Himachal Pradesh High Court
Sarishta @ Settu & Ors vs State Of H.P on 6 July, 2026
2026:HHC:26637
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Appeal Nos. 296 and 394 of 2010
.
Reserved on: 20.06.2026
Date of Decision: 06.07.2026
1. Cr. Appeal No. 296 of 2010
Sarishta @ Settu & Ors ...Appellants
of
Versus
State of H.P. ...Respondent
rt
_____________________________________
2. Cr. Appeal No. 394 of 2010
Rakesh Kumar & Anr. ...Appellants
Versus
State of H.P. ...Respondent
Coram
Hon'ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 No
For the Appellants : Mr Anuj Nag, Advocate in Cr.
Appeal No. 296 of 2010 and Mr
Digviijay Singh, Advocate in Cr.
Appeal No. 394 of 2010
For respondents/State. : Mr Lokender Kutlehria,
Additional Advocate General, in
both the appeals.
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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Rakesh Kainthla, Judge
The present appeals are directed against the
.
judgment of conviction dated 07.08.2010 and order of sentence
dated 11.08.2010 passed by the learned Sessions Judge, Kangra at
Dharamshala (learned Trial Court) vide which the appellants
(accused before the learned Trial Court) were convicted and
of
sentenced as under:
Sections
rt
SentencesSection 363 of The accused were sentenced to undergo simple
the Indian imprisonment for three years each, pay a fine of
Penal Code ₹5000/-each, and, in default of payment of the
fine, to undergo simple imprisonment for sixmonths.
Section 366 of The accused were sentenced to undergo simple
the Indian imprisonment for three years each, pay a fine of
Penal Code ₹5000/- each and, in default of payment of the
fine, to undergo simple imprisonment for six
months.
Section 368 of The accused were sentenced to undergo simple
the Indian imprisonment for three years each, pay a fine of
Penal Code ₹5000/- each and, in default of payment of the
fine, to undergo simple imprisonment for six
months.
120-B of the The accused were sentenced to undergo simple
Indian Penal imprisonment for six months each, pay a fine of
Code ₹2000/- each and, in default of payment of the
fine, to undergo simple imprisonment for one::: Downloaded on – 06/07/2026 20:35:51 :::CIS
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2026:HHC:26637month.
All the substantive sentences of imprisonment were ordered to run
.
concurrently.
(The parties shall hereinafter be referred to in the same manner as
they were arrayed before the learned Trial Court for convenience).
of
2. Briefly stated, the facts giving rise to the present
appeal are that the police presented a challan against the
rt
accused for the commission of offences punishable under
Sections 363, 366, and 368, read with Section 120B of the Indian
Penal Code (IPC). It was asserted that the victim (name being
withheld to protect her identity) was about 17 years old. She was
found missing on 24.12.2007. The efforts were made to locate
her, but she could not be traced. The informant reported the
matter to the police, and a missing entry was recorded on
26.12.2007. Subsequently, the informant found that the victim
was taken away by the accused Rakesh Kumar @ Khanna with
the intent to marry her. He was also found missing from his
home. The police registered the FIR (Ext.PW1/A). ASI Sunil
Mohammad (PW15) investigated the matter. He filed an
application (Ext.PW7/C) for obtaining the birth certificate of the
victim. Smt. Sanju Bala (PW7) prepared the birth certificate of
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the victim (Ext.PW7/B) showing that the victim was born on
20.01.1991 and her birth was registered on 28.01.1991. This birth
.
certificate was seized vide memo (Ext.PW7/C). Ex-Pradhan,
Jaram Singh (DW1) produced the victim and the accused Rakesh
Kumar @ Khanna at Police Station Nurpur on 03.01.2008. The
informant identified the victim as his daughter, who was found
of
missing. Memo of identification (Ext.PW1/C) was prepared.
Custody of the victim was handed over to the informant vide
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memo (Ext.PW1/B). ASI Sunil Mohammad (PW15) filed an
application (Ext.PW2/A) for the medical examination of the
victim. Dr Suman Sexena (PW2) made enquiries from the victim.
The victim refused to undergo her medical examination. MLC
(Ext.PW2/B) was issued. ASI Sunil Mohammad (PW15) filed an
application (Ext.PW3/A) for the medical examination of the
accused Rakesh Kumar. Dr Ashutosh Joshi (PW3) examined the
accused and found that there was nothing to suggest that the
accused was incapable of performing sexual intercourse. He
issued the MLC (Ext.PW3/B), preserved the samples, and handed
them to the police official accompanying the accused. The
accused Rakesh Kumar led the police to a temple where he had
solemnised the marriage with the victim. A memo (Ext.PW11/A)
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was prepared. The spot memo of the temple (Ext.PW15/A) was
also prepared. The accused, Rakesh, led the police to the house
.
of the accused Situ @ Sureshta and disclosed that he and the
victim had stayed in the house with effect from 24.12.2007 till
31.12.2007. Memo (Ext.PW11/B) and Spot Map (Ext.PW15/B) were
prepared. Accused Rakesh Kumar also showed the spot where he
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and the victim had boarded the van on 24.12.2007. A memo
(Ext.PW11/C) and the spot map (Ext.PW15/C) were prepared. Situ
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@ Sureshta produced two photographs (Ext.D1 and Ext.D2) of
the solemnization of the marriage between the victim and the
accused. These were seized vide memo (Ext.PW15/D).
Statements of witnesses were recorded as per their version, and
after the completion of the investigation, the challan was
prepared and was presented before Learned Additional Chief
Judicial Magistrate, Nurpur, District, Kangra, who committed it
to the learned Sessions Judge, Dharamshala (learned Trial
Court).
3. The learned Trial Court charged the accused Rakesh
Kumar @ Khanna with the commission of offences punishable
under Sections 363, 366, and 376 read with Section 120-B of IPC
and the other accused with the commission of offences
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punishable under Sections 363, 366, 368 and Section 120B of
IPC, to which the accused pleaded not guilty and claimed to be
.
tried.
4. The prosecution examined 15 witnesses to prove its
case. Informant (PW1), victim’s brother (PW4), and victim’s
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mother (PW5) deposed about the circumstances in which the
victim had left the home. Dr Suman Sexena (PW2) questioned
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the victim. Dr Ashutosh Joshi (PW3) examined the accused.
Victim (PW6) deposed about her kidnapping. Sanju Bala (PW7)
produced the birth certificate of the victim. Bhaga Devi (PW8)
witnessed the recoveries. Veer Singh (PW9) saw the accused,
Satya Devi and the victim together. Ravinder Kumar (PW10) was
driving the van in which the victim was taken. Rai Singh (PW11)
witnessed the disclosure statements made by the accused.
Rattan Chand (PW12) had solemnised the marriage between the
accused and the victim. Inspector Megh Nath (PW13) signed the
FIR and prepared the challan. Dharam Chand (PW14) had
entered the missing report (Ext.PW14/P). ASI Sunil Mohammad
(PW15) investigated the matter.
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5. The accused, Rakesh Kumar, in his statement
recorded under Section 313 of the Code of Criminal Procedure
.
