Rajasthan High Court - Jaipur
Mohd Sartaz @ Vicky vs State on 12 February, 2013
Author: Alok Sharma
Bench: Alok Sharma
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JAIPUR BENCH
JUDGMENT
Mohd.Sartaj @ Vikky @ Sonu Vs. State of Rajasthan
(S.B. CRIMINAL APPEAL NO.151/2008)
S. B. Criminal Appeal under Sec.374 (2) Cr.P.C. against the judgment dated 26-3-2007 in Sessions Case No.53/2006 passed by Mr. Baldev Ram Chaudhary, RHJS, Special Judge, (Women Atrocities & Dowry cases) Jaipur.
Date of Judgment: February 12, 2013.
PRESENT
HON'BLE MR. JUSTICE ALOK SHARMA
Mr. Vinay Pal Yadav, for the appellant.
Mr. N. R. Saran, Public Prosecutor for the State.
BY THE COURT:
Challenge in this appeal is to the judgment dated March 26, 2007 of the learned Special Judge, (Women Atrocities & Dowry Cases) Jaipur, whereby Mohd. Sartaj @ Vikky @ Sonu, the appellant has been convicted and sentenced as under:-
U/s.363 IPC:
Rigorous imprisonment for three years and fine of Rs.100/-, in default to further suffer rigorous imprisonment for three months. U/s.366 IPC:
Rigorous imprisonment for four years and fine of Rs.100/-, in default to further suffer rigorous imprisonment for three months. U/s.376 IPC:
Rigorous imprisonment for seven years and fine of Rs.100/-, in default to further suffer rigorous imprisonment for three months. All sentences were to run concurrently.
2. It is the prosecution case that on August 3, 2006 the complainant Moinuddin (Pw.8) submitted a written report (Ex.P-26) at Police Station Brahmapuri, Jaipur wherein it was stated that his daughter Samreen (Pw.7), aged 14 years, was missing since 21-7-2006 (of which a missing person report was lodged on 25-7-2006) and recovered from Mujaffarpur on 3-8-2006 by him, the police, his brother Naimuddin and Hamid Gafur. Thereafter his daughter on recovery had stated to him that she was enticed by the appellant Mohd. Sartaj and taken away to Mujaffarpur via Ajmer, Delhi and Patna during the period 21-7-2006 to 1-8-2006 during which period the accused had also committed rape on her. On the report, FIR No.154/2006 under sections 363, 366 and 376 IPC was registered and investigation commenced. Statements of witnesses were recorded and necessary memos were drawn. On completion of investigation challan was filed against the appellant under Sections 363, 366, and 376 IPC. In due course the case came up for trial before the learned Special Judge Jaipur. Charges were framed under sections 363, 366 and 376 IPC against the appellant, who denied the charges and claimed trial. The prosecution in support of its case examined 11 witnesses and exhibited 31 documents. In the explanation under Sec.313 Cr.P.C., the appellant claimed innocence. He further stated that the prosecutrix, known to him for a while, herself persuaded him to marry her under threat of suicide. Thereupon the two travelled to Mujaffarpur, Bihar where Nikah with the prosecutrix was done on mutual consent. No witness in defence was examined. The accused however exhibited the statement of Moinuddin (Ex.P-20) recorded by the police in support of his defence. On hearing final submissions the learned trial Judge, on basis of its appreciation of evidence before him, convicted and sentenced the appellant as indicated herein above.
