DEVENDRA SINGHversusSTATE OF U.P.

                HIGH COURT OF JUDICATURE AT ALLAHABAD

                    CRIMINAL APPEAL No. - 1272 of 1987

Devendra Singh
                                                               .....Appellant(s)
                                   Versus
State of U.P.
                                                              .....Respondent(s)

Counsel for Appellant(s)                             :     A.N. Mishra
Counsel for Respondent(s)                            :     A.G.A.

Court No. - 75
                  HON'BLE DR. GAUTAM CHOWDHARY, J.

1. With regard to incident occurred on 04.11.1985, a first information was
lodged by Smt. Sheela, mother of the victim (hereinafter to be referred to as
"the X"), with the averments that she resides with her family and her
husband does the job at Badaun. "X" aged about 16 years studying in Class
10 at Gandhi Bal Niketan Inter College, Bulandshahar and when she did not
return till 04:00 P.M., then she became suspicious and tried to search her,
upon search one Kaluwa and Ram Sewak told her that Devendra Singh
(appellant) was raking away the "X" on a rickshaw towards the Kali Nadi
bridge and when they called her, she was flustered. "X" is minor and has
been enticed away by the accused Devendra. Upon such averments, a first
information report was lodged against the appellant on 04.11.1985 at about
17:40 hours in Case Crime No. 685 of 1985 under Sections 363, 366 I.P.C.,
at Police Station Kotwali Nagar, District Bulandshahr. Thereafter,
the "X" was recovered on the same day, who was handed over to the
informant. The matter was entrusted for investigation and "X" was medically
examined on 04.11.1985, her supplementary report was also
prepared. Thereafter statements of the witnesses including that of
the "X" were recorded under Section 161 Cr.P.C. and 164 Cr.P.C. The
Investigating Officer, after collecting evidence, culminated the investigation
in submission of charge sheet against the accused-appellant under Sections
363, 366 I.P.C., upon which cognizance was taken 02.12.1985 by the learned
Chief Judicial Magistrate, Bulandshahr. The case was committed to the
Court of Sessions and the case was registered as Sessions Trial No.98 of
1986 (State Vs. Devendra), wherein charge was framed under Sections 363,
366 I.P.C., against the accused-appellant. The accused-appellants denied the
charges and demanded trial. Consequently, the trial commenced.
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2. During trial, the prosecution relied upon following documentary
evidence:-

     "(i) F.I.R. (Ex. Ka-1).
     (ii) Supurdgi Nama (Ex. Ka.-2)
     (iii) Radiologist report (Ex. Ka.3)
     (iv) Medical Examination Report (Ex. Ka.4)
     (v) Chick report (Ex. Ka.5)
     (vi) G.D.Report (Ex. Ka.6)
     (vii) G.D.Entry 61 (Ex. Ka.7)
     (viii) Site Plan (Ex. Ka.8 and 9)
     (ix) Charge Sheet. (Ex. Ka.10)

3. From the side of prosecution, as many as eight prosecution witnesses
were examined before the trial Court.

     (i) Victim "X" (P.W.1).
     (ii) Smt. Sheela Devi (P.W.2)
     (iii) Lady Dr. Kamani Agarwal (P.W.3)
     (iv) Ram Sevak (P.W.4)
     (v) Dr. A.K.Dubey (P.W.5)
     (vi) S.I. S.B.Sharma (P.W.6)

4. From the side of defence, no witness was produced.

5. "X" has clearly stated that that accused Devendra is a neighbour, who
lives on rent and about 13 months ago, when she came out after closing of
the school, the appellant was present at the gate, who told her that her
mother met with an accident at Anupshahar Adda and she under treatment.
Upon such averments, she rushed with him on a rickshaw and when she
reached Anupshahar Adda, she made quarry, upon which, the appellant had
stated to do what he asked for, thereafter, he took her to Udai Talkies and
they say matinee show, thereafter she was taken to Alpana talkies and saw
the movie. Thereafter, at about 09 P.M. he took her towards the Railway
Station on the way, he has stated that he wanted to marry her and
accompanying him to Allahabad and when they were going towards the
Railway Station, near D.A.V. Inter College gate, she was apprehended by
the police. It has also been stated that she also wrote letters to the appellants.
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6. P.W.2 Smt. Sheela mother of the "X" has repeated the F.I.R. version.

