Singh Gorkhi (supra), the
Hon'ble Supreme Court relied on the principles of law, as
laid down in the case of Birad Mal Singhvi Vs. Anand
Purohit, 1988 Supp SCC 604 and observed as follows:-
"26. In Birad Mal Singhvi v. Anand Purohit [1988
Supp SCC 604] this Court held: (SCC p. 619, para 15)
"To render a document admissible under
Section 35, three conditions must be satisfied,
firstly, entry that is relied on must be one in a
public or other official book, register or record;
secondly, it must be an entry stating a fact in
issue or relevant fact; and thirdly, it must be made
by a public servant in discharge of his official duty,
or any other person in performance of a duty
specially enjoined by law. An entry relating to
date of birth made in the school register is
relevant and admissible under Section 35 of the
Act but the entry regarding the age of a person
in a school register is of not much
evidentiary value to prove the age of the person
in the absence of the material on which the age
was recorded."
(emphasis supplied)
23. In the case of P. Yuvaprakash (supra), the
Hon'ble Supreme Court discussed this aspect of age
determination and under the facts and circumstances of
that case observed "It is clear from the above narrative that
none of the documents produced during the trial answered
the description of "the date of birth certificate from the
school" or "the matriculation or equivalent certificate" from
the concerned examination board or certificate by a
corporation, municipal authority or a Panchayat. In these
circumstances, it was incumbent for the prosecution to
prove through acceptable medical tests/examination that
the victim's age was below 18 years as per
Section 94(2)(iii) of the JJ Act."
24. On the other hand, learned State counsel would
submit that the victim was minor on the date of incident.
He would refer to the statement of PW8, Vimla Devi, to
argue that this witness is the Principal of the school where
the victim had studied and she has stated that the date of
birth of the victim, as per scholar register and transfer
certificate, is 02.02.2000.
25. The appellant has been convicted and sentenced
under Sections 363, 366A, 376(2)(n) IPC and Section 5(l)
and Section 5(j)(ii)/6 of the Act. Section 363 IPC provides
punishment for kidnapping. Section 366A IPC provides
punishment for procuration of minor girl, etc. These both
Sections are as follows:-
"363. Punishment for kidnapping.--Whoever
kidnaps any person from India or from lawful
guardianship, shall be punished with
imprisonment of either description for a term
which may extend to seven years, and shall also be
liable to fine.
366A. Procuration of minor girl.--Whoever, by
any means whatsoever, induces any minor girl
under the age of eighteen years to go from any
place or to do any act with intent that such girl
may be, or knowing that it is likely that she will
be, forced or seduced to illicit intercourse with
another person shall be punishable with
imprisonment which may extend to ten years, and
shall also be liable to fine."
26. What is kidnapping has been defined under
Section 359 IPC. It reads as follows:-
"359. Kidnapping.--Kidnapping is of two kinds:
kidnapping from India, and kidnapping from
lawful guardianship."
27. The appellant has also been convicted of rape
and aggravated penetrative sexual assault.
28. First and foremost, it has to be seen as to
whether the victim was a child on the date of incident. The
Juvenile Justice (Care and Protection of Children) Act,
2015 ("the JJ Act") provides for presumption and
determination of age. Section 94 of it provides as
hereunder:-
"94. Presumption and determination of age.--
(1) Where, it is obvious to the Committee or the
Board, based on the appearance of the person
brought before it under any of the provisions of
this Act (other than for the purpose of giving
evidence) that the said person is a child, the
Committee or the Board shall record such
observation stating the age of the child as nearly
as may be and proceed with the inquiry under
section 14 or section 36, as the case may be,
without waiting for further confirmation of the age.
(2) In case, the Committee or the Board has
reasonable grounds for doubt regarding whether
the person brought before it is a child or not, the
Committee or the Board, as the case may be, shall
undertake the process of age determination, by
seeking evidence by obtaining--
(i) the date of birth certificate from the
school, or the matriculation or equivalent
certificate from the concerned examination
Board, if available; and in the absence
thereof;
(ii) the birth certificate given by a corporation
or a municipal authority or a panchayat;
(iii) and only in the absence of (i) and (ii)
above, age shall be determined by an
ossification test or any other latest medical
age determination test conducted on the
orders of the Committee or the Board:
Provided such age determination test
conducted on the order of the Committee or the
Board shall be completed within fifteen days from
the date of such order.
