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IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Mehinder Singh Sullar
CRA No.759-SB of 2002
Gian Sarup
v.
State of Punjab
{Decided on 16/08/2013}
(A) Indian Penal Code, 1860, Ss.366 & 363--Kidnapping--Acquittal--If the minor leaves her parental home completely uninfluenced by any promise, offer or inducement, then the accused cannot be considered to have committed the offence of kidnapping. (Para 20)
(B) Indian Penal Code, 1860, Ss.366 & 363--Kidnapping--Acquittal--If the prosecution fails to prove that immediately prior to the minor leaving the father's protection, no active part was played by the accused, he had at some earlier stage solicited or persuaded the minor to do so, then, it would not be legitimate to infer that he is guilty of taking the minor out of the keeping of the lawful guardian merely because after she had voluntarily left her guardian's house, joined and the accused helped her in her design not to return to her guardian's house by taking her along with him from place to place to facilitate and fulfill the intention of the girl--It falls short of an inducement to the minor to slip out/abandon her father's protection and will not tantamount to "taking" as contemplated u/s 361 IPC. (Para 21)
(C) Indian Penal Code, 1860, Ss.366 & 363--Kidnapping--Acquittal--In order to attract these provisions, the prosecution was required to prove by producing cogent evidence on record that the appellant has actually taken or enticed away or induced the prosecutrix with intent that she may be compelled to marry him--Actual taking or enticing away a minor out of the keeping of the lawful guardian are the essential ingredients of the offence of kidnapping. (Para 20)
(D) Indian Penal Code, 1860, Ss.366 & 363--Kidnapping--Acquittal--The mere fact that he could not keep the promise to marry her, as claimed by the prosecutrix, ipso facto, is not a ground, muchless cogent, to convict him u/s 363 and 366 IPC, particularly when all the essential ingredients of the pointed offences are totally missing. (Para 27)
(E) Indian Penal Code, 1860, Ss.366 & 363--Kidnapping--Acquittal--Prosecutrix aged little less than 17 years of age--She was allegedly taken away by accused to promise to marry her and was raped--Accused acquitted on following grounds:
(i) The prosecutrix has herself abandoned the guardianship with her free will, dodged her father and voluntarily slipped away with the appellant--She remained with him for about 3½ months, returned of her own to her parents' house.
(ii) While traveling from house of her father and reaching place maternal uncle of appellant she did not raised any alarm though the traveled on cycle, bus, train and jeep to reach the destination.
(iii) The maternal uncle of the appellant had treated her as his wife--During the day time, the appellant used to remain outside the house--She did not disclose to maternal aunt of the appellant that she was not his wife--She remained with him for about 3½ months.
(iv) She was a fully grown up girl may be one who had yet not touched 18 years of age, but still she was in the age of discretion, sensible and aware of the intention of the appellant that he was taking her away for a purpose. (Paras 24 & 27)
Mr. Mehinder Singh Sullar, J. (Oral):- The compendium of the facts & evidence, unfolded during the course of trial, culminating in the commencement, relevant for deciding the instant criminal appeal and emanating from the record, as claimed by the prosecution, is that complainant Nikka Singh son of Kehar Singh (PW5) (for brevity “the complainant”) was employed as a Security Guard in Maharaja Factory, Industrial Area, Phase VII, Mohali. Appellant-convict Gian Sarup son of Ramji Lal (for short “the appellant”) and Manmohan Singh, son of the complainant, were class fellows and friends. The prosecutrix (name withheld), daughter of the complainant, was studying in 7th class in Vijay Model School, but her name was struck off from the school rolls, one month prior to the present occurrence. The appellant had been visiting the house of complainant with his son Manmohan Singh.
2. Sequelly, the case of the prosecution is that on 21.4.1998 at about 8.00 PM, the complainant was on guard duty at the gate of the factory, where his daughter (prosecutrix) came and told him that he should reach home to have his dinner. He followed her advice. As soon as, he returned back to resume his duty at the gate after 10 minutes, in the meantime, he noticed that the prosecutrix was missing. He searched for her in and around the factory premises, but in vain. He suspected that his daughter had been allured by the appellant with inducement of solemnizing marriage with her. Thereafter, he searched for her with the assistance of his relatives and friends, but she could not be traced till 3.5.1998. Subsequently, the complainant reported the matter to the police and made a complaint (Ex.PF) of missing of his daughter on 3.5.1998 at 9 A.M. to SI Mohinder Singh, who made his endorsement (Ex.PF/3) and sent the same to the police station for registration of the case.
3. The story of the prosecution further proceeds that on 3.8.1998 (after about 3½ months), the prosecutrix had voluntarily returned home and got recorded her statement (Ex.DA), inter-alia, to the effect that on the fateful day, she was called by the appellant, who was standing outside the gate of the factory and induced her to go with him. He took her to Bus-stand, Chandigarh on cycle, from where, they went to Ambala by bus. They boarded the train from Ambala to Malipur (UP). Then, he took her to the house of his maternal uncle at Baramadpur. The appellant was stated to have told her that he would marry her. His maternal uncle provided them a room where the appellant had committed sexual intercourse with her. It was claimed that from there, they went to Pethia at the house of his another uncle Raja Ram, where he (appellant) also raped her. She narrated the entire episode and uncle of the appellant took pity on her and paid her fare, with which, she boarded the train for Ambala and reached home.
4. Leveling a variety of allegations and narrating the sequence of events, in all, according to the prosecution that the appellant had induced, kidnapped the prosecutrix with the intent that she may be compelled to marry with him against her will and committed rape on her. In the background of these allegations and in the wake of complaint (Ex.PF) of complainant, the present criminal case was registered against the appellant, by virtue of FIR No.104 dated 3.5.1998 (Ex.PF/1), on accusation of having committed the offences punishable u/ss 363, 366 and 376 IPC by the police of Police Station Mohali, previously District Rupnagar, now District SAS Nagar (Mohali), in the manner depicted here-in-above.
5. After completion of the investigation, the final police report (challan) was submitted by the police against the appellant to face the trial for the pointed offences.
6. Having completed all the codal formalities, the appellant was charge-sheeted for the indicated offences. As he did not plead guilty and claimed trial, therefore, the case was slated for evidence of the prosecution by the trial Judge.
7. The
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