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Synopsis

The Supreme Court has acquitted a man of the charges of kidnapping a minor girl for the purpose of marriage 31-year-ago, after noting that the girl had voluntarily gone along with him, travelled to various places and also resided with him as husband and wife at Dehradun. 

The court also noted she was found to be between 16 to 18 years of age and was very much in the age of understanding as to what was right and wrong for her.

A bench of Justices B R Gavai and K Vinod Chandran allowed an appeal filed by Tinku alias Tilak Singh, holding that the High Court was not justified in upholding the conviction for the offences punishable under Sections 363 and 366 of the IPC. 

It was alleged the appellant, his father Jot Singh, and one Gabbar Singh kidnapped the 14-year-old girl, when she went out to buy salt on February 7, 1994. An FIR was lodged by the girls father on February 13, 1994. The investigating agency found the appellant as well as the prosecutrix residing together in Survey Colony in Dehradun.The appellant was taken into custody, whereas the prosecutrix was given in custody to her father.

The trial court acquitted the other two accused and only convicted the appellant for offences punishable under Sections 376, 363 and 366 of the IPC and sentenced him for three years of rigorous imprisonment under Section 363 of IPC, five years of rigorous imprisonment under Section 366 and seven years rigorous imprisonment under Section 376 of the IPC.

On his appeal, Uttarakhand High Court acquitted him of the charge under Section 376 of the IPC but maintained his conviction under Sections 363 and 366 of the IPC. It, however, reduced the sentence to two years of rigorous imprisonment under Section 363 IPC and three years of rigorous imprisonment under Section 366 IPC.   

Before the apex court, the appellant'e counsel contended the prosecutrix, on her own accord, had left the village along with him,married with him at Dehradun before the Registrar’s office and thereafter started living as husband and wife over there. His counsel also said that this would be amply clear from the cross examination of the prosecutrix itself.

He further submitted that the FIR was lodged also after a period of seven days from the alleged abduction on February 7, 1994.

The state counsel, per contra, said the High Court has rightly convicted the appellant under Sections 363 and 366 of the IPC. She submitted that the evidence of Medical Expert would show that the age of the prosecutrix was about 14 years atthe time of the incident.

Therefore, she submitted that if the age of the prosecutrix is below 16 years, then the question of consent would not arise at all. The counsel submitted that no interference was warranted in the judgment and order of the Single Judge of the HighCourt who has taken into consideration all the relevant aspects. 

The court noted the present case would mainly turn on the evidence of the prosecutrix. She stated she was kidnapped by the three accused and raped by the appellant. However, in her examination-in-chief, she admitted that though her father (Kedar Singh) had information that she had been kidnapped, he reached the village of the appellants Jot Singh the next day requesting him to return his daughter. She also said efforts were made to settle the matter in the village panchayat.

From her testimony, it is further clear that she travelled all the way to Dehradun from the village Luni, which is 14-15 kms away from Fahnar, in a bus. Admittedly, in the said bus there were at that time 15-16 passengers. She further admitted that she did not make any effort to raise any alarm when she was travelling in the bus, the bench said.

A suggestion was given to her that she was taken to Courts in Dehradun and was asked to sign various documents which were pertaining to her marriage. To these suggestions, she admitted that she went to the Court and she was asked to sign various forms, the court said.        

"A perusal of testimony of the prosecutrix itself would reveal that she had gone on her own accord with the appellant herein. Therefore, the defence of the appellant herein that he had married the prosecutrix and not only that but also that the marriage was certified before the competent authority at Dehradun and thereafter they were living as husband and wife at Dehradun is a plausible defence," the bench said.

The court also pointed out the High Court has disbelieved her testimony on rape. It was found that there was absolutely no injury on the body of the prosecutrix and that she had never made any attempt to resist or raise a hue and cry. The Single Judge further goes on to observe that in fact she was with the appellant for about 20 days; travelling to different places along with him before reaching the final destination at Dehradun. The Judge has, therefore, rightly acquitted the appellant for the offence punishable under Section 376 IPC, the court said.

With regard to the age of the girl, the court noted there are two contradictory opinions given by two medical experts. According tothe X-ray reports, the age of the girl was around 14 years, however, Chief Medical Officer Dehradun, has opined that the age was around 18 years.   

"In view of the two conflicting medical opinions, we are of the opinion that the benefit ought to have been given to the appellant-accused," the court said. 

Even if the finding of the Single Judge of the High Court that the prosecutrix was between 16 to 18 years of age is to be accepted, in our view, the offence under Sections 363 and 366 IPC would still not be made out, the bench said.   

The court, thus allowed the appeal and set aside the High Courts judgment of March 8, 2013.