HIGH COURT OF JUDICATURE AT ALLAHABAD CRIMINAL APPEAL No. - 1272 of 1987 Court No. - 75 HON'BLE DR. GAUTAM CHOWDHARY, J. 1. With regard to incident occurred on 04.11.1985, a first information was lodged by Smt. Sheela, mother of the victim (hereinafter to be referred to as "the X"), with the averments that she resides with her family and her husband does the job at Badaun. "X" aged about 16 years studying in Class 10 at Gandhi Bal Niketan Inter College, Bulandshahar and when she did not return till 04:00 P.M., then she became suspicious and tried to search her, upon search one Kaluwa and Ram Sewak told her that Devendra Singh (appellant) was raking away the "X" on a rickshaw towards the Kali Nadi bridge and when they called her, she was flustered. "X" is minor and has been enticed away by the accused Devendra. Upon such averments, a first information report was lodged against the appellant on 04.11.1985 at about 17:40 hours in Case Crime No. 685 of 1985 under Sections 363, 366 I.P.C., at Police Station Kotwali Nagar, District Bulandshahr. Thereafter, the "X" was recovered on the same day, who was handed over to the informant. The matter was entrusted for investigation and "X" was medically examined on 04.11.1985, her supplementary report was also prepared. Thereafter statements of the witnesses including that of the "X" were recorded under Section 161 Cr.P.C. and 164 Cr.P.C. The Investigating Officer, after collecting evidence, culminated the investigation in submission of charge sheet against the accused-appellant under Sections 363, 366 I.P.C., upon which cognizance was taken 02.12.1985 by the learned Chief Judicial Magistrate, Bulandshahr. The case was committed to the Court of Sessions and the case was registered as Sessions Trial No.98 of 1986 (State Vs. Devendra), wherein charge was framed under Sections 363, 366 I.P.C., against the accused-appellant. The accused-appellants denied the charges and demanded trial. Consequently, the trial commenced. Versus Counsel for Appellant(s) : A.N. Mishra Counsel for Respondent(s) : A.G.A. Devendra Singh .....Appellant(s) State of U.P. .....Respondent(s) 2. During trial, the prosecution relied upon following documentary evidence:- "(i) F.I.R. (Ex. Ka-1). (ii) Supurdgi Nama (Ex. Ka.-2) (iii) Radiologist report (Ex. Ka.3) (iv) Medical Examination Report (Ex. Ka.4) (v) Chick report (Ex. Ka.5) (vi) G.D.Report (Ex. Ka.6) (vii) G.D.Entry 61 (Ex. Ka.7) (viii) Site Plan (Ex. Ka.8 and 9) (ix) Charge Sheet. (Ex. Ka.10) 3. From the side of prosecution, as many as eight prosecution witnesses were examined before the trial Court. (i) Victim "X" (P.W.1). (ii) Smt. Sheela Devi (P.W.2) (iii) Lady Dr. Kamani Agarwal (P.W.3) (iv) Ram Sevak (P.W.4) (v) Dr. A.K.Dubey (P.W.5) (vi) S.I. S.B.Sharma (P.W.6) 4. From the side of defence, no witness was produced. 5. "X" has clearly stated that that accused Devendra is a neighbour, who lives on rent and about 13 months ago, when she came out after closing of the school, the appellant was present at the gate, who told her that her mother met with an accident at Anupshahar Adda and she under treatment. Upon such averments, she rushed with him on a rickshaw and when she reached Anupshahar Adda, she made quarry, upon which, the appellant had stated to do what he asked for, thereafter, he took her to Udai Talkies and they say matinee show, thereafter she was taken to Alpana talkies and saw the movie. Thereafter, at about 09 P.M. he took her towards the Railway Station on the way, he has stated that he wanted to marry her and accompanying him to Allahabad and when they were going towards the Railway Station, near D.A.V. Inter College gate, she was apprehended by the police. It has also been stated that she also wrote letters to the appellants. CRLA No. 1272 of 1987 2 6. P.W.2 Smt. Sheela mother of the "X" has repeated the F.I.R. version. 7. P.W.3 Dr. Kamini Kaushal has supported the medical evidence. 8. P.W.4 Ram Sewak has stated that he had not seen the "X" going with the appellant towards the bridge of Kalinadi and has been declared hostile. 9. P.W.5 Dr. A.K.Dubey, who has conducted the X-Ray report and verified the X-Ray report. 