2026:HHC:31930 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 4179 of 2013 Reserved on: 22.07.2026 Date of Decision: 31.07.2026 Nand Kumar @ Ashok Kumar & Ors. ...Appellants Versus State of H.P. ...Respondent Coram Hon’ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 No. For the Appellant : Mr N.K. Thakur, Senior Advocate with Mr Divya Raj, Advocate. For the respondent/State : Mr Lokender Kutlehria, Additional Advocate General. Rakesh Kainthla, Judge The present appeal is directed against the judgment of conviction dated 26.09.2013 and order of sentence dated 1.10.2013, passed by the learned Additional Sessions Judge, Ghumarwin, District Bilaspur, H.P (learned Trial Court), vide 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 2026:HHC:31930 which the appellants (accused before the learned Trial Court) were convicted and sentenced as under: - Section(s) Sentences 363 of IPC The accused were sentenced to undergo simple imprisonment for three years each, pay a fine of ₹5000/- each and, in default of payment of the fine, to further undergo simple imprisonment for a period of six months each. 366A of IPC The accused were sentenced to undergo simple imprisonment for four years, pay a fine of ₹7000/- each and, in default of payment of the fine, to further undergo simple imprisonment for a period of one year each. It was further ordered that the substantive sentences of imprisonment shall run concurrently. (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience). 2. Briefly stated, the facts giving rise to the present appeal are that the police filed a charge sheet against the accused for the commission of offences punishable under Sections 363, 366, and 376 read with Section 120B of the Indian Penal Code (IPC). It was asserted that the informant (name being withheld to protect her identity) used to visit the house of 3 2026:HHC:31930 accused Anju Dhiman. Anju Dhiman came to the informant’s house one month before the incident. She exchanged her phone number with the informant. She shared the informant’s phone number with accused Nand Kishore, who started calling the informant. Nand Kishore promised to marry the informant. The informant also consented. The accused, Nand Kishore, asked the informant to be ready on 19.02.2009 and promised to take her with him; however, he did not visit her home. Anju Dhiman came to the informant’s house on 03.03.2009, in a vehicle with three to four persons. The informant was alone in her house. Anju took the informant to the house of accused Ashoki alias Nand Kishore in the vehicle. Nand Kishore kept her in his home for 2-3 days, where he raped her. Nand Kishore took her to his house at Tehar on 14.03.2009, and left the home. The matter was reported to the police. The police recorded an entry (Ext.PW- 8/A) in the Police Station and searched for the informant. The informant's father obtained the call detail record of the informant and found the mobile number of Nand Kishore’s maternal uncle. He went to the house of Nand Kishore's maternal uncle. However, Nand Kishore and the informant were not found at home. Hence, he filed an application for a search 4 2026:HHC:31930 warrant before the Sub-Divisional Magistrate, Ghumarwin, District Bilaspur, H.P., who issued a search warrant (Ext. PW- 7/A). The victim was found in the house of Nand Kishore. Search memo (Ext.PW-1/B) was prepared. The informant’s custody was handed over to her parents vide memo (Ext.PW-2/A). The victim made a statement to the police, and F.I.R. (Ext.PW-1/A) was registered in the police Station. An application (Ext.PW-6/A) was filed for the medical examination of the victim. Dr Priyanka Verma (PW-6) medically examined the victim and found that the victim had undergone sexual intercourse, but there was no sign of any force. She issued MLC (Ext.PW-6/C) and preserved the samples and the clothes of the victim, which were handed over to the police official accompanying her. An application (Ext.PW-9/A) was filed for the medical examination of the accused Nand Kishore. Dr Pankaj Sharma (PW-9) examined him and found that there was nothing to suggest that he was incapable of performing sexual intercourse. He preserved the samples and issued the MLC (Ext.PW-9/B). The samples were sent to FSL, and a report (Ext.PW-6/B) was issued, stating that human blood was found on the Salwar, underwear, cloth piece, pubic hair clipping, vaginal swab, cervical swab, vaginal 5 2026:HHC:31930 washing, and vaginal and cervical swabs, but no semen was detected. HC Kishori Lal prepared the spot map of the place of recovery (Ext.PW-7/B). Statements of witnesses were recorded as per their version and after the completion of the investigation, the challan was prepared and presented before the Court of the learned Judicial Magistrate, First Class, Ghumarwin, who committed the case to the Court of Sessions Judge, who assigned it to the learned Additional Sessions Judge, Ghumarwin, District Bilaspur, H.P. (learned Trial Court). 3. Learned Trial Court charged the accused Nand Kishore with the commission of offences punishable under Sections 363, 366, 376 and 120B of IPC and the other accused with the commission of offences punishable under Sections 363, 366 and 120B of the IPC, to which they pleaded not guilty and claimed trial. 4. The prosecution examined fifteen witnesses to prove its case. Informant (PW-1) narrated the incident. Informant’s mother (PW-2) and father (PW-3) deposed that the informant was found missing and was subsequently recovered. Renu Chopra (PW-4) produced the copy of the Pariwar register. 