High Court of Gujarat Considers Appeals Against Conviction Under Sections 363, 366 IPC and SC/ST Act; Victim's Age and True Consent Examined. The appeals question the trial court's reliance on birth documents and absence of ossification test to prove minority, and whether voluntary association negates kidnapping.

Criminal appeals against conviction under Sections 363 and 366 IPC and Section 3(1)(xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocity) Act, 1949.

The appellants (original accused) sought acquittal by setting aside the judgment and order of conviction and sentence passed by the Fast Track Court, Gandhinagar.

The appellants were convicted and sentenced by the trial court; they challenged the conviction on grounds of misappreciation of evidence and error in law.

The Fast Track Court No.1, Gandhinagar, by judgment and order dated 23.02.2006 in Special Atrocity Case No.18 of 2005, convicted both accused and sentenced them to rigorous imprisonment and fines under the charged sections.

Whether the victim was a minor on the date of the incident, and if not, whether the charge of kidnapping under Section 363 IPC is sustainable. Whether the victim left her parental home voluntarily and without inducement, thereby negating the allegations of kidnapping and abduction. Whether the ingredients of Section 3(1)(xi) of the Atrocity Act were satisfied, particularly regarding the knowledge of the accused about the victim's caste and any intent to outrage modesty. Whether the trial court erred in appreciating the documentary evidence regarding age and the absence of ossification test. Whether the evidence of voluntary association and opportunities to escape disentitles the prosecution from securing a conviction.

The appellants argued that the victim was an adult as per documentary evidence (Birth Certificate, School Certificate) and had left home on her own volition; no inducement or false promise was proved. They contended that the victim had multiple opportunities to complain or escape during the 15-day period but did not, and that she voluntarily stayed with the accused. They also submitted that no sexual exploitation occurred, the Atrocity Act was misapplied as no evidence of caste knowledge or intent to outrage modesty existed, and the police failed to investigate properly. They cited several precedents in support. The State (respondent), through the Additional Public Prosecutor, submitted that both the accused had persuaded the victim girl.

The appeals emanate from a common judgment and order, thus both the appeals were heard together. The facts of the case which surfaces on record is that on 23.03.2004 between 12.00–15.00 hours from near Gandhinagar ‘Ch’ Circle Bus Stand, both the accused kidnapped the daughter of the complainant by alluring her with a false promise of marriage with accused No.2 and thereby took her away from the legal guardianship of her father. Learned advocate for the appellant-accused Mr. Vijay Patel in Criminal Appeal No.446 of 2006 submitted that the decision passed by the learned Fast Track Court is contrary to the facts of the case and the evidence on record.

The Fast Track Court No.1, Gandhinagar, tried the accused in Special Atrocity Case No.18 of 2005 and convicted them on 23.02.2006 under Sections 363 and 366 IPC and Section 3(1)(xi) of the Atrocity Act, sentencing them to rigorous imprisonment and fines. The accused filed Criminal Appeal No.446 of 2006 and Criminal Appeal No.500 of 2006 before the High Court of Gujarat, which were heard together.

• Indian Penal Code: 363, 366
• Scheduled Castes and Scheduled Tribes (Prevention of Atrocity) Act, 1949: 3(1)(xi)