IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1306 OF 2003  

SANNAIA SUBBA RAO & ORS. ..Appellants

Versus

STATE OF A.P. ..Respondents  

JUDGMENT  

Dr. Mukundakam Sharma, J.

1. This  appeal  arises  out  of  the  judgment  and  order  dated  5.8.2003

passed  by the  learned  Single  Judge  of  the  High Court  of  Andhra

Pradesh  at  Hyderabad,  convicting  the  three  appellants  under  the

provisions of Section 366A and Section 372 read with Section 511

Indian Penal Code, 1860 (for short ‘IPC’) and requiring each of them

to  undergo  rigorous  imprisonment  for  a  period  of  10  years  and  5

years respectively on each count, which is to run concurrently. By the

said  order,  the  order  dated  16.12.1996  passed  by  the  learned

Additional Assistant Sessions Judge, Guntur in SC No. 25 of 1995,

acquitting the three accused was set aside.

2. Shri Subba Rao - appellant No. 1 and smt. Dhanalakshmi - appellant

No. 2 are respectively the father and mother of Sankar - appellant No.

3.    The  mother  of  the  prosecutrix  filed  a  missing  report  on

29.07.1992 at Pattabhipuram Police Station. In the said report it was

stated  by  her  that  her  youngest  daughter  Prabhavathi-prosecutrix

studying in Inter 1st Year in B.H. Girls Junior College went to the

college on 25.7.1992 at 12.30 p.m. and thereafter did not return to

her house and that the family made an enquiry amongst the relatives

and friends both in the Guntur town and in the remaining villages but

she  could  not  be  traced  anywhere.   It  was  further  stated  that  her

whereabouts are not known and that they have got doubt about her

missing on three persons namely Subba Rao, his wife and his son

Sankar, who are residents of old Pattabhipuram, Guntur.  It was also

stated that the missing girl was about 16 years of age and 5 feets 3

inches in height.  

3. The aforesaid missing report was registered as Cr. No. 88/92. After

receipt of the said report, the Police started investigation, but despite

the said investigation they could not trace out the girl. It transpires

from the prosecution case that the girl was traced out on 11.9.1992,

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when she came to a bus shelter, which is opposite to the Check Post

of Agricultural Market at Ravendrapadu.

4. Having found the girl weeping at the bus stand, PW-8 and PW-9 who

are  respectively  working  as  watchman  and  supervisor  at  the

Agricultural Market Committee, Ravendrapadu took her to the house

of PW-8.   The girl  was kept  in  the house of PW-8 for  two days

during the course of which both PW-8 and PW-9 tried to find out the

background and particulars of the girl and accordingly were able to

trace out her house where they met the mother and informed her the

whereabouts of her daughter.   The mother, along-with the aunt and

brother  of  the  prosecutrix  accompanied  PW-8  and  PW-9  to

Ravendrapadu and thereafter they took back the girl to their house.  

5. In terms of the aforesaid statement, the girl was taken back by the

mother on 14.9.1992.   She went to the police station on 19.9.1992

and  on  the  same  date  she  was  sent  to  the  Government  General

Hospital,  Guntur  for  treatment  as  she  was  found to  be weak both

physically and mentally. Thereafter on 25.9.1992 she again went to

the Police Station and presented a written report which was later on

proved and exhibited in the trial as         Ex. P-1.  On the same day

i.e. on 25.9.1992, Police examined the prosecutrix and recorded her

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statement and thereafter also got the statement of PW-8 and PW-9

recorded.   The Police thereafter examined many other witnesses and

visited  the house of  the  three appellants  who were accused in  the

report  submitted.     Finally,  a  charge  sheet  was  submitted  by the

Police against all the three accused persons who are appellants herein

under Section 363, 366A, 368 and Section 372 read with 511 of the

IPC.

6. During the course of the trial, 13 witnesses were examined, including

the prosecutrix, her mother and the investigating officer  who were

examined as PW 1, PW 2 and PW 12 respectively.  The case of the

accused was of clear denial. After completion of the trial, arguments

were  heard  by the Additional  Asst.  Sessions  Judge who thereafter

passed  an  order  of  acquittal  against  all  the  three  accused  persons

holding that the whole prosecution story is doubtful and that any case

against  the  accused  has  not  been  proved,  and  therefore,  they  are

entitled to benefit of doubt.

