Judgment ( 1 ) JUDGMENT :- Babu Ahmed Khan and Nafis Ahmed appellants were convicted by learned Sessions Judge, Churu vide his judgment dated 26-6-1982 for offence under Section 363, IPC and each one of them was sentenced to one years rigorous imprisonment with a fine of Rs. 50/- and in default to undergo two months simple imprisonment. They have assailed their conviction and sentences by this appeal. ( 2 ) BRIEFLY stated, on 27-4-1980 at 3. 00 A. M. Surendra Nath Bhatnagar reported to Station House Officer, Kotwali, Churu vide report Ex. P/6 that his daughter Arti Bhatnagar, who was living with his relation Ratish Mohan Bhatnagar at Churu, was missing. Surendra Nath Bhatnagar was a inspector with Commercial Taxes Departmen at Sikar. He reached Sikar on 25-4-1980 in order to fetch his family members. Arti, who was in her room, was not found therein when he woke up at about 01. 00 A. M. He suspected that the appellants with the help of their friend had kidnapped Arti. They took her away with intent to marry her. A case under Sections 363 and 366, IPC was registered. During investigation motorcycle of Babu Khan was recovered from a place near Hotel Deep. Arti was recovered on 28-4-1980 from a station vagun No. DLI-6105 when she was being taken in it near village Sawai Bada. Manphool Singh Station House Officer inspected the vehicle and found Arti along with both the appellants and one Mahesh. Thereafter Arti was medically examined. Her statement under Section 164, I. P. C. was recorded by Chief Judicial Magistrate, Churu. After investigation challan was submitted before the Magistrate having jurisdiction who committed the case to the learned Sessions Judge. Arti, in her statement recorded under Section 164, Cr. P. C. , stated that on 25-4-1980 when she was sitting in verandah of the house, a boy named Bageshwar handed her over a letter in which she was asked to go with her fathers sister to hospital and take away her letters and photographs otherwise she would be defamed. She went to hospital. There a letter was handed over to her by one Birbal Singh in which she was asked to come out of the house at 12o clock in the night when her letters and photographs would be handed over to her. She further stated that at about 12. She went to hospital. There a letter was handed over to her by one Birbal Singh in which she was asked to come out of the house at 12o clock in the night when her letters and photographs would be handed over to her. She further stated that at about 12. 30 a. m. when she was studying in the room, Birbal Singh knocked the window and told her that Babu Ahmed was waiting outside. When she went out, another boy put a hand on her mouth, showed her a knife and told that she should act according to his wishes otherwise she would be killed. The boy, who was doing it, was Nafis Ahmed. She went with them on foot for a distance of 12-13 kms. Then they caught a bus. She was taken to village Malsisar where she was kept for whole of day. Mahesh came there and on 27-4-1980 she was taken to a haveli. Thereafter she was taken to Rajgarh. After some time Mahesh brought a vehicle in which she was taken towards Bikaner and when it was being done, the police intercepted the vehicle. It were Nafis Ahmed, Birbal Singh, Mahesh and Bageshwar who were also involved in the case. She further stated that she was compelled by Nafis to write a letter and that some blank papers were got signed from her. ( 3 ) LEARNED Sessions Judge, Churu charged appellants with the offences under Sections 366, 363 and 120-B, IPC which they denied and claimed trial. Co-accused Mahesh was charged with offence under Section 368, IPC while Birbal Singh and Bageshwar with the offence under Section 120-B, IPC. They had also denied their indictment and claimed trial. Prosecution examined as many as 13 witnesses. Thereafter appellants and co-accused persons were examined under Section 313, Cr. P. C. They produced three witnesses in defence. After hearing both the parties learned Sessions Judge acquitted Mahesh Kumar, Birbal Singh and Bageshwar but convicted and sentenced the appellants as stated above. ( 4 ) I have heard the learned counsel for the appellants as well as learned Public Prosecutor at length and have gone through the entire evidence in order to reappreciate it. ( 5 ) IN this case the most important question is as to what was the age of Arti at the time of occurrence? She stated in her statement under Section 164, Cr. ( 5 ) IN this case the most important question is as to what was the age of Arti at the time of occurrence? She stated in her statement under Section 164, Cr. P. C. which is Ex. D/9 that her date of birth was 18-8-1962. When she appeared as a witness in the Court as PW-6 she did not give her date of birth but her father PW-3 Surendra