(3) The age recorded by the Committee or the
Board to be the age of person so brought before it
shall, for the purpose of this Act, be deemed to be
the true age of that person."
29. The determination of age of an offender may
be determined according to the provisions of the JJ Act.
Similarly, the age of the victim may also be determined
accordingly. There are multiple documents filed from both
sides to establish the age of the victim. On behalf of the
prosecution, PW8, Vimla Devi, has proved the scholar
register as well as she has stated about the transfer
certificate. The extract of the scholar register, which has
been proved by the PW8, Vimla Devi, is at Ex-A.8,
according to which, the date of birth of the victim is
02.02.2000 and the transfer certificate, as such, has not
been exhibited, but PW8, Vimla Devi, has proved it saying
that it is Paper no. 70A on record. In it also, the date of
birth of the victim is recorded as 02.02.2000.
30. On behalf of the appellant also, two witnesses
have been examined with regard to the documents of age;
(i) DW1 has proved the extract of birth register, which is
Ex. B.1. In it, the date of birth of the victim is recorded as
03.05.1994, and extract of family register, which is
Ex-B.3. In it, the birth year of the victim is recorded as
1992. (ii) DW2, who had already been examined as PW8,
has proved another extract of scholar register, in which
also the age of the victim is recorded as 02.02.2000.
This is Ex-B.2. In this Ex-B.2, the date of birth of the
victim is recorded as 03.02.1995. In fact, this witness,
DW2, has proved Ex-B.2 saying that it is the extract of the
scholar register, in which the date of birth, as stated, is
recorded as 03.02.1995. This is not correct because
according to DW2 herself, in the school register, the date of
birth of the victim is recorded as 02.02.2000.
If it is so, Ex-B.2 could not reveal the date of birth of the
victim as 03.02.1995. This Court has, in fact,
summoned the original scholar register of Ex-B.2.
It is perused in the presence of both the parties
during the course of hearing. In the original register, this
date of birth is 02.02.2000. Has Ex-B.2 been forged? The
Court leaves it at it. This document Ex-B.2 does not lend
any credence.
31. The prosecution has heavily relied
on Ex-A.8, the extract of the scholar register
as well as the transfer certificate of the
victim, in which her date of birth is recorded as
02.02.2000. There is no doubt that this document is
admissible in evidence, but, any entry that is made, may
not get proved merely because it is an admissible evidence.
The entries are to be separately proved.
32. In the case of Rishipal Singh Solanki Vs.
State of Uttar Pradesh and Others, Manu/SC/1081/2021,
the Hon'ble Supreme Court discussed the law on this
aspect and culled out the principles with regard to the
determination of age as hereunder:-
"29. What emerges on a cumulative consideration
of the aforesaid catena of judgments is as follows:
(i) A claim of juvenility may be raised at any
stage of a criminal proceeding, even after a final
disposal of the case. A delay in raising the
claim of juvenility cannot be a ground for
rejection of such claim. It can also be raised for
the first time before this Court.
(ii) An application claiming juvenility could be
made either before the Court or the JJ Board.
(iia) When the issue of juvenility arises
before a Court, it would be Under
Subsection (2) and (3) of Section 9 of the JJ
Act, 2015 but when a person is brought
before a Committee or JJ Board, Section 94
of the JJ Act, 2015 applies.
(iib) If an application is filed before the
Court claiming juvenility, the provision of
Sub-section (2) of Section 94 of the JJ Act,
2015 would have to be applied or read
along with Sub-section (2) of Section 9 so as
to seek evidence for the purpose of
recording a finding stating the age of the
person as nearly as may be.
(iic) When an application claiming juvenility
is made Under Section 94 of the JJ Act,
2015 before the JJ Board when the matter
regarding the alleged commission of offence
is pending before a Court, then the
procedure contemplated Under Section 94
of the JJ Act, 2015 would apply. Under the
said provision if the JJ Board has
reasonable grounds for doubt regarding
whether the person brought before it is a
child or not, the Board shall undertake the
process of age determination by seeking
evidence and the age recorded by the JJ
Board to be the age of the person so
brought before it shall, for the purpose of
the JJ Act, 2015, be deemed to be true age
of that person. Hence the degree of proof
required in such a proceeding before the JJ
Board, when an application is filed seeking
a claim of juvenility when the trial is before
the concerned criminal court, is higher than
when an inquiry is made by a court before
which the case regarding the commission of
the offence is pending (vide Section 9 of the
JJ Act, 2015).