7. Being aggrieved by the aforesaid order of acquittal, an appeal was

filed  in  the High Court  by the State  against  all  the  three  accused

persons.    The  learned  Single  Judge  after  hearing  the  appeal  on

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5.8.2003  passed  a  judgment  and  order  setting  aside  the  order  of

acquittal passed by the learned Trial Court, holding that the evidence

on record does prove a case against the appellants/accused persons

both under Section 366 A and 372 read with Section 511 IPC. On the

question of sentence the learned Single Judge held that having regard

to  the  nature  of  the  offence  and  the  fact  that  a  minor  girl  being

dragged  forcibly  into  an  auto  rickshaw almost  in  the heart  of  the

Guntur town that too in a broad day light and the purpose for which

she  was  so  kidnapped,  warrant  imposition  of  maximum sentence

prescribed under the aforesaid provisions. Having held thus, all the

three accused persons were convicted under Section 366A IPC and

were sentenced to undergo rigorous imprisonment for a period of 10

years  and also to  pay a fine of Rs.  5,000/-  each and in  default  to

undergo simple imprisonment for a period of two months and also

under Section 372 read with Section 511 IPC and were sentenced to

undergo rigorous imprisonment for a period of five years each and

also  to  pay  a  fine  of  Rs.  2,500/-  each  and  in  default  to  undergo

rigorous imprisonment for a period of 30 days.

8. Being aggrieved by the aforesaid judgment and order of conviction

and sentence,  the  appellants  filed the present  appeal in this  Court.

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We heard the learned senior counsel appearing for the appellants and

learned counsel  appearing for  the  State  and have also perused the

records connected with the criminal trial and also the appeal.  While

admitting the appeal, the appellants were granted bail and therefore

all the three appellants as on today are on bail.    

9. Mr. M. Karpuga Vinayakam, the learned senior counsel appearing for

the appellants forcefully contended, inter alia, that the learned Single

Judge of the High Court of Andhra Pradesh has set aside the order of

acquittal without discussing and appreciating the grounds on which

the learned trial court passed the order of acquittal and also without

giving any reason for setting aside the order of acquittal.

10. After placing strong reliance on various case laws, it was submitted

before  us  that  the  High  Court  having  not  given  reasons  for  not

accepting the conclusions reached by the Trial Court while acquitting

the accused persons committed a grave error of law in setting aside

the  order  of  acquittal  and  converting  the  same  to  an  order  of

conviction.   It was further submitted that there was no compelling

reasons for converting the order of acquittal into order of conviction,

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especially in view of the two different  versions of the prosecution

case during the course of trial.  

11. The  learned  senior  counsel  has  also  taken  us  through  the  entire

evidence on record and on the basis thereof, he submitted that as the

prosecutrix herself has given two different versions of the case she

cannot  be  said  to  be  a  trustworthy  witness  and  therefore  no

conviction can be based on the basis of her statement and the High

Court should not have interfered with the order of acquittal.

12. There  could  be  no  dispute  with  regard  to  the  proposition  of  law,

which is clearly laid down by this Court in various decisions.  The

power of the High Court in an appeal from acquittal is no different

from its power in an appeal from conviction when it can review and

consider  the  entire  evidence  and  come to  its  own  conclusions  by

either accepting the evidence rejected by the trial court or rejecting

the evidence accepted by the trial court.  In this regard we may refer

to observations made by this Court in the case of  Hari Ram v. State

of Rajasthan, [(2000) 9 SCC 136] which are under:

4. ………………….It is too well settled that the power of the High Court, while hearing an appeal against an acquittal, is  as wide and comprehensive as in an appeal  against a

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conviction and it has full power to reappreciate the entire evidence, but if two views on the evidence are reasonably possible,  one  supporting  the  acquittal  and  the  other indicating conviction, then the High Court would not be justified in interfering with the acquittal, merely because it feels that it would, sitting as a trial court, have taken the other view. While reappreciating the evidence, the rule of prudence requires that the High Court should give proper weight and consideration to the views of the learned trial Judge.  But  if  the  judgment  of  the  Sessions  Judge  was absolutely  perverse,  legally  erroneous  and  based  on  a wrong appreciation of the evidence, then it would be just and proper for the High Court to reverse the judgment of acquittal,  recorded by the  Sessions  Judge,  as  otherwise, there would be gross miscarriage of justice……………… ……………..”