(CrPC), admitted that the Secretary of the Gram Panchayat had
produced the victim’s birth certificate. He stated that he had
himself produced the victim in the Police Station. He admitted
that he had shown the place from where he and the victim had
of
boarded the vehicle and that the photographs of his marriage
with the victim were seized by the police. He stated that the
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prosecution witnesses falsely deposed against him due to the
fear of the villagers. He was innocent and was falsely implicated.
The other accused denied the prosecution’s case in its entirety
and claimed that they were innocent and they were falsely
implicated. Accused Satya Devi stated that witnesses deposed
against her because of enmity. Accused Settu stated that the
accused and the victim had solemnised the marriage
themselves. They visited her house, but she turned them out of
the house. They examined Jaram Singh (DW1) in their defence.
6. Learned Trial Court held that the victim was forcibly
taken away and kept at Talwara. She was forced to marry Rakesh
Kumar against her Will. She was a minor on the date of the
incident, aged about 16 years and 11 months. Her consent was
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immaterial. She had refused to undergo the medical
examination, and the prosecution’s case that the accused
.
Rakesh Kumar had raped her was not established beyond a
reasonable doubt. Any person taking away or enticing a minor
girl out of the guardianship of her father would be guilty of
kidnapping. Kidnapping was with the intent to marry the victim
of
to the accused Rakesh. The victim was concealed in the house.
The prosecution had proved its case beyond a reasonable doubt
rt
for the commission of offences punishable under Sections 363,
366, 368, read with Section 120B of the IPC. Hence, the learned
Trial Court convicted and sentenced the accused as mentioned
above.
7. Being aggrieved by the judgment and order passed by
the learned Trial Court, the accused have filed separate appeals.
In the appeal filed by the accused, Sureshta @ Situ, it was
asserted that the learned Trial Court failed to appreciate the
material on record. The statements of the prosecution witnesses
contradicted each other on material aspects. The victim had
refused to undergo a medical examination, which showed her
consent. The victim’s date of birth was not proved as per the law.
The victim had disclosed her age to the Medical Officer as 19
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years, which made the prosecution’s case doubtful that the
victim was a minor on the date of the incident. Therefore, it was
.
prayed that the present appeal be allowed and the judgment and
order passed by the learned Trial Court be set aside.
8. In the appeal preferred by Rakesh Kumar and Satya
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Devi, it was asserted that the judgment is based on conjectures
and surmises. The statements of the prosecution witnesses were
rt
not reliable. The date of birth of the victim was recorded by one
Chunni Ram, who had no connection to the victim. Dr Suman
Saxena (PW2) specifically stated that the victim had disclosed
her age to be 19 years and that the accused Rakesh Kumar was
her husband. The victim had voluntarily refused to undergo a
medical examination. All these circumstances showed that the
victim had married the accused voluntarily, without any
influence from any person. She had also accompanied the co-
accused as per the prosecution’s case without raising any
protest. She was compelled to make a false statement in the
Court by her relatives. There were material contradictions in the
statements of the prosecution witnesses, and the learned Trial
Court erred in relying upon the testimonies of the prosecution’s
witnesses. Hence, it was prayed that the present appeal be
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allowed and the judgment and order passed by the learned Trial
Court be set aside.
.
9. I have heard Mr Anuj Nag and Mr Digvijay Singh,
learned counsel for the appellants and Mr Lokender Kutlehria,
learned Additional Advocate General for the respondents/State.
of
10. Mr Anuj Nag, learned counsel for the appellant,
submitted that the learned Trial court erred in appreciating the
rt
material on record. The victim had disclosed her age to be 19
years to the Medical Officer, clearly showing that she was not a
minor on the date of the incident. The prosecution’s evidence
proved that she had solemnised the marriage with the accused
voluntarily without any influence from any person. She had even
refused to undergo medical examination, and her statement to
this effect was recorded in the MLC by the Medical Officer. She
was subsequently threatened to make the statement against the
accused, and learned Trial Court erred in relying upon her
testimony. The statements of prosecution witnesses
contradicted each other on material aspects. Therefore, it was
prayed that the present appeal be allowed and the judgment and
order passed by the learned Trial Court be set aside.
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11. Mr Digvijay Singh, learned counsel for the appellant,
submitted that the learned Trial Court had not properly
.
appreciated the material on record. As per the prosecution, the
victim had accompanied the co-accused Sita Devi. She was seen
in the bazar and had not raised any hue and cry. This suggested
that she was a consenting party. She had herself stated to the
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driver of the van that she was accompanying the accused on her
own. She had disclosed her age to be 19 years to the Medical
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Officer, a fact that was ignored by the learned Trial Court. The
date of the birth certificate was not proper because no person
related to her had mentioned her date of birth. All these
circumstances made the prosecution’s case doubtful. Therefore,
he prayed that the present appeal be allowed and the judgment
and order passed by the learned Trial Court be set aside.
12. Mr Lokender Kutlehria, learned Additional Advocate
General for the respondent/State, submitted that the date of
birth was recorded by a public official in discharge of his official
duty, and it was per se admissible. The mere fact that the entry
was recorded by some third person does not mean that the entry
was false. The burden was upon the accused to rebut the
presumption of correctness attached to the official acts, and no
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evidence was led to rebut the presumption. The accused Rakesh
admitted, in his statement recorded under Section 313 of CrPC,
.
that he had solemnised the marriage with the victim and that he
had produced her before the police. These admissions prove the
prosecution’s case that the accused had kidnapped the victim.
There is no infirmity in the judgment and order passed by the
of
learned Trial Court. Hence, he prayed that the present appeal be
dismissed. rt
13. I have given a considerable thought to the
submissions made at the bar and have gone through the records
carefully.
14. Sanju Bala (PW7) stated that she had supplied a copy
of the victim’s birth certificate (Ext.PW7/P) showing that the
victim was born on 20.01.1991 and her date of birth was
registered on 28.01.1991. She stated in her cross-examination
that the date of birth in the register was recorded at the instance
of Chuni Ram, and the relationship between Chuni Ram and the
victim was not mentioned. The entry was made in the presence
of the ward member and Pradhan, but their signatures were not
obtained regarding their presence.
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15. It was submitted that the statement of this witness
made the prosecution’s case highly doubtful. The entry was
.
recorded at the instance of Sh. Chuni Ram, and there is no
evidence to show that Chuni Ram was related to the victim. This
submission will not help the accused. It was laid down by the
Hon’ble Supreme Court in CIDCO v. Vasudha Gorakhnath
of
Mandevlekar, (2009) 7 SCC 283, that the death and birth register
maintained by the statutory authority raises a presumption of
rt
correctness. It was observed:
18. The deaths and births register maintained by the
statutory authorities raises a presumption of correctness.
Such entries made in the statutory registers are
admissible in evidence in terms of Section 35 of the
Evidence Act. It would prevail over an entry made in the
school register, particularly in the absence of any proof
that the same was recorded at the instance of the
guardian of the respondent. (See Birad Mal Singhvi v.
