THE HON’BLE SRI JUSTICE K.G. SHANKAR Crl.Petition No.6999 of 2008 Date: 01.04.2011 Between: T. Munisekhar And 4 others … Petitioners/ A.1 to A.5 AND 1. M. Rajeshwari 2. State rep.by the Sub-Inspector of Police, Yerravaripalem, Chittoor Dist., Rep.by its Public Prosecutor, High Court of A.P., Hyderabad. … Respondents THE HON’BLE SRI JUSTICE K.G. SHANKAR Crl. Petition No.6999 of 2008 ORDER: Section 366 of the Indian Penal Code (‘IPC’ for short) provides punishment for kidnapping or abducting a woman to compel her to marry or to force her to accept for seduction by way of illicit intercourse. A.1 to A.5 in PRC No.25 of 2008 on the file of the Judicial Magistrate of First Class, Piler, who are the petitioners herein allegedly were guilty of the offence under Section 366 IPC. Sri P.V. Vidya Sagar, learned counsel for the petitioner contended that there was no incidence or prima facie proof of carnal acquaintance or attempted carnal acquaintance to make out a case u/s.366 IPC. 2. The first petitioner is the main culprit. The petitioners 2 and 3 are his parents. The fourth petitioner is the younger brother of the second petitioner and the junior paternal uncle of the first petitioner. The fifth petitioner is the elder sister of the second petitioner and the senior paternal aunt of the first petitioner. They are the accused 1 to 5. They allegedly were responsible for the kidnap of a minor girl by name Siva Kumari, d/o. M. Rajeshwari (first respondent herein). 3. The case of the prosecution is that on 28.11.2007 at about 10 a.m., Siva Kumari went out to ease herself, perhaps, during the recess hour. When Siva Kumari went near the Thalakona Bus Stand situate near the school, one Naga Raju, who is an auto driver called Siva Kumari, claiming that the parents of Siva Kumari wanted to speak to her. In all innocence, Siva Kumari boarded the auto of Naga Raju to go over to the place where her parents were waiting to talk to her. It is the further case of the prosecution that A.1 who was in the auto forcibly took Siva Kumari under threat of her life towards Chintagunta village. Somehow the parents of Siva Kumari could trace Siva Kumari and took her home. Again on 03.12.2007, Siva Kumari went to the school as usual. She did not return from the school after the school hours. The parents of Siva Kumari searched for the whereabouts of Siva Kumari, taking the help of others. They ultimately lodged a complaint with police on 04.12.2007, which was registered as Crime No.39 of 2007. 4. A thorough search was made, but in vain to trace the whereabouts of Siva Kumari. Ultimately on 22.01.2008 at about 8 a.m., Muni Reddy, husband of the first respondent, who is the father of the minor girl Siva Kumari, found Siva Kumari at Tirupati in the company of A.1. Siva Kumari was consequently restored to the custody of her parents. A case was registered against all the accused for the offence u/s.366 IPC. 5. Incidentally, Siva Kumari was sent to a medical practitioner for verification. The verification perhaps was the ossification test to determine the age of Siva Kumari. Inter alia, the Doctor asserted that there was no evidence of rape. 6. As already referred to, the contention of the learned counsel for the accused is that prima facie the accused are not guilty of the offence u/s.366 IPC. Where the medical report discloses that there was no evidence of rape, I do not wish to go into this aspect since the learned counsel for the accused at any rate attacked the case from its roots. 7. It may be recalled that there were two incidents of kidnap of Siva Kumari primarily involving A.1. The first kidnap was on 28.11.2007. The second kidnap was on 03.12.2007. After Siva Kumari was traced, apart from examining Siva Kumari u/s.161 Cr.P.C., the evidence of Siva Kumari was recorded u/s.164 Cr.P.C. In her statement u/s.164 of Cr.P.C., the victim Siva Kumari referred to the kidnap that occurred on 28.11.2007. She did not whisper about the kidnap on 03.12.2007. On the top of it, the investigating agency examined A. Someswaram, Assistant Head Master of the Zilla Parishad High School, Nerabailu where Siva Kumari has been studying, as the 6th witness. Police also examined Kum. P. Sirisha and N. Reddirani as witnesses 7 and 8. They have been classmates of the victim Siva Kumari. All of them stated that Siva Kumari did not attend the school after 28.11.2007 on which date Siva Kumari allegedly was kidnapped by A.1 with the help of the auto driver, Naga Raju. 8. However, the charge sheet is not for kidnapping of Siva Kumari by the accused on 28.11.2007. The case of the prosecution is that A.1 primarily and A.2 to A.5 by way of support to A.1 were guilty of the offence u/s.366 IPC by kidnapping Siva Kumari on 03.12.2007. In the light of the statements of Assistant Head Master and the classmates of Siva Kumari that Siva Kumari did not go to the school after 28.11.2007 and in view of Section 164 Cr.P.C. statement of Siva Kumari wherein she did not refer to the alleged kidnap on 03.12.2007, evidently no case is made out against any of the accused for the alleged kidnap on 03.12.2007. 9. If the prosecution had laid charge sheet alleging that the accused kidnapped Siva Kumari on 28.11.2007 and on 03.12.2007 and that they were guilty of kidnap on both the occasions, perhaps, the case would have subsisted at least insofar as the kidnap was on 28.11.2007. Unfortunately, the prosecution is not for the alleged kidnap of Siva Kumari on 28.11.2007. The case of the prosecution is that the accused are guilty of kidnapping Siva Kumari on 03.12.2007 and committed the offence u/s.366 IPC. 10. Apart from the fact that the offence u/s.366 IPC could not have been made out where admittedly there was no evidence of rape upon the person of Siva Kumari, where Siva Kumari as well as two of her classmates and Assistant Head Master of the School did not refer to the alleged kidnap of Siva Kumari on 03.12.2007 and had mentioned that SivaKumari did not attend the school after 28.11.2007, the case of the prosecution that the accused kidnapped Siva Kumari on 03.12.2008 and are guilty of the offence u/s.366 IPC is prima facie not made out. 11. The accused at once are liable to be discharged for the offence alleged against them. I make it clear that the offence alleged against the accused, which is not proved, is u/s.366 IPC for the alleged incident on 03.12.2007. Consequently, the prosecution against the accused is liable to be quashed and accordingly stands quashed. 12. Consequently, the Criminal Petition is allowed. The further proceedings in PRC No.25 of 2008 on the file of the Judicial Magistrate of First Class, Piler were already stayed. PRC No.25 of 2008 in Crime No. 39 of 2007 for the offence u/s.366 IPC of Yerravaripalem against A1 to A.5 accordingly stands quashed. _______________ K.G. SHANKAR, J Date: 01.04.2011 Isn