CRA-S-587-SB-2004 (OM) -1-

IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH

CRA-S-587-SB-2004 (OM)
Date of Decision: February 28, 2018

Rakesh Kumar ..Appellant(s)

Versus

State of Punjab ..Respondent(s)

CORAM: HON’BLE MRS. JUSTICE ANITA CHAUDHRY

Present: Ms. Vijay Sharma, Advocate
for the appellant.

Mr. Rahul Rathore, DAG, Punjab.

*****

ANITA CHAUDHRY, J.

This appeal has been filed by the appellant assailing the

orders of conviction and sentence vide which he has been sentenced to

undergo rigorous imprisonment for a period of 10 years along with a

fine of Rs.5,000/-. In default of payment of fine, he was to further

undergo rigorous imprisonment for a period of two years.

Briefly stated the facts are that the daughter of Jatinder

Singh was missing from the house on 04.03.2002. The complainant

mentioned that he suspected that Rakesh Kumar son of Phool Chand

who was working as a mechanic in a television shop had

kidnapped/allured his daughter. His daughter was stated to be 16 years

old. He also mentioned that he was out of station and came to know on

his return. The incident was reported on 07.03.2002. The victim

returned on 27.03.2002. The accused was also arrested the same day.

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The statement of the victim was recorded and Section 376

IPC was added. The girl was medically examined and challan was

presented.

Charge was framed under Section 363, 366-A, 376 IPC to

which accused pleaded not guilty and claimed trial.

The prosecution examined 11 witnesses.

The trial Court found that the girl was 17 years and 9

months old and since she had been moving alongwith the accused to

different places using public transport. Considering the medical record,

it recorded acquittal of the accused under Section 376 IPC. As the girl

was under 18 years of age the accused was convicted under Section 363,

366-A IPC.

The submission on behalf of the appellant is that there

could be no conviction under Section 366-A IPC and a reading of the

Section itself would show that there has to be another person involved

and only then it would be complete and there are no such accusations or

evidence and the trial Court had erred by convicting the appellant under

this Section.

Counsel further submits that the girl was mature enough to

understand everything and had left the house on her own as she was

having an affair with the appellant and it was a case of elopement and

not kidnapping, therefore, Section 363 IPC was not made out. It was

urged that the prosecution had not led any evidence to show the

document produced at the time of admission in the school records and if

the ossification test had been done, the true picture would have appeared

and the girl was a consenting party. Reliance was placed upon

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Bhagwant Singh Vs. State of Punjab 2004(1) RCR (Criminal) 719,

Balwan Singh Vs. The State of Haryana 2010(3) RCR (Criminal) 734,

Parvati Vs. State of Haryana 2013(3) RCR (Criminal) 315, Subeg

Singh and others Vs. State of Punjab 2015(1) RCR (Criminal) 636,

Dharmender and others vs. State of Haryana 2010(3) RCR (Criminal)

179 and Baldev Kumar Vs. State (Chandigarh Administration)

2014(2) RCR (Criminal) 588.

The counsel urges that as per the custody certificate the

total sentence including remission is 4 years and 9 months though the

actual custody undergone was 2 years and 7 months and the accused

was 20 years old at that time and if the argument does not find favour

then the sentence be reduced to already undergone.

The submission of the State counsel is that the girl was

under 18 and though prior to the amendment in Section 376 IPC, the age

was 16 and the occurrence in this case had taken place in 2002. The

State counsel supports the judgment.

Section 363 of the Indian Penal Code reads as under:-

Section 363 in The Indian Penal Code

363. Punishment for kidnapping.–Whoever kidnaps any person from
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.

Section 361 IPC defines the offence of kidnapping from

lawful guardianship that is the minor below the age of 18, if a female.

The provisions of law are clear that when a minor is taken out of the

lawful guardianship without the consent of the guardian then the

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offence under Section 363 IPC is made out and age is relevant and it

has to be seen as to what is the evidence led by the prosecution and the

evidence led by the other side to refute it.

The prosecution has examined Manohar Singh PW-7 who

had proved the certificate Ex.PW7/A. He had stated that the certificate

was issued by the Punjab School Education Board and it was signed by

him and the date of birth recorded is 07.05.1984. No suggestion had

been given to any of the witnesses that the girl was over 18 years of

age. The accused also did not lead any evidence nor had asked for any

ossification test probably because the date indicated in the Board

certificate was not disputed. The girl was under 18 years of the age and

she had been taken out from the lawful guardianship without the

consent of the guardian, therefore, the appellant was rightly convicted

under Section 363 IPC.

So far as Section 366-A IPC is concerned, the prosecution

was required to prove that the girl had been procured/kidnapped

knowing that she would be forced to illicit intercourse with another

person. No evidence was led by the prosecution nor there was

involvement of any other person. The girl had not been handed over to

another person, therefore, the trial Court had erred by convicting the

appellant under Section 366-A IPC and that finding has to be set aside.

Coming to the quantum of sentence, the appellant had

actually undergone 2 years, 7 months and 12 days of custody before he

was released on bail. The incident is of 2002. Considering the

circumstances, the sentence is modified and is reduced to already

undergone.

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With this modification alone the appeal is dismissed.

(ANITA CHAUDHRY)
February 28, 2018 JUDGE
Sunil

Whether speaking/reasoned : Yes/No

Whether reportable : Yes/No

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