Anand Purohit [1988 Supp SCC 604: AIR 1988 SC 1796] .)
16. Therefore, the entry in the birth register is to be
presumed to be correct. In the present case, such an entry was
made within 8 days of the birth, when no dispute had arisen.
Therefore, the entry cannot be discarded simply because it was
recorded at the instance of Chunni Ram.
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17. Dr Suman Sexena (PW2) stated in her cross-
examination that the victim had disclosed her age as 19 years
.
during the enquiries made from her. It was submitted that the
statement of Dr Suman Sexena (PW2) will make the
prosecution’s case suspect that the victim was a minor at the
time of the incident. This submission will not help the accused.
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The victim cannot have any personal knowledge regarding her
date of birth, as she was too young to comprehend her date of
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birth and her date of birth is usually told to a person by his/her
relatives. Therefore, a statement made by the victim regarding
her date of birth is hearsay and inadmissible in evidence.
Therefore, no advantage can be derived from the statement
made by the victim before the Medical Officer.
18. Veer Singh (PW9) saw Satya Devi and the victim
together on 24.12.2007. He stated in his cross-examination that
he did not make any inquiry from them because he thought that
they might be going to some temple. Ravinder Kumar (PW10)
stated that he met Khanna @ Rakesh Kumar at Raja Ka Talab,
and he had left after the accused had assured to pay the fuel
charges. The victim met them at Rehan. Accused Khanna asked
him to stop the vehicle. The victim boarded the vehicle. He
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enquired from the victim where she was going, and she
disclosed that there was some function in the house of the sister
.
of the accused, and she was going to the function with the
accused. He dropped them at Talwara and left for Mukerian.
19. It was submitted that the testimonies of these
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witnesses show that the victim had voluntarily accompanied the
accused and learned Trial Court had erred in convicting the
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accused of kidnapping. The submission will not help the
accused, because the victim was proven to be born on 20.01.1991.
Thus, she was aged less than 18 years on 24.12.2007 and
incapable of giving any consent.
20. Section 361 of the IPC defines kidnapping from lawful
guardianship as under:
361. Kidnapping from lawful guardianship
Whoever takes or entices any minor under sixteen yearsof age if a male, or under eighteen years of age if a female,
or any person of unsound mind, out of the keeping of the
lawful guardian of such minor or person of unsound
mind, without the consent of such guardian, is said to
kidnap such minor or person from lawful guardianship.
21. It is apparent from the bare perusal of the section
that the offence of kidnapping is committed against the
guardian, and the consent of the minor is immaterial. It was laid
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down by the Hon’ble Supreme Court in Parkash v. State of
Haryana, (2004) 1 SCC 339: 2004 SCC (Cri) 290: 2003 SCC OnLine
.
SC 1339 that the offence of kidnapping is for the protection of the
minor, and the only consent of the guardian can take it out of
the purview of section 361. It was observed at page 342:
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“7. …The object of this section seems as much to protect
the minor children from being seduced for improper
purposes as to protect the rights and privileges of
guardians having the lawful charge or custody of their
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minor wards. The gravamen of this offence lies in the
taking or enticing of a minor under the age specified inthis section, out of the keeping of the lawful guardian
without the consent of such guardian. The words “takes
or entices any minor … out of the keeping of the lawful
guardian of such minor” in Section 361 are significant.
The use of the word “keeping” in the context connotes
the idea of charge, protection, maintenance and control;
further, the guardian’s charge and control appear to be
compatible with the independence of action and
movement of the minor, the guardian’s protection and
control of the minor being available whenever necessity
arises. On plain reading of this section, the consent of the
minor who is taken or enticed is wholly immaterial; it is
only the guardian’s consent that takes the case out of its
purview. Nor is it necessary that the taking or enticing
must be shown to have been by means of force or fraud.
Persuasion by the accused person, which creates
willingness on the part of the minor to be taken out of the
keeping of the lawful guardian, would be sufficient to
attract the section.
8. In State of Haryana v. Raja Ram [(1973) 1 SCC 544: 1973
SCC (Cri) 428], English decisions were noticed by this
Court for the purpose of illustrating the scope of the
protection of minor children and of the sacred right of the
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parents and guardians to the possession of their minor
children under English law. The decisions noticed were R.
v. Job Timmins [169 ER 1260: Bell 276], R. v. Handley [175 ER
.
890: 1 F & F 648] and R. v. Robb [176 ER 466: 4 F & F 59]. In
the first case, Job Timmins was convicted of an
indictment framed upon 9 Geo. IV, ch. 31, Section 20 for
taking an unmarried girl under sixteen out of the
possession of her father, and against his will. It was
observed by Erle, C.J., that the statute was passed for the
protection of parents and for preventing unmarried girls
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from being taken out of the possession of their parents
against their will. Limiting the judgment to the facts of
that case, it was said that no deception or forwardness on
the part of the girl in such cases could prevent the person
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taking her away from being guilty of the offence in
question. The second decision is authority for the view
that in order to constitute an offence under 9 Geo. IV, ch.
31, Section 20, it is sufficient if, by moral force, a
willingness on the part of the girl to go away with the
prisoner is created; but if her going away with the
prisoner is entirely voluntary, no offence is committed.
The last case was of a conviction under the statute (24 &
25Vict., ch. 100, Section 55). The inducement by previous
promise or persuasion was held sufficient to bring the
case within the mischief of the statute. In the English
statutes, the expression used was “take out of the
possession” and not “out of the keeping” as used in
Section 361 IPC. But that expression was construed in the
English decisions not to require actual manual
possession. It was enough if, at the time of taking the girl
continued under the care, charge and control of the
parent — see R. v. Mankletow [(1853) 6 Cox Criminal Cases
143: 169 ER 678]. These decisions were held to confirm the
view that Section 361 is also designed to protect the
sacred right of the guardians with respect to their minor
wards.
9. The position was again reiterated in Thakorlal D.
Vadgama v. State of Gujarat [(1973) 2 SCC 413: 1973 SCC (Cri)
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835: AIR 1973 SC 2313] wherein it was, inter alia, observed
as follows : (SCC p. 421, para 10)
“The expression used in Section 361 IPC is ‘whoever takes
.
or entices any minor’. The word ‘takes’ does not
necessarily connote taking by force, and it is not confined
only to the use of force, actual or constructive. This word
merely means ‘to cause to go’, ‘to escort’ or ‘to get into
possession’. No doubt it does mean physical taking, but
not necessarily by use of force or fraud. The word ‘entice’
seems to involve the idea of inducement or allurement by
of
giving rise to hope or desire in the other. This can take
many forms, difficult to visualise and describe
exhaustively; some of them may be quite subtle,
depending on their success on the mental state of the
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person at the time when the inducement is intended to
operate. This may work immediately, or it may create a
continuous and gradual but imperceptible impression
culminating after some time, in achieving its ultimate
purpose of successful inducement. The two words ‘takes’
and ‘entices’, as used in Section 361 IPC, are, in our
opinion, intended to be read together so that each takes to
some extent its colour and content from the other. The
statutory language suggests that if the minor leaves her
parental home completely uninfluenced by any promise,
offer or inducement emanating from the guilty party,
then the latter cannot be considered to have committed
the offence as defined in Section 361 IPC.”