6 2026:HHC:31930 Mukesh Kumar (PW-5) is the witness to the recovery. Dr Priyanka Verma (PW6) medically examined the informant. HC Kishori Lal (PW-7) recovered the informant. HC Jogesh Kumar (PW-8) was working as MHC with whom the case property was deposited. Dr Pankaj Sharma (PW-9) examined the accused. Ramesh Chand (PW-10) proved the search warrant. Dhabe Ram (PW-11) and SI Hari Ram (PW-12) investigated the matter. Inspector Mast Ram (PW-13) prepared the challan. Constable Ravi Kumar (PW-14) carried the case property to FSL Junga. HC Jogesh Kumar (PW-8) received some of the case property. SI Megh Singh (PW-15) initiated the proceedings under Section 82 of Cr.P.C. against accused Labh Singh. 5. Accused Nand Kishore admitted in his statement recorded under Section 313 of CrPC that the victim was recovered from his house. He stated that witnesses deposed falsely against him and he was falsely implicated. Accused Gurdeep Singh and accused Gulab Singh denied the prosecution case in its entirety and claimed that they were innocent and were falsely implicated. 6. Learned Trial Court held that the informant's testimony was corroborated by the testimonies of her parents. 7 2026:HHC:31930 The informant was proved to be a minor at the time of the incident; she was recovered from the house of the accused Nand Kishore, and accused Nand Kishore had not disputed this fact in his statement recorded under Section 313 of the CrPC. The victim had disclosed to the accused Nand Kishore that she was a minor and he had promised to marry her after attaining the age of majority. The promise made by the accused to her was the reason for leaving the home. All the accused acted together in furtherance of a conspiracy to kidnap the victim from the custody of their parents. The delay in reporting the matter to the police was not material. There was nothing to show that the witnesses had any reason to depose falsely against the accused. The victim had not disclosed the commission of the rape to her mother or the Sub-Divisional Magistrate. Therefore, her statement that she was raped was not believable. Hence, the learned trial Court convicted and sentenced the accused as aforesaid. 7. Being aggrieved by the judgment and order passed by the learned trial Court, the accused has filed the present appeal asserting that the learned trial Court erred in convicting and sentencing the accused. The search warrant was issued on 8 2026:HHC:31930 10.03.2009, and was executed on 13.03.2009. The custody of the victim was handed over to her parents without any order of the Magistrate. The matter was reported to the police on 15.03.2009, and there was no reason for the delay. The age of the victim was not proved to be less than 18 years. The matriculation certificate showed the date of birth of the victim as 17.03.1991, but the other documents produced on record showed the year of birth as 1991. The victim had not complained to any person about her being taken away. Therefore, it was prayed that the present appeal be allowed and the judgment and order passed by the learned trial Court be set aside. 8. I have heard Mr N.K. Thakur, learned Senior Advocate assisted by Mr Divya Raj Singh, learned counsel for the appellants, and Mr Lokender Kutlehria, learned Additional Advocate General, for the respondent/State. 9. Mr N.K. Thakur, learned senior Advocate for the appellants, submitted that the learned trial Court erred in convicting and sentencing the accused. There was insufficient material to show that the victim was a minor. The prosecution relied upon the birth certificate and Pariwar register in which 9 2026:HHC:31930 the year of birth of the victim was mentioned as 1991. The matriculation certificate was not proved as per the law and was merely marked. Therefore, there was a reasonable doubt regarding the victim's age and the learned trial Court erred in holding that the victim was a minor at the time of the incident. She had voluntarily accompanied the accused, and it cannot be said that she was forcibly abducted. Therefore, he prayed that the present appeal be allowed and the judgment and order passed by the learned trial Court be set aside. 10. Mr Lokender Kutlehria, learned Additional Advocate General, for the respondent/State submitted that the informant's age was proved by the testimonies of the informant and her parents. Her age could not have been doubted because a specific date was not mentioned in the Pariwar register or the birth certificate. The victim categorically stated that the accused had promised to marry her, which led her to leave her home. The learned Trial Court had rightly held that once the inducement made by the accused operated in the informant's mind and allured her to leave her home, an offence of kidnapping is made out. There is no infirmity in the judgment and order passed by 10 2026:HHC:31930 the learned trial Court. Hence, he prayed that the present appeal be dismissed. 11. I have given a considerable thought to the submissions made at the bar and have gone through the records carefully. 12. The informant and her father (PW3) have not mentioned the informant’s date of birth in their testimonies. The informant's mother (PW2) stated that the informant was about 17½ years old on 03.03.2009. Therefore, the oral evidence does not prove the informant's date of birth. 13. The prosecution relied upon the copy of Pariwar Register (Ext.PW4/C), and the birth certificate (Ext.PW-4/B) in which the year of birth was mentioned as 1991. These documents do not mention the date or month of the birth. This was important because the informant had left the home on 03.03.2009 and the prosecution was required to prove that she was born after 03.03.1991 to show that she was less than 18 years of age on the date of the incident, and it was not sufficient to prove that she was born in the year 1991. 