7. P.W.3 Dr. Kamini Kaushal has supported the medical evidence.

8. P.W.4 Ram Sewak has stated that he had not seen the "X" going with the
appellant towards the bridge of Kalinadi and has been declared hostile.

9. P.W.5 Dr. A.K.Dubey, who has conducted the X-Ray report and verified
the X-Ray report.

10. P.W.6 S.I. S.B.Sharma, who was the Investigating Officer and is formal
witness and on the basis of evidence collected during the investigation, has
supported the prosecution case.

11. The accused-appellants have been confronted with the material evidence
adduced against them during trial. Their statements under Section 313
Cr.P.C. came to be recorded wherein they have stated that they have been
falsely implicated and that the evidence adduced are not reliable.

12. On the basis of the above material produced during the trial, the Court of
Sessions has come to the conclusion that the guilt of the accused
appellant has clearly been established beyond reasonable doubt and
consequently, the accused-appellant has been convicted and sentenced in
Sessions Trial No. 98 of 1986 (State Vs. Devendra Singh) arising out of
Case Crime No. 685 of 1985 under Sections 363, 366 I.P.C., Police Station
Kotwali, District Bulandshahr vide Judgement and order dated 29.04.1987
passed by Vth Additional Sessions Judge, District Bulandshahr sentencing
the accused-appellant to undergo rigorous imprisonment of one year and
four year for the offence under Sections 363 and 366 I.P.C. respectively. It
is this Judgement and order of conviction dated 29.04.1987.

13. Challenging the impugned Judgement and order of conviction and
sentence, Ms. Kanak Lata, learned Amicus Curiae for the appellant has
contended that the Court of Sessions has erred in recording the findings of
conviction and sentence against the accused-appellant inasmuch as the
testimony of witnesses are not reliable and the accused-appellant have been
falsely implicated. Learned counsel further argued that taking into
consideration the statement of P.W.1 "X" that she was taken by the appellant
on the pretext that her mother is ill and later on, she had gone to see matinee
show, thereafter another evening show movie was seen by her. She has
further submitted that according to the supplementary report of the "X", her
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age has been assessed as 17 years. Learned counsel further argued that in
fact the victim was major on the day of the incident but her date of birth has
been recorded on the lessor side because it is tendency of many parents to
record lesser age in school is well known. He placed reliance upon the
judgment of Hon'ble Apex Court in the matter of Daya Chand Vs. Sahib
Singh, reported in AIR 1991 SC 930, in support of her contention. Further
she has stated that the "X" was walking with the appellant to Ansari Road
and Roadways and that no alarm was raised by her, therefore, it is crystal
clear that the ingredients of Sections 363 and 366 I.P.C. is not attracted in
the present case. It is thus contended that perverse findings have recorded
by the learned trial Court and therefore the appellant is liable to be acquitted
from the charges levelled against him.

14. Per contra, learned A.G.A. for the State has opposed the contentions
advanced by learned counsel for the accused-appellant and submits that
offence has been committed by the accused-appellant, thus the learned trial
Court, after considering the evidence available on record, recorded the
findings of conviction and has sentenced the accused-appellant in
accordance with law. Therefore, there is no illegality or perversity in the
judgement and order of conviction passed by the trial Court and warrants no
interference by this Court.