13. In the case of Bhagwan Singh v. State of M.P., [(2002) 4 SCC 85],

the trail  court  acquitted  the accused but  the  High Court  convicted

them. Negativing the contention of the appellants that the High Court

could not have disturbed the findings facts of the Trial Court even if

that view was not correct, this Court observed:    

 “7. We do not agree with the submissions of the learned counsel for the appellants that under Section 378 of the Code  of  Criminal  Procedure  the  High  Court  could  not disturb  the  finding  of  facts  of  the  trial  court  even  if  it found  that  the  view  taken  by  the  trial  court  was  not proper. On the basis of the pronouncements of this Court, the  settled  position  of  law regarding  the  powers  of  the High Court  in an appeal against  an order of acquittal  is that the court has full powers to review the evidence upon which an order of acquittal is based and generally it will not  interfere  with  the  order  of  acquittal  because  by passing  an  order  of  acquittal  the  presumption  of innocence  in  favour  of  the  accused  is  reinforced.  The golden  thread  which  runs  through  the  web  of

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administration  of  justice  in  criminal  case  is  that  if  two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his  innocence,  the  view  which  is  favourable  to  the accused  should  be  adopted.  Such  is  not  a  jurisdiction limitation  on  the  appellate  court  but  Judge-made guidelines  for  circumspection.  The  paramount consideration of the court is to ensure that miscarriage of justice  is  avoided.  A miscarriage  of  justice  which  may arise from the acquittal of the guilty is no less than from the conviction  of  an innocent.  In  a case where the trial court has taken a view ignoring the admissible evidence, a duty  is  cast  upon  the  High  Court  to  reappreciate  the evidence  in  acquittal  appeal  for  the  purposes  of ascertaining as to whether all or any of the accused has committed any offence or not.”

14. This Court  in  the  case of   Chandrappa v.  State  of  Karnataka [

(2007) 4 SCC 415],  after referring to the catena of decisions has laid

down  following  general  principles  with  regard  to   powers  of  the

appellate  court  while  dealing  with  an  appeal  against  an  order  of

acquittal:

“42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge: (1)  An  appellate  court  has  full  power  to  review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. (2)  The  Code  of  Criminal  Procedure,  1973  puts  no limitation,  restriction or  condition  on exercise of  such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. (3)  Various  expressions,  such  as,  “substantial  and compelling  reasons”,  “good  and  sufficient  grounds”, “very  strong  circumstances”,  “distorted  conclusions”, “glaring  mistakes”,  etc.  are  not  intended  to  curtail extensive  powers  of  an  appellate  court  in  an  appeal

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against  acquittal.  Such  phraseologies  are  more  in  the nature  of  “flourishes  of  language”  to  emphasise  the reluctance  of  an  appellate  court  to  interfere  with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. (4) An appellate court, however, must bear in mind that in  case  of  acquittal,  there  is  double  presumption  in favour  of  the  accused.  Firstly,  the  presumption  of innocence  is  available  to  him  under  the  fundamental principle  of  criminal  jurisprudence  that  every  person shall  be  presumed to  be innocent  unless  he  is  proved guilty  by  a  competent  court  of  law.  Secondly,  the accused having secured his acquittal, the presumption of his  innocence  is  further  reinforced,  reaffirmed  and strengthened by the trial court. (5)  If  two  reasonable  conclusions  are  possible  on  the basis  of  the  evidence  on  record,  the  appellate  court should not disturb the finding of acquittal  recorded by the trial court.”