(iii) That when a claim for juvenility is raised,
the burden is on the person raising the claim to
satisfy the Court to discharge the initial
burden. However, the documents mentioned in
Rule 12(3)(a)(i), (ii), and (iii) of the JJ Rules
2007 made under the JJ Act, 2000 or Sub-
section (2) of Section 94 of JJ Act, 2015, shall
be sufficient for prima facie satisfaction of the
Court. On the basis of the aforesaid documents
a presumption of juvenility may be raised.
(iv) The said presumption is however not
conclusive proof of the age of juvenility and the
same may be rebutted by contra evidence let in
by the opposite side.
(v) That the procedure of an inquiry by a Court
is not the same thing as declaring the age of
the person as a juvenile sought before the JJ
Board when the case is pending for trial before
the concerned criminal court. In case of an
inquiry, the Court records a prima facie
conclusion but when there is a determination
of age as per Sub-section (2) of Section 94 of
2015 Act, a declaration is made on the basis of
evidence. Also the age recorded by the JJ Board
shall be deemed to be the true age of the
person brought before it. Thus, the standard of
proof in an inquiry is different from that
required in a proceeding where the
determination and declaration of the age of a
person has to be made on the basis of evidence
scrutinised and accepted only if worthy of such
acceptance
(vi) That it is neither feasible nor desirable to
lay down an abstract formula to determine the
age of a person. It has to be on the basis of the
material on record and on appreciation of
evidence adduced by the parties in each case.
(vii) This Court has observed that a hyper-
technical approach should not be adopted
when evidence is adduced on behalf of the
Accused in support of the plea that he was a
juvenile.
(viii) If two views are possible on the same
evidence, the court should lean in favour of
holding the Accused to be a juvenile in
borderline cases. This is in order to ensure that
the benefit of the JJ Act, 2015 is made
applicable to the juvenile in conflict with law.
At the same time, the Court should ensure that
the JJ Act, 2015 is not misused by persons to
escape punishment after having committed
serious offences.
(ix) That when the determination of age is on
the basis of evidence such as school records, it
is necessary that the same would have to be
considered as per Section 35 of the Indian
Evidence Act, inasmuch as any public or
official document maintained in the discharge
of official duty would have greater credibility
than private documents.
(x) Any document which is in consonance with
public documents, such as matriculation
certificate, could be accepted by the Court or
the JJ Board provided such public document is
credible and authentic as per the provisions of
the Indian Evidence Act viz., Section 35 and
other provisions.
(xi) Ossification Test cannot be the sole
criterion for age determination and a
mechanical view regarding the age of a person
cannot be adopted solely on the basis of
medical opinion by radiological examination.
Such evidence is not conclusive evidence but
only a very useful guiding factor to be
considered in the absence of documents
mentioned in Section 94(2) of the JJ Act,
2015."
33. In the case of Satpal Singh Vs. State of
Haryana, (2010) 8 SCC 714, the Hon'ble Supreme Court,
while discussing on this aspect, held that, "-entry in
school register /certificate requires to be proved in
accordance with law. Standard of proof for the same
remains as in any other civil and criminal case."
34. The similar principles of law have been laid by
the Hon'ble Supreme Court in the case of Alamelu (supra),
wherein, the Hon'ble Supreme Court observed that, "The
date of birth mentioned in the transfer certificate
would have no evidentiary value unless the person, who
made the entry or who gave the date of birth is
examined."
35. PW1 is the father of the victim. In his
statement at Page 6, paragraph 2nd, this witness has stated
that he did not get his daughter admitted in the school. He,
in fact, expressed ignorance about the date when the victim
was admitted in the school. He also tells in the same sequel
that the victim was born in Punjab, where he was labourer
at the relevant time. In Page 5, bottom paragraph, PW1, the
father of the victim tells that he can tell the date of birth of
the victim because he had got a document from the school.
On his own, this witness was not in a position to tell the
date of birth of the victim. He has not recorded the date of
birth of the victim in the school records.
