The court ruled that voluntary actions of the prosecutrix negate charges of kidnapping and abduction under IPC Sections 363 and 366.

JUDGMENT :

B.R. GAVAI, J.

1. This appeal challenges the judgment and order passed by the learned Single Judge of the High Court of Uttarakhand at Nainital dated 8th March 2013, thereby partly allowing the criminal appeal filed by the appellant.

2. The case of the prosecution is that the appellant herein was residing in village Fahnar. The prosecutrix was residing in village Koti. According to the prosecution, the prosecutrix had gone to purchase salt from village Darmigad on 7th February 1994 at around 1:30 p.m. When she reached near village Darmigad, the accused persons, namely, Tilku @ Tilak Singh (appellant herein), his father Jot Singh, and one Gabbar Singh came from behind and kidnapped the prosecutrix. According to the prosecution, the prosecutrix was aged 14 years 4 months at that time. Since the prosecutrix was missing, her father (PW-2) lodged a First Information Report (FIR) with the police on 13th February 1994 with Patwari (PW-7). During investigation, the investigating agency found the appellant as well as the prosecutrix residing together in Survey Colony in Dehradun. From there the appellant herein was taken into custody, whereas the prosecutrix was given in custody to her father.

3. In this background, the charge-sheet was filed against the appellant herein for the offences punishable under Sections 376, 366 and 363 of the Indian Penal Code, 1860 (for short, ‘IPC’) as well as the other two accused, namely, Jot Singh and Gabbar Singh for offences punishable under Sections 366 and 363 of the IPC.

4. 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 and a fine of Rs.1,000/- under Section 363 of IPC, five years of rigorous imprisonment and a fine of Rs.2,000/- under Section 366 of IPC and seven years rigorous imprisonment and a fine of Rs.4,000/- under Section 376 of IPC.

5. Being aggrieved thereby, the appellant preferred an appeal before the High Court. The learned Single Judge of the High Court though acquitted the appellant herein for the offence punishable under Section 376 IPC but upheld the conviction for the offences punishable under Sections 363 and 366 of the IPC. The High Court, however, reduced the sentence to two years of rigorous imprisonment under Section 363 IPC and three years of rigorous imprisonment under Section 366 IPC. Being aggrieved thereby, the present appeal by way of special leave.

6. We have heard Shri Sachin Patil, learned counsel for the appellant and Ms. Anubha Dhulia, learned counsel appearing for the respondent/State of Uttarakhand.

7. Shri Patil, learned counsel for the appellant, submits that on the basis of very same evidence, the learned Single Judge of the High Court has acquitted the appellant for offence punishable under Section 376 of IPC, however, on the testimony of prosecutrix and on a conjecture that the prosecutrix was below 18 years of age at the time of the incident, the learned Single Judge of the High Court has maintained the conviction under Sections 363 and 366 of IPC. He further submits that from the evidence of the prosecutrix itself, it would be clear that the prosecutrix, on her own accord, had left the village along with the appellant, married with him at Dehradun before the Registrar’s office and thereafter started living as husba