Case Note & Summary
The appellant, Bharat Bageshwar, was convicted by the Sessions Court for kidnapping a minor girl under Section 363 IPC and sentenced to one year rigorous imprisonment. The incident occurred on 9 November 1991 when the prosecutrix, then residing with her parents, voluntarily left her home with the appellant after a pre-arranged plan. They travelled to various places, had sexual relations, and lived together as labourers. The father lodged a complaint, and the appellant was charged. The trial court convicted him, relying on the prosecutrix's age estimated by ossification test as between 16-18 years, assuming she was below 18. The High Court, on appeal, examined the evidence and found that the prosecutrix was a willing companion and that the medical evidence gave her age as 16-18 years, with a margin of error. The court held that the benefit of doubt must go to the appellant, and since the prosecutrix was above 16 and consented, no offence of kidnapping was made out. The appeal was allowed, conviction set aside, and the appellant was acquitted.
Headnote
A) Criminal Law - Kidnapping - Section 363 Indian Penal Code, 1860 - Age of Prosecutrix - The court examined whether the prosecutrix was below 18 years and taken from lawful guardianship. Medical evidence (ossification test) estimated age between 16-18 years, and the trial court assumed 16 years. The High Court held that the benefit of doubt must go to the accused, and since the prosecutrix was a willing companion, no offence of kidnapping is made out (Paras 5-7). B) Evidence - Age Determination - Ossification Test - The ossification test gives only an approximate age with a margin of error of 2-3 years. The court held that when the lower end of the estimated age is 16 years, the accused is entitled to benefit of doubt that the prosecutrix may be above 16 years, and thus consent is relevant (Para 6). C) Criminal Law - Consent - Willing Companion - Section 361 Indian Penal Code, 1860 - The prosecutrix voluntarily accompanied the appellant, and there was no force or inducement. The court held that taking a willing companion above 16 years does not amount to kidnapping from lawful guardianship (Paras 7-8).
Issue of Consideration
Whether the prosecutrix was below 18 years of age at the time of incident and whether she was taken away from lawful guardianship without consent, thereby constituting an offence under Section 363 IPC.
Final Decision
Appeal allowed. Conviction and sentence set aside. Appellant acquitted of offence under Section 363 IPC. Fine, if paid, to be refunded.
Law Points
- Consent of minor above 16 years is not a defence under Section 363 IPC
- but if prosecutrix is above 16 and willingly accompanies
- no offence of kidnapping from lawful guardianship is made out
- Age determination by ossification test is not conclusive
- Benefit of doubt in age estimation