22. This position was reiterated in Anversinh v. State of
Gujarat, (2021) 3 SCC 12: (2021) 2 SCC (Cri) 18: 2021 SCC OnLine SC
19, and it was held at page 20:
16. A bare perusal of the relevant legal provisions, as
extracted above, shows that the consent of the minor is
immaterial for purposes of Section 361 IPC. Indeed, as
borne out through various other provisions in the IPC and
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Lal Dabgar v. State of Gujarat, (2015) 7 SCC 359, para 15 :
(2015) 3 SCC (Cri) 108] Section 361 IPC, particularly, goes
.
beyond this simple presumption. It bestows the ability to
make crucial decisions regarding a minor’s physical
safety upon his/her guardians. Therefore, a minor girl’s
infatuation with her alleged kidnapper cannot, by itself,
be allowed as a defence, for the same would amount to
surreptitiously undermining the protective essence of the
offence of kidnapping.
of
23. Therefore, the consent of the minor would be
immaterial, and no advantage can be derived from the fact that
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the victim had not raised any protests when she was with the
accused.
24. The victim (PW6) stated that she was born on
20.01.1991. She knew the accused Rakesh Kumar, and his house
was located at a distance of 10-20 metres from her house. Her
father had gone for work, and her mother had left the house for
the forest to collect fuel wood on 24.12.2007. She was at home
with her brother and sister. Her mother returned after collecting
firewood and left for the house of her aunt. Satya Devi came to
the house and asked her to visit the temple. She (the victim)
initially refused because her mother was not present at home.
Accused, Satya insisted that they would be returning very
shortly. She accompanied Satya. Satya took her to the Rehan bus
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stand. She (Satya) said that she wanted to purchase medicine
from the bus stand, and they would be returning after some
.
time. However, Satya did not bring any medicine from the bus
stand. Rakesh Kumar (accused), Shashi and a driver of a van
came within 10 minutes. She was asked to board the vehicle by
Satya. Satya also told her that she would also be boarding the
of
vehicle, but she did not do so, and the victim was forcibly made
to sit in the vehicle by Satya, Shashi and Rakesh. The vehicle was
rt
taken towards the Talwara side. She asked the accused to take
her to her home. But the accused did not listen to her. She was
taken to the house of Settu. Accused Rakesh Kumar forced her
into marriage. She was beaten and kept in a room, and thereafter
taken to a temple by Settu, Rakesh and a woman. She was
married to Rakesh Kumar despite her unwillingness. She was
taken to the Court and forced to sign some papers. She, Settu
and Khanna stayed in the Gurudwara during the night. They
were returning from Una, and Jaram Singh (DW1) met them.
They were brought to the village, where they spent the night in
the house of Jaram Singh. She and Rakesh were produced by
Jaram Singh at the Police Station, Nurpur, where she narrated
the incident to the police.
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25. She stated in her cross-examination that she was not
a frequent visitor to the house of Rakesh Kumar and used to visit
.
his home in connection with some work. She had visited the
bazar with Satya Devi 2-3 times. Her mother left at about 10-
11:00 am to collect the fuel wood and returned at about 4:00-
4:30 PM. Her aunt’s house is located at a distance of about 10
of
minutes walk from her house. Her father had left for work at
about 8 AM. She and Satya went through the field to Rehan. The
rt
distance between the village Dhak and Rehan is about 6-7
kilometres. She did not have a watch and could not tell the
precise time when she was asked to board a vehicle. They walked
on foot for about 20 minutes and stayed at Rehan bus stand for
about 10-15 minutes. She had enquired from Satya as to why she
was not purchasing the medicine. But Satya asked her to keep
her mouth shut. The bus stand, Rehan, was a busy place, and
many people were present in the bus stand at that time. She
remained silent after she was told to keep her mouth shut. She
was not aware of the fact that the Police Post was also located at
Rehan. She did not raise any hue and cry because it would have
brought her a bad name. The driver of the van had not asked her
anything. She was threatened by the accused in the vehicle, and
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2026:HHC:26637
she became unconscious due to fear. She had not cried in the
vehicle because she was alone. Accused Rakesh, Shashi and Settu
.
told her that she was married to the accused Rakesh. She cried
loudly in the house of Settu, but nobody saved her. She was kept
in the house for about 2-3 days, and she kept weeping during
this time. She was not allowed to move out of the house and
of
could not say whether any houses were located in the vicinity.
She was forced to solemnise the marriage, and the photographs
rt
were taken. She had raised a hue and cry in the Gurudwara.
Many people came and enquired from her, but the accused took
her to a side and did not allow her to say anything. She had not
said anything in the Court because she was not permitted to do
so. Only her signatures were obtained in the Court. She reached
the house of the Pradhan during the night and was produced in
the Police Station the next day. She was confronted with various
portions of her statement, and she denied having made such
statements to the police. She admitted that she was married to
some other person. She denied that she had voluntarily gone to
Rehan and married Rakesh.
26. The cross-examination of the victim shows that the
accused has not disputed the fact that she had married the
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accused. In fact, the marriage photographs were produced by the
accused in her cross-examination. The accused Rakesh also
.
stated in his statement recorded under Section 313 of the Cr.P.C.
that the photographs of the marriage were taken. He also
admitted that he had pointed out the place from where he had
taken the victim in the van. He claimed that he had produced the
of
victim in the Police Station. All these admissions corroborate the
victim’s version that the accused Rakesh had taken her and
rt
solemnised a marriage with her. It was held by the Orissa High
Court in Bagula Naik v. State of Orissa, 1999 SCC OnLine Ori 118:
(1999) 87 CLT 808: 1999 Cri LJ 2077, that even if the victim had
left the home voluntarily, but the accused had taken her to his
house or some other place, the offence punishable under Section
363 of IPC would be attracted. It was observed at page 810:
“6. Second contention of the petitioner, as noted above, is
twofold. Learned counsel for the petitioner, while arguing
on this point, has contended that PW3, having left her
house of her own, the petitioner cannot be accused of
kidnapping for merely accompanying her to certain
places, and therefore, his conduct cannot be termed as
kidnapping or abduction. In that context, he relied upon
the decisions reported in A.I.R. 1965 S.C. 942: S. Vardarajan
v. State of Madras; 1979 Crl. L.J. 1094: Pramod Kumar v.
State and 1983 Crl. L.J. 1819: Lawrence Kanandas v. The State
of Maharashtra.
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7. In the case of S. Vardarajan (supra), a college-going girl
on the verge of majority from her side telephoned the
accused and thereafter both of them went to the Sub-
.
Registrar’s office for registering the marriage agreement.
The Apex Court judged the totality of the facts and
circumstances and held it not to be a case of kidnapping.
