The conviction for abduction was upheld, emphasizing the importance of official records in determining the victim's age, and highlighting that consensual relationships may not constitute offenses if the victim is above a certain age.

JUDGMENT :

PRAVEER BHATNAGAR

1. These matters arises out of a common judgment and are being decided by this common order.

2. These matters pertain to an incident that occurred in the year 2004, and the present criminal appeal and revision petition are pending since the year 2005.

3. The instant appeal filed by the appellant- Kamal Tanwar, under Section 374 of the Code of Criminal Procedure, 1973, has been preferred against the judgment dated 09.11.2005 (in short, "impugned judgment") passed by the learned Special Judge, SC/ST (Prevention of Atrocities) Cases, Jaipur (hereinafter “Trial Court”) in Sessions Case No. 51/2005, whereby the learned Trial Court convicted and sentenced the accused–appellant under Section 363 Indian Penal Code, 1860 (in short, " IPC ") for three years’ simple imprisonment along with a fine of Rs.5,000/–, and in default of payment of fine, to further undergo six months’ simple imprisonment.

4. Whereas, the instant revision petition has been preferred by the petitioner- Ram Kishan under Section 397 read with Section 401 of Cr.P.C, against the impugned judgment, whereby the accused has been acquitted for the offence under Section 376 and 366 of IPC , praying for enhancement of sentence to the accused appellant- Kamal Tanwar.

5. Briefly stated, that on 19.03.2004, complainant Ramkishan submitted a written report at Police Station Jhotwara, Jaipur, stating that his daughter Manisha, aged about 16 years and studying in Class 12^th, had gone to appear for her examination at Government Higher Secondary School, Girls, Jhotwara, but did not return home. Upon inquiry, it was revealed that she had been abducted by the appellant-Kamal Tanwar along with his associates namely; Kulveer, Tony, Prakash, and Pappu. Based on the said report, FIR No. 51/2004 was came to be registered under Sections 363 , 366, and 376 IPC . The prosecutrix was recovered on 25.04.2004 from Naya Village, Madhya Pradesh and after investigation, a charge sheet was filed. The Trial Court framed charges under , 366, and 376 and after trial acquitted the appellant under Sections 366 and 376 of , while convicting him under Section 363 of .

6. Being aggrieved by the impugned judgment dated 09.11.2005, the accused appellant has filed the present appeal before this Court.

7. Learned Senior counsel for the appellant submitted that the sentence so awarded to the appellant was suspended by this Court vide order dated 21.11.2005.

8. The learned counsel for the appellant contended that the conviction of the appellant under Section 363 of the IPC is unsustainable as the prosecutrix was a major at the time of the alleged incident. It was stated that her date of birth is 10.02.1995 and not 10.02.1998, as recorded in the prosecution documents. The counsel referred to the medical opinion of PW-1, Dr. Premlata Gupta, who assessed the age of the prosecutrix to be around 19– 20 years and the following document; Exhibit D–39, Application for Motorcycle Licence and Exhibit D–45, Application for Electoral Roll, indicates the date of birth as 10.02.1995. The counsel also relied/referred to the testimonies of DW–1 Bhagwan Shahay, Priest of Arya Samaj, DW–2 Shyam Sundar Verma, Transport Department Officer, and DW–3 Sitaram, Election Department Officer, to corroborate the same. It was urged that the learned Trial Court has failed to appreciate the testimony of these material defence witnesses and the documentary evidence produced at the stage of trial. Alternatively, the learned counsel for the accused- appellant has submitted that the appellant has alread