# Sanjay Kumar v. State of U.P

- **Citation:** (2023) 5 ILRA 1354
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-25
- **Case number:** Criminal Appeal No. 3175 of 2017
- **Bench:** Ram Manohar Narayan Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sanjay-kumar-v-state-of-u-p-50179
- **Pages:** 10

## Headnote

Criminal Law - Indian Penal Code,1860 -
Sections 363 & 366-allegation by informantminor daughter was kidnapped by seducing and
enticing by accused-St.ment of victim u/s 164
Cr.P.C.-St.d she loved him-on the alleged dayshe went with accused to the place of relativeno forceful act by accused-X-ray report of
victim-16 years-no evidence in support of
allegations -charge u/s 363 IPC cannot be said
to have been proved against the Appellantoffence u/s 366 IPC automatically fails as victim
has not levelled any allegations of mala fide or
sexual intent against the accused-prosecution
failed to prove beyond reasonable doub.

Appeal allowed. (E-9)

List of Cases cited:

## Text

1354 INDIAN LAW REPORTS ALLAHABAD SERIES
rope, which shows that in meanwhile if the
victim did not escape from there, what
could would happened to her it cannot be
imagined.

47. In view of above, the statement of
victim X (PW-3) is believable and
corroborated by the evidence of her mother
which is admissible under Section 8 of the
Evidence Act and her mother has informed
her husband on phone in the evening of the
same day which is also relevant and
thereupon first information report was
lodged on the next day.

48. The POCSO Act was legislated to
eradicate the menace of the children who
becomes the victim of the sexual offence.
So in view of above, the provision of the
POCSO Act shall be interpreted in such a
way so that this menace can be eradicated
and
in
above
circumstances
the
interpretation of the provision shall be
taken with the help of mischief ruling.

49. In above circumstances, it is proved
that the accused has committed sexual assault
with a girl aged about 4 years, therefore,
learned lower court has rightly relied on the
testimony of the witness victim X and has
rightly held the accused guilty and has
convicted him under Section 10 of the
POCSO Act and has also rightly sentenced
him to undergo rigorous imprisonment for 7
years with a fine of Rs.10,000/- under Section
10 of the POCSO Act.

50. In such circumstances, no
interference is required in the impugned
judgment of the court below and the appeal
is liable to be dismissed, accordingly, the
appeal is dismissed.

51. Lower court record be returned
back to the concerned court forthwith.
----------
(2023) 5 ILRA 1354
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 25.04.2023
BEFORE

THE HON'BLE RAM MANOHAR NARAYAN
MISHRA, J.

Criminal Appeal No. 3175 of 2017

Sanjay Kumar ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Rajesh Yadav, Sri Dileep Kumar Singh,
Sri Mukhtar Alam, Sri Saquib Mukhtar, Sri
Keshari Nath Tripathi

Counsel for the Opposite Party:
G.A.

Criminal Law - Indian Penal Code,1860 -
Sections 363 & 366-allegation by informantminor daughter was kidnapped by seducing and
enticing by accused-St.ment of victim u/s 164
Cr.P.C.-St.d she loved him-on the alleged dayshe went with accused to the place of relativeno forceful act by accused-X-ray report of
victim-16 years-no evidence in support of
allegations -charge u/s 363 IPC cannot be said
to have been proved against the Appellantoffence u/s 366 IPC automatically fails as victim
has not levelled any allegations of mala fide or
sexual intent against the accused-prosecution
failed to prove beyond reasonable doub.

Appeal allowed. (E-9)

List of Cases cited:

1. MAFAT LAL & ANR VERSUS THE ST. OF
RAJASTHAN 2022 Live Law SC 362

2. S. Varadarajan Vs St. Of Madras 1964, 1965
SCR (1) 243

3. Reg. Vs Christian Olifier(1) (1866) 10 Cox CC
402
5 All. Sanjay Kumar Vs. State of U.P.
1355
(Delivered by Hon'ble Ram Manohar
Narayan Mishra, J.)