No such evidence is available in the record so far, in thepresent case, that it is at the instance of the p.w. 3 that the
petitioner took her to his house or Athgarh. Hence, the
aforesaid ratio is not applicable to the present case.
of
8. In the case of Pramod Kumar (supra), a grown-up boy
aged about 16 years, committing theft of gold ornaments
from his house, moved away from his town along with the
accused. Prosecution alleged that the said accused was
rt
instrumental in the kidnapping of that boy. From the
facts and evidence available in the record, it was foundthat the boy, of his own accord, not only left the house but
also accompanied the accused and voluntarily stayed with
him for a considerable period. Under such circumstances,
the Allahabad High Court held it was not a case ofkidnapping. Needless to say, the facts of that case are
quite distinguishable from the present case.
9. In the case of Lawrence Kanandas (supra), a school-
going girl aged about 13 to 14, after attending theexamination on the date of kidnapping, went away with
the accused-petitioner, and he was convicted for the
offence u/s. 363, I.P.C. Learned Single Judge of BombayHigh Court, taking into consideration the evidence
suggesting to the fact that it was the girl who had induced
the accused to come to her School and to take her to
different places and also the other facts and
circumstances existing in that regard, found the
appellant not guilty. Facts and circumstances of the
present case are not similar since there is no evidence
worth the name to make an inference that p.w. 3 ever
requested the petitioner to take her away, either to his
house or to Athgarh. Even the accused has not taken such
a stand while cross-examining witnesses or giving his::: Downloaded on – 06/07/2026 20:35:51 :::CIS
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2026:HHC:26637statement u/s 313, Cr. P.C.. Hence, the aforesaid decision
of the Bombay High Court is of no help to the petitioner.
27. It was laid down by Hon’ble Supreme Court in State of
.
Haryana v. Raja Ram, (1973) 1 SCC 544: 1973 SCC (Cri) 428: 1972
SCC OnLine SC 497, that accused cannot escape conviction
because he had not gone to the house of the victim to bring her,
of
if the victim was persuaded by the act of the accused in leaving
the home, he would be guilty. It was observed at page 549: –
rt
“9. In the present case the evidence of the prosecutrix as
corroborated by the evidence of Narain Das, PW 1 (herfather), Abinash Chander PW 3 (her brother) and Smt
Tarawanti PW 4 (her mother) convincingly establishes
beyond reasonable doubt: (1) that Jai Narain had tried to
become intimate with the prosecutrix and to seduce herto go and live with him and on objection having been
raised by her father who asked Jai Narain not to visit his
house, Jai Narain started sending message to theprosecutrix through Raja Ram, respondent; (2) that Raja
Ram, respondent, had been asking the prosecutrix to beready to accompany Jai Narain; (3) that at about 12 noon
on April 4, Raja Ram went to see the prosecutrix at her
house and asked her to visit his house when he wouldconvey Jai Narain’s message to her; (4) that on the same
day after some time Sona was sent by her father to the
house of the prosecutrix to fetch her to his house where
the prosecutrix was informed that Jai Narain would come
that night and would take the prosecutrix away and (5)
that Raja Ram accordingly asked the prosecutrix to visit
his house at about midnight so that she may be entrusted
to Jai Narain. This evidence was believed by the learned
Additional Sessions Judge who convicted the respondent,
as already noticed. The learned Single Judge also did not
disbelieve her statement. Indeed, in the High Court, the::: Downloaded on – 06/07/2026 20:35:51 :::CIS
26
2026:HHC:26637learned Counsel for Raja Ram had proceeded on the
assumption that the evidence of the prosecutrix is
acceptable, the argument being that even accepting her.
statement to be correct, no offence was made out against
Raja Ram. Once the evidence of the prosecutrix is
accepted, in our opinion, Raja Ram cannot escape
conviction for the offence of kidnapping her from her
father’s lawful guardianship. It was not at all necessary
for Raja Ram to have gone to the house of the prosecutrix
to bring her from there on the midnight in question. It
of
was sufficient if he had earlier been soliciting or
persuading her to leave her father’s house to go with him
to Jai Narain. It is fully established on the record that he
had been conveying messages from Jai Narain to the
rt
prosecutrix and had himself been persuading her to
accompany him to Jai Narain’s place, where he would
hand her over to him. Indisputably, the last message was
conveyed by him to the prosecutrix when she was brought
by his daughter Sona from her own house to his, and it
was pursuant to this message that the prosecutrix
decided to leave her father’s house at midnight in
question for going to Raja Ram’s house for the purpose of
being taken to Jai Narain’s place. On these facts, it is
difficult to hold that Raja Ram was not guilty of taking or
enticing the prosecutrix out of the keeping of her father’s
lawful guardianship. Raja Ram’s action was the proximate
cause of the prosecutrix going out of the keeping of her
father, and indeed, but for Raja Ram’s persuasive offer to
take her to Jai Narain, the prosecutrix would not have
gone out of the keeping of her father, who was her lawful
guardian, as she actually did. Raja Ram actively
participated in the formation of the intention of the
prosecutrix to leave her father’s house. The fact that the
prosecutrix was easily persuaded to go with Raja Ram
would not prevent him from being guilty of the offence of
kidnapping her. Her consent or willingness to accompany
Raja Ram would be immaterial, and it would be equally so
even if the proposal to go with Raja Ram had emanated
from her. There is no doubt a distinction between taking
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and allowing a minor to accompany a person. But the
present is not a case of the prosecutrix herself leaving her
father’s house without any inducement by Raja Ram, who
.
merely allowed her to accompany him.”
28. Similarly, it was held in Anversinh v. State of Gujarat,
(2021) 3 SCC 12: (2021) 2 SCC (Cri) 18: 2021 SCC OnLine SC 19 that
where the accused had the intent to marry the victim, her
of
enticement was duly proved. It was observed at page 20:-
“13. A perusal of Section 361 IPC shows that it is necessary
that there be an act of enticing or taking, in addition to
rt
establishing the child’s minority (being sixteen for boys
and eighteen for girls) and care/keep of a lawful guardian.
Such “enticement” need not be direct or immediate in
time and can also be through subtle actions like winning
over the affection of a minor girl. [Thakorlal D. Vadgama v.
State of Gujarat, (1973) 2 SCC 413, para 10: 1973 SCC (Cri)835] However, mere recovery of a missing minor from the
custody of a stranger would not ipso facto establish the
offence of kidnapping. Thus, where the prosecution failsto prove that the incident of removal was committed by or
at the instigation of the accused, it would be nearlyimpossible to bring the guilt home as happened in King
Emperor v. Gokaran [King Emperor v. Gokaran, 1920 SCCOnLine Oudh JC 32: AIR 1921 Oudh 226] and Emperor v.
Abdur Rahman [Emperor v. Abdur Rahman, 1916 SCC
OnLine All 63: AIR 1916 All 210].