15. In that view of the aforesaid general principles, we have appreciated

the entire evidence on record and also the judgment and order passed

by the  Trial  Court  and High  Court  to  ascertain  as  to  whether  the

order of acquittal passed by the learned Trial Court was justified and

as to  whether  the  High Court  has  set  aside  the order  of  acquittal

without  adhering  to  the  settled  proposition  of  law  as  discussed

hereinabove.  

16. The order of acquittal,  as  it  appears from the order,  was based on

appreciation that PW-1, the prosecutrix made inconsistent  versions

from stage to stage and the evidence given by her in the trial  was

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totally different from the one set out in her report which was marked

as Ex. P-1, therefore as there were contradictions in her versions, her

evidence was not accepted as trustworthy.

17.The learned Trial Court also held that PW-1 gave wrong information

that she was an orphan and that her parents have died.  The learned

Trial Court also pointed out certain contradictions in the evidence of

PW-1 at different stages and on the basis thereof it was held that the

nature of evidence led in by the prosecution being wholly doubtful,

the prosecution  story itself  becomes doubtful  and therefore  it  is  a

case of acquittal.

18.In  the  appeal  filed  against  the  order  of  acquittal,  the  High  Court

however, observed that PW-1 was a minor being aged about 17 years

and that she was under lot of mental and physical strain and stress

after she was kidnapped.   The learned Single Judge after examining

the evidence held that  there  was no reason to  doubt  the aforesaid

evidence and since there was no enmity between her and the accused

persons, the said evidence of PW-1 was fully justified to warrant the

order of sentence in respect of both the offences.  

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19. As stated hereinbefore the prosecutrix was missing from her house

from 25.7.1992 and the missing report came to be filed by PW-2, the

mother of the prosecutrix on 29.7.1992.  Although the said missing

report was treated as the First Information Report but the police was

unable to trace out the girl. She however was traced at the bus stand

opposite  to  the  Check  Post  of  Agricultural  Market  Committee,

Ravendrapadu.   She  was  found  weeping  and  was  also  giving

incoherent statements but on the basis of the papers found with her,

her family was traced and after tracing, her mother and brother came

and took her  away on  14.9.1992.  She was, however,  found to  be

under great mental strain and stress and therefore the police before

whom she appeared and filed a written report sent her for treatment.   

20. In the Missing Report, the mother of the prosecutrix named the three

accused persons stating that they are suspects. In the written report

submitted, which is exhibited as Ex. P-1, the prosecutrix has stated

and has alleged as to how she was kidnapped while she was going to

the college. In the said report it was stated by her that on 25.7.1992

on the way while going to the school at about 12.30 in the noon some

unknown person came on a bicycle and told her that appellant No. 3

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was calling her and threatened her to go urgently.  It is alleged that

out of fear she went to the house of Appellant No. 3 where she met

Appellant No. 2 who told her that Sankar would be coming soon, she

had also stated in the said report that Sankar asked her to bring either

200 or 150 rupees and on refusal threatened her to collect the said

amount.   She went to the house to which the milk is daily supplied

by her parents to collect the money, when the Appellant No. 3 along

with other  persons was following her and was keeping a guard on

her.    

21. It was stated that on her request she received 200 rupees which she

showed to  Sankar,  as  she was  asked to do so.  It  was alleged that

immediately thereafter  she was dragged into an auto rickshaw and

she was made to forcibly sit in the middle of the back seat with a man

with beard and dark complexion on one side and the stout  female

with fair complexion on the other side and the appellant No. 3 sat by

the side of the auto driver.   She stated that as soon as she got into the

auto rickshaw, she was sedated by putting some drug in front of her

nose.  She stated that after she was free of sedation, she found that

she was in a room.   In the said room, she stated to have met Subba

Rao, the appellant  No. 1. She also alleged that  she was beaten by

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them for giving complaint against them by her parents.   She stated in

that  report  that  she  was  given  instructions  as  to  how  she  should

narrate the incidence to the police.  She thereafter stated the manner

in  which she  reached the bus  stop near  Ravendrapadu  village and

thereafter how she was recovered by her family members. In the said

report however, there were no allegations of any rape on her by any

of the accused persons.  