1. Instant criminal appeal under
Section 374(2) has been preferred by
accused Sanjay Kumar against judgment
and order dated 02.06.2017, passed by
Addl. District and Sessions Judge, Court
No.7, Gorakhpur in S.T. No. 89 of 2016
arising out of Case Crime No. 313 of 2015
under Sections 366 and 363 I.P.C., P.S.-
Pipiganj, District- Gorakhpur, whereby the
accused appellant have been convicted for
charge under Sections 363, 366 I.P.C. and
sentenced as under:

i) under Section 363 I.P.C., to
undergo 5 years rigorous imprisonment and
a fine of Rs. 5,000/- fine;

ii) under Section 366 I.P.C., to
undergo 7 years rigorous imprisonment and
a fine of Rs. 10,000/- fine;

all the sentences were directed to
run concurrently and out of total amount of
fine, fifty percent thereof is directed to be
paid to the victim as compensation.

2. The factual matrix of the case,
which is relevant for present appeal is that
informant Shiv Kumar lodged an F.I.R.
with P.S. concerned on 03.12.2015 at 06:45
hours, wherein he stated that in the night of
26.11.2015, his minor daughter aged
around 15 years was kidnapped by
seducing and enticing her by accused
Sanjay, who also resides in his ward. When
he made a complaint regarding this to his
family members, his family members
abused and threatened him. The contents of
F.I.R. were opened in Report No. 10 at
06:45 hours on 03.12.2015 P.S.- Pipiganj,
(exhibit KA -1). The police investigated the
case, the victim was recovered by police on
03.12.2015, in the company of accused
Sanjay near Boriganj Railway Station
Trisection, Pipiganj, accused was also
arrested on 03.12.2015 and sent to jail.

3. The victim stated in her statement
recorded under Section 164 Cr.P.C. before
Magistrate on 11.12.2015 that she is
acquainted with accused for past four years
and she loved him. On 27.11.2015, he
visited her home where she, Sanjay and her
younger sister were watching a video
cassette of marriage of his sister together.
In the meanwhile, her father and aunty
appeared and they had seen accused Sanjay
there and gave him beating, he also
threatened her, therefore, she became
scared. On that day, in the evening, she
went to the place of a relative of Sanjay
along with him. Police caught both of them
after three days. The accused did not do
any forceful act to her. The medico legal
examination of the victim was conducted
on 04.12.2015 at 06:20 P.M. which is
placed on record as exhibit K-5. In
description of the case, the doctor has
stated "She has fled away from home alone,
not with any boy". Her hymen was found
torn, old and healed. For determination of
age,
the
victim
was
subjected
to
radiological examination and C.M.O. in his
report dated 07.12.2015, opined that
according to X-Ray report and general
appearance, he is of the opinion that she
was about 16 years old. Exhibit K-13 is a
X-Ray report of the victim. In radiological
examination of vaginal smear of victim
dated 05.15.15, doctor opined that after
examination of both slides, no RBCs,
spermatozoa or gonococci were seen. In
High-School Marksheet, the date of birth of
victim,
exhibit
K-17,
is
17.08.2001.
Accordingly, the Investigating Officer
found that on the date of incident, victim
was 14 years 3 months old, the accused was
1356 INDIAN LAW REPORTS ALLAHABAD SERIES
enlarged on bail by orders of this Court
dated
06.04.2016.
The
I.O.
after
completing investigation filed charge-sheet
against accused with prayer to prosecute
him for charges under Sections 363, 366
I.P.C. Learned Magistrate committed the
case and Sessions Court taken up the case,
charges were framed against accused
appellant under Sections 363, 366 I.P.C. on
27.08.2015 by Addl. Sessions Judge, Court
No.-7, Gorakhpur. The accused denied the
charges.
During
prosecution
crossexamination, P.W.-1 Shiv Kumar, the
informant who is father of the victim
proved written report filed by him on
Police Station as exhibit K(1), the recovery
cum arrest memo of accused and victim as
exhibit K(2), which is prepared by
Investigating
Officer,
Omkarnath
Srivastava. He acknowledged his signature
thereon along with his wife bearing
signature of victim and accused also. He
acknowledged his signature on custody
papers regarding victim as per exhibit K(3).
P.W. 2- Khusbhu, is victim who stated her
age as 18 years 1 months on the date of her
examination
dated
21.09.2016.
She
acknowledged her statement under Section
164 Cr.P.C. which is marked as exhibit
K(4). However, she declared hostile and
was cross-examined by ADC(Crime) Cri
Raj Kumar. The brother of the informant
was also declared hostile when crossexamined by prosecution with permission
to the Court. P.W.-4 Ranjana Jaiswal is
aunt of the victim, P.W.-5 Jagdish is uncle
of the informant, P.W.-6 Firoz Ali is
neighbour of the informant, he has also
declared hostile. P.W.7- Sri Mohan was
also declared hostile, P.W.-8 Dr. Sushma
Sinha has proved medical examination
papers of the victim as exhibit K(5) and
supplementary medical report as exhibit
K(6). P.W.-9 Manju Devi is a witness of
recovery of the victim and arrest of the
accused on 03.12.2015. P.W.-10 Constable
Ram Vilas Bhaskar is author of F.I.R.,
exhibit K(7) and extracts of G.D. of
registration of case as exhibit K(8). The
I.O. was not produced during trial and the
paper authored by him like site plan,
chargesheet are accepted in evidence and
exhibited on basis of their genuineness
admitted by learned counsel for the accused
during trial. Learned Trial Judge after
hearing submissions of learned counsel for
the parties and appreciating the evidence on
record gave a finding that accused Sanjay
kidnapped the victim and subsequently,
married with her also. The prosecution has
been successful to prove charges under
Sections 363, 366 I.P.C. against the
accused. The ingredients of Section 363,
366 I.P.C. are applicable in the case as the
victim was minor at the time of the offence
and she was seduced and enticed away by
the accused, from lawful guardianship of
her parents. Learned trial Judge also
observed that although none of the
witnesses of the fact including the victim
have supported prosecution version, but as
per date of birth mentioned in High-School
Marksheet of the victim, she had not even
completed age of 15 years, however, even
after the witnesses of fact turning hostile,
the facts and attending circumstances of
the case and other evidence can be taken
into account to find out as to whether
cogent evidence is on record on the basis
of which the accused can be convicted
and in that situation, the accused cannot
be acquitted on ground that witnesses of
fact have turned hostile. He observed that
P.W.-1, Shiv Kumar, father of the victim
has stated in F.I.R. that his daughter was
aged
around
14
years
and
after
appreciating the evidence on record,
learned Trial Judge recorded verdict of
guilt against accused and sentenced him
as aforesaid.
5 All. Sanjay Kumar Vs. State of U.P.
1357