29. It was submitted that the victim had made the false
statements before the Court, which adversely affected her
credibility. She claimed that the driver of the van had not talked
to her, whereas Ravinder Kumar, the driver of the van, had
specifically stated that he had made enquiries from the victim,
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and the victim replied that she was going to attend some
function at the house of the sister of the accused. Further, she
.
claimed that she had raised hue and cry in the van and the
accused had threatened her. Ravinder Kumar (PW10) had not
stated any such fact; rather, he stated in his cross-examination
that the accused and the victim were laughing in the rear seat of
of
his van. They appeared to be happy in the van. This submission
will not help the accused. Learned Trial Court had rightly
rt
pointed out that the principle of falsus in uno falsus in omnibus
does not apply to India. It was laid down by the Hon’ble Supreme
Court in State of Punjab versus Hari Singh, AIR 1974 SC 1168, that it
is very difficult to find a witness whose evidence is so flawless
that it has to be wholly, completely and unqualifiedly accepted.
The principle of falsus in uno, falsus in omnibus, does not apply in
India, and the Court has to separate the grain from the chaff. It
was observed:
“As human testimony resulting from widely different
powers of observation and description is necessarily
faulty and even truthful witnesses not infrequently
exaggerate or imagine or tell half-truths, the Courts must
try to extract and separate the hard core of truth from the
whole evidence. This is what is meant by the proverbial
saying that Courts must separate “the chaff from the
grain”. If, after considering the whole mass of evidence, a::: Downloaded on – 06/07/2026 20:35:51 :::CIS
29
2026:HHC:26637residue of acceptable truth is established by the
prosecution beyond any reasonable doubt, the Courts are
bound to give effect to the result flowing from it and not.
throw it overboard on purely hypothetical and conjectural
grounds. Insofar as the grounds given for rejecting the
evidence of Zora Singh appear to us to be patently
unreasonable and highly conjectural, we think that thecase before us calls for interference by this Court. That
evidence, as we have already pointed out, is corroborated
by medical evidence as well as by the statements of Surjitof
Singh and Bachan Singh. Hence, although, the statements
of Bachan Singh and Surjit Singh, taken by themselves,
may not have been enough to warrant the conviction of
the respondents, yet, when the evidence of Zora Singh,
rt
strongly corroborated by medical evidence is there, we
think that the statement of Surjit Singh and Bachan Singhcould be used to support the conclusion thus reached
without going to the extent of holding that Surjit Singh
and Bachan Singh must be wholly believed before their
evidence could serve any useful purpose at all as the HighCourt seems to have erroneously thought. Indeed, it is
very difficult to find a witness whose evidence is so
flawless that it has to be wholly, completely, andunqualifiedly accepted. We think that the High Court had,
without saying so, ignored the principle repeatedly laiddown by this Court in appraising evidence, that Courts do
not, in this country, act on the maxim: “falsus in uno
falsus in omnibus”. In considering the effect of eachallegation proved to be incorrect or the likelihood of its
being true or untrue, we have to view it in the light of a
whole setting or concatenation of facts in each particular
case.
30. This position was reiterated in State of Andhra
Pradesh Vs. Pullagunmi Kasireddy 2018(7) SCC 623, and it was held
that falsus in uno, falsus in omnibus had not been accepted in our
country. It was observed:
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“The principle of ‘Falsus in uno falsus in omnibus’ has
not been accepted in our country. See Bhagwan Jagannath
Markad v. State of Maharashtra, 2016 (10) SCC 537. Even if.
some accused are acquitted on the ground that the
evidence of a witness is unreliable, the other accused can
still be convicted by relying on the evidence of the same
witness. See Gangadhar Behera v. State of Orissa, 2002 (8)SCC 381. Minor contradictions and omissions in the
evidence of a witness are to be ignored if there is a ring of
truth in the testimony of a witness. See State of U.P. v. Danof
Singh, 1997 (3) SCC 747. The High Court was oblivious to
this settled position of law.”
31. Similar is the judgment in Menoka Malik v. State of
rt
W.B., (2019) 18 SCC 721: (2020) 3 SCC (Cri) 658: 2018 SCC OnLine SC
1196, wherein it was observed at page 729:
14. It is a well-settled position of law that the testimony
of a witness cannot be discarded in toto merely due to thepresence of embellishments or exaggerations. The
doctrine of falsus in uno, falsus in omnibus, which means
“false in one thing, false in everything”, has been held tobe inapplicable in the Indian scenario, where the
tendency to exaggerate is common. This Court hasendorsed the inapplicability of the doctrine in several
decisions, such as Nisar Ali v. State of U.P. [Nisar Ali v. Stateof U.P., AIR 1957 SC 366: 1957 Cri LJ 550], Ugar Ahir v. State
of Bihar [Ugar Ahir v. State of Bihar, AIR 1965 SC 277 : (1965)
1 Cri LJ 256], Sucha Singh v. State of Punjab [Sucha Singh v.
State of Punjab, (2003) 7 SCC 643: 2003 SCC (Cri) 1697],
Narain v. State of M.P. [Narain v. State of M.P., (2004) 2 SCC
455: 2004 SCC (Cri) 569] and Kameshwar Singh v. State of
Bihar [Kameshwar Singh v. State of Bihar, (2018) 6 SCC 433 :
(2018) 3 SCC (Cri) 113]. In Krishna Mochi v. State of Bihar
[Krishna Mochi v. State of Bihar, (2002) 6 SCC 81: 2002 SCC
(Cri) 1220], this Court highlighted the dangers of applying
the doctrine in the Indian scenario: (Krishna Mochi case::: Downloaded on – 06/07/2026 20:35:51 :::CIS
31
2026:HHC:26637[Krishna Mochi v. State of Bihar, (2002) 6 SCC 81: 2002 SCC
(Cri) 1220], SCC pp. 113-14, para 51)
51. … The maxim falsus in uno, falsus in omnibus has
.
no application in India, and the witnesses cannot be
branded as liars. The maxim falsus in uno, falsus in
omnibus (false in one thing, false in everything) has
not received general acceptance, nor has this maxim
come to occupy the status of a rule of law. It is merely a
rule of caution. All that it amounts to is that in such
cases testimony may be disregarded, and not that it
of
must be disregarded. The doctrine merely involves the
question of the weight of evidence which a court may
apply in a given set of circumstances, but it is not what
may be called “a mandatory rule of evidence”. (See
rt
Nisar Ali v. State of U.P. [Nisar Ali v. State of U.P., AIR
1957 SC 366: 1957 Cri LJ 550] )… The doctrine is a
dangerous one, especially in India, for if a whole body
of the testimony were to be rejected, because the
witness was evidently speaking an untruth in some
aspect, it is to be feared that administration of
criminal justice would come to a dead stop. Witnesses
just cannot help but give embroidery to a story,
however true in the main. Therefore, it has to be
appraised in each case as to what extent the evidence
is worthy of acceptance, and merely because in some
respects the court considers the same to be
insufficient for placing reliance on the testimony of a
witness, it does not necessarily follow as a matter of
law that it must be disregarded in all respects as well.