22. The police thereafter having got some clues as to how the prosecutrix

was kidnapped made investigation and examined many witnesses and

also visited the house of the accused persons and thereafter finally

submitted a charge-sheet.   The charge-sheet was practically based on

the similar line as what was stated by the prosecutrix in her written

report submitted on 25.9.1992.

23. In  the  said  charge-sheet,  it  was  stated  that  on  19.9.1992  she  was

produced before the police and since she was found not fit to make

any statement due to physical and mental strain and stress suffered by

her,  she  was  sent  for  medical  examination  to  detect  her  mental

condition  and  also  to  detect  whether  any  sexual  assault  was

committed.  

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24.   The  doctor,  who  examined  her,  gave  an  opinion  that  she  was

suffering from posttraumatic ice stress disorder and advised her to

come for regular follow up. The other doctor who is a Gynecologist

gave an opinion that there was no sexual intercourse.    

25. In  the  said  charge-sheet,  it  was  stated  by  the  police  that  the

prosecutrix was a minor and was kidnapped against her will for the

purpose of selling her to a brothel house to do prostitution and she

was  wrongfully  confined  for  about  49  days  and  was  subjected  to

mental  harassment  and  torture.  The  charge-sheet  was  submitted

under the provisions of Sections 366A, 363, 368 and 372 read with

Section 511 IPC.

26. The learned Trial Judge, however, framed charge against all the three

appellants  herein  under  the  provisions  of  Section  366A  IPC  and

Section  372  read with  Section  511 IPC. After  framing of  charges

against  the  said  accused  persons,  the  trial  court  started  the  trial,

during the course of which the prosecution examined 13 witnesses

including the prosecutrix and her mother.  

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27. In order to prove her age, a School Leaving Certificate was produced

according to which her date of birth was recorded as 12.6.1975.   To

prove  that  she  was  a  minor,  the  prosecution  also  examined  the

headmaster of Pattabhipuram High School, Guntur where prosecutrix

studied from Class VI to Class X from the year 1986 to 1991. He was

examined  as  PW-13  and  he  has  categorically  stated  that  in  the

Admission Register, her date of birth was mentioned as 12.6.1975.

He has also proved the certificate dated 17.3.1994 which showed her

date of birth as 12.6.1975.  He was cross-examined at length by the

defense.    

28. The prosecutrix was examined as PW-1 and in her deposition, she

gave  embellished  and  more  aggravated  form  of  deposition  by

alleging major offences against the accused persons by stating that

during the said period she was sexually abused by both the appellant

No. 1 and appellant No. 3.

29. We have carefully examined the said statement and allegations made

by the prosecutrix against both the accused persons.  She had stated

in  her  deposition  recorded  on 14.5.1996 that  the  first  accused  i.e.

father of appellant No. 3 sexually abused her for 5-6 times whereas

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the appellant   No. 3 who is the son also sexually abused her for 5-6

times. It was also stated by her that whenever both the accused were

outside the room, they used to lock the room from outside and that

she was provided meals by one lady who used to take her outside to

attend the calls of nature and she also used to lock the room from

inside whenever she used to stay with her.

30. She further deposed that during the period of confinement of 39 days

and the intermittent period after the first and the third accused abused

her sexually, the accused apprehended that her mother might give a

complaint against them and they may be in trouble, because of which

the appellant No. 1 brought some letters and papers and asked her to

write as if she was writing it as love letters to appellant No. 3 so that

they could be used by them in future to show and prove that she and

the accused no. 3 loved each other and that she of her own accord

finally eloped with accused No. 3.  

31. She further  stated in  her  deposition  that  the first  accused and that

bearded  person  brought  her  out  on one  night  from that  room and

brought her to Railway Station where she was handed over to an old

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man from where the old man brought her to Ravendrapadu Check

Post and left her by telling her not to reveal anything.

32. She stated that M. Sambasiva Rao, PW-8 met her at the bus stop and

asked  her  to  sit  in  the  room of  the  Check  Post  when  he  brought

another person who was aged about 30 years and that she was afraid

that  they may commit  sexual  act  on her  and that  is  why she  was

weeping,  but  they took her  to  the house of  PW-8 where  her  wife

Aruna looked after her well.              M. Sambasiva Rao, PW-8 left

the house in the morning of Sunday and after enquiring about her

residential  address brought her mother and the elder brother to her

house in the evening of Monday and she came to her house with the

all these persons.