10. P.W.6 S.I. S.B.Sharma, who was the Investigating Officer and is formal witness and on the basis of evidence collected during the investigation, has supported the prosecution case. 11. The accused-appellants have been confronted with the material evidence adduced against them during trial. Their statements under Section 313 Cr.P.C. came to be recorded wherein they have stated that they have been falsely implicated and that the evidence adduced are not reliable. 12. On the basis of the above material produced during the trial, the Court of Sessions has come to the conclusion that the guilt of the accused appellant has clearly been established beyond reasonable doubt and consequently, the accused-appellant has been convicted and sentenced in Sessions Trial No. 98 of 1986 (State Vs. Devendra Singh) arising out of Case Crime No. 685 of 1985 under Sections 363, 366 I.P.C., Police Station Kotwali, District Bulandshahr vide Judgement and order dated 29.04.1987 passed by Vth Additional Sessions Judge, District Bulandshahr sentencing the accused-appellant to undergo rigorous imprisonment of one year and four year for the offence under Sections 363 and 366 I.P.C. respectively. It is this Judgement and order of conviction dated 29.04.1987. 13. Challenging the impugned Judgement and order of conviction and sentence, Ms. Kanak Lata, learned Amicus Curiae for the appellant has contended that the Court of Sessions has erred in recording the findings of conviction and sentence against the accused-appellant inasmuch as the testimony of witnesses are not reliable and the accused-appellant have been falsely implicated. Learned counsel further argued that taking into consideration the statement of P.W.1 "X" that she was taken by the appellant on the pretext that her mother is ill and later on, she had gone to see matinee show, thereafter another evening show movie was seen by her. She has further submitted that according to the supplementary report of the "X", her CRLA No. 1272 of 1987 3 age has been assessed as 17 years. Learned counsel further argued that in fact the victim was major on the day of the incident but her date of birth has been recorded on the lessor side because it is tendency of many parents to record lesser age in school is well known. He placed reliance upon the judgment of Hon'ble Apex Court in the matter of Daya Chand Vs. Sahib Singh, reported in AIR 1991 SC 930, in support of her contention. Further she has stated that the "X" was walking with the appellant to Ansari Road and Roadways and that no alarm was raised by her, therefore, it is crystal clear that the ingredients of Sections 363 and 366 I.P.C. is not attracted in the present case. It is thus contended that perverse findings have recorded by the learned trial Court and therefore the appellant is liable to be acquitted from the charges levelled against him. 14. Per contra, learned A.G.A. for the State has opposed the contentions advanced by learned counsel for the accused-appellant and submits that offence has been committed by the accused-appellant, thus the learned trial Court, after considering the evidence available on record, recorded the findings of conviction and has sentenced the accused-appellant in accordance with law. Therefore, there is no illegality or perversity in the judgement and order of conviction passed by the trial Court and warrants no interference by this Court. 15. I have heard learned counsel for the parties and perused the trial Court record. 16. During the course of the investigation and subsequent judicial proceedings, the statement of the "X", was recorded, wherein she recounted the sequence of events. However, upon a critical evaluation of her statement read alongside her detailed cross-examination during the trial (P.W.1), it becomes evident that she categorically admitted to having a pre-existing mutual acquaintance and active correspondence through letters with the appellant. She admitted that although she initially accompanied him under the distress caused by the news of her mother's purported accident, upon reaching the bus stand and discovering the truth, she voluntarily chose to accompany the appellant to public spaces and cinema halls without any threat or coercion. Her narrative under examination reveals complete volition and consent, overriding the initial allegations made