The evidence has to be sifted with care. The aforesaid
dictum is not a sound rule for the reason that one
hardly comes across a witness whose evidence does
not contain a grain of untruth or, at any rate,
exaggeration, embroidery, or embellishment. (See
Sohrab v. State of M.P. [Sohrab v. State of M.P., (1972) 3
SCC 751: 1972 SCC (Cri) 819] and Ugar Ahir v. State of
Bihar [Ugar Ahir v. State of Bihar, AIR 1965 SC 277: (1965)
1 Cri LJ 256].) An attempt has to be made to, as noted
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2026:HHC:26637
above, in terms of felicitous metaphor, separate the
grain from the chaff, truth from falsehood.”
15 [Ed.: Para 15 corrected vide Official Corrigendum No.
.
F.3/Ed.B.J./93/2018 dated 30-1-2019. It is not uncommon
for witnesses to make exaggerations during the course of
evidence. But merely because there are certain
exaggerations, improvements and embellishments, the
entire prosecution story should not be doubted. In Ranjit
Singh v. State of Punjab [Ranjit Singh v. State of Punjab,
(2013) 16 SCC 752: (2014) 6 SCC (Cri) 439], this Court
of
observed: (SCC p. 762, para 26)
“26. It is trite that even when exaggerations and
embellishments are galore, the courts can and indeed
rt
are expected to undertake a forensic exercise aimed at
discovering the truth. The very fact that a large
number of people were implicated in the incident in
question who now stand acquitted by the High Court
[Amrik Singh v. State of Punjab, 2009 SCC OnLine P&H
3268] need not have deterred the High Court from
appreciating the evidence on record and discarding
what was not credible while accepting and relying
upon what inspired confidence. That exercise was
legitimate, for otherwise the Court would be seen as
abdicating and surrendering to distortions and/or
embellishments, whether made out of bitterness or
any other reason, including shoddy investigation by
the agencies concerned. The ultimate quest for the
court at all times remains “discovery of the truth”,
and unless the court is so disappointed with the
difficulty besetting that exercise in a given case as to
make it impossible for it to pursue that object, it must
endeavour in that direction.”
16. This Court in State of Punjab v. Hari Singh [State of
Punjab v. Hari Singh, (1974) 4 SCC 552: 1974 SCC (Cri) 588],
observed as follows: (SCC p. 559, para 16)
“16. As human testimony, resulting from widely
different powers of observation and description, is
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2026:HHC:26637
necessarily faulty and even truthful witnesses not
infrequently exaggerate or imagine or tell half-truths,
the courts must try to extract and separate the hard
.
core of truth from the whole evidence. This is what is
meant by the proverbial saying that courts must
separate “the chaff from the grain”. If, after
considering the whole mass of evidence, a residue of
acceptable truth is established by the prosecution
beyond any reasonable doubt, the courts are bound to
give effect to the result flowing from it and not throw
of
it overboard on purely hypothetical and conjectural
grounds.”
17. Thus, it cannot be doubted that it is the duty of the
court to separate the chaff from the grain. Moreover,
rt
minor variations in the evidence will not affect the root of
the matter, inasmuch as such minor variations need not
be given major importance, inasmuch as they would not
materially alter the evidence/credibility of the
eyewitnesses as a whole.
32. Therefore, the testimony of the victim cannot be
discarded simply because she had made some false statements
during the course of her deposition.
33. The victim’s brother (PW4) Ravi Kumar stated that
the victim is his elder sister. He, the victim and other children
were present in the house. Their parents were away from the
house. Satya Devi came to their house at about 12:00-12:30 noon
and asked the victim to accompany her to a temple. The victim
went away with Satya Devi and did not return thereafter. His
mother returned in the evening, and he disclosed that the victim
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had gone with Satya Devi to the temple. He stated in his cross-
examination that his mother had gone to get rations from
.
Village Dhak. She returned at about 05:30 P.M. Satya Devi called
the victim from outside the house. He was playing cricket with
other children. The victim had not collected any articles from
the house. He denied that he had not seen the victim
of
accompanying Satya Devi, and he was making a false statement.
34.
rt
The testimony of this witness corroborates the
testimony of the victim that Satya Devi had taken her from her
home.
35. It was submitted that this witness stated that his
mother had gone to village Dhak to get ration, whereas the
victim stated that her mother had gone to the Village to collect
fuel wood and thereafter to the house of the victim’s aunt. These
testimonies show that the witnesses were making a false
statement. This submission will not help the accused. The
absence of the victim’s mother from the house was a matter of
detail not related to the core of the prosecution case, and if there
is some discrepancy in the testimonies of the witnesses
regarding the reasons for the absence of the victim’s mother, it
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2026:HHC:26637
would not adversely affect the prosecution case. Thus, the
testimony of this witness cannot be discarded simply because of
.
some discrepancy regarding the reasons for the absence of her
mother.
36. Jaram Singh (DW1) stated that he visited the Police
of
Station along with the cousin brother of the accused on
31.12.2007. The police said that the relatives of the accused
rt
would be aware of the whereabouts of Rakesh and the victim. He
received a call from the sister of the accused at about 04.00 p.m.
that accused Rakesh and the victim had visited her house. She
had advised them to return to their village. The police told him
and the relatives of the accused to bring the accused and the
victim from Una. The victim and the accused met near the petrol
pump bus stand in Una. The victim said that she had married the
accused and did not want to go back to her parents’ house. The
victim agreed to accompany him to Nurpur. He called the
Investigating Officer and told him that he was bringing Rakesh
and the victim with him. He produced the accused and the victim
before the police at Police Station Nurpur. The victim disclosed
that she was a major and was happily married to the accused.
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2026:HHC:26637
37. The statement of this witness does not support the
defence version; rather, it supports the version of the
.
prosecution that the accused, Rakesh, had taken the victim with
him and solemnised marriage with her, as this witness had
specifically stated that the victim disclosed to him that she had
married the accused. Since the victim was a minor, her consent
of
was immaterial, and his testimony that the victim wanted to
reside with the accused and did not want to go to the house of
rt
her parents would not demolish the prosecution’s version.
38. The victim’s father (PW1) stated that he had left for a
walk in the morning. His wife and children were present in the
house. He reached home during the evening and found that the
victim was missing. He made enquiries, but he could not trace
the victim. He reported the matter to the police. He stated in his
cross-examination that 2-3 offers for the marriage of the victim
were received. He denied that he was aware of the love affair
between the victim and the accused and had beaten the victim
because of this.
39. It was submitted that the admission made by this
witness in the cross-examination that 2-3 offers were received
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2026:HHC:26637
for the victim’s marriage would probabilise the version that the
victim was major and that is why the offers for the marriage
.
were being received. This submission cannot be accepted. The
victim was on the verge of the majority, and the marriage would
not have been solemnised immediately. Therefore, the mere
receipt of the offers for marriage does not mean that the victim
of
was a major.
40.
rt
A suggestion was made to him in the cross-
examination that he knew about the love affair between the
accused and the victim, clearly showing that the accused is
taking a defence that he was in love with the victim. This
defence will not assist the accused; rather, it will go against his
interest because it will show that the victim was persuaded by
the acts of the accused to leave the house.
41. The victim’s father did not say that the victim had
left the home with his consent, which was the material question
in a case of kidnapping.