Mohan Bhatnagar stated that she was born on 18-8-1962. So according to this date of birth she was 171/2 years of age at the time of occurrence. Counsel for the appellants submitted that though Surendra Mohan Bhatnagar stated that Arti was born in Bikaner hospital, yet no record of her birth has been produced. However, it is PW-13 Dr. B. L. Soni who examined Arti on 28-4-1980 and he stated that her age was between 17-18 years. He stated the vital details and also stated that X-Ray examinations were conducted and thereafter he was of the view that she was in between 17-18 years of age. ( 6 ) COUNSEL for the appellants submitted that there may be variation of 2-3 years and if this settled position of law is considered in this case, the age of Arti would come to about 20 years. He submitted that Smt. Shashi Kanta, who is also a doctor, is employed in the same hospital where PW-13 Dr. B. L. Soni was serving, therefore, the age as stated by PW-13 Dr. B. L. Soni might have been stated under her influence. He also submitted that one of the uncles of Arti was an inspector of C. I. D. under whose influence the whole case has been cooked up. He also submitted that Arti Bhatnagar was handed over to him after her statement was recorded by Chief Judicial Magistrate on 30-4-1980 and his name is R. M. Bhatnagar. He also submitted that the appellants had submitted an application before the learned Chief Judicial Magistrate Ex. P/14 that Shri Ratish Mohan Bhatnagar was an inspector of C. I. D. at Churu who was said to be the local guardian of Arti and under whose influence the police had worked. The influence of inspector was so much that no local advocate was ready to put appearance on behalf of the appellants and, therefore, they had to submit an application Ex. P/14. The influence of inspector was so much that no local advocate was ready to put appearance on behalf of the appellants and, therefore, they had to submit an application Ex. P/14. Therefore, the learned counsel for the appellants submitted that in this case a great injustice was done to the appellants by procuring such evidence that Arti was only 171/2 years of age at the time of occurrence while the fact is that she was major. I have given my thoughtful consideration to the arguments and I am of the view that this argument has substance. Admittedly the law is that there may be variation of 2-3 years in the age as given by doctor. When the doctor says that Arti was 17 years of age, age of Arti may be 19 to 20 years which is definitely not below 18 years on the date of occurrence. Even if it is below 18, it is clear that she had reached to the age of discretion. Counsel then cited a ruling of the Honble Supreme Court reported in AIR 1965 SC 942 : (1965 (2) Cri LJ 33) S. Varadarajan v. State of Madras, in which words "taking out of lawful guardianship" as used under Section 361, IPC were considered and it was held that when a college going girl on verge of majority, was telephoning accused and meeting him and going with him to Sub-Registrars office for registering marriage agreement, there was no threat or inducement on the part of accused and then there was girls insistence on marrying him and that father of the girl keeping her at his relatives house though his guardianship continued. It was held that offence under Section 363, IPC was not made out as it was not "taking out" from the lawful guardianship. Learned Public Prosecutor was not able to cite any other ruling against this Supreme Court citation which is applicable in this case with full force. ( 7 ) I have to scan the evidence as the learned counsel for the appellants submitted that Arti was having affair with Babu Ahmed Khan appellant and had insisted upon to marry him despite the fact that appellant Babu Ahmed Khan and Arti were followers of different religions. He has further submitted that appellant Babu Ahmed khan and Arti gave an interview to a newspaper which is recorded in Ex. D/20. He has further submitted that appellant Babu Ahmed khan and Arti gave an interview to a newspaper which is recorded in Ex. D/20. He also drew my attention to various letters written by Arti to the appellants which are definitely an evidence of showing extra-ordinary love to Babu Ahmed Khan. He submitted that the photographs Article-2 to Article-9 show that Arti was having affair with appellant Babu Ahmed Khan and was a willing party to all what has happened. She had gone with the appellant with her own will in order to marry him. ( 8 ) I find from the evidence that Arti and Babu Ahmed Khan were having affair since long when she was studying in Bikaner. Her father and other relations were not liking it, therefore, she was shifted to Churu in order to live with her fathers sister. PW-3 Surendra Mohan Bhatnagar, Artis father, stated