3. For the prosecution, appearing as Pw.8 Moinuddin, father of the prosecutrix stated that Samreen his daughter was unschooled, but was about 15 years of age. He stated that about 6-7 months prior to 14-3-2007, when his statement was recorded before the trial court, on returning home around 6.00 PM after work, he was told by his nephew Safruddin that Samreen, his daughter was not at home since 3.00 PM. Subsequent search for Samreen in the neighbourhood was not successful. It was stated that in the course of search, it also transpired that the appellant Sartaj @ Vikky, who was a regular visitor to his house, was also missing. In this situation Ex.P-13, missing person report, vis-a-vis his daughter Samreen, with suspicion on the appellant had been lodged at the Police Station on 25-7-2006. It was stated that thereafter he received a phone call from his daughter Samreen from Mujaffarpur informing him that she was at appellant's house in Mehandi Hasan chowk, Mujaffarpur and should be fetched by him immediately. According to him, thereupon with his brother-in-law Abdul Hameed, brother Naimuddin and some police personnel of Police Station Moti Doongari purporting to act on the missing person report Ex.P-13 he proceeded to Mujaffarpur and found his daughter with the appellant. With the aid of local police he and the local police at Jaipur brought the prosecutrix and the accused appellant back to Jaipur. He stated that his daughter at Mujaffarpur police station told him that the appellant Vikky had enticed and taken her with him and thereafter committed rape on her at Ajmer, Delhi, Patna and Mujaffarpur. Reliance was placed by him on a ration-card, Ex.P-28, wherein the age of the prosecutrix was recorded as 14 years at the time of preparation of ration-card, in the year 2005. It was stated that the appellant Sartaj @ Vikky was known him earlier as his tenant, and thereafter as family friend and was treated as a virtual son (Dharam-beta) by his wife owing to which the appellant had easy access to his house all time. He submitted that the appellant had also stolen about Rs.50,000/- from his house.
Pw.6, Shama, the mother of the prosecutrix, generally supported the statements of Pw.8 Moinuddin. In her evidence she stated that the appellant was first a tenant, and thereafter a friend of the family and a virtual son, owing to which he had a regular access to her house. She stated that the missing person report was lodged by her husband on 25-7-2006 after the search for her daughterthe prosecutrixfor 4 days had failed. She also supported her husband's allegation that appellant had taken away Rs.50,000/- from her house when he kidnapped her daughter. She stated that she came to know about her daughter's whereabouts when a phone call was received from the prosecutrix then in Mujaffarpur, Bihar. Thereafter steps were taken for her recovery from there.
Pw.7, the prosecutrix in evidence stated that she was born on 25th April, but did not remember the year of birth. She stated that she was not schooled, but stayed at home. On the day of incident, Vikky, whom her mother treated as a virtual son and was known to her for a while came home and asked her to go out with him for a walk. Trusting him she accompanied him, but thereafter he asked her to sit in an auto and then in a bus. When in the bus, she asked as to where were they going. The appellant was then stated to have both threatened her and also assure her that after visiting Ajmer, he would drop her back home at Jaipur. She stated that the appellant had not taken any money or any other article from her house. After reaching Ajmer they rented a room in a hotel and under the threat of physical harm the appellant raped her in spite of her protestation. Thereafter varying her earlier assertion in the course of her evidence in court, the prosecutrix stated that her mother's purse and money was with the appellant, but she did not know how he had obtained it. Subsequently, she travelled with the appellant back to Jaipur and further to Delhi by bus. From Delhi they reached Patna by train, where again the appellant raped her in spite of her resistance. Then the prosecutrix traveled with the appellant to his home in Mujaffarpur. While in Mujaffarpur the appellant continued to have forced sex with her under threat of killing her in the event of her resistance. She stated that when the appellant came to know that there was a general look out notice for him, and imminent search he planned to travel elsewhere with the prosecutrix to avoid arrest. Then on an opportunity presenting, the prosecutrix called her parents and told them the whole story and the background in which she had been kidnapped by the appellant and subjected to rape. The prosecutrix identified the accused in court.