4. Heard learned counsel for the
appellant, learned A.G.A. for the State and
perused the material on record.

5. Learned counsel for the appellant
submitted that the learned Court below has
recorded the verdict of guilt and sentenced
the appellant against strength of evidence
on record and the impugned judgment is
not sustainable under eye of law. The
appellant was enlarged on bail during trial
as well as during pendency of present
criminal appeal by order of this Court.
None of the witnesses of fact have
supported prosecution version, including
the victim in spite of that the Trial Court
has convicted the accused appellant and
sentenced him without cogent evidence
appearing against him. The victim in her
statement before the Trial Court has
specifically stated that she had gone with
the appellant out of her own free will, she
also stated that she had come with her
husband Sanjay for evidence and also
engaged a counsel after affixing her photo on
Vakalatnama. She had also stated that she
had not made any statement in police against
her husband. P.W.1, Shiv Kumar has stated
in his cross-examination before the Trial
Court that his marriage was performed in the
year 1995 and after two years of marriage in
the year 1997, the victim Kushbu was born
and at the time of incident, she was studying
in Class-XI. Her age was around 18 years. He
also stated that date of birth of victim
recorded in her High-School Marksheet is
less than 4 years and her actual age was
wrongly entered by her teacher. The
ingredients of offence under Section 363, 366
I.P.C. are not made out against the appellant
on basis of evidence on record. Therefore, he
deserves to be acquitted of these charges.

6. Per contra, learned A.G.A.
appearing for the State submitted that
despite fact that witnesses of fact, including
the victim have not supported prosecution
version in their statement during trial,
however,
on
basis
of
documentary
evidence, this fact is established that victim
was minor at the time of incident and she
was less than 15 years of age at that time.
She was seduced and enticed away by the
accused to leave her parental place, out of
guardianship
of
her
parents
and
subsequently, the accused married her. This
fact itself suggests that the victim was
kidnapped by the accused from legal
guardianship of her parents in order, she
might be forced to seduce or sexual
intercourse and, therefore, offence under
Section 363, 366 I.P.C. is made out in the
case. Learned Trial Court has rightly
convicted and sentenced the appellant as
aforesaid and no interference in impugned
judgment is required in present criminal
appeal.

