JUDGMENT

Hon'ble Sudhanshu Dhulia, J. (Oral)

This criminal jail appeal has been filed by the appellant against the judgment and order dated 20.09.2013 passed by the learned 2nd Additional Sessions Judge, Roorkee, District Haridwar in Sessions Trial No.196 of 2013, in which the accused/appellant has been convicted under Sections 363 and 376 (1) of the Indian Penal Code (from hereinafter referred to as the “IPC"). For the offence under Section 363 of IPC, the appellant has been sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs. 1,000/- and three months additional simple imprisonment in case of default in payment of fine. For the offence under Section 376 (1) of IPC, he has been sentenced to undergo seven years of rigorous imprisonment and to pay a fine of Rs. 2,000/- and six months additional simple imprisonment in case of default in payment of fine. Trial Court has directed that all the sentences shall run concurrently.

2. Facts, in brief, are that a First Information Report was lodged on 29.03.2013 by the father of the victim i.e. PW- 1 stating that his daughter who is 15 years of age had gone to learn “knitting" at 1pm on 20.03.2013, and since then she is missing. He tried to search for her, made inquiries from his relatives, but in vain. He suspected that it is the appellant who has kidnapped his daughter. The FIR raises a finger of suspicion on the appellant since he used to visit informant's house. It is also alleged that the appellant is a tantrik and indulges in black magic. When the appellant was confronted on phone by the informant, he gave evasive replies. The victim was ultimately recovered on 05.04.2013. There are different versions as to the recovery of the victim. According to the police, they caught the victim in company of the appellant on 05.04.2013 at Roorkee Railway Station, whereas the victim in her examination-in-chief and cross-examination states that it was the appellant who had brought her to the police station. We will revert to this aspect in a while.

3. On the date of her recovery, the victim was medically examined at Primary Health Centre, Mangalore. Her medical report does not disclose any abnormality in her behaviour. The medical report states that there is no injury on the body of the victim, either internal or external. There were no injuries on her genitals and private parts. Thereafter radiological examination was also done in order to determine her age. On the basis of the radiological examination, the doctors determined the radiological age of the victim to be above 18 years. On the same day i.e. on 05.04.2013, the statement of the victim was recorded under Section 164 of CrPC. In her statement under Section 164 of CrPC, she states her age to be 16 years. She further states that she has studied up to class 8th and on 20.03.2013 at 1 pm she had called the appellant and willingly gone with the appellant. She went to a place called Mirzapur, which is in Saharanpur, where she stayed with the wife of the appellant and their six children. The appellant treated her like his own daughter and did nothing wrong with her and now she wants to go with her parents. 3

4. On these set of facts where there is no allegation of rape, in the first information report, nor is there any such suggestion in the medical report, in fact to the contrary the statement of the victim under Section 164 of CrPC totally exonerates the appellant, it is surprising as to how charges under Section 376 of IPC could have been framed against the appellant in the first place. The question would also arise whether on this evidence of the prosecution the trial under Section 376 of IPC was liable to proceed against the appellant.

5. Nevertheless, initially the first information report was lodged against the appellant under Sections 363 and 366 of IPC but the police filed the charge-sheet against the appellant under Sections 363/366-A and 376 of IPC and subsequently charges were also framed by t