SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

Vivek vs State Of Uttarakhand on 27 March, 2019

Judgment reserved

IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL

Criminal Appeal No. 420 of 2018

Vivek. ……..Appellant.

Versus

State of Uttarakhand. ……… Respondent.

Present:

Mohd. Safdar, Advocate for the appellant.
Ms. Pushpa Bhatt, Deputy Advocate General for the State of Uttarakhand.

Hon’ble Alok Singh, J (Oral).

1. Present appeal is directed against the judgment and
order dated 27.08.2018 / 31.08.2018 passed by Special Judge,
POCSO, Haridwar in Special Sessions Trial No. 05 of 2015
whereby appellant was held guilty for the offence punishable
under Section 363, 376 IPC under Section 4, 6 of the Protection
of Children from Sexual Offences Act (for short “POCSO Act”)
and was sentenced to undergo three year rigorous imprisonment
and to pay fine of Rs. 10,000/- and in default of making payment
of fine, to undergo one month additional imprisonment under
Section 363 IPC; sentenced to undergo seven year rigorous
imprisonment and to pay fine of Rs. 10,000/- and in default of
making payment of fine, to undergo one month additional
imprisonment under Section 376 IPC; and sentenced to undergo
seven year rigorous imprisonment and to pay fine of Rs. 10,000/-
and in default of making payment of fine, to undergo one month
additional imprisonment under Section 4 of the POCSO Act and
sentenced to undergo ten year rigorous imprisonment and to pay
fine of Rs. 10,000/- and in default of making payment of fine, to
2

undergo one month additional imprisonment under Section 6 of
the POCSO Act.

2. Brief facts of the present case, inter alia, are that PW1
informant – father of prosecutrix lodged an FIR with police
station Kotwali Jwalapur, Haridwar on 11.02.2015 stating therein
that her daughter prosecutrix, aged about 16 years, is missing
since 10.02.2015 at 03.30 p.m.; she went for tuition but she did not
come till evening; he inquired from his relatives but did not get
any clue; yesterday, she did not go for tuition class; today, I come
to lodge her missing complaint. He believed that one Vivek
enticed her away; kindly, lodge the FIR and accordingly, FIR was
registered.

3. After investigation, PW6 Sub Inspector Geeta
Chaudhary submitted charge-sheet under Section 363, 366A, 376
IPC and 3/4 of the POCSO Act against the appellant.

4. When prosecutrix came to know that her father has
lodged FIR, prosecutrix herself appeared before the police station
on 12.02.2015. On 13.02.2015, she was produced before II Judicial
Magistrate, Haridwar and her statements were recorded under
Section 164 CrPC and on the same day, her medical examination
was done.

5. After committal of the case to the court of Session,
learned trial court was pleased to frame charges under Section
363, 366A, 376 IPC and under Section 3(a)/4 and 5(l)/6 of the
POCSO Act. Appellant denied the charges and claimed trial.

6. To prove the prosecution story, PW1 father of the
prosecutrix, PW2 prosecutrix, PW3 Dr. Rajendra Rana, PW4
mother of prosecutrix, PW5 Sub Inspector Janki Bhandari PW6
Sub Inspector Geeta Chaudhary, PW7 Constable Manish Rawat
3

and PW8 Rukam Singh were examined. Thereafter, statement of
appellant was also recorded under Section 313 Cr.P.C.

7. Having heard learned counsel for the parties and
perusing the entire material available on record, trial court was
pleased to pass the impugned judgment and order. Feeling
aggrieved, appellant has preferred the present appeal.

8. I have heard Mohd. Safdar, learned counsel for the
appellant, Ms. Pushpa Bhatt, Deputy Advocate General for the
State and have carefully perused the record.

9. Prosecutrix in her statement recorded under Section
164 Cr.P.C. stated as under:

“I knew Vivek since October. Vivek is residing in
Ghasmandi. I went with Vivek out of my own sweet
will in November. Three months before, I solemnized
court marriage with Vivek in Roshnabad and after
marriage, I came to my home and two days before, I
along with Vivek came to his sister’s house in
Raiwala. I want to go with Vivek. If he does not want
to take me, I will stay with my parents. Vivek has
neither compelled me for marriage nor for stay with
him.”

10. While appearing in the witness box PW2 prosecutrix
stated on oath that she married with appellant out of her own
sweet will. Nobody compelled her for marriage. There was no
quarrel between the parties. Appellant did not compel her for any
sinful act. After the incident, accused never disturbed her. She did
not want any legal action against accused. She went with
appellant out of her own will. Neither accused appellant ever
threatened me nor did any insolence act.

4

11. Now let me examine as to whether appellant had
committed any offence punishable under Section 363, 376 IPC and
under Section 4, 6 of the POCSO Act.

