Failure to prove minority and lack of resistance by prosecutrix vitiates conviction under Sections 363 and 366 IPC.

The prosecution alleged that on March 30, 1999, the appellant (Brijraj Singh) and co-accused (Sarwan Singh) forcibly abducted the 17-year-old prosecutrix from her village.

It was alleged they took her to various locations, including Bhopal, where Sarwan Singh committed repeated sexual assault.

Following an investigation, the main accused (Sarwan) and others were tried; however, Sarwan and Hardaylal were acquitted in 2003 while the appellant was absconding.

Upon his later arrest, the appellant was tried separately and convicted by the Second Additional Sessions Judge, Korba, on September 25, 2009, under Sections 363 and 366 of the IPC.

The appellant challenged this conviction, asserting that the prosecutrix’s minority was not proven and that the main accused had already been acquitted on the same evidence.

1. Whether the prosecution successfully discharged its burden of proving that the prosecutrix was a minor (below 18 years) at the time of the incident to sustain a conviction under Sections 363 and 366 of the IPC

2. Whether the evidence established a case of forcible abduction versus a consensual relationship

Sections 363 (punishment for kidnapping) and 366 (kidnapping/abducting a woman to compel marriage/intercourse) of the Indian Penal Code

Section 35 of the Indian Evidence Act

The precedent established in Alamelu v. State (2011) and Birad Mal Singhvi v. Anand Purohit, which mandates that entries in school registers or transfer certificates have no evidentiary value unless the person who provided the information or made the entry is examined to vouchsafe its truth

The Court observed that the prosecution failed to conclusively prove the prosecutrix was a minor. While a transfer certificate (Article-A-1) listed her birth date as February 24, 1982, the mother (PW-1) could not remember the date of birth, and the school Principal was not examined to verify the record

Furthermore, the radiological report (Ex. P/8) estimated her age as approximately 18 years, and applying the standard medical margin of two years' variation, her minority was not established beyond a reasonable doubt

Regarding the conduct of the prosecutrix (PW-4), the Court noted she traveled extensively with the accused via public transport without raising an alarm, admitted to exchanging love letters (Exs. D/6 to D/11), and possessed intimate photographs (Exs. D/12 to D/20). This indicated a consensual relationship and voluntary movement, negating the essential elements of "taking" or "enticing" required for kidnapping or abduction

The High Court allowed the appeal and set aside the judgment of conviction and sentence. The appellant was directed to be released from his bail bonds subject to the procedural requirements of Section 481 of the BNSS, 2023