36. PW3 is the victim. In answer to a question at
Page 2, 3rd paragraph, she has stated that she
was admitted to the school when her age was
8 years. This statement is important. In
the same sequence, PW3, the victim, has stated
that she does not remember as to what is the date of birth
recorded in the school record. She also tells that her elder
sister is married for 5 years and she is 2 years younger to
her.
37. PW4, the mother of the victim, could not tell
the date of birth of the victim.
38. PW5, the Doctor, who examined the victim,
has recorded the age of the victim as 18-19 years when she
was examined. In the last line of her examination, PW5, Dr.
Nisha Gupta, has stated that by appearance, the victim
looks around 19-20 years of age. As stated, there is an
extract of the family register that has been produced and
proved on behalf of the appellant, in which the birth year of
the victim is recorded as 1992.
39. According to PW8, the extract of scholar
register Ex-A.8 pertains to the admission of the
victim in class II and she was admitted on
01.07.2008 in class II. Since she did not
continue, her name was removed from the roll on
17.03.2009. The same witness, as stated has been
examined as DW2, she proved the scholar register
of the victim She has stated that the victim took
admission in class I in the school on 11.08.2005. As
stated, the victim has stated that when she was admitted
in the school, she was 8 years of age, which means that the
victim was born sometimes in the year 1997. It also creates
doubts on the genuineness of the date of birth of the
victim, as recorded in the school register.
40. There is no evidence adduced by the
prosecution to establish as to who was the person who got
the date of birth of the victim recorded in her school
register. PW1, the father of the victim, did not get her
daughter admitted in the school. PW3, the victim, herself
does not know her date of birth. In fact, she has also not
stated as to who got her admitted in the school. There is no
application form of the school. PW4, the mother of the
victim, could not also tell the date of birth of the victim.
41. These all factors with attending
circumstances leads to the conclusion that the prosecution
utterly failed to prove that the victim was less than 18
years of age on the date of incident. Therefore, this Court is
of the view that the prosecution fails to prove that the
victim was a child on the date of incident.
42. The victim has not been forcibly taken by the
appellant. This Court has already concluded that the
prosecution failed to prove that the victim was a child on
the date of incident.
43. The victim, as PW3, has stated that on the
date of incident, in fact, she had some dispute in the house
as she had spilled the vegetables. Her mother wanted to
beat her. Therefore, she ran away from the house and met
the appellant. Thereafter they visited various places and
the appellant established physical relations with her. The
victim has also proved her statement under Section 164 of
the Code. The statement, recorded under Section 164 of
the Code may also be used for corroboration not only
contradiction, as held in the case of R. Shaji Vs. State of
Kerala, (2013) 14 SCC 266. In this case, the Hon'ble
Supreme Court held that, "the statement given under
Section 164 of the Code may be used for the purpose of
corroboration and contradiction."
44. In her statement recorded under Section 164
of the Code, the victim has stated that she was in
relationship with the appellant and she left her home and
joined the company of the appellant, and, thereafter, they
visited various places and established physical relations.
45. The victim was not kidnapped. The victim was
not a minor. The victim, on her own, had joined the
company of the appellant. She was consenting throughout.
Therefore, in view of the foregoing discussion, this Court is
of the view that the prosecution utterly failed to prove the
charges levelled against the appellant. The appellant ought
to have been acquitted of the charge. The court below did
commit an error in law in convicting and sentencing the
appellant.
46. Therefore, while setting aside the impugned
judgment and order, the appellant is entitled to be
acquitted of the charges under Sections 363, 366-A,
376(2)(n) IPC and Sections 5(l), 5(j)(ii)/6 of the Act.
47. The appeal is allowed.
48. The impugned judgment and order dated
27/29.11.2019, passed in the case, is set aside. The
appellant is acquitted of the charges under Sections 363,
366-A, 376(2)(n) IPC and Sections 5(l), 5(j)(ii)/6 of the Act.
49. The appellant is in jail. Let he be released
forthwith if not wanted in any other case subject to his
furnishing a personal bond and two sureties under Section
437A of the Code to the satisfaction of the court concerned.
50. Let a copy of this judgment along with the
Lower Court Record be transmitted to the court below for
compliance.
(Ravindra Maithani, J.)
23.04.2024
Jitendra/Sanjay/Ravi Bisht