12. Kidnap from lawful guardian, as defined under
Section 361 IPC, reads as under:

“361. Kidnapping from lawful guardianship. – Whoever
takes or entices any minor under sixteen years of age if a
male, or under eighteen years of age if a female, or any
person of unsound mind, out of the keeping of the lawful
guardian of such minor or person of unsound mind,
without the consent of such guardian, is said to kidnap such
minor or person from lawful guardianship.

Explanation. – The words “lawful guardian” in this section
include any person lawfully entrusted with the care or
custody of such minor or other person.

Exception.-This section does not extend to the act of any
person who in good faith believes himself to be the father of
an illegitimate child, or who in good faith believes himself
to be entitled to the lawful custody of such child, unless
such act is committed for an immoral or unlawful
purpose.”

13. Having perused Section 361 I.P.C., I find that to prove
kidnapping from lawful guardianship prosecution must prove
four ingredients as under:-

(i) Taking or enticing away a minor or person of
unsound mind.

(ii) Minor must be under 16 years of age if male and
under 18 years of age if female.

5

(iii) The taking or enticing must be out of keeping of
the lawful guardian of such minor or person of
unsound mind.

(iv) Such taking or enticing must be without the
consent of guardian.

14. To constitute an offence punishable under Section 363
IPC, ingredient, as defined under Section 361 IPC, must be
proved.

15. Three-Judge Bench of Hon’ble Apex Court in the case
of S. Varadarajan Vs. State of Madras reported in AIR 1965 SC
942 has held as under:

“But when the girl (who though a minor had
attained the age of discretion and is on the verge of
attaining majority and is a senior college student)
from the house of the relative of father where she is
kept, herself telephones the accused to meet her at a
certain place, and goes there to meet him and finding
him waiting with his car gets into that car of her own
accord, and the accused takes her to various various
places and ultimately to the Sub-Registrar’s Office
where they get an agreement to marry registered, and
there is no suggestion that this was done by force or
blandishment or anything like that on the part of the
accused but it is clear from the evidence that the
insistence of marriage came from her side, the accused
by complying with her wishes can by no stretch of
imagination be said to have “taken” her out of the
keeping of her lawful guardianship, that is, the father.

6

The fact of her accompanying the accused all
along is quite consistent with her own desire to be
the wife of the accused in which the desire of
accompanying him wherever he went is of course
implicit. Under these circumstances no inference
could be drawn that the accused is guilty of taking
away the girl out of the keeping of her father. She
has willingly accompanied him and the law does not
cast upon him the duty of taking her back to her
father’s house or even of telling her not to
accompany him.

There is a distinction between “taking” and
allowing a minor to accompany a person. The two
expressions are not synonymous though it cannot be
laid down that in no conceivable circumstance can the
two be regarded as meaning the same thing for the
purposes of S. 361 of the Indian Penal Code. Where
the minor leave her father’s protection knowing and
having capacity to know the full import of what she is
doing voluntarily joins the accused person, the
accused cannot be said to have taken her away from
the keeping of her lawful guardian. Something more
has to be shown in a case of this kind and that is some
kind of inducement held out by the accused person or
an active participation by him in the formation of the
intention of the minor to leave the house of the
guardian.

It would, however, be sufficient if the
prosecution establishes that though immediately prior
to the minor leaving the father’s protection no active
part was played by the accused, he had at some earlier
7

stage solicited or persuaded the minor to do so. If
evidence to establish one of those things is lacking it
would not be legitimate to infer that the accused is
guilty of taking the minor out of the keeping of the
lawful guardian merely because after she has actually
left her guardian’s house or a house where her
guardian had kept her, joined the accused and the
accused helped her in her design not to return to her
guardian’s house by taking her along with him from
place to place. No doubt, the part played by the
accused could be regarded as facilitating the
fulfilment of the intention of the girl. But that part
falls short of an inducement to the minor to slip out of
the keeping of her lawful guardian and is, therefore,
not tantamount to “taking”.”

16. As per statement of prosecutrix stated that she was in
love with appellant; on the fateful day, she out of her own will
went along with appellant to his sister’s house; appellant never
forced her to stay with him, therefore, taking away or enticing on
the part of the accused appellant does not stand proved.
Therefore, offence under Section 363 IPC cannot be said to have
been made out against the appellant.

17. Now, let me examine as to whether offence
punishable under Section 376 IPC is made out against the
appellant.

18. Ms. Pushpa Bhatt, learned DAG for the State has
vehemently argued that since prosecutrix was found to be below
18 year of age, therefore, her consent losses its importance for the
purpose of clause (6) of Section 375 IPC. Since, she is below the
age of 18 years, therefore, sexual intercourse with the prosecutrix
shall amount to rape.

8

19. Admittedly, date of birth of prosecutrix is 01.07.1997,
therefore, on the date of incident, she was 17 years 7 months old.

