HIGH COURT OF JUDICATURE AT ALLAHABAD

A.F.R.

Court No. – 1

Case :- GOVERNMENT APPEAL No. – 829 of 2018

Appellant :- State Of U.P.

Respondent :- Sandeep Alias Bhura

Counsel for Appellant :- G.A.

AND

Case :- CRIMINAL APPEAL No. – 4994 of 2018

Appellant :- Sandeep @ Bhoora

Respondent :- State Of U.P.

Counsel for Appellant :- Atul Kumar

Counsel for Respondent :- G.A.

Hon’ble Ramesh Sinha,J.

Hon’ble Dinesh Kumar Singh-I,J.

(Delivered by Hon’ble Dinesh Kumar Singh-I, J.)

1. Heard the arguments of Mrs. Archana Singh, learned A.G.A. from the side of appellant in Government Appeal No.829 of 2018 and Sri Atul Kumar, learned counsel for the appellant and learned A.G.A. for the State in Criminal Appeal No.4994 of 2018.

2. Government Appeal No.829 of 2018 has been preferred by the State against the judgment and order dated 29.8.2018 passed by learned Additional Sessions Judge/Fast Track Court No.3, Muzaffarnagar in Session Trial No.939 of 2012 (State Vs. Sandeep @ Bhura) whereby the accused-respondent Sandeep @ Bhura has been acquitted of charges under Sections 366, 376 IPC and has been convicted only under Section 363 IPC with three years and two months imprisonment and fine of Rs.2,000/- and in default of payment of fine, two months additional imprisonment. On the other hand, Criminal Appeal No.4994 of 2018 has been preferred by the accused-appellant Sandeep @ Bhura against the same judgment, praying therein to set aside his conviction under Section 363 IPC.

3. Since both the appeals arise out of the same judgment, we are deciding both the appeals together by this common judgment. Before proceeding further and appreciating the points involved in both the appeals, we deem it proper to give brief outline of the prosecution case here first.

4. As per FIR (Exhibit Ka-1), on 2.5.2012, the niece of the informant Prem Chand aged about 16 years had gone to appear in the examination in K.K. Jain Degree College of B.A.-I, whereafter she did not return home due to which, the informant went to search his niece here and there but could not find any clue of her. On 4.5.2012, Rakesh and Naresh, both residents of his village, told him that on 2.5.2012, they had seen Sandeep @ Bhura son of Champat and one other boy at about 11:00 a.m. outside the railway station Khatauli on a rickshaw towards a lane which leads to Saini Nagar. The informant thereafter, tried to find Sandeep @ Bhura at his house but it was learnt that he was missing from the same day. Further it is mentioned in the FIR that his niece was enticed away by Sandeep @ Bhura (accused ) and Niraj son of Dharm Pal residents of Village Tajpur, District Meerut and she was in their possession.

5. Upon the said written report, Case Crime No.263 of 2012 was registered under Section 363, 366 IPC against the accused Sandeep @ Bhura and Niraj on 4.5.2012 at about 21:30 hours. The chik FIR was prepared by HCP Mahendra Singh of P.S. Kotwali Nagar, District Muzaffarnagar which is Exhibit Ka-7, who made entry of this case in G.D. at report no.50, time 11:10 hours which is Exhibit Ka-8.

6. The investigation was initially assigned to Sanjay Garg and subsequently was assigned from 8.5.2012 to S.I. Rajpal Singh (P.W.-5). He, on information of informer, took the victim/abductee as well as the accused Sandeep @ Bhura into custody at 9:30 a.m. and recorded the statement of victim. On the basis of her statement, offence under Section 376 IPC was also added on 8.5.2012 and thereafter, on 10.5.2012, he got the statement of the victim under Section 164 Cr.P.C. recorded and on 13.5.2012, the victim was given in supurdagi of her mother. Thereafter, he prepared the site plan at the instance of witness Rakesh which is Exhibit Ka-4. After competing the investigation, he submitted the charge-sheet against the accused which is Exhibit Ka-5.

7. On the basis of evidence on record, charges were framed against the accused on 3.10.2012 under Sections 363, 366 and 376 IPC, to which he pleaded not guilty and claimed to be tried.

8. Thereafter, in order to prove its case, the prosecution examined the informant Prem Chand Sharma as P.W.-1, Rakesh Kumar as P.W.-2, victim as P.W.-3, Dr. Sangita Gupta, who conducted medical examination of the victim as P.W.-4, Investigating Officer, Tejpal Singh as P.W.-5, Tejwati wife of Dharam Pal Singh as P.W.-6, Head Constable Mahendra Singh as P.W.-7.