Aside of the oral testimony of the aforesaid main witnesses for the prosecution, the prosecution also relied upon medical evidence Dr.Rajesh Verma (Pw.2). Who stated that on physical examination of the prosecutrix no external injury on her body was found and on radiological, dental and physical examination of the prosecutrix, it appeared that she was over 15 years of age, but less than 17 years. Pw.3 Dr. O.B. Nagar, stated before the trial court that the prosecutrix was healthy, she had fully developed breasts and had 28 teeth. He also stated that the physical examination of her body and private parts indicated that the prosecutrix was not a virgin and appeared to be habituated to sex. He stated that her vaginal smear, slide and swab had been taken and sent to FSL for report for an opinion for recent sexual intercourse.
The prosecution case thus was that even though the prosecutrix was under 16 years of age, the appellant having had sexual intercourse with her with or without her consent was liable to be found guilty of sections 363, 366 and 376 IPC and punished accordingly.
4. As against the prosecution evidence, the defence before the trial court was that the relationship between the appellant and the prosecutrix was a consensual sexual relationship and has resulted into a marriage (Nikah). It was stated that the relationship was sought to be criminalised on false evidence and the entire investigation was a frame up to obtain the conviction of the accused. It was stated that in the first instance when the statements of the prosecutrix were recorded u/s.161 Cr.P.C., the prosecutrix had admitted that she had known the accused appellant Sartaj for a reasonable length of time and on his proposal to marry she had married him on 27-7-2006 in Mujafarpur, though without permission or authority of her parents. It was submitted that the prosecutrix elopedthe first move being her'swith the accused and married him (performed Nikah ceremony) and lived with him as wife. It was submitted that in the context of the aforesaid first version of the prosecutrix, to the police no offence whatsoever against the accused appellant either of threatening or of kidnapping or of raping the prosecutrix was made out and that entire story by her as set up before the court was fabricated, quite apparently under pressure of her parents. It was stated that medical evidence with regard to age of the prosecutrix based on dental, physical examination and x-ray of the joints of the prosecutrix indicated her to be 15 to 17 years of age with two years variation legally recognised. The variation in the case at hand ought to have been towards the higher side upto 19 years owing to the general physical development of the prosecutrix, such as fully developed breasts and the fact of the prosecutrix being habituated to sex. In this view of the matter it was submitted that with the prosecutrix being over 16 years of ageprobably over 18 years of ageand her conduct evidencing consensus for sex with the appellant no charge as framed could be made out and the accused appellant deserved acquittal.
5. The learned trial court however on consideration of evidence as laid before it by the prosecution and the defence respectively found that the prosecutrix having been proved less than 16 years of age at the time of incident between 21-7-2006 and 1-8-2006 and sexual relationship with the prosecutrix having been admitted by the accused it was a clear case for convicting the accused for the offences under sections 363, 366 and 376 IPC. The accused was accordingly sentenced.
6. Heard learned counsel for the appellant, learned public prosecutor and perused the impugned judgment dated 26-3-2007 including the evidence available on record.
7. The compass of the present appeal is narrow. The factum of sexual relationship between the appellant and the prosecutrix is admitted. The issue which needs to be considered is as to whether the sexual relationship was consensual or forced? If the relationship is found to be consensual, this court would be required to consider evidence and arguments as to her age, which would then be central to the guilt of the accused for the offences alleged.
