Vs. State of Kerala  Insc 1098 (24 October 2007)
Arijit Pasayat & P. Sathasivam
APPEAL NO 1463 OF 2007 (Arising out of SLP (Crl.) No.1287 of 2007) Dr. ARIJIT
challenge in this appeal is to the judgment of the learned Single Judge of Kerala
High Court dismissing the appeal filed by the appellant, while directing the
acquittal of the co-accused. Both the accused were convicted by the learned IInd
Additional Assistant Sessions Judge, Thrissur for offences punishable under
Sections 366A and 376 read with Section 34 of the Indian Penal Code, 1860 (in
Custodial sentence of two years and fine of Rs.10,000/- with default
stipulation, sentences of three years and fine of Rs.3,000/-were with default
stipulation for the offences punishable under Sections 376 and 366A read with
Section 34 IPC respectively.
background facts, as projected by prosecution in nutshell are as follows:
18.10.1993 at 7.00 a.m. both the accused, in furtherance of their common
intention of kidnapping, induced and procured a minor teenage girl (P.W.2), who
had not attained the age of 14 and seduced her to have illicit intercourse with
the first accused and first accused took her to Mahadevapuram in Coimbatore
District and committed rape in the house of CW8 at Mahadevapuram. Since PW2 did
not come back to her house, after making necessary enquiries, PW1, father of
PW2, went to Cheruthuruthy Police Station and lodged first information
statement and originally man-missing case was registered as Crime No.96 of
1993. The girl was not found out. Finally, a criminal M.C. was filed before the
High Court and on the basis of the direction of the High Court, the Circle
Inspector of Police found out PW2 and subsequently arrested the accused,
continued the investigation and charge was laid. The girl was produced before
the Judicial First Class Magistrate's Court, Wadakkancherry on 30.11.1993 and
it was recorded that she had stated to the Magistrate that she was studying in
ninth standard and she was staying with her father. She was taken from the
tuition center while she was going to Akshaya Tuition Centre, Ceruthuruthy. She
stated that she went with Iqbal, appellant and first accused, on her own will
to Coimbatore on 18.10.1993 from Akshaya Tuition
Centre. They were friends. Friend of first accused, namely, Sasi was also with
them. They changed the vehicles and finally second accused, Sasi did not
accompany them till Coimbatore.
also stated that she had intercourse with Iqbal, first accused, at Coimbatore and not with any other persons,
that she was aged thirteen years and six months at that time and she was with Iqbal
till she was produced before the Court.
under Section 161 of the Code of Criminal Procedure, 1973 (in short 'Cr.P.C.')
given by her to the police was also more or less on the same lines. But, before
the Court, she deposed in examination-in-Chief that she and her friend PW4 went
to the tuition center and an autorikshaw came there. From the autorikshaw, A2 Sasi
and A1 Iqbal, got down and A1 told her to get into the autorikshaw to tell
something and on his persuasion she got into the autorikshaw and both of them
took her to a place called Kolappully. Thereafter, A2 brought a car and they
went upto Palakkad and A2 Sasi left.
there, they went to Coimbatore by bus. They took food and A1 took
her to a hotel and forced her for intercourse and thereafter they went to
cinema etc. Thereafter, they came to the house of CW8 and they were staying in
that house. During cross-examination main endeavour of the accused was to show
that she came with him on her own will. Letters written by PW2, Exts. D1 to D3,
were also produced and marked to show that PW2 and A1 were in love and that was
not allowed by the parents. Further, in cross examination, he asked
specifically whether she agreed for intercourse willingly to show that
intercourse was committed with consent. Evidence of PW4 also supports the
evidence of PW2. Evidence of PWs 8 and 9 doctors show that she had intercourse.
Evidence shows that she went with her own will and intercourse also was done
voluntarily and not by force. It is clear from the evidence that they were in
love and wanted to marry, but parents of PW2 objected. Hence, they together
eloped and there is no kidnapping. School certificate as well as the deposition
of father of PW2 shows that she was aged only 13 years and nine months at the
time of incident. Hence, consent cannot be taken as valid.
Placing reliance on evidence of PW2, who is the victim, the learned Trial Court
found both the accused persons guilty and sentenced them as aforesaid. In
appeal, the High Court by the impugned judgment, noted that the charges have
been established so far as the appellant is concerned, while directing the
co-acquittal of the co-accused.
support of the appeal, learned counsel for the appellant submitted that the
evidence of the victim PW2 clearly shows that she was in love with the
appellant and had gone with him on her own will. Letters (Ex. D1 to D3) clearly
established this fact. It was further submitted that the evidence of PW2
indicated that though victim and appellant were in love, the parents objected
to it. It is also pointed out that in the cross-examination she had admitted
that she had sexual intercourse with the appellant on her own free will and
consent and there was no force used. The High Court, however, found that girl
victim was aged about 13 years and 9 months and, therefore, the consent was of
no consequence so far as allegation of rape is concerned. The conviction as
recorded by the Trial Court was affirmed. However, on special circumstances
which had weighed, the High Court imposed the sentence below the prescribed
minimum, reduced the sentence to three years rigorous imprisonment and fine of
Rs.10,000/- in respect of the offence punishable under Section 376 IPC.
However, his conviction and sentence relating to Section 366A was affirmed. The
sentences imposed were directed to run concurrently. As noted above, the stand
of the appellant was that there was no rape involved and in any view, Section
366A has no application.
far as the legality of conviction for offence punishable under Section 376 IPC
is concerned, Section 375 IPC needs to be noted. The same reads as follows:
Rape.- A man is said to commit "rape"
except in the cases hereinafter excepted, has sexual intercourse with a woman
under circumstances falling under any of the six exceptions:- First Against
Without her consent.
With her consent, when her consent has been obtained by putting her on any
person in whom she is interested in fear of death or of hurt.
- With her consent, when the man knows he is not her husband, and that her
consent is given because she believed that he is another man to whom she is or
believed herself to be lawfully married.
With her consent, when, at the time of giving such consent, by reason of
unsoundness of mind or intoxication or the administration by him personally or
through another of any stupefying or unwholesome the nature and consequences of
that to which she gives consent.
with or without her consent, when she is under sixteen years of age. "
Clause 'sixthly' clearly stipulates that sexual intercourse with a woman with
her or without her consent when she is under 16 years of age, amounts to rape.
The evidence on record clearly establishes that the victim was less than 16
years of age and, therefore, the conviction for offences punishable under
Section 376 IPC cannot be faulted.
residual question is of applicability of Section 366A IPC. In order to attract
Section 366A IPC, essential ingredients are
the accused induced a girl;
the person induced was a girl under the age of eighteen years;
that the accused has induced her with intent that she may be or knowing that it
is likely that she will be forced or seduced to illicit intercourse;
intercourse must be with a person other than the accused;
the inducement caused the girl to go from any place or to do any act.
the instant case, the admitted case of the prosecution is that girl had left in
the company of the accused of her own will and that she was not forced to
sexual intercourse with any person other than the accused. The admitted case is
that she had sexual intercourse with the accused for which, considering her
age, conviction under Section 376 IPC has been maintained. Since the essential
ingredient that the intercourse must be with a person other than the accused
has not been established, Section 366A has no application.
the result, the conviction for offence punishable under Section 366A IPC is set
aside while the conviction and sentence imposed in respect of offence
punishable under Section 376 IPC is maintained.
The appeal is allowed to the aforesaid extent.