7. From perusal of evidence on oath
of P.W.2, it is found that she stated therein
that she is eldest off spring of her parents,
she was residing at her parental place in
Ward No. 3, Pipiganj. Her date of birth is
17.08.2001 in her High-School Marksheet,
on the date of incident on 26.11.2015, in
the evening she was watching video
cassette of marriage with her acquaintance
Sanjay in her home, his sister came there
and asked her to go to her home and she
accompanied her, when this fact came to
the knowledge of her father, he threatened
to kill her and thereupon she called Sanjay
in the evening and went to the place of his
relative along with him. Subsequently, she
came to know that her father had lodged a
report at police station to the effect that she
got missing, on 03.12.2015. She came to
the place of her father and police reached
there and performed some paperwork on
which she appended her signature along
1358 INDIAN LAW REPORTS ALLAHABAD SERIES
with her parents. The victim acknowledged
her signature on exhibit K-2, recovery
memo, but stated that she had not made any
statement at police station and she was
given to custody of her father by orders of
Court. She has also acknowledged the
photo impression of her photograph on her
High-School Marksheet in which her date
of birth is mentioned as 17.08.2001. She
denied the fact that her parents had abused
or threatened the accused. She also stated
that she came to depose in the case along
with Sanjay, who is now her husband. She
acknowledged in her statement under
Section
164
Cr.P.C.,
recorded
by
Magistrate on which exhibit K-4 was
marked. After this statement the victim was
declared hostile in her cross-examination
by ADC, Government Counsel (Crime) Cri,
she stated that she was aged about 18 years,
she disowned her statement recorded under
Section 161 Cr.P.C. by I.O. She clarified
that the accused had not done anything
wrong with her forcefully, she also stated
her age as 16 years on instructions of her
father, in her statement 164 Cr.P.C. She
also stated that she got married with Sanjay
on 20.07.2016, she dispelled suggestion
made by prosecution that accused had
enticed her away by luring her on pretext of
marriage from lawful guardianship of her
parents and subsequently, married with her
and for that reason she was describing her
age in enhanced manner. In crossexamination by defence, she admitted that
presently she and accused are residing
together as husband and wife. P.W.-3 Jay
Kumar, P.W.-4 Ranjana Jaiswal, P.W.-5-
Jagdish, P.W.-6 Firoz Ali and P.W.-7 Sri
Mohan, have not made any statement in
favour of prosecution and they were
declared
hostile
by
prosecution
and
permitted to cross-examination by the
learned
A.D.C.
(Crime)
but
nothing
material could be elicited in their crossexamination, which would likely, benefit to
the prosecution.

8. Learned counsel for the appellant
placed reliance on judgment of Hon'ble
Apex Court in MAFAT LAL & ANR
VERSUS
THE
STATE
OF
RAJASTHAN 2022 Live Law SC 362,
which is Criminal Appeal No. 592 of 2022
filed against High Court Judgment which
refused to quash criminal proceedings
against the appellant accused for abducting
or kidnapping a girl. The appeal was
allowed. In that case, the father of the
victim lodged an F.I.R. with police station
that his minor daughter has been abducted
by the accused and case under Section
363/366 I.P.C. was registered against the
accused. The abductee and accused could
not be traced for long time and police filed
a chargesheet against the father of the
accused under Sections 363, 366, 120-B
I.P.C. in the year 2020, the accused along
with abductee filed a petition under Section
482 Cr.P.C. before the High Court praying
for quashing of F.I.R. and all the
proceedings arisen from there. The status
therein is that they were well known to
each other and were into deep love affairs,
which relationship was not acceptable to
the
father
of
the
abductee,
under
compelling circumstances, both of them
parted from their family members in the
year 2005 and later got married on
25.12.2006. They also stated that almost 15
years have passed, accused and abudctee
were living happily married life and they
were also been blessed with a boy. They
also stated that abductee was never
victimized, abducted nor kidnapped but on
her free volition left her parental home on
account of unpleasant and disturbing
circumstances created by her father. It is
also stated that abductee was 17 years of
age at the time when she left her home on
5 All. Sanjay Kumar Vs. State of U.P.
1359
her own volition and that the accused had
no role to play in her parting with her
family. Hon'ble Apex Court found that the
accused and victim has stated before High
Court that she had left her parental home
on her own volition, they were married
since December, 2006 and have been living
happily. No fruitful purpose would be
served by relegating the matter for
conducting the trial as the same would
not be conducive for either of the
appellants. It would be a futile exercise.
Kidnapping would necessarily involve
enticing or taking away any minor under
eighteen years of age, if a female for the
offence under Section 363 IPC. Section 366
IPC would come into play only where there
is a forceful compulsion of marriage, by
kidnapping or by inducing a woman. This
offence also would not be made out once
the appellant no. 2 the abductee has clearly
stated that she was in love with the
appellant no.1 and that she left her home
on account of the disturbing circumstances
at her parental home.