8. On the issue of nature of relationship between the accused and the prosecutrix, it is an admitted fact from evidence on record that the prosecutrix knew the accused for a fairly long period of time, the accused first having been tenant of her father, and thereafter a regular visitor taken as a virtual son of the mother of the prosecutrix. This gave an opportunity for the accused and the prosecutrix to meet and know each other. It is also an admitted fact from the evidence on record that the prosecutrix accompanied the accused to Ajmer, thereafter to Delhi via Jaipur, to Patna and finally to Mujaffarpur, Bihar. All through the period of her accompaniment of the accused, the prosecutrix and the accused travelled through public transport, through public places, but the prosecutrix at no point of time raised any hue and cry or attempted to flee. This court also cannot ignore, but has to notice the fact that in the event the accused were to force the prosecutrix into accompanying her to his home at Mujaffarpur, there would have been no occasion whatsoever for him to first travel with the prosecutrix to Ajmer. The first version of the prosecutrix in her statements u/s.161 Cr.P.C. to the police set up in defence before the trial court as Exhibit P-22 also lends support to the defence evidence that the appellant and the prosecutrix had performed Nikah ceremony with the blessings of the appellant's parents. It is also on record that the mother of the accused had called the sister of the prosecutrix. Thus to my mind taking into consideration the evidence on record realistically wholistically and with reference to ordinary human affairs contemporaneous conduct of the prosecutrix, the overall facts and circumstances of the case and overlooking inconsistent post recovery statements of the prosecutrix in her evidence before the trial court, the most reasonable conclusion is that of the prosecutrix willingly accompanied the accused appellant through ten days over four cities. The prosecutrix also appears to have carried her mother's purse with Rs.27,000/- and/ or Rs.50,000/- as varyingly claimed in the evidence by her parents during investigation and before the trial court. The record evidences that in spite of the missing person report being lodged on 25-7-2006 about four days after the elopement no allegation of theft of Rs.27,000/- or Rs.50,000/- was made. The prosecutrix first admits in her 161 Cr.P.C. statements (Ex.P-22 before the trial court) that the accused took no money from her househer subsequent ambiguity notwithstanding. Further the father and mother of the prosecutrix are inconsistent in the course of investigation and evidence in court on the amount allegedly stolen by the appellant. In his statements u/s.161 Cr.P.C. (Ex.D-1) the father of the prosecutrix stated that his daughter Samreen had taken away Rs.27,000/- and spent it with the appellant, his denial in his cross examination before the trial court notwithstanding. Finally, nothing in the investigation brings out any proof of breakage in the house or the place from where the purse was allegedly stolen more so when admittedly the prosecutrix's mother was at home when the prosecutrix eloped.
Then the evidence of Pw.2 Dr.Rajesh Verma and Pw.3 Dr.O.B. Nagar (medical evidence) gives out the fact that there were no signs of physical violence found on prosecutrix's body when she subjected to medical examination and it has also come in evidence that the prosecutrix was habituated to sexual intercourse. The sojourn of the prosecutrix with the appellant in terms of case set up by the prosecution is only for a period of about ten days, and in the event of the prosecutrix had been forced by the appellant during this period there would have been tell tale medical signs of forced sex on the prosecutrix's body, which were absent. This fact also indicates the willingness of the prosecutrix in accompanying the appellant in her desire to be with appellant. To my mind, therefore from the evidence on record the consensual nature of sexual relationship between appellant and prosecutrix is also established.
Yet this is not the end of the problem for the appellant, in view of clause six of Section 375 IPC, which make a consensual relationship with minor girl of less than 16 years punishable as an offence under Section 376 IPC.
9. On the issue of age, the evidence of Pw.6, Shama, mother and Pw.8 Moinuddin, father of the prosecutrix was that the prosecutrix was 15 years of age at the time of incident. This is however only an approximate age not based on a certificate of birth issued by an appropriate authority or a matriculation certificate. Aside of oral evidence of Pw.6 and Pw.8, the prosecution also relied upon Ex.P-28, the ration card, prepared in the year 2005, which indicated the age of the prosecutrix on the date of its issue as 14 years. The case of the prosecution is that ration-card is a public document issued by a competent authority in the course of discharge of its statutory duty and prior to the incident of the prosecutrix being enticed away by the appellant. It was submitted that it cannot conceivably be argued that such a ration-card was prepared in anticipation of its use as evidence for the prosecution of the appellant for an incident to be committed the following year. It has been submitted that the evidence of parents of prosecutrix as also of the prosecutrix herself as to her age thus stands fully corroborated by the ration-card Ex.P-28. Further submission is that the medical report Ex.P-6 on the basis of physical, dental, and radiological examination of the prosecutrix holds her age as ranged between 15 to 17 years and consequently, this piece of evidence supports the generality of prosecution case that the prosecutrix was less than 16 years of age between 21-7-2006 and 3-8-2006 when the incident took placeEntailing the appellant being guilty of rape in spite of consensual sex if at all such a situation can be found by this court.