11 2026:HHC:31930 14. The prosecution also relied upon the photocopy of the matriculation certificate marked ‘X’, in which the victim's date of birth has been mentioned as 17.03.1991; however, the certificate was not proved as per the law. It was laid down by the Hon’ble Supreme Court in Ram Murti v. State of Haryana, (1970) 3 SCC 21 that an unexhibited and unproved document cannot be used to establish the victim’s date of birth. SI Hari Ram (PW-12) admitted in his cross-examination that he had not verified the correctness of the certificate from the Board of School Education. The original certificate was also not produced, and no reason was assigned for its non-production. Therefore, the reliance could not have been placed upon the photocopy of the certificate. 15. The learned trial Court heavily relied upon the statement of the informant's mother that the informant was aged 17 ½ years on the date of the incident. However, this statement could not have been relied upon because, as per the prosecution case, the victim was born on 17.03.1991 and could not have been 17 ½ years on the date of the incident. Hence, the testimony of the informant's mother that the informant was 17 ½ years was not sufficient to prove that she was a minor. 12 2026:HHC:31930 16. The victim was not subjected to medical examination to determine her radiological age. The victim's date of birth certificate was also not obtained from the school, which she had last attended, to show her exact date of birth. Thus, there was a reasonable doubt regarding the age of the victim and the prosecution had not succeeded in proving its case beyond reasonable doubt that the victim was a minor on the date of the incident. 17. The offences punishable under Sections 363 of IPC and Section 366A of the IPC require the victim to be a minor, and in the present case the victim was not proved to be a minor, and these offences are not proved. 18. The record shows that the accused were charged for the commission of the offence punishable under Section 366 of the IPC inter alia, whereas the learned Trial Court convicted the accused of the commission of an offence punishable under Section 366A of the IPC. This was impermissible. It was laid down by the Madras High Court in Suramani v. State, 2011 SCC OnLine Mad 377: (2011) 3 MWN (Cri) 27 that an offence punishable under Section 366A of the IPC is not a minor offence 13 2026:HHC:31930 in relation to Section 366 of IPC and a person charged with the commission of an offence punishable under Section 366 of IPC cannot be convicted of the commission of an offence punishable under Section 366A of the IPC. It was observed at page 34: 8. Here, in this case, though the offences under Sections 366 & 366-A are more or less similar in nature, still the punishment provided for both the offences is imprisonment for ten years and fine. Therefore, the offence under Section 366-A is not a minor offence to Section 366, IPC, so as to invoke Section 222(2), Cr.P.C. Thus, in my considered opinion, the conviction of these Appellants/Accused 1 to 4 under Section 366-A, IPC, without there being a charge, is illegal and therefore, the same is liable to be set aside. 19. The informant/victim stated that she was alone in her house on 03.03.2009. Anju came to her house at 06.00 p.m. Anju took her to Nalla. She boarded a vehicle. The vehicle was taken towards Nurpur. Accused Nand Kishore took her to his house, and the other two accused left her and Nand Kishore in the house of Nand Kishore. She admitted in her cross- examination that she had accompanied Anju Kumari with her consent. She volunteered to say that she had accompanied Anju Kumari. Because she was told that they were going to roam. She admitted that she had met the maternal aunt of the accused and had not disclosed any fear or fright. Therefore, the informant’s 14 2026:HHC:31930 testimony shows that she had left the home voluntarily and had not raised hue and cry when she was taken. 20. Therefore, the learned trial Court has erred in convicting and sentencing the accused for the commission of offences punishable under Sections 363 and 366-A of the IPC, and the judgment and order passed by the learned trial Court cannot be sustained. 21. In view of the above, the present appeal is allowed, the accused are acquitted of the charged offences. The fine amount, if deposited by the appellants be refunded to them after the expiry of the statutory period of limitation in case of no further appeal, and in case of appeal, it shall be dealt with as per the orders of the Hon’ble Apex Court. 22. In view of the provisions of Section 437-A of the Code of Criminal Procedure (Section 481 of Bhartiya Nagarik Suraksha Sanhita, 2023) the appellants are directed to furnish bail bonds in the sum of ₹50,000/- each with one surety of the like amount each to the satisfaction of the learned Trial Court/learned Registrar (Judicial) which shall be effective for six months with a stipulation that in the event of a Special Leave 15 2026:HHC:31930 Petition being filed against this judgment or on grant of the leave, the appellants on receipt of notice thereof shall appear before the Hon'ble Supreme Court. 23. A copy of the judgment, along with records of the learned trial Court, be sent back forthwith. 24. The appeal stands disposed of in the above terms, so also the pending application(s), if any. (Rakesh Kainthla) Judge 31st July, 2026 (ravinder)