that he was serving at Sikar as inspector in Commercial Taxes Department. In cross-examination he was put the questions that Arti told him that she was having love affair with Babu Ahmed Khan and wanted to marry him. The case of the defence is that on 16-3-1980 Taj Bahadur, Ramrakh, Sohan, Gulab Khan (Babus father), Ramzan and Surendra came to him with a letter written by Arti to Babu Ahmed Khan and requested him to take care of his daughter. It was also suggested that on earlier occasion Arti had gone on her own will to Babu Ahmed Khan but his father Gulab Khan had brought Arti back to her father. The witness is not able to explain as to why Arti was being kept at Churu with Ratish Mohan Bhatnagar inspector with C. I. D. at Churu. PW-3 Surendra Mohan Bhatnagar admitted that during the night when Arti is said it to have been kidnapped, he was at Churu and when he woke up he did not find Arti in the room. Had Arti not been willing, she would have cried and awoke her father and his sister, who were present in the house. PW-4 Ratish Mohan Bhatnagar stated that he had gone to see a picture to cinema hall and when he returned he found that the main gate of the house was open. It was so at about 12. 30 in the night. He then woke up his wife and inquired. PW-4 Ratish Mohan Bhatnagar stated that he had gone to see a picture to cinema hall and when he returned he found that the main gate of the house was open. It was so at about 12. 30 in the night. He then woke up his wife and inquired. She told that she had herself locked the door from inside and that she did not know as to how it was opened. She is Shashi Kanta Bhatnagar, who is the real sister of Surendra Mohan Bhatnagar. When it is so that the main door of the house was closed from inside on that night, it is Arti who had herself opened the door and went away. This shows her willingness and her consent. Arti PW-6, in her examination in Chief, tried to implicate both the appellants but when she was cross-examined, she had to admit that she wrote number of letters to appellant Babu Ahmed Khan which have been exhibited in the Court. She did admit that in photographs Article-2 to Article-9, she was present but she has tried to develop different stories in her statement recorded under Section 164, Cr. P. C. which is Ex. D/9. She stated that she was not having any relationship with appellant Babu Ahmed Khan after she was caught and appellants were arrested. This appears to have been stated under the influence of family members. She admitted that she had written letter to Babu Khan which is Ex. D/10 on record when Babu Ahmed Khan had gone to Sikar. It is this letter which speaks volumes of her love towards Babu Ahmed Khan. There are various letters written by her to appellant Babu Ahmed Khan. Thus, the story cooked up by the prosecution that Arti was compelled to put signatures on various blank papers and was forcefully asked to write some letters, is a concoction and appears to be afterthought story under the influence of the inspector of C. I. D. Shri Ratish Mohan Bhatnagar PW-4. Besides there is affidavit of Arti Ex. D/6 on which Arti admits her signature. I will discuss about it later in the judgment. ( 9 ) DW-1 Babu Ahmed Khan himself came in the witness box and exhibited different letters written by Arti to him and explained about the photographs which have been produced in defence. Besides there is affidavit of Arti Ex. D/6 on which Arti admits her signature. I will discuss about it later in the judgment. ( 9 ) DW-1 Babu Ahmed Khan himself came in the witness box and exhibited different letters written by Arti to him and explained about the photographs which have been produced in defence. He states that once Arti had come to his house and insisted to marry him but his father called the uncle of Arti to make her understand that it was not possible. At that time Arti stated that she would consume poison if her marriage was not performed with appellant Babu Ahmed Khan. He also stated that his father went to Sikar in order to meet Artis father. It is corroborated by Gulab Khan DW-3 and Tej Bahadur Singh DW-2. Tej Bahadur Singh DW-2 is an independent witness and has stated that he did got with Gulab Khan to Sikar in order to meet Artis father. He stated that Artis father was told that Arti wanted to marry Gulab Khans son and that he should take care of his daughter. He wanted to bring Shri Bhatnagar to Bikaner but Shri Bhatnagar stated that it was the month of March and he was extra-ordinarily busy and that he would convey the message to his brother who would look after the girl. Thus, it is proved beyond doubt that since Arti was having love affair with Babu Ahmed Khan and wanted to marry him, she went with appellant Babu Ahmed Khan willingly. She not only was having