Counsel for the appellant has however submitted that there is no primary evidence of the date of birth of the prosecutrix. It is submitted that in this view of the matter the age of the prosecutrix should not have been determined on the basis of age of prosecutrix recorded in ration-card (Ex.P-28). Reliance has been placed on the judgment of the Hon'ble Supreme Court in the case of Babloo Pasi Vs. State of Jharkhand [(2008) 13 SCC 133] (relying on the case of Birad Mal Singhvi Vs. Anand Purohit) where the Hon'ble Supreme Court has held that even though an entry made in the school register may be relevant under Section 35 of the Evidence Act, yet it is not of much evidentiary value to prove the age of the person in the absence of material on which the age was recorded. The counsel for the appellant further submitted that the proclivity of parents under reporting the age of their children in school has received judicial recognition by the Hon'ble Supreme Court in the case of Daya Chand Vs. Sahib Singh [AIR 1991 SC 930]. Counsel submits that there is similar proclivity amongst people to report their unschooled daughters under age in the context of an inbuilt desire of parents to show their daughter younger than they actually are in hope of expanding time for finding a suitable match for them. It is thus submitted that in the absence of any document clinching in nature, such as certificate of birth issued by a competent authority the age of the prosecutrix should be taken as per medical evidence on record with the upper permissible variation of 1-2 years owing to the general physical development of the prosecutrix and even her sexual history. Again relying on Daya Chand Vs. Sahib Singh (supra) it has been urged that where there is no definitive evidence of probative worth to the court's satisfaction, best reliance should be placed on the medical opinion intelligently addressed by the court on the radiological examination of the prosecutrix and other physical characteristics for a more realistic and fair assessment of her age, as the liberty of an accused is in issue in a criminal trial. It submitted that as per the evidence of Pw.2 Dr.Rajesh Verma based on the development of the prosecutrix both physical, dental as also the radiological examination of the prosecutrix, she has been stated to be 15 to 17 years of age at the time relevant to the incident. It is submitted that it was also found by the Dr. Rajesh Verma Pw.2 that the prosecutrix had fully developed breasts and was habituated to sexual intercourse. It is submitted that it is a fundamental precept of criminal jurisprudence that benefit of doubt should flow to an accused and against this backdrop of the evidence on record the age of the prosecutrix should have been taken on the higher side i.e. 17 years, of the range found in the medical assessment of her age. Thereupon the accused should have been found not guilty of any offence including of rape in spite of the fairly established consensual sex on the ground of the prosecutrix allegedly being a minor. It is submitted that without definite proof of age of the prosecutrix as under sixteen years of ageas did not obtain in this casethe accused should also have been acquitted of charges under sections 363 and 366 IPC.
Counsel for the appellant submitted that the linchpin of prosecution evidence is sought to be founded in the ration-card (Ex.P-28) wherein the age of the prosecutrix was given out as 14 years in the year 2005 making her little over 15 years at the time of incident in July-August, 2006. It is submitted that the ration-card was admittedly issued in the year 2005 and the incident took place in July, 2006, which would make the prosecutrix, as per prosecution case itself, over 15 years of age. Counsel submits that Pw.8 father of the prosecutrix himself admits that the entry in ration-card with regard to his niece Samna showing her as his daughter is erroneous. Counsel submits that where one entry in the ration-card has been admitted by the father of the prosecutrix to be wrong, there was no occasion for treating the other entries thereof including the entry with regard to the age of the prosecutrix being 14 years at the time of issue reliable and base the conviction of appellant thereon. It has been submitted that there was no primary evidence on record of the trial court to show that the age in the ration-card was entered thereupon. The principle of the Hon'ble Apex Court enunciated in the case of Babloo Pasi (supra) has been invoked to contend that age in the ration-card was of no avail to the prosecutrix as no primary evidence whereupon the age was so recorded was led before the trial court nor in fact the person who recorded said entry in the ration-card examined.