under duress or family pressure. CRLA No. 1272 of 1987 4 17. The gravamen of kidnapping from lawful guardianship under Section 363 I.P.C. (read with Section 361 I.P.C.) strictly requires that the female must be under the age of 18 years. In the instant case, the prosecution's own medical evidence, specifically the testimony of P.W.3 Dr. Kamani Agarwal and the radiological/ossification report of P.W.5 Dr. A.K. Dubey, conclusively establishes that the "X" was between 18 to 20 years at the time of the occurrence. Since the victim had attained the age of majority, she was fully competent in law to exercise her own free will and choice. Therefore, the essential legal prerequisite of minority—being a sine qua non for establishing kidnapping from lawful guardianship—stands entirely negated, and consequently, the charge under Section 363 I.P.C. is not made out. 18. To bring home a charge under Section 366 I.P.C., the prosecution must prove that the woman was kidnapped or abducted by force, fraud, or inducement, and that such act was done with the specific intent to compel her marriage against her will or to force her into illicit intercourse. Here, a meticulous scrutiny of the victim's deposition (P.W.1) during her cross- examination reveals that she had a prior acquaintance and active correspondence with the appellant. She explicitly admitted that after moving past the initial confusion, she voluntarily accompanied the appellant to public places such as Udai Talkies and Alpana Talkies to watch movies and proceeded toward the railway station without raising any hue, cry, alarm, or protest. There is absolute absence of any element of compulsion, threat, or force. Since the victim was a major of sound discretion (18–20 years) who acted as a consenting party of her own volition, the core ingredients of compulsion, abduction, or lack of consent required under Section 366 I.P.C. are fundamentally absent. Thus, neither Section 363 nor Section 366 I.P.C. is legally sustainable against the appellant. 19. In examining the core ingredients of the penal provisions invoked, to sustain a conviction under Section 363 I.P.C. (Punishment for Kidnapping), the prosecution must conclusively establish that a minor (under the age of 18 years for females) was taken or enticed away from lawful guardianship without consent. Similarly, for an offence under Section 366 I.P.C., the abduction or inducement of a woman with intent to compel her marriage or force her into illicit intercourse is a primary prerequisite. In the present case, the medical evidence and radiological report (ossification test) explicitly place the age of the victim between 18 to 20 years, thereby nullifying the legal threshold of minority. Moreover, the detailed testimony and cross- CRLA No. 1272 of 1987 5 examination of the "X" (P.W.1) establish that she was a consenting party who moved alongside the appellant of her own free will without any element of force, coercion, or threat. Added to this, the sole material informant witness (P.W.4) turned hostile, failing to corroborate the foundational facts. Consequently, in the complete absence of proof regarding minority, kidnapping, or lack of consent, the statutory ingredients of Sections 363 and 366 I.P.C. completely fail to satisfy the rigors of criminal jurisprudence. 20. Accordingly, the criminal appeal is allowed. The judgment and order of conviction and sentence passed by the trial court against the appellant are hereby set aside. The appellant, Devendra Singh, is acquitted of all the charges leveled against him. He is directed to be set at liberty forthwith, unless wanted in any other case. 21. The accused-appellant-Devendra Singh is on bail, therefore, he need not to surrender and the sureties shall also stand discharged. Subject to compliance of Section 437-A Cr.P.C. 22. The trial Court record along with the copy of this order be transmitted to the court concerned forthwith. 23. This Court appreciate the assistance rendered by Ms. Kanak Lata learned Amicus Curiae for the appellant. The State Government is to pay Rs. 15,000/- as remuneration to her. (Dr. Gautam Chowdhary,J.) September 29, 2026 S.Ali CRLA No. 1272 of 1987 6 Digitally signed by :- SHAUKAT ALI High Court of Judicature at Allahabad