Tilku Alias Tilak Singh vs The State Of Uttarakhand

2025 INSC 226 NON-REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 183 OF 2014

TILKU ALIAS TILAK SINGH …APPELLANT(S)

VERSUS

THE STATE OF UTTARAKHAND …RESPONDENT(S)

JUDGMENT

B.R. GAVAI, J.

1. This appeal challenges the judgment and order passed

by the learned Single Judge of the High Court of Uttarakhand

at Nainital dated 8th March 2013, thereby partly allowing the

criminal appeal filed by the appellant.

2. The case of the prosecution is that the appellant herein

was residing in village Fahnar. The prosecutrix was residing

in village Koti. According to the prosecution, the prosecutrix

had gone to purchase salt from village Darmigad on 7th

February 1994 at around 1:30 p.m. When she reached near

village Darmigad, the accused persons, namely, Tilku @ Tilak Signature Not Verified Digitally signed by NARENDRA PRASAD Date: 2025.02.18 Singh (appellant herein), his father Jot Singh, and one 15:42:50 IST Reason:

Gabbar Singh came from behind and kidnapped the

1 prosecutrix. According to the prosecution, the prosecutrix

was aged 14 years 4 months at that time. Since the

prosecutrix was missing, her father (PW-2) lodged a First

Information Report (FIR) with the police on 13th February

1994 with Patwari (PW-7). During investigation, the

investigating agency found the appellant as well as the

prosecutrix residing together in Survey Colony in Dehradun.

From there the appellant herein was taken into custody,

whereas the prosecutrix was given in custody to her father.

3. In this background, the charge-sheet was filed against

the appellant herein for the offences punishable under

Sections 376, 366 and 363 of the Indian Penal Code, 1860

(for short, ‘IPC’) as well as the other two accused, namely, Jot

Singh and Gabbar Singh for offences punishable under

Sections 366 and 363 of the IPC.

4. The trial court acquitted the other two accused and only

convicted the appellant for offences punishable under

Sections 376, 363 and 366 of the IPC and sentenced him for

three years of rigorous imprisonment and a fine of

Rs.1,000/- under Section 363 of IPC, five years of rigorous

imprisonment and a fine of Rs.2,000/- under Section 366 of

2 IPC and seven years rigorous imprisonment and a fine of

Rs.4,000/- under Section 376 of IPC.

5. Being aggrieved thereby, the appellant preferred an

appeal before the High Court. The learned Single Judge of

the High Court though acquitted the appellant herein for the

offence punishable under Section 376 IPC but upheld the

conviction for the offences punishable under Sections 363

and 366 of the IPC. The High Court, however, reduced the

sentence to two years of rigorous imprisonment under

Section 363 IPC and three years of rigorous imprisonment

under Section 366 IPC. Being aggrieved thereby, the present

appeal by way of special leave.

6. We have heard Shri Sachin Patil, learned counsel for the

appellant and Ms. Anubha Dhulia, learned counsel appearing

for the respondent/State of Uttarakhand.

7. Shri Patil, learned counsel for the appellant, submits

that on the basis of very same evidence, the learned Single

Judge of the High Court has acquitted the appellant for

offence punishable under Section 376 of IPC, however, on the

testimony of prosecutrix and on a conjecture that the

prosecutrix was below 18 years of age at the time of the

3 incident, the learned Single Judge of the High Court has

maintained the conviction under Sections 363 and 366 of

IPC. He further submits that from the evidence of the

prosecutrix itself, it would be clear that the prosecutrix, on

her own accord, had left the village along with the appellant,

married with him at Dehradun before the Registrar’s office

and thereafter started living as husband and wife at

Dehradun. He submits that this would be amply clear from

the cross examination of the prosecutrix itself. He further

submits that the FIR lodged by PW-2 was also after a period

of seven days from the alleged abduction on 7th February

1994. Shri Patil, therefore, submits that the appeal deserves

to be allowed.

8. Per contra, Ms. Dhulia, learned counsel appearing on

behalf of the respondent/State submits that the learned

Single Judge of the High Court has rightly convicted the

appellant under Sections 363 and 366 of the IPC. She

submits that the evidence of Medical Expert (PW-3) would

show that the age of the prosecutrix was about 14 years at

the time of the incident. It is, therefore, submitted that if the

age of the prosecutrix is below 16 years, then the question of

4 consent would not arise at all. The learned counsel,

therefore, submits that no interference is warranted in the

judgment and order of the learned Single Judge of the High

Court who has taken into consideration all the relevant

aspects.

9. The present case would mainly turn on the evidence of

the prosecutrix (PW-1). No doubt that in her examination-in-

chief, the prosecutrix has stated that when she was going to

give fodder to her animals and to purchase salt from village

Darmigad, all the three accused came behind her and

inserted a cloth in her mouth so that she does not raise an

alarm. Thereafter, she was tied with ropes and taken to

village Fahnar which is 16-17 kms away from village

Darmigad. The prosecutrix stated that she was raped by the

appellant herein on the instigation of the other two accused.

10. However, in her examination-in-chief, the prosecutrix

admits that though her father (Kedar Singh) had information

that she had been kidnapped, he reached the village of Jot

Singh the next day requesting him to return his daughter.

The prosecutrix further admits that efforts were made to

settle the matter in the village panchayat and for this

5 purpose 2-3 village panchayats were held at villages Koti and

Fahnar. From her testimony, it is further clear that she

travelled all the way to Dehradun from the village Luni,

which is 14-15 kms away from Fahnar, in a bus. Admittedly,

in the said bus there were at that time 15-16 passengers.

