Zahoor Ahmad Khan & Ors. v. State Th. Police Station Kunzer

CORAM: HON’BLE MR. JUSTICE RAJESH SEKHRI, JUDGE JUDGMENT 24.04.2025 [Oral]

1. Challenge in this petition has been thrown to a judgment, dated 28th February 2017, passed by learned 1st Additional Sessions Judge Baramulla [“the trial court”] in case titled “State vs. Zahoor Ahmad Khan & Ors.” vide which respondents came to be discharged for offences under Sections 420, 363, 451, 506, 376 and 109 RPC, arising out of FIR No. 116/2016 of Police Station, Kunzer.

2. Before a closer look at the grounds urged in the memo of petition, it shall be expedient to have an overview of the background facts.

3. As the prosecution case would unfurl, on 16.11.2016, a written complaint came to be lodged against the respondents in Police Station, Kunzer alleging inter alia that on 15.11.2016 at 21:00 hours, the respondents trespassed into the house of the complainant and extended threats to him and his minor children. The complainant goes on to state that he got up in the morning, and found his minor daughter missing. He laid a hunt but failed to trace her out. It was alleged by the complainant that later he came to know that his daughter was kidnapped by respondent No. 1 in furtherance of criminal intention to sexually abuse her. Upon the receipt of this report, the aforesaid FIR came to be registered against respondents and the investigation came Mohd Altaf Nima I attest to the accuracy and authenticity of this document 25.04.2025 Crl R. No. 04/2021 Page 1 of 4 into vogue. The Investigating Agency got statement of the prosecutrix recorded before the Judicial Magistrate, 1st Class and it culminated in the presentation of final report against the respondents, in terms of Section 173 CrPC.

4. Learned trial court analyzed the statement of the prosecutrix, recorded during investigation, under Section 164-A CrPC to conclude that there was nothing in the material placed on record by the prosecution, to prima facie disclose the commission of any offence by the respondents. As a consequence, they came to be discharged.

5. Having heard learned counsels for the parties and perused the record, I have given my anxious consideration to the facts and circumstances attending the present case as also the legal position governing the field.

6. It is by far a crystalized position of law that a court at the stage of framing of charge has power to sift and weigh the prosecution evidence recorded during investigation for the limited purpose to ascertain whether a prima facie case against accused is made out or not. It is trite that if strong suspicion exists, which leads the court to arrive at a conclusion that accused has committed an offence, it is open to the court to conclude that there is a sufficient ground for proceeding against the accused. On the other-hand, if the evidence collected by the Investigating Agency is accepted, before testing on the touchstone of cross examination or rebutted in defence and it does not show that accused has committed any offence, then there is no ground to proceed against the accused.

7. Reverting to the present case, the allegation against respondents is that on 16.11.2016, a written complaint came to be lodged that during the intervening night of 15/16-11-2016, when complainant got up in the morning, he found his daughter missing from his residential house and he failed to trace her out. Later, he came to know that his daughter was kidnapped by respondent No. 1 with the connivance of rest of the respondents. As already stated, the Investigating Agency during investigation got statement of the prosecutrix recorded under Section 164-A CrPC and pertinently the prosecutrix in the said statement testified that she was never abducted by respondent No. 1. The Mohd Altaf Nima I attest to the accuracy and authenticity of this document 25.04.2025 Crl R. No. 04/2021 Page 2 of 4 prosecutrix admitted during her deposition before the Judicial Magistrate 1st Class, without mincing words that she accompanied respondent No. 1, out of her free will because she wanted to marry him, which was not acceptable to her parents, as they wanted to marry her with somebody else. The prosecutrix also admitted that respondent No. 1 did not do any wrong to her during her stay with him. The prosecutrix in the said statement, has not only absolved respondent No. 1, but she did not depose anything against rest of the respondents.

8. Mr. Hakim Aman Ali, learned Dy. AG for the petitioner has argued that as per the date of birth certificate, the prosecutrix was born on

01.08.1999 and since she had not attained the age of majority at the time of occurrence, her consent is of no consequence.

9. Though there is a date of birth certificate of the prosecutrix on the record, which reveals that she was on the verge to attain majority. However, it is pertinent to mention that the prosecutrix at the time of her statement before the Magistrate mentioned her age as 21 years and as per the opinion tendered by the Dental Surgeon, after her medical examination during investigation, she was above 20 years of age and it shall be sufficient to conclude that prosecutrix had attained the age of discretion, if not the age of majority.

10. Be that as it may, there is nothing in the statement of the prosecutrix recorded before the Magistrate during investigation that there was any sort of inducement, persuasion or blandishment on the part of the respondents, particularly respondent No. 1, which could be said to have impelled her to accompany the accused.

11. It is settled position of law that conduct of the prosecutrix is relevant in order to constitute an offence under Section 363 RPC. The offence of kidnapping, in essence, involves enticing or taking away any minor under 18 years of age, if a female, from the lawful guardianship. The prosecutrix, in the present case, as already discussed, during her deposition before the Magistrate under Section 164-A CrPC clearly stated that she accompanied respondent No. 1 on her own accord because she wanted to marry him. Pertinently she did not allege anything against rest of the respondents. Under the circumstances, offences under Section 363 RPC is not made out against the Mohd Altaf Nima I attest to the accuracy and authenticity of this document 25.04.2025 Crl R. No. 04/2021 Page 3 of 4 respondents because prosecutrix has clearly stated before Magistrate that she eloped with respondent No. 1 on her own accord to marry him.

12. It is settled position of law that once the evidence about the accused enticing the girl is absent, there is no question of kidnapping and the question of application of 363 RPC does not arise. Respondent No. 1 also cannot be held liable for the commission of offence under Section 376 RPC because prosecutrix in her statement under Section 164-A CrPC has stated that respondent No. 1 did not do any wrong to her during her stay with him.

13. For the foregoing reasons, I do not find any illegality muchless perversity in the impugned judgment, recorded by the trial court. Hence the present petition, being devoid of merit is dismissed and impugned order is upheld. (RAJESH SEKHRI) JUDGE SRINAGAR: 24.04.2025 Altaf Whether the Judgment is speaking? Yes Whether the Judgment is reportable? Yes Mohd Altaf Nima I attest to the accuracy and authenticity of this document 25.04.2025 Crl R. No. 04/2021 Page 4 of 4