Person Convicted For Aggravated Offence Under Section 366 IPC Cannot Be Simultaneously Punished For Minor Offence Under Section 363: Himachal Pradesh High Court

Person Convicted For Aggravated Offence Under Section 366 IPC Cannot Be Simultaneously Punished For Minor Offence Under Section 363: Himachal Pradesh High Court

"Section 366 of IPC is an aggravated form of Section 363, and as per Section 71, a person being punished for the aggravated form cannot be punished for a minor offence." Himachal Pradesh High Court, in a significant ruling dated April 1, 2026, held that an accused cannot be simultaneously convicted and punished under both Section 363 (kidnapping) and Section 366 (kidnapping to compel marriage) of the Indian Penal Code for the same incident.

A single-judge bench of Justice Rakesh Kainthla observed that Section 366 is an aggravated form of Section 363, and the statutory bar under Section 71 of the IPC expressly prohibits punishing an offender for a minor offence when they are already being punished for its aggravated counterpart.

The case arose from the kidnapping of a sixteen-year-old girl in 2008, wherein the accused allegedly conspired to entice the minor away from her lawful guardianship and force her to marry one of the accused. The Additional Sessions Judge convicted four individuals under various provisions of the IPC, including simultaneous convictions under both Section 363 and Section 366 read with Section 120-B. Aggrieved by the dual convictions and the trial court's evaluation of the evidence, the four accused preferred separate criminal appeals before the High Court.

The primary question before the court was whether an accused can be convicted and sentenced independently under both Section 363 and Section 366 of the IPC in light of the restriction placed by Section 71 of the IPC. The court was also called upon to determine the evidentiary value of a minor's consent in kidnapping and the correct procedure for contradicting a witness's prior statement under Section 145 of the Indian Evidence Act.

The court first addressed the legality of the dual conviction handed down by the trial court. Analysing the interplay between these provisions, the court emphasised that Section 366 is inherently an aggravated iteration of the base offence of kidnapping defined under Section 363. Relying on the principles embedded in Section 71 of the IPC, which limits punishment for offences made up of multiple parts that are themselves offences, the court ruled that punishing an individual separately for both the major and the minor offences is legally impermissible. Drawing on established precedent, the bench explained that the major offence subsumes the lesser included offence, and thus the trial court committed a legal error by awarding sentences for both.

"Section 366 of IPC is an aggravated form of Section 363, and as per Section 71, a person being punished for the aggravated form cannot be punished for a minor offence."

Moving to the determination of the victim's age, the court reaffirmed that documentary evidence from official records holds primacy over medical opinions. The defence had attempted to rely on a radiological examination which estimated the victim's skeletal age between sixteen and eighteen years, arguing that a margin of error could render her a major. Rejecting this contention, the court held that the entries in the Pariwar Register and the school-leaving certificate, which consistently recorded her age as sixteen, were admissible under Section 35 of the Indian Evidence Act without needing the maker of the entry to testify. The court stressed that such official documentary proof firmly prevails over the variable estimates of a radiological report.

"The birth certificate taken from the Panchayat and the school show the victim’s date of birth as 02.08.1992. These entries have to be preferred to the opinion expressed by the radiologist based upon the radiological examination."

Addressing the defence's argument that the victim had travelled willingly and without making a hue and cry, the court strictly interpreted Section 361 of the IPC. The bench noted that the accused had persuaded the minor by instilling fear of public disgrace and offering her money. The court elucidated that the gravamen of kidnapping lies in violating the rights of the lawful guardian, making the minor's willingness, consent, or infatuation completely irrelevant to the determination of guilt.

"Therefore, the consent of the victim is immaterial for the charge of kidnapping, and only the consent of the guardian of the victim can help the accused."

The court also took critical note of the defence's failure to properly confront the prosecution witnesses with their previous statements. The bench observed that while the victim was cross-examined about alleged contradictions, the defence failed to put these statements to the investigating officers as mandated by Section 145 of the Indian Evidence Act. Citing a catena of Supreme Court judgments, the court reiterated that a prior statement cannot be used to discredit a witness unless the specific contradictory portion is marked and duly proved through the testimony of the investigating officer.

"The victim was confronted with a portion of her statement in her cross-examination; however, the Investigating Officer, HC Hem Raj (PW17) and Inspector Mool Raj (PW19) were not asked anything in the cross-examination about these confrontations. Therefore, the confrontations have not been proved as per the law."

Ultimately, the High Court partly allowed the appeals of the primary accused, setting aside their conviction under Section 363 IPC due to the Section 71 statutory bar, while upholding their conviction and sentence under the aggravated charge of Section 366 read with Section 120-B IPC. The appeals of two other co-accused were fully allowed due to a lack of substantive evidence regarding their involvement in the conspiracy, resulting in their complete acquittal.

Date of Decision: 01 April 2026