It is submitted by counsel for the appellant that in view of aforesaid submissions the judgment of conviction and sentence passed by the trial court should be set aside and the accused appellant be acquitted of all the charges.
10. Have heard learned counsel for the parties. A holistic view of evidence on record as detailed herein above makes it clear that the relationship between the appellant and the prosecutrix was consensual in nature. The prosecutrix has been found by medical witnesses Pw.2 and Pw.3 to be habituated to sexual intercourse with fully developed breasts. The prosecutrix was not found to have any external injury during her medical examination indicating her being beaten up or forced into intercourse by the appellant. The age of the prosecutrix, was a matter to be proved beyond reasonable doubt by the prosecution from the evidence on record. In my considered view, in the absence of a certificate of birth from an appropriate authority, the trial court ought to have carefully and critically evaluated the other evidence with regard to her age on record. It is a principle of criminal jurisprudence that an accused is to be conferred the benefit of doubt and that guilt of an accused in a criminal case should be proved beyond reasonable doubt. To my mind, the physical and dental development of the prosecutrix as found by the doctors in the course of her examination, the prosecutrix having been habituated to sexual intercourse, and not having suffered any bodily injury during the period of her cohabition with the accused in conjunction with the medical evidence with regard to the age of the prosecutrix being 15 to 17 years ought to have entailed the trial court coming to the conclusion that the appellant was entitled to benefit of doubt with regard to minority of prosecutrix and her being less than 16 years of age. The trial court has however misdirected itself in law in not allowing the appellant benefit of doubt with regard to age of the prosecutrix which may well have been more than 16 years on the basis of the evidence on record during the period of her elopement with the appellant.
11. In the case of Sunil Vs. State of Haryana [(2010) 1 SCC 742], the Hon'ble Supreme Court has held that in a criminal case the conviction of appellant cannot be based on an approximate date which is not supported by any record. It would be quiet unsafe to base conviction on an approximate date. So holding the Hon'ble Supreme Court concluded that it was unsafe to convict an accused where there was several infirmities, holes and lacunae in the prosecution version and in such a situation the appellant would be entitled to benefit of doubt. In case of Sidheswar Ganguly Vs. State of West Bengal [AIR 1985 SC 143] the Hon'ble Supreme Court has held that on the point of age of the girl the only conclusive piece of evidence would be the birth certificate, but unfortunately, on several occasions said documents are not ordinarily available. The Hon'ble Supreme Court has however held that where the prosecutrix may well have been above 16 years, the accused could not be convicted of rape, as without clear and unequivocal evidence of the prosecutrix being under 16 years, no conviction on the ground of the minority of prosecutrix ought to be made. To my mind, on the evidence on record the age of the prosecutrix being below 16 years of age at the time of the incident has not been proved beyond reasonable doubt. Aside of the above from the evidence on record it cannot be doubted that the prosecutrix had reached the age of discretion in in any event and had willingly accompanied the accused. The accused is thus entitled to be acquitted of the charge for the offence under section 376 IPC.