9. Thereafter the prosecution evidence was closed and statement of the accused under Section 313 Cr.P.C. was recorded, in which he has stated the entire evidence of the prosecution to be false; he has been falsely implicated; the age of the victim is 18-19 years. He has further stated that the victim had friendship with him and was also in love with him. She had written different letters on different dates to him; she wanted to marry him, but her Tau, uncle and family members did not want her to marry him because of him being of different caste. The victim has also stated in her statement under Section 164 Cr.P.C. about this fact. In order to distance the victim from the accused, the family members of the victim settled her marriage in her own caste at different place. The prosecution has colluded with police in order to falsely implicate the accused. No witness has been examined in defence. However, 13 letters have been submitted from the side of the accused which have been marked as Exhibit Kha-2 to Kha-14 vide court’s order dated 15.2.2016, which are paper nos.49-Kha/1 to 49-Kha/13.

10. After having considered the entire evidence on record and having heard both sides, the learned trial court has sentenced the accused as above. Hence, the above appeals from both sides have been filed.

11. Learned counsel for the appellant-accused in Criminal Appeal No.4994 of 2018, argued that the evidence which has been recorded, was misinterpreted by learned trial court because the victim was not minor As per medical report, her age was found to be above 18 years, moreover, she had gone with the accused of her own free will. It was also argued that, by now, both the accused and victim had married other persons and were settled in their lives. Therefore, the judgment of the trial court needs to be set aside by acquitting the accused-appellant from the offence under Section 363 IPC.

12. Learned AGA, on the other hand, vehemently argued that there was sufficient evidence on record to hold the accused guilty under Sections 366 and 376 IPC as well, for which the learned trial court erroneously acquitted the accused, As per the High School certificate, the age of the victim was less than 18 years, hence, she was a minor and accordingly, it is irrelevant whether she had given any consent to the accused to have gone with him or for having any kind of relation. Accordingly, it was vehemently prayed that the accused should be held guilty under Sections 366 and 376 IPC as well by reversing the judgment of trial court.

13. In order to appreciate the arguments of the learned counsel of both the parties, it would be appropriate to refer here to the relevant portion of the evidence which has come on record and thereafter see whether its appreciation by the trial court has been correctly made or does it require any interference.

14. In support of the prosecution case, P.W.-1, informant, who is uncle of the victim, has stated in examination-in-chief that his niece aged about 16 years, had gone to appear in the examination on 2.5.2012 to Shri Kund-Kund Jain Degree College in the morning shift and after the examination of B.A.-I was over, she did not return home. Thereafter, he started making search for her and on 4.5.2012, he was apprised by Rakesh and Naresh that they had seen the victim going towards the lane which leads to Saini Nagar and when he had gone to house of Sandeep @ Bhura thereafter, inmates of his home told him that he was not in house for the last many days and thereafter, he made written report at Police Station Khatauli on 4.5.2012 at about 8:00 p.m. which is Exhibit Ka-1. His niece was recovered by police on 8.5.2012 but he does not know from whose possession, she was recovered as he was not present at the spot at that time. He has stated in his cross-examination that he had not got the victim admitted in school nor does he know whether at the time of birth of victim, her date of birth was registered anywhere or not nor does he know where she was born, whether at home or in a nursing home. He has denied that the victim had any love relationship with the accused. It is right to say that the victim was a student of B.A.-I in the year 2012, in examination of which, she had appeared in 2-3 subjects but he does not know whether she had passed or failed. She was not at home as she had left studies. She had not married. It is wrong to say that the marriage of the victim was solemnised against her wish after the accused having been sent to jail, in village Daulatpur or at any other place. He had not seen the victim going or coming with the accused. He had searched for her at all places. Above two persons had told him and apart from that, neighbours of Champat or any other person of the village had not told him that the victim was seen with the accused. He was told by Rakesh and Naresh that other boy was Niraj, who was brother in law of Nawab Vakil of their village.

15. He does not have any acquaintances near railway station Khatauli, he has not inquired about the victim from anyone residing near the said railway station but on the basis of above two witnesses, he had got the report lodged at police station. At the police station, he had gone alone.

16. He has further stated that he had written the report outside the police station and for that, paper was purchased by him from a shop of book-seller of Ashok Market and no carbon was used by him. He had also told the mother of the victim that the victim was seen going with the accused Sandeep @ Bhura and Niraj.

17. Further he has stated that he knows father of the accused Champat, who is his neighbour and his house is in front of his own house; the elder brother of Champat, namely, Muni’s son is Prem Prakash @ Chhota. It is right to say that few days ago, he had lodged a report against Prem Prakash @ Chhota because Chhota had set on fire the crop of sugarcane belonging to him, which was in about 25-30 bigha land but he has denied that because of that enmity, he has lodged the present case against the accused and further denied that it was wrong to say that the victim had gone with the accused of her own free will and reiterated that the was told by Rakesh and Naresh that the victim was taken on rickshaw but it was not told that there was revolver or other weapon with the accused at that time.

18. It is apparent from the above statement of this witness that he had enmity with the accused because P.W.-1 had lodged an FIR against Prem Prakash @ Chhota, who is son of the brother of the accused’s father in respect of having set on fire his sugarcane crop.