33. She stated that she was thereafter sent for medical examination, after

completion of which she submitted her report which was exhibited as

Ex. P-1.  She also stated that she knew all the accused and that she

had no enmity with any of them and that she had no relationship with

them.   She has also stated that she was kidnapped so as to sell her to

prostitution  home,  which  according  to  her  was  told  by  the  first

accused to  her,  but  as  they could  not  succeed in  selling  her,  they

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committed rape on her and spoiled her.   She stated that at the time of

incident her age was about 15 years.

34. She was cross-examined at length by the defense.  PW-2 the mother

of the prosecutrix was examined, she also supported the case of PW-

1 particularly in respect of her kidnapping as she was informed by

her daughter.  She also stated that she had suspicion on all the three

accused persons as she was told by one Vijaya Durga that first and

third accused are used to kidnapping girls.   She stated that she went

to the house of first accused on the next day of missing of the girl

who informed her that the prosecutrix did not come to their house

and that she might have gone to Ananthapur, where a friend of her

was residing. She also stated that on 29.7.1992, she gave a report to

the Police which was exhibited as Ex. P-2.

35. From the aforesaid narration of the deposition of PW-1 and PW-2, it

is  established that  PW-1 in  her  deposition  in  the  trial  has given a

more embellished version of what has happened between the period

of her kidnapping and the date when she was allowed to come back

although at the initial stage i.e. immediately after she came back after

confinement of about 39 days she did not state anything about sexual

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intercourse or rape being committed on her by accused No. 1 and 3,

but  in  her  deposition  subsequently  she  had  reported  sexual

intercourse  on her  by accused Nos.  1  and 3 repeatedly on 5 or  6

occasions.    

36. Although there are allegations that accused Nos. 1 and 3 wanted to

sell  her  for  prostitution,  but  neither  there  is  any reference  nor  an

incident which shows that an attempt was made to sell her in brothel

house to do prostitution.

37.Having gone through the entire evidence on record,  we are of the

considered opinion that it cannot be said that any case under Section

366A or a case under section 372 read with Section 511 IPC was

made out against any of the three accused persons.  To that extent, in

our considered opinion the Trial Court was justified.    

38. So far  as  Section  366A is  concerned,  in  such  an  offence  what  is

required to be proved by the prosecution is that there is cogent and

reliable evidence to prove and establish that a minor girl under the

age of 18 years was induced to come from one place to the other with

the intention that such girl may be, forced to have illicit intercourse

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with  another  person.  Therefore,  in  such  an  offence,  the  chief

ingredient is that the girl is made to go from one place to other with

the  intention  or  knowledge  that  she  may  be  forced  to  illicit

intercourse.  The  evidence  on  record  does  not  reveal  any  such

intention.  That  the  prosecutrix  was  subjected  and  forced  to  illicit

intercourse came to be stated for the first time only during the trial

which according to us is nothing but embellishment in order to see

that  the  accused  persons  are  made  and  are  subjected  to  major

punishments.

39. While appreciating the evidence, it will be our obligation, duty and

responsibility to see that  chaff are separated from the grains.  The

written report which was submitted immediately after her recovery

according  to  us  gave  a  clear  and  true  picture  as  to  what  had

happened. The deposition of her which although contained a part of

the  statement  recorded  in  the  written  report  came  to  include

embellishments,  trying  to  frame the  three  accused  persons  for  the

major offences.

40. We have to ignore that part of the evidence and when we do so, we

find that  no offence is  proved and established as against  accused-

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appellant No. 1 and appellant No. 2 or there is even no allegation in

the said written report which is exhibited as Ex. P-1 that any of them

had  in  any  way  contributed  in  kidnapping  her  from  her  lawful

guardian.  

41. Learned senior counsel appearing on behalf of all the appellants also

vehemently submitted that it cannot be said that the appellant was a

minor for according to the school certificate itself her age would be

more than 17 years and there could always be a difference of about 4-

5 months in ascertaining age and in order to ascertain the age, she

should have been examined by the medical expert, and therefore, the

benefit  should  go  to  the  accused  persons  so  far  as  the  age  is

concerned.