9. Hon'ble Apex Court in S.
Varadarajan vs State Of Madras 1964,
1965 SCR (1) 243, considered Section 363
and 366 I.P.C. elaborately. Hon'ble Court
observed in following paras:-

(9) It must, however, be borne in
mind that there is a distinction between
"taking"
and
allowing
a
minor
to
accompany a person. The two expressions
are not synonymous though we would like
to guard ourselves from laying down that in
no conceivable circumstance can the two
be regarded as meaning the same thing for
the purposes of s. 361 of the Indian Penal
Code. We would limit ourselves to a case
like the present where the minor alleged to
have been taken by the accused person left
her father's protection knowing and having
capacity to know the full import of what she
was doing voluntarily joins the accused
person. In such a case we do not think that
the accused can be said to have taken her
away from the keeping of her lawful
guardian. Something more has to be shown
in a case of this kind and that is some kind
of inducement held out by the accused
person or an active participation by him in
the formation of the intention of the minor
to leave the house of the guardian.

(10) It would, however, be
sufficient if the prosecution establishes that
though 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. In our, opinion if
evidence to establish one of those things is
lacking it would not be legitimate to infer
that the accused is guilty of taking the
minor out of the keeping of the lawful
guardian merely because after she has
actually left her guardian's house or a
house where her guardian had kept her,
joined the accused 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. No doubt, the part
played by the accused could be regarded as
facilitating the fulfillment of the intention of
the girl. That part, in our opinion, falls
short of an inducement to the minor to slip
out of the keeping of her lawful guardian
and is, therefore, not tantamount to
"taking".

Hon'ble Court also quoted an
English judgment of Reg. v. Christian
Olifier(1) (1866) 10 Cox CC 402, in which
it was observed

"I am of opinion that if a young
woman leaves her father's house without
1360 INDIAN LAW REPORTS ALLAHABAD SERIES
any
persuasion,
inducement,
or
blandishment held out to her by a man, so
that she has got fairly away from home,
and then goes to him, although it may be
his moral duty to return her to her parent's
custody, yet his not doing so is no
infringement of this Act of Parliament for
the Act does not say he shall restore her,
but only that he shall not take her away."

10. Section 363 of I.P.C. provides as
under:-

363. Punishment of kidnapping.-
Whoever kidnaps any person from India or
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.

363-A. Kidnapping or maiming a
minor for purposes of begging.

1. Whoever kidnaps any minor or,
not being the lawful guardian of a minor,
obtains the custody of the minor, in order
that such minor may be employed or used
for the purposes of begging shall be
punishable with imprisonment of either
description for a term which may extend to
ten years, and shall also be liable to fine.

2. Whoever maims any minor in
order that such minor may be employed or
used for the purposes of begging shall be
punishable with imprisonment for life, and
shall also be liable to fine.

3. Where any person, not being
the lawful guardian of a minor, employs or
uses such minor for the purposes of
begging, it shall be presumed, unless the
contrary is proved, that he kidnapped or
otherwise obtained the custody of that
minor in order that the minor might be
employed or used for the purposes of
begging.

4. In this section

1. "begging" means:

1.1. soliciting or receiving alms
in a public place, whether under the
pretence of singing, dancing, fortunetelling,
performing tricks or selling articles or
otherwise;

1.2. entering on any private
premises for the purpose of soliciting or
receiving alms;

1.3. exposing or exhibiting, with
the object of obtaining or extorting alms,
any sore, wound, injury, deformity or
disease, whether of himself or of any other
person or of an animal;

1.4. using a minor as an exhibit
for the purpose of soliciting or receiving
alms;

2. "minor" means:

2.1. in the case of a male, a
person under sixteen years of age; and

2.2. in the case of a female, a
person under eighteen years of age

Thus, the ingredients of Section
363 I.P.C. can be carved out as below:

, (i) taking or enticing away a
minor or a person of unsound mind; (ii)
such minor must be under sixteen years of
age, if a male, or under eighteen years of
age if a female; (iii) the taking or enticing
must be out of the keeping of the lawful
guardian of such minor or person of
unsound mind; (iv) such taking or enticing
5 All. Sanjay Kumar Vs. State of U.P.
1361
must be without the consent of such
guardian. The taking need not be by force,
actual or constructive. There must be a
taking of the child out of the possession of
the guardian. The Explanation to Section
361 provides that the words 'lawful
guardian' in the said section include any
person lawfully entrusted with the care or
custody of such minor or other person. The
word 'take' means to cause to go, to escort
or to get into possession. It implies want of
wish and absence of desire of the person
taken. There is, however, a distinction
between taking and allowing a minor to
accompany a person. The word 'entice'
involves
an
idea
of
inducement
or
allurement by exciting hope or desire in the
other.

11. Section 366 of I.P.C. provides as
under:-

366. Kidnapping, abucting or
inducing woman to compel her marriage,
etc.- Whoever kidnaps or abducts any woman
with intent that she may be compelled, or
knowing it to be likely that she will be
compelled, to marry any person against her
will, or in order that she may be forced or
seduced to illicit intercourse, or knowing it to
be likely that she will be forced or seduced 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;

And whoever, by means of criminal
intimidation as defined in this Code or of
abuse of authority or any other method of
compulsion, induces any woman to go from
any place with intent that she may be, or
knowing that it is likely that she will be,
forced or seduced to illicit intercourse with
another person shall also be punishable as
aforesaid.

On examining the provisions of
Section 366 I.P.C., its essential ingredients
can be summarized as below:

kidnapping or abducting any
woman; (ii) such kidnapping or abducting
must be (a) with intent that she may be
compelled or knowing it to be likely that
she will be compelled to marry any person
against her will; or (b) in order that she
may be forced or seduced to illicit
intercourse or knowing it to be likely that
she will be forced or seduced to illicit
intercourse

The second part of the section
366 requires two things. (1) By criminal
intimidation or abuse of authority or by
compulsion inducing any woman to go
from any place; and (2) such going must be
with intent that she may be, or with
knowledge that it is likely that she will be,
forced or seduced to illicit intercourse, with
some person. The word 'woman' has been
defined in Section 10 of the code which
denotes the word "woman" as female
human being of any age. Thus, It includes a
minor female. If the girl was eighteen or
over, she could only be abducted and not
kidnapped, but if she was under eighteen
she could kidnapped as well as abducted if
the taking was by force or the taking or
enticing was by deceitful means. The
intention of the accused is the basis and the
grave men of offence under Section 366.
The volition, the intention and the conduct
of the woman do not determine the offence.
Kidnapping and abduction are two distinct
offences. Kidnapping is an offence against
guardianship, it consists of enticing or
removing a girl from the keeping of lawful
guardians without her consent, abuction is
an offence as defined under Section 362
I.P.C., when a person is by force compelled
or by deceitful means induces to go from
1362 INDIAN LAW REPORTS ALLAHABAD SERIES
any place. In abduction, the person
abducted
may
be
minor
or
major.
Kidnapping is punishable per se in terms of
Section 363 without any specific intent, on
the other hand, abduction is not punishable
per se, and is punishable only when
accompanied by a particular purpose as
contemplated in sections 364 to 366.
Sometimes abducting and kidnapping is
committed for the same purpose, but it is
not necessary in each case.

12. In present case, the age of victim
appears on basis of her High-School
Marksheet below between 14 to 15 years
and according to medical examination
report 16 years as opined by C.M.O. In any
case, it cannot be doubted that the victim
was minor at the time of incident. The
statement of her father on this point before
the Court that her age was recorded as 4
years less than her actual age in school
record is not based on any concrete logic or
proof. However, if we peruse the statement
of victim recorded under Section 164
Cr.P.C. before the Magistrate as well as
before the Court during Trial, it cannot be
stated that accused had taken or enticed
away the victim out of the keeping of the
lawful guardianship of her parents, as the
victim has stated at both stages that on
being threatened by her father and out of
fear, she called the accused and went to the
place of his one relative along with him.
Therefore, if we take the statement of the
victim, the role played by the accused in
her going from parental place is of a nature
of passive action and it cannot be discerned
that he played active role in the going of
the victim from place of her parents,
without their consent. The mental attitude
of the minor is immaterial in the case of
taking when an accused takes a minor with
him, whether he or she is willing or not.
But the word 'entice' involves an idea of
inducement or allurement. One does not
entice another unless the latter attempts to
do a thing which she or he would not
otherwise do. In the present case, there is
no evidence whatsoever in support of the
allegations that accused enticed the victim
to leave her parental place and accompany
to go somewhere else. If we go through the
statement of victim recorded under Section
161 Cr.P.C., are not admissible in evidence,
it is found that the victim herself enticed
the accused and go with her to some other
suitable place out of keeping of her parents.
Therefore, the role of accused at best stated
as a facilitator and cannot be held that he
either took her or enticed her away from
lawful guardianship of her parents. The
element of initiative is lying at the end of
the victim and not on the accused.

