Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (SJ) No.127 of 1999 === Against the judgment of conviction dated 28.5.1999 and order of sentence dated 29.5.1999 passed in Sessions Trial No. 1253/1994 by Sri Girindra Kishore Verma, 4th Additional Sessions Judge, Saran at Chapra. **** Yogendra Mahto @ Jitendra Mahto .... .... Appellant Versus The State of Bihar .... .... Respondent with Criminal Appeal (SJ) No. 130 of 1999 === Keshav Sharma .... .... Appellant Versus State of Bihar .... .... Respondent === Appearance: (In CR. APP (SJ) No. 127 of 1999) For the Appellant: Mr. Mahesh Narayan Parbat For the Respondent: Mr. Ajay Mishra, APP (In CR. APP (SJ) No. 130 of 1999) For the Appellant: Ms Mallika Mazumdar For the Respondent: Mr. S.N.Prasad, APP === PRESENT THE HON’BLE MR JUSTICE MANDHATA SINGH J U D G E M E N T Mandhata Singh, J., Prosecution case initiated on Fardbeyan of one Lallan Kumar Gupta in brief is that on 27.7.1994 his sister had gone to learn sewing to Dighwara Silaee Centre. Both the accused appellants enticed her and taken away (kidnapped) with a view to marry her. At the time of kidnapping, informant was absent from his house, after coming back his home he gathered information to the above effect, followed by their taking his sister to the house of Swarath Sharma, father of brother-in-law of co-accused Keshav Sharma, situated at Mahmood Chauk. Patna High Court Cr. Appeal (SJ) No.127 of 1999 with Cr. Appeal (SJ) No.130 of 1999 dt.25-01-2012 2 2. Victim was forcibly married to Keshav Sharma. Receiving information Nayagaon Police Station came in action, recovered the victim girl along with co-accused Keshav Sharma. 3. After concluding the trial both the appellants are convicted for offence under [STATUTE] . 4. In all nine witnesses are examined in the case and they are P.W. 1 Sanjay Kumar Gupta, P.W. 2 Rangila Paswan, P.W.3 Motilal Paswan, P.W. 4 Lallan Prasad Gupta informant of the case, P.W.5 Rekha Kumari victim of the case, P.W.6 Dr. Deepak Kumar, P.W. 7 Dr Pushplata, P.W.8 Vinod Prasad Gupta another brother of the informant and P.W. 9 Chandra Mohan Jha, I.O. of the case. 5. P.Ws 1, 2 and 3 are there to state that they saw the victim in a tempo going towards east along with both accused persons who were sitting in her both sides. P.Ws 4 and 8 are witnesses to state that their sister was taken away or kidnapped by accused appellants. P.W. 5 is victim of the case is also stating about her taking away by accused appellants, in specific words she states that both the accused appellants met her at Dhala (Railway Crossing), made her sitting in a tempo, took her to Sonepur, kept there for two days in the house of accused Keshav Sharma’s sister who was asking her to marry. Again she was taken to Nayagaon to the house of Keshav Sharma’s brother-in- law where the Police recovered her along with accused Patna High Court Cr. Appeal (SJ) No.127 of 1999 with Cr. Appeal (SJ) No.130 of 1999 dt.25-01-2012 3 Keshav Sharma. 6. Age of the victim girl is relevant in the case as it is said that the victim was a consenting party, major one, so, no case was making out. Two doctors (P.Ws 6 and 7) are examined in the case but P.W. 7 Dr. Pushplata is on the point of age only. 7. It is made clear that there is no conviction for the offence under [STATUTE] . P.W. 7 in paragraph 7 of her statement states about victim’s age above 17 years in corroboration of her report. Two years margin always remain in assessment of age by Medical Expert. There is no document in the case on the point of age of the victim girl. Victim is there to state her age in course of her examination in Court. She is examined in the case after two years of the incident on 5.1.1996, states her age 17 years that is assessed 20 years by the Court. 8. In my view, when there is margin of two years to defer with Medical opinion and one year is given to prosecution and one year to defence then also doctor’s opinion is about above 17 years that comes to above 18 which has not been considered by the trial court. Once it comes that victim’s age was above 18 years, then it is for the Court to consider the act of appellants was an abduction or kidnapping. 9. It is admitted to the parties that whenever any person (major) is kidnapped beyond the limits of India without consent of that person or of some person legally authorized to consent on behalf of that person Patna High Court Cr. Appeal (SJ) No.127 of 1999 with Cr. Appeal (SJ) No.130 of 1999 dt.25-01-2012 4 then that act is kidnapping otherwise that happens with minor. Now it remains to come to the definition of abduction for bringing the act to abduction. 10. [STATUTE] defines abduction which runs as follows: “362. Abduction.-Whoever by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct that person.” 11. After going through the definition it is apparent that for abduction use of force to compel or inducement by deceitful means to go from any place is necessary. In the instant case 3 (three) witnesses are stating about watching to sit victim in the company of accused appellants in Tempo and victim herself is stating that accused persons made her to sit in Tempo, took to Sonepur then to Nayagaon without referring use of force or deceitful means for inducing, in absence of which the instant incident does not come within the definition of abduction enumerated under [STATUTE] . It is apparent mistake committed by the trial court in convicting the appellants for the offence under [STATUTE] . 12. After having considered the evidence on record and the material recorded by the trial court, the appeal is allowed. The judgment and order passed in Sessions Trial no. 1253/94 by 4th Additional Sessions Judge, Saran, Chapra is set aside. Accordingly accused appellants are acquitted of their respective charges, dis

Applicable IPC Section: 362

Statute Text:
Section 362 of the Indian Penal Code. None. Whoever by force compels, or by any deceitful means induces any person to go from any place, is said to abduct that person.