Udai Bairagi @ Guddu v. State N.C.T. of Delhi

1. Udai Bairagi @ Guddu (the appellant) challenges a judgment dated 04.04.2001 of learned Additional Sessions Judge in Sessions Case No.55/1999 arising out of FIR No.156/1999 registered at Police Station Ambedkar Nagar by which he and Meena were convicted under Section 366/34 IPC. By an order dated 09.04.2001 they were sentenced to undergo RI for three years with fine `500/-.

2. Allegations against the appellant were that he and Meena kidnapped prosecutrix ‘X’ (assumed name) aged 16 years on 08.03.1999 with the intention to compel her to marry Guddu. During the course of 2013:DHC:4249 proceedings the prosecutrix was recovered, Meena and Udai Bairagi @ Guddu were arrested and statement of prosecutrix was recorded under Section 164 Cr.P.C. After completion of investigation, a charge-sheet was filed in the court. Both were duly charged and brought to trial. The prosecution examined 11 witnesses to prove the charges. In their 313 statement the accused persons pleaded false implication. On appreciating the evidence and after considering the rival contentions of the parties, the Trial Court by the impugned judgment held both of them guilty under Section 366/34 IPC and sentenced them. It is relevant to note that Meena has already undergone the sentence awarded to her and her appeal was disposed of earlier.

3. On perusal of the evidence, it reveals that the prosecutrix had leveled allegations of kidnapping only against Meena. She appeared before the court as PW-3 and deposed that on 08.03.1999 at about 12.00 noon Meena who lived in her neighbourhood called her in her house on the pretext to arrange luggage as she was going to her village. She offered a cup of tea and on consuming it, she started feeling giddy. She was made to sit in a TSR and thereafter she became unconscious. When she regained her senses in train and inquired from Meena as to where she had brought her, Meena told that she was going to marry her with accused Udai Bairagi @ Gudu (the present appellant). She told Meena that she would not marry him in any condition and insisted her to take her back to Delhi. Thereafter, she was brought back to Delhi. At New Delhi Railway Station her parents met them and apprehended both Meena and Udai Bairagi @ Guddu. Her statement (Ex.PW3/A) was recorded before the Magistrate. In her entire deposition, the prosecutrix did not level any allegations against Guddu for kidnapping. When she went to Meena’s house Guddu was not present there. She did not depose if Guddu was present in the TSR when she was taken forcibly to railway station. In the crossexamination she clarified that Meena was alone in her house when she had gone there. When she regained consciousness in the train, she found Meena sitting by her side and there was no one else accompanying Meena. She further elaborated that Guddu used to live in her neighbourhood but she had no conversation with him any time and he met them only when they were returning to Delhi. She did not attribute any role whatsoever to Guddu in the kidnapping. Mere presence of Guddu in the train on their journey back to Delhi is not enough to infer that he shared common intention with Meena who kidnapped her with an intention to marry. Guddu was not a member of the family of Meena who lived with her husband and four-five children. Meena took the prosecutrix to her native place and Guddu had no concern with the said place. No overt act was assigned to Guddu in the entire incident. He never expressed his willingness to marry the prosecutrix. There are no allegations that he conspired with Meena to kidnap ‘X’ and thereafter to marry her. The prosecution did not establish if Guddu had any relationship with Meena and if so what was it.

4. Since there are not allegations of kidnapping against Guddu his conviction under Section 366/34 IPC cannot be sustained. The appeal is allowed and the conviction and sentence of the appellant-Udai Bairagi @ Guddu are set aside. Bail bond and surety bond of the appellant stand discharged. Trial Court record be sent back forthwith.

5. Crl.M.B.No.1794/2010 also stands disposed of.

JUDGE AUGUST 29, 2013 sa