20. Now, question arises whether marriage of prosecutrix,
who is below 18 years of age, is void or not?

21. Sections 3 and 12 of the Prohibition of Child Marriage
Act, 2006 are being reproduced herein as under:-

“3. Child marriages to be voidable at the option of
contracting party being a child. –

(1) Every child marriage, whether solemnised before or
after the commencement of this Act, shall be voidable at the
option of the contracting party who was a child at the time
of the marriage:

Provided that a petition for annulling a child
marriage by a decree of nullity may be filed in the district
court only by a contracting party to the marriage who was a
child at the time of the marriage.

(2) If at the time of filing a petition, the petitioner is a
minor, the petition may be filed through his or her guardian
or next friend along with the Child Marriage Prohibition
Officer.

(3)The petition under this section may be filed at any time
but before the child filil1g the petition completes two years
of attaining majority.

(4)While granting a decree of nullity under this section, the
district court shall make an order directing both the parties
to the marriage and their parents or their guardians to
return to the other party, his or her parents or guardian, as
the case may be, the money, valuables, ornaments and other
gifts received on the occasion of the marriage by them from
the other side, or an amount equal to the value of such
valuables, ornaments, other gifts and money:

Provided that no order under this section shall be
passed unless the concerned parties have been given notices
to appear before the district court and show cause why such
order should not be passed.

9

12. Marriage of a minor child to be void in certain
circumstances. – Where a child, being a minor-

(a) is taken or enticed out of the keeping of the lawful
guardian; or

(b) by force compelled, or by any deceitful means induced to
go from any place; or

(c) is sold for the purpose of marriage; and made to go
through a form of marriage or if the minor is married
after which the minor is sold or trafficked or used for
immoral purposes, such marriage shall be null and
void.”

22. It is important to mention herein that as per Section 3
of the Prohibition of Child Marriage Act 2006, every child
marriage is voidable, at the option of the contracting party, who
was a child at the time of the marriage and as per Section 12 of the
Act marriage of minor child shall be void, if same is performed
after taken or enticed away out of keeping of lawful guardianship
or marriage is performed by compulsion or deceitful means or
minor was sold for the purpose of marriage.

23. As observed hereinbefore, it cannot be proved by the
prosecution that appellant enticed away rather she went herself
because she was in love with the appellant. As per statement of
prosecutrix, she was never compelled to marry and she married
with the appellant without there being any compulsion or
coercion. Therefore, marriage cannot be said to be void. Marriage
can only be said to be voidable at the instance of prosecutrix.

24. Prosecutrix nowhere stated that appellant sexually
assaulted or raped her. Even in the medical report PW3 Dr.
Rajendra Rana opined that there were no internal or external
injuries on the body of prosecutrix and no definite opinion about
the sexual assault can be given. Therefore, allegation of rape is not
proved either by the statement of prosecutrix or by medical
evidence. Even if, we assumed that there was cohabitation
between the parties, even then, prosecutrix herself stated that she
10

married with the accused appellant, therefore, in view exception
of Sec. 375 I.P.C. sexual intercourse with his own wife, the wife
not being under fifteen years of age, is not rape. Even after the
2013 amendment in Section 375 IPC such exception still finds
place. Accordingly, in my view, no offence under Section 376 IPC
and under Section 4 and 6 of the POCSO Act is made out against
the appellant.

25. In the result, appeal is allowed. Impugned judgment
and order dated 27.08.2018/ 31.08.2018 is hereby set aside.
Appellant is acquitted of the charges levelled against him.
Appellant is in jail. Let he be released forthwith, if not wanted in
any other case. Let copy of this judgment be sent to court below
for compliance along with lower court record.

(Alok Singh, J.)
27.03.2019
SKS

Leave a Reply

Your email address will not be published. Required fields are marked *


Not found ...? HOW TO WIN 498a, DV, DIVORCE; Search in Above link

All Law documents and Judgment copies
Laws and Bare Acts of India
Landmark SC/HC Judgements
Rules and Regulations of India.

STUDY REPORTS

Copyright © 2021 SC and HC Judgments Online at MyNation
×

Free Legal Help, Just WhatsApp Away

MyNation HELP line

We are Not Lawyers, but No Lawyer will give you Advice like We do

Please read Group Rules – CLICK HERE, If You agree then Please Register CLICK HERE and after registration  JOIN WELCOME GROUP HERE

We handle Women Centric biased laws like False Sectioin 498A IPC, Domestic Violence(DV ACT), Divorce, Maintenance, Alimony, Child Custody, HMA 24, 125 CrPc, 307, 312, 313, 323, 354, 376, 377, 406, 420, 497, 506, 509; TEP, RTI and many more…

MyNation FoundationMyNation FoundationMyNation Foundation