She further admitted that she did not make any effort to

raise any alarm when she was travelling in the bus. A

suggestion was given to her that she was taken to Courts in

Dehradun and was asked to sign various documents which

were pertaining to her marriage. To these suggestions, she

admitted that she went to the Court and she was asked to

sign various forms.

11. A perusal of testimony of the prosecutrix itself would

reveal that she had gone on her own accord with the

appellant herein. Therefore, the defence of the appellant

herein that he had married the prosecutrix and not only that

but also that the marriage was certified before the competent

authority at Dehradun and thereafter they were living as

husband and wife at Dehradun is a plausible defence.

12. It is further pertinent to note that the learned Single

Judge of the High Court has himself disbelieved the

6 testimony of prosecutrix (PW-1) with regard to the appellant

committing rape on her. It was found by the learned Single

Judge that there was absolutely no injury on the body of the

prosecutrix and that she had never made any attempt to

resist or raise a cry. The learned Single Judge further goes

on to observe that in fact she was with the appellant for

about 20 days; travelling to different places along with him

before reaching the final destination at Dehradun. The

learned Single Judge has, therefore, rightly acquitted the

appellant for the offence punishable under Section 376 IPC.

13. Insofar as the age of the prosecutrix is concerned, there

are two contradictory opinions given by two medical experts.

14. Doctor Renuka Naithani (PW-3) states that according to

the X-ray reports, the age of the prosecutrix was around 14

years, however, Chief Medical Officer Dehradun, Dr. Raja

Ram (DW-2) has opined that the age of the prosecutrix was

around 18 years.

15. In view of the two conflicting medical opinions, we are of

the opinion that the benefit ought to have been given to the

appellant-accused.

16. Even if the finding of the learned Single Judge of the

7 High Court that the prosecutrix was between 16 to 18 years

of age is to be accepted, in our view, the offence under

Sections 363 and 366 IPC would still not be made out.

17. This Court in the case of S. Vardarajan v. State of

Madras1 had an occasion to consider almost similar facts

that arise for consideration in the present case. This Court

has observed thus:

“7. …..It will thus be seen that taking or enticiting away a minor out of the keeping of a lawful guardian is an essential ingredient of the offence of kidnapping. Here, we are not concerned with enticement but what we have to find out is whether the part played by the appellant amounts to “taking” out of the keeping of the lawful guardian of Savitri. We have no doubt that though Savitri had been left by S. Natarajan at the house of his relative K. Nataranjan she still continued to be in the lawful keeping of the former but then the question remains as to what is it which the appellant did that constitutes in law “taking”. There is not a word in the deposition of Savitri from which an inference could be drawn that she left the house of K. Natarajan at the instance or even a suggestion of the appellant. In fact she candidly admits that on the morning of October 1st, she herself telephoned to the appellant to meet her in his car at a certain place, went up to that place and finding him waiting in the car got into that car of her own accord. No doubt, she says that she did not tell the appellant where to go and that it was the appellant himself who drove the car to Guindy and then to Mylapore and other places. Further, Savitri has stated that she had decided to marry the appellant. There is no

1 1964 SCC OnLine SC 36

8 suggestion that the appellant took her to the Sub-

Registrar's office and got the agreement of marriage registered there (thinking that this was sufficient in law to make them man and wife) by force or blandishments or anything like that. On the other hand the evidence of the girl leaves no doubt that the insistence of marriage came from her side. The appellant, by complying with her wishes can by no stretch of imagination be said to have taken her out of the keeping of her lawful guardian. After the registration of the agreement both the appellant and Savitri lived as man and wife and visited different places. There is no suggestion in Savitri's evidence, who, it may be mentioned had attained the age of discretion and was on the verge of attaining majority that she was made by the appellant to accompany him by administering any threat to her or by any blandishments. The fact of her accompanying the appellant all along is quite consistent with Savitri's own desire to be the wife of the appellant in which the desire of accompanying him wherever he went was course implicit. In these circumstances we find nothing from which an inference could be drawn that the appellant had been guilty of taking away Savitri out of the keeping of her father. She willingly accompanied him and the law did not cast upon him the duty of taking her back to her father's house or even of telling her not to accompany him. She was not a child of tender years who was unable to think for herself but, as already stated, was on the verge of attaining majority and was capable of knowing what was good and what was bad for her…….”

18. It is thus clear that the prosecutrix, who according to

the learned Single Judge of the High Court, was between 16

to 18 years of age was very much in the age of understanding

as to what was right and wrong for her.

9

19. From the evidence of the prosecutrix itself, it will be

clear that she had voluntarily gone along with the appellant

herein, travelled to various places and also resided as

husband and wife at Dehradun.

20. In that view of the matter, we find that the learned

Single Judge of the High Court was not justified in upholding

the conviction for the offences punishable under Sections

363 and 366 of the IPC.

21. In the result, for the foregoing reasons, the appeal is

allowed. The judgment and order passed by the High Court of

Uttarakhand dated 8th March 2013 in Criminal Appeal

No.140 of 2003 is quashed and set aside. The appellant is

acquitted of the charges he was charged with. The appellant

is already on bail, his bail bonds shall stand discharged.

22. Pending application(s), if any, shall stand disposed of.

..............................J. (B.R. GAVAI)

..............................J. (K. VINOD CHANDRAN) NEW DELHI;

FEBRUARY 06, 2025.

10