12. Section 366 IPC provides that whoever kidnaps or abducts any woman with intent that she may be compelled to marry against her will and/ or forced to illicit intercourse shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine. The components of Section 366 IPC, on a bare reading are kidnapping/ abduction and compelling a woman to marry against her will or force or seduce her to illicit intercourse. From the evidence on record I find that the prosecutrix was not compelled to marry the appellant against her will (which she admit in court) and that she was not forced into illicit intercourse against her will, but had herself eloped with the accused and had consensual sexual relationship with the appellant. Illicit intercourse as the term is referred to in Section 366 IPC would be an intercourse prohibited by law. This court has already come to a finding that the sexual relationship between the accused appellant and the prosecutrix was consensual. No other evidence was led before the trial court or an attempt made to show to this court by the Public Prosecutor as to how the prosecutrix was seduced or compelled into illicit intercourse i.e. sex prohibited by law. Further from the evidence on record of the case, I find that the element of compulsion (compelled or forced) central to an offence under Section 366 IPC is wholly absent. I also find from the evidence of the prosecutrix critically and pro-actively read that the prosecutrix had herself carried a substantial sum of over Rs.27,000/- belonging to her mother when she eloped with the accused appellantthe belated and contradictory assertion of her parents notwithstandingmore so with the evidence being absent as to how the accused appellant had accessed the purse of the prosecutrix's mother that afternoon of 21-7-2006 when the couple eloped. Further the conduct of the prosecutrix in accompanying the accused appellant through crowded Bazar, visiting Ajmer before embarking onwards to the home of the accused appellant without any hue and cry or attempt to escape is contra indicative of any compulsion, force or seduction by the accused appellant. In the case of Shyam and Another Vs. State of Maharashtra [AIR 1995 SC 216], the Hon'ble Supreme Court has held that when the prosecutrix appeared to be a willing party to go along with the accused no offence under Section 366 IPC could be made out. Similarly the Hon'ble Supreme Court in case of S. Vardarajan Vs. State of Madras [AIR 1965 SC 942] with reference to the facts of the case before it held that where a girl had herself accompanied the accused all along without any realistic evidence of compulsion, it was reasonable to infer her willingness to go with the accused for her own reasons and in such situation no offence under section 366 IPC would be made out. There is no occasion to repeat the facts of the present case on this score except to restate in brief that the prosecutrix took her mother's money with her and first visited Ajmernot on way to Muzaffarpur from Jaipur and thereafter returned to Jaipur for onward journey to the appellant's home in Muzaffarpur with him. To my mind the prosecutrix was a willing partner and under no compulsion by the accused appellant. Consequently, I would acquit the appellant also of the charge for an offence u/s.366 IPC.
13. However in the facts of the case, I would find the appellant guilty of offence u/s.363 IPC. Section 361 IPC defines kidnapping from lawful guardianship and provides that whoever takes or entices any minor under 18 years of age if a female, out of the keeping of the lawful guardian of such minor without the consent of such guardian is said to kidnap such minor from lawful guardianship. Section 363 IPC provides that whoever kidnaps any person from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years and shall also be liable to fine. From the evidence on record, which includes the medical evidence, the prosecutrix does not appear to be over 17 years, and evidently was less than 18 years of age at the time of her elopement with appellant. And evidently there was no consent of the guardian (parents) of the prosecutrix. Consequently, I find no error in the trial court holding the appellant guilty for an offence u/s.363 IPC and sentenced to imprisonment therefor by the learned trial court.
14. Consequently, the conviction and sentence of the appellant under sections 366 and 376 IPC visited upon the appellant by impugned judgment dated 26-3-2007 in Sessions Case No.53/2006, passed by learned Special Judge (Women Atrocities & Dowry Cases) Jaipur is quashed and set aside. However, the conviction for the offence u/s.363 IPC and the sentence thereforto suffer three years imprisonment with a fine of Rs.100/- is confirmed.
15. The impugned judgment dated 26-3-2007 in Sessions Case No.53/2006, passed by learned Special Judge (Women Atrocities & Dowry Cases) Jaipur stands accordingly modified.
16. Since the appellant has already remained in custody for more than six years, the appellant Mohd. Sartaj @ Vikky @ Sonu be set at liberty, if not required in any other case.
17. Copy of this judgment be sent to concerned Central Jail, Jodhpur, or elsewhere to another jail where the appellant is presently lodged.
(Alok Sharma),J.
arn/ All corrections made in the order have been incorporated in the order being emailed.
Arun Kumar Sharma, Private Secretary.