42. We are unable to accept the aforesaid contention for according to us,

the prosecution has been able to establish the age of the prosecutrix

as below 18  years,  as  they  have  been  able  to  produce  the  school

certificate  which  is  proved  by the  headmaster  of  the  school  from

whom the certificate was obtained. The aforesaid document being a

legal  document and having evidentiary value,  has to be given due

weightage  as  has  been  held  by  this  Court  in  the  case  of  state  of

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Chhattisgarh v.  Lekhram [(2006) 5 SCC 736]. This  court  in the

said case held as under:  

“12. A register maintained in a school is admissible in  evidence  to  prove  date  of  birth  of  the  person concerned  in  terms  of  Section  35  of  the  Evidence Act. Such dates of births are recorded in the school register by the authorities in discharge of their public duty……………............ 13. ……………………It may be true that an entry in the  school  register  is  not  conclusive  but  it  has evidentiary value. Such evidentiary value of a school register is corroborated by oral evidence as the same was  recorded  on  the  basis  of  the  statement  of  the mother of the prosecutrix.”

Therefore, according to us, the onus on the prosecution to prove the age

of the prosecutrix was effectively discharged by the prosecution.  

43.  In that view of the matter, we are of the concluded opinion that the

prosecutrix  was  a  minor  on  the  date  of  the  offence.    We  are,

however,  unable to  persuade ourselves  to  believe that  the accused

persons are guilty of the offence under Section 366A IPC or under

Section 372 read with Section 511 IPC.   The prosecution has not

been able to conclusively prove and establish by cogent evidence that

the prosecutrix was kidnapped by accused persons with the intention

of having sexual intercourse with them or with any other person.  No

such reliable or cogent evidence have been laid by the prosecution to

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prove the charge.  Similarly, there is no reliable and cogent evidence

to prove and establish that she was kidnapped by the accused persons

with  the  intention  of  selling  her  for  prostitution.   Therefore,  the

charge  under  Section  372  read  with  Section  511  IPC is  also  not

proved against the accused persons.

44. Even  having  come  to  aforesaid  conclusion,  we  have  a  further

responsibility to see as to whether any other offence is made out.  

45. The High Court was of the opinion that even though a case of rape

was made out, but even then the Trial Court did not frame charge in

that regard. But however the learned Single Judge did not remand the

case back to the Trial Court for framing of charge under Section 376

IPC for punishing the accused persons under the aforesaid charge, as

the same could have called for protracted trial.   To that extent he

may be justified but there are number of cases which justify the court

to convert a case from major offence to minor offence, if a case for

conviction under such minor offence is made out.

46. The charge-sheet was submitted also under Section 363 IPC by the

Police but the Trial Court did not frame any charge under Section

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363 IPC. Charge was framed for offences punishable under Section

366A and under Section 372 read with Section 511, IPC.

47. The Supreme Court has held in the case of Willie (William) Slaney

v. State of M.P. [(1955) 2 SCR 1140] that any error or omission in

framing charge could be rectified even at the appellate stage provided

no prejudice is caused to the accused persons.

48.Already a case of kidnapping was alleged against the appellants in

respect of which a charge under Section 366A was also framed and

therefore the accused persons knew that they were being charged for

taking away a minor out of the custody of the lawful guardian and

they got  full  opportunity  to  defend themselves  as  against  such an

allegation.     

49. The ingredients of Section 363 IPC involve an act of kidnapping of

any  person  from  the  lawful  guardianship.   Kidnapping  from  the

lawful  guardianship is  defined under Section 361 IPC, where it  is

stated that whoever takes or entices any minor under sixteen years of

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

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such minor or person of unsound mind, without the consent of such

guardian, a case of kidnapping is made out.

50. Section 366A IPC also envisages an act of kidnapping of a minor girl

out  of  the  lawful  guardianship  with  the intention  of  committing  a

sexual intercourse which is of a higher degree than that of an offence

under Section 363 IPC.

51. Section 366A IPC is a major offence whereas Section 363 IPC is a

minor  offence  compared  to  that  of  Section  366A  IPC.   There  is

therefore a difference in respect of the said two offences in respect of

the  punishment  also.   Section  366A  IPC  envisages  a  maximum

punishment  of  ten  years  whereas  Section  363  IPC  envisages  a

punishment of seven years.

52.Under the provisions of Section 222 of the Code a provision is made

that in a case where the accused is charged with a major offence and

the said charge is not proved, the accused could be convicted of a

minor offence if such a case is made out though he was not charged

with the same.

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53. In the case of  Tarkeshwar Sahu v.  State of Bihar [(2006) 8 SCC

560],  this  Court  after  relying  upon  the  decision  of  this  Court  in

Lakhjit Singh v. State of Punjab [1994 Supp. (1) SCC 173] and the

case of Shamnsaheb M. Multtani v. State of Karnataka [(2001) 2

SCC 577] held that if the offence committed is clearly covered and

have the ingredients of a minor offence, in that event, the Court is

empowered to convict the person under minor offence by invoking

the provisions of Section 222 of the Code.

54. In the case of  Willie (William) Slaney (supra) it was stated by this

Court that the object of the charge is not to introduce a provision that

goes to the root of the jurisdiction but to enable the accused to have a

clear idea of what he is being tried for and of the essential facts that

he has to meet. The said decision was a Constitution Bench decision

of this Court which has stood the test of time and is being followed

repeatedly  by  this  Court.  (See:   State  of  W.B. v.  Laisal  Haque

[(1989) 3 SCC 166)];  Kammari Brahmaiah v.  Public Prosecutor,

High Court of A.P. [(1999) 2 SCC 52];  Dalbir Singh v.  State of

U.P. [(2004) 5 SCC 334]).

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55. So far appellant Nos. 1 and 2 are concerned, there is no evidence on

record  to  prove  and  justify  that  they  had  any  role  to  play  in

kidnapping of the prosecutrix, out of the lawful guardianship without

their consent.  However, we cannot record the same finding so far as

appellant No. 3 is concerned, for there is concurrent statement of the

prosecutrix  on record to show that  he was one among others  who

took part in keeping the prosecutrix out of the lawful guardianship

without their consent, for they knew fully well as they were carrying

her, that she was a minor and under the age of eighteen years but

despite the fact they took her away out of the custody of the lawful

guardian, without their consent to a place away from home and kept

her confined there for 39 long days.

56.The accused No. 3 was in the auto rickshaw where she was put into

and  when  the  said  auto  rickshaw  was  driving  her  away  she  was

sedated by a lady in the presence of appellant No. 3.    

57. The aforesaid evidence is adduced by the prosecutrix herself and we

see no reason why she should unnecessarily implicate appellant No. 3

when no case of enmity is made out in between the prosecutrix and

the accused    No. 3.   She was kept confined for 39 long days after

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kidnapping her from the lawful guardianship, and therefore, in our

considered  opinion  the ingredients  set  out  in  Section  363 IPC are

made out as against accused No. 3 at least.

58. Therefore, while acquitting all the accused persons from the charge

of offence under Section 366A and 372 read with Section 511 IPC,

we acquit the appellant Nos. 1 and 2 from all charges. Whereas, we

hold that the appellant No. 3 is guilty of the offence under Section

363 IPC and accordingly we proceed to convict him accordingly.

59. Having held thus, we have to pass an order of sentence against the

said accused-appellant No. 3.   The incident is that of the year 1992

and 15 years have gone by, therefore,  interest  of  justice would be

sub-served  if  appellant  No.  3  is  sentenced  to  undergo  rigorous

imprisonment for a period of three years.

60.Bail  bond  submitted  by Appellant  Nos.  1  and  2  stand  discharged

whereas the bail bond of accused No. 3 stands cancelled and he shall

immediately surrender so as to undergo the remaining punishment.

We make it clear that the period of detention of the said accused will

be set off from the period of punishment in accordance with law.  

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             ............................................ J

    [R.V. Raveendran]

   ............................................J  [Dr. Mukundakam Sharma]

New Delhi July 24, 2008

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