42. The victim’s mother (PW5) stated that her husband
had gone from the house for his work, and she had gone to the
forest to collect fuel. She left her children at home. She returned
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2026:HHC:26637
at about 2:00-2:30 PM and saw that the victim and other
children were present at home. She went to the depot to
.
purchase the sugar. When she returned at about 05.30 p.m., she
found the victim missing. Her son disclosed that the accused
Satya had taken the victim with her. She disclosed this fact to
her husband on his return. She stated in her cross-examination
of
that she had gone to collect fuel wood at about 08.30 a.m. and
her husband had left the home at about 08.00 a.m. She denied
rt
that the victim was present at home when she returned after
purchasing the sugar. She searched for the victim in the
neighbourhood. She denied that the house of Satya was open
and stated that her house was bolted. She admitted that she was
not interested in getting the victim married to the accused. The
victim had never left the home before that day without seeking
permission. She denied that she had falsely implicated the
accused.
43. It was submitted that the testimony of this witness
contradicts the testimonies of the victim and her brother
because she stated that she had gone to purchase sugar from the
ration depot, whereas the victim stated that she had gone to the
house of the victim’s aunt. This contradiction will not be
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significant because it is a minor detail not related to the
incident, and a person is bound to forget such a minor detail
.
with the lapse of time.
44. It was submitted that there is a discrepancy between
her testimony and the testimony of her son regarding the time
of
of her return, since her son stated that Satya Devi had visited the
house at about 12-12:30 p.m., whereas she stated that the victim
rt
was present at home at about 2:00-2:30 PM. This submission
will not help the accused. The victim stated that she did not have
the watch. Her mother stated that she was an illiterate person.
Therefore, the statement made by the victim’s mother was
based on guesswork. The victim’s brother was a minor and could
not have been expected to keep a watch to note the time. Thus,
the testimonies of these witnesses cannot be discarded because
of the discrepancy in the time.
45. Therefore, the testimonies of the victim’s parents
corroborated the victim’s version that she was a minor and was
taken out of the guardianship of her parents without the consent
of her parents. The statement of the victim and her brother
showed that Satya Devi had visited the victim’s house and had
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taken the victim with her. The victim and Satya Devi were seen
together by Veer Singh (PW9). It was laid down by the Allahabad
.
High Court in Dalchand v. State, AIR 1969 All 216, that if the child
is taken out of the keeping of her parents, the offence is
complete, and it is immaterial whether she was taken for some
distance or permanently away. It was observed:
of
21. The taking need not be by force, and it is immaterial
whether the minor girl consents or not. All that is
rt
necessary is that there must be taking of a child out of the
keeping of the parents. Nor need enticement be confinedto any single form of allurement. Offer of sweetmeats is
one such form. Even the enticing away of a child playing
on a public road is sufficient. The act of taking is not, in
the proper sense of the term, a continuous act. But wherethe minor has been actually taken out of the keeping of
her guardian, the act is a completed one. There is
consequently not the slightest doubt that the minor girlwas kidnapped.
46. Punjab High Court also took a similar view in Chhajju
Ram v. State of Punjab, AIR 1968 P&H 439 and observed:
6. The next argument advanced by the appellants’
counsel was that the prosecutrix in this case was removed
only a few yards from the house of her father and,
therefore, it would not amount to taking her out of the
lawful keeping of her guardian. In determining whether a
person takes a minor out of the lawful keeping of its
guardian, the distance is immaterial. In my opinion, even
if a person takes a minor girl without the consent of her
guardian to a distance of twenty or thirty yards, as in this
case, it would amount to taking her out of the keeping of::: Downloaded on – 06/07/2026 20:35:51 :::CIS
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2026:HHC:26637her lawful guardian as required by section 361 of the
Penal Code, 1860. I am, therefore, of the view that the
case against the appellants is proved. The sentence under.
the circumstances is adequate. I accordingly dismiss this
appeal and the revision filed by the complainant.
47. Therefore, taking of the minor victim in the present
case was complete when she was taken from her home on the
pretext of visiting the temple, and she was not returned to the
of
custody of her parents.
48. The statement of Ravinder Kumar (PW10) shows that
rt
the victim was waiting at Rehan. The victim stated that she was
with Satya Devi and was made to board the vehicle. This shows
that the accused Rakesh and Satya were acting in concert to take
away the victim from the lawful guardianship of her parents.
The victim was subsequently taken to the house of Seetu, where
she was kept for about 2-3 days. The victim stated that she was
not permitted to leave the home. Thus, as per her testimony, the
victim was confined in the home of Settu, which would
constitute an offence punishable under Section 368 of the IPC.
49. In the present case, the victim was kidnapped from
the lawful guardianship of her parents with the intent to force
her to marry the accused Rakesh. Thus, an offence punishable
under Section 366 of the IPC was committed. The offence
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punishable under Section 366 of the IPC is an aggravated form
of an offence punishable under Section 363 of the IPC. A person
.
cannot be sentenced for the commission of a minor offence
when he has been sentenced for the commission of a major
offence as per Section 71 of the IPC. Therefore, the learned Trial
Court erred in sentencing the accused for the commission of an
of
offence punishable under Section 363 of the IPC.
50.
rt
The evidence shows that all the accused were acting
together. Satya Devi had taken the victim from her home.
Rakesh had taken her in a van to the house of Settu, where she
was confined to the house and was forced to marry Rakesh. The
conspiracy is not proved by direct evidence but can be inferred
from the circumstances. In the present case, the fact that all the
accused were acting together shows that they had entered into a
conspiracy to take the minor out of the lawful guardianship of
her parents to marry her to Rakesh and for this purpose, they
had kept her in the house of the accused Settu. Thus, there is no
infirmity in the conviction recorded by the learned Trial Court
for the commission of offences punishable under Sections 366,
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51. The learned Trial Court sentenced the accused to
undergo simple imprisonment for 3 years each for the
.
commission of offences punishable under Sections 366 and 368
of the IPC. The offence punishable under Section 366 of the IPC
is punishable with an imprisonment of 10 years, and the offence
punishable under Section 368 punishes a person in the same
of
manner as if he had kidnapped or abducted such person with the
same intention or knowledge and for the same purpose for
rt
which he had concealed him. Thus, the offence would be
punishable with imprisonment of 10 years. The fact that a minor
girl was taken out of the lawful guardianship of her parents
shows the gravity of the offence, and the learned Trial Court had
taken a lenient view while imposing a sentence of 3 years, which
does not require any interference from this Court.
52. No other point was urged.
53. In view of the above, the present appeals are partly
allowed, and the sentence imposed by the learned Trial Court for
the commission of an offence punishable under Section 363 of
the IPC is set aside.
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54. Subject to this modification, the rest of the judgment
and order passed by the learned Trial Court are upheld.
.
55. The present appeals stands disposed of, and so are
the pending miscellaneous application(s), if any.
56. The record of the learned Courts below be returned
of
with a copy of the judgment.
rt (Rakesh Kainthla)
Judge
6th July, 2026
(Nikita)
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