13. Now, on the basis of foregoing
discussions this Court is of considered
opinion that preponderance of probabilities
indicate that the victim had voluntarily
gone with the accused appellant and in the
process accused did not play an active role,
therefore, the charge under Section 363
I.P.C. cannot be set to have been proved
against the appellant and once this
conclusion is reached, the offence under
Section 366 automatically fails as the
victim has not levelled any allegations of
mala fide or sexual intent against the
accused. Consequently, it is held that
prosecution failed to prove its case against
the accused beyond reasonable doubt.

14. In view of the above discussion,
the appeal is allowed. The conviction and
sentence
passed
against
the
accused
appellant under Sections 363 and 366 of the
Indian Penal Code is set aside and the
appellant is acquitted of both the charges as
same are not found to be proved against
him as beyond reasonable and doubt. The
5 All. Pradeep Bind Vs. State of U.P.
1363
fine, if realised, be refunded to him
forthwith. The case property shall be dealt
with in a manner as directed by the trial
court.

15. The appellant is directed to file a
personal bond and two sureties each in the
like amount to the satisfaction of the court
concerned, in compliance of Section
437(A) Cr.P.C. which shall be in force for
6 months.
----------
(2023) 5 ILRA 1363
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 21.04.2023

BEFORE

THE HON'BLE RAM MANOHAR NARAYAN
MISHRA, J.

Criminal Appeal No. 4124 of 2018

Pradeep Bind ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Indrajeet Kumar Shukla, Sri Shailendra
Nath Tiwari

Counsel for the Opposite Party:
G.A.

Criminal Law - Indian Penal Code,1860 -
Section
376-A-Allegation
of
developing
intimacy on the pretext of marrying with the
victim-after some time Accused refused from
marrying her-radiological age was 18 years to
24 years-victim St.d in St.ment u/s 164 Cr.P.C.
that she was 18 years old-physical relation for
past 6 years prior to lodging the F.I.R.-relation
was consensual-false promise to marriage is not
proved.

Appeal allowed. (E-9)

List of Cases cited:
1. Shambhu Kharwar Vs St. of Uttar Pradesh &
anr., 2022 LawSuit (SC) 973

2. Sonu @ Subhash Kumar v. St. of U. P.

(Delivered by Hon'ble Ram Manohar
Narayan Mishra, J.)

1. Heard Sri Indrajeet Kumar Shukla,
learned counsel for the convict-appellant,
learned A.G.A. appearing for the State and
perused the material placed on record.

2. This criminal appeal has been filed
against the judgment and order dated
4.6.2018, passed by learned Additional
Sessions Judge, Court No.1, Ghazipur, in
Sessions Trial No. 31 of 2016, State Vs.
Pradeep Bind, arising out of Case Crime
No. 2058 of 2015, under Section 376-A
IPC & Section 3/5 of POCSO Act, Police
Station
Kotwali,
District
Ghazipur,
whereby the appellant was convicted and
sentenced under Section 376-A I.P.C. for
seven year rigorous imprisonment, with
fine of Rs.10,000/-, in default thereof he
has to undergo six months additional
rigorous imprisonment. The appellant has
been acquitted of charge under Section 3/5
of POCSO Act, as being extended the
benefit of doubt.

3. The brief facts of the case for the
purpose of present appeal is that the first
informant Smt. Jagrani, wife of Sri
Narayan
Bindh,
resident
of
Mohalla
Kapoorpur, Police Station Kotwali, District
Ghazipur, lodged an FIR with police station
concerned on 20.11.2015 at about 16:00
hours, on the basis of written report stating
therein that her daughter, the prosecutrix
used to visit her relative Jairam at
Mahmudpur, where accused who was also
frequenting as he is relative of Jairam.
Pradeep used to sell 'Toddy' in Tadishop
stalled by Jairam where he met prosecutrix