19. P.W.-2, Rakesh Kumar resident of Village Tajpur, who is said to have apprised P.W.-1 about the victim having been seen on rickshaw with the accused and other co-accused and has stated in examination in chief that on 2.5.2012, when he was going from Saini Nagar to Village Khatauli with Naresh son of Nathi of his own muhalla at about 11:00 a.m. and reached near the railway station, he saw that the victim was going alongwith accused Sandeep @ Bhura of his village and Anil son of Dharam Pal, who was also residing in same village, towards Saini Nagar. About this, he had told the persons at home on 4.5.2012. The police has recorded his statement. In cross examination, this witness has stated that occurrence took place on 2.5.2012, which is distinctly remembered by him. The informant had not stated to him about the date but it is right to say that he had seen on the date of incident that the victim was going with the accused Sandeep and at that time, Naresh son of Nathi was also with him at about 11:00 a.m. although he did not have wrist watch. He had started from home at about 9/9:30 a.m. by Jugaad and after getting down from it, had sat near the shop of Anil, where he had taken some cloth. He had entered into the cloth shop at about 9:30 a.m. and came out of it at about 10.15 a.m. He did not find any acquaintance at the said shop. Thereafter, he went Saini Nagar near Harendra, right then on the way, Sandeep @ Bhura and Niraj had met him. He had stated the names of both the accused to the investigating officer but if the same has not been recorded by him, he can not tell its reason. When he had seen the victim and accused going, he did not try to stop them nor had he talked to them nor made any gesture. He had seen them from a distance of about two meters. He had returned home at about 4:00 p.m.

20. Victim has been examined as P.W.-3, who has stated that she knew the accused Sandeep, whose house is after leaving two lanes away from her house. Occurrence took place on 2.5.2012 when she had gone for appearing in the examination at about 7:00 a.m. and went to K.K. Degree College, Khatauli. Her examination was over by 10.30 a.m. and soon after she came out of college, Sandeep and his friend (name not known) met her and told that condition of her mother was critical, hearing this, she panicked. Thereafter, Sandeep told her that her mother would be brought here only but she would have to go with him. There was a rickshaw standing there and she sat on the said rickshaw and thereafter the accused took her in lane which was across and on that rickshaw friend of the Sandeep was also sitting. They continued to move around over that rickshaw for about half an hour and when she inquired, they stated that Kothi was about to come. Thereafter they took her in a house, around which, there was no abadi and out of that house, one person came out, who opened the gate and Sandeep told her to go inside and she sat there. Sandeep came out and talked to other person who was tall and when that fellow went away from there, Sandeep came inside, Sandeep closed the door from inside. At this, she inquired from Sandeep as to where her mother was, Sandeep started threatening her by showing a knife and threatened that if she will not keep quiet, she would be killed and thereafter he committed rape upon her despite her resistance at the point of knife which was done 3-4 times. She was kept there for six days by Sandeep who used to serve him food which sometimes he used to go to bring himself and sometimes used to get it arranged by others. For all these days, he continued to commit rape upon her and during these days he also got few letters written by her at the point of knife. On 8.5.2012, he went away after closing door of the room from outside stating that he was sitting out and had also given a threat that in case she made any hue and cry, she would be killed. About half an hour thereafter, he came with clothes and which was provided to her directing her to change the clothes and also stated that he had arranged for her going back home. Thereafter, he took her to one Tiraha and while they were standing there, little thereafter police arrived there and arrested accused Sandeep. She divulged entire episode to police. Thereafter police brought them to police station and she was brought for medical examination to Muzaffarnagar and the same was conducted at about 1-1:30 p.m. On 9.5.2012, she was taken to hospital for x-ray. On the same day in the evening, one homeguard of Mahila Police Station, and father of Sandeep and two other perons had come and after getting her called, they stated that in case she gave any statement against Sandeep, her brother Rohit would be murdered and also told her that before Judge also she should say that she had gone with her own free will. She was also told to say that now she wanted to go with her mother. She became nervous because she does not have father and therefore, because of fear, she gave the same statement before the judge which she was directed by Sandeep and his father to say. She further stated that her date of birth is 1.5.1995. In her cross-examination, this witness had stated that she had started from home at about 7:00 a.m. The accused Sandeep lives in a house which is situated leaving two lanes in between from her house. On the date of incident, she was alone at home. Paper was given at 7:30 a.m. On the said date, she had exam of Political Science. After the examination was over, she came out of college gate along with other girls but she could not tell their names and she did not talk to them also. Sandeep met him on the main gate when she was alone, and rest of girls had left. Sandeep had told her about illness of her mother. Prior to the incident, she did not have any talk with Sandeep nor on phone. She had become nervous when she learnt about illness of her mother. Sandeep had not told anything to rickshaw-puller as to where they were to be taken and the said rickshaw started towards railway-station and would have taken half an hour and come away from the abadi. On way, she inquired as to where her mother was, they stated that she was just ahead. She was taken to a house by Sandeep and his friend. She is wearing bangles because she had got married on 28.6.2012. Name of her husband is Gyan Singh and she has one daughter also of 5-6 months. She further stated that she knows Sandeep from before the incident being a neighbour but