15. I have heard learned counsel for the parties and perused the trial Court
record.

16. During the course of the investigation and subsequent judicial
proceedings, the statement of the "X", was recorded, wherein she recounted
the sequence of events. However, upon a critical evaluation of her statement
read alongside her detailed cross-examination during the trial (P.W.1), it
becomes evident that she categorically admitted to having a pre-existing
mutual acquaintance and active correspondence through letters with the
appellant. She admitted that although she initially accompanied him under
the distress caused by the news of her mother's purported accident, upon
reaching the bus stand and discovering the truth, she voluntarily chose to
accompany the appellant to public spaces and cinema halls without any
threat or coercion. Her narrative under examination reveals complete
volition and consent, overriding the initial allegations made under duress or
family pressure.
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17. The gravamen of kidnapping from lawful guardianship under Section
363 I.P.C. (read with Section 361 I.P.C.) strictly requires that the female
must be under the age of 18 years. In the instant case, the prosecution's own
medical evidence, specifically the testimony of P.W.3 Dr. Kamani Agarwal
and the radiological/ossification report of P.W.5 Dr. A.K. Dubey,
conclusively establishes that the "X" was between 18 to 20 years at the time
of the occurrence. Since the victim had attained the age of majority, she was
fully competent in law to exercise her own free will and choice. Therefore,
the essential legal prerequisite of minority—being a sine qua non for
establishing kidnapping from lawful guardianship—stands entirely negated,
and consequently, the charge under Section 363 I.P.C. is not made out.

18. To bring home a charge under Section 366 I.P.C., the prosecution must
prove that the woman was kidnapped or abducted by force, fraud, or
inducement, and that such act was done with the specific intent to compel
her marriage against her will or to force her into illicit intercourse. Here, a
meticulous scrutiny of the victim's deposition (P.W.1) during her cross-
examination reveals that she had a prior acquaintance and active
correspondence with the appellant. She explicitly admitted that after moving
past the initial confusion, she voluntarily accompanied the appellant to
public places such as Udai Talkies and Alpana Talkies to watch movies and
proceeded toward the railway station without raising any hue, cry, alarm, or
protest. There is absolute absence of any element of compulsion, threat, or
force. Since the victim was a major of sound discretion (18–20 years) who
acted as a consenting party of her own volition, the core ingredients of
compulsion, abduction, or lack of consent required under Section 366 I.P.C.
are fundamentally absent. Thus, neither Section 363 nor Section 366 I.P.C. is
legally sustainable against the appellant.

19. In examining the core ingredients of the penal provisions invoked, to
sustain a conviction under Section 363 I.P.C. (Punishment for Kidnapping),
the prosecution must conclusively establish that a minor (under the age of 18
years for females) was taken or enticed away from lawful guardianship
without consent. Similarly, for an offence under Section 366 I.P.C., the
abduction or inducement of a woman with intent to compel her marriage or
force her into illicit intercourse is a primary prerequisite. In the present case,
the medical evidence and radiological report (ossification test) explicitly
place the age of the victim between 18 to 20 years, thereby nullifying the
legal threshold of minority. Moreover, the detailed testimony and cross-
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                                    examination of the "X" (P.W.1) establish that she was a consenting party
                                    who moved alongside the appellant of her own free will without any element
                                    of force, coercion, or threat. Added to this, the sole material informant
                                    witness (P.W.4) turned hostile, failing to corroborate the foundational facts.
                                    Consequently, in the complete absence of proof regarding minority,
                                    kidnapping, or lack of consent, the statutory ingredients of Sections 363 and
                                    366 I.P.C. completely fail to satisfy the rigors of criminal jurisprudence.

                                    20. Accordingly, the criminal appeal is allowed. The judgment and order of
                                    conviction and sentence passed by the trial court against the appellant are
                                    hereby set aside. The appellant, Devendra Singh, is acquitted of all the
                                    charges leveled against him. He is directed to be set at liberty forthwith,
                                    unless wanted in any other case.

                                    21. The accused-appellant-Devendra Singh is on bail, therefore, he need not
                                    to surrender and the sureties shall also stand discharged. Subject to
                                    compliance of Section 437-A Cr.P.C.

                                    22. The trial Court record along with the copy of this order be transmitted to
                                    the court concerned forthwith.

                                    23. This Court appreciate the assistance rendered by Ms. Kanak Lata
                                    learned Amicus Curiae for the appellant. The State Government is to pay Rs.
                                    15,000/- as remuneration to her.



                                                                                      (Dr. Gautam Chowdhary,J.)
                                    September 29, 2026
                                    S.Ali




Digitally signed by :-
SHAUKAT ALI
High Court of Judicature at Allahabad