love affair with Babu Ahmed Khan but wanted to marry him and while she was at the house of the appellant she gave an interview to a newspaper that she was willing. This interview was published in Ex. D/20 fortnightly named as "shakti Sagar" which was published from Bikaner. ( 10 ) STILL there is very material evidence against the prosecution in a way of an affidavit of Arti Bhatnagar on a stamp paper which was purchased by Arti at Bikaner on 17-3-1980. This affidavit is dated 18-3-1980 and mentions that she was having love affair with Babu Ahmed Khan and that both of them had even physical relationship for last five months. This affidavit is dated 18-3-1980 and mentions that she was having love affair with Babu Ahmed Khan and that both of them had even physical relationship for last five months. That she also told to her father that she wanted to marry Babu Ahmed Khan but he was not ready to perform her marriage with Babu Ahmed Khan and was giving her beatings. It also stated that she was pregnant and wanted to live with Babu Ahmed. It also states that she showed her willingness to Babu Ahmed Khans father Gulab Khan. Thereupon he went to her father on 17-3-1980. It further states that she was given beatings by her uncle and aunty on 17-3-1980 and that she had willingly come to appellant Babu Ahmed Khan. This affidavit is dated 18-3-1980 on which Arti admits her signature. It shows her willingness right from the very beginning. ( 11 ) PW-11 Manphool Singh Investigating Officer was asked in cross-examination that this affidavit was given to him in order to show the willingness of Arti. But he did not take it on record. He also asked in the cross-examination that the photographs as well as letters of Arti were given to him which he refused to take on record. He was put a definite question in the cross-examination that he was under the influence of Ratish Mohan Bhatnagar who was C. I. D. inspector and was a relation of Arti. The Investigating Officer would not accept it but it appears that it is a fact that the case has been cooked up under the influence of Ratish Mohan Bhatnagar. Ratish Mohan Bhatnagar Inspector of C. I. D. was present even when the statement of Arti was recorded by learned Chief Judicial Magistrate at his residence on 30-4-1980. Learned counsel for the appellants submitted that there is something fishy and has not been explained as to why statement of Arti was recorded at the residence of Chief Judicial Magistrate. His argument is that it was under the influence of the C. I. D. inspector that the Investigating Officer took the girl to the residence of Magistrate to record statement. He submitted that the learned Magistrate should not have recorded the statement at his residence. He is right. Ordinarily, the Magistrates should not conduct such proceedings at their residences in order to show their independence. He submitted that the learned Magistrate should not have recorded the statement at his residence. He is right. Ordinarily, the Magistrates should not conduct such proceedings at their residences in order to show their independence. Justice should not only be done but should be shown to have been done. PW-10 Jugendra Singh stated that he recorded the statement at his residence but he has not stated any reason thereof in Ex. P/15. The definite question put to him was that it was Ratish Mohan Bhatnagar who produced the witness to him at his residence. The document Ex. P/15 shows that the girl was handed over to Ratish Mohan Bhatnagar by Mr. Jugendra Singh. He has stated that he mentioned in parts a to b on Ex. P/15 that Ratish Mohan Bhatnagar was the local guardian as it was told to him by Ratish Mohan Bhatnagar himself. Artis father was present in Churu. He was the legal guardian. He did not go. Instead Ratish Mohan went. PW-10 Jugendra Singh was put a definite question that Ratish Mohan Bhatnagar was present in his house when statement of Arti was recorded. Had Shri Jugendra Singh recorded the statement of Arti in the Court, such questions would not have arisen. He has himself invited this situation because he recorded the statement of Arti at his residence. The Magistrates should avoid this situation least any accusing finger points out towards them. However, it can very well be said that Arti was under the influence of Ratish Mohan Bhatnagar (her fathers sisters husband) who was a C. I. D. Inspector and under whose influence the whole case was cooked up against the appellants. The prosecution has not been able to prove the offence under Section 363, IPC against the appellants. The appeal should be allowed. ( 12 ) CONSEQUENTLY, the appeal is hereby allowed. Conviction of the appellants for offence under Section 363, IPC is set aside. They are on bail. Their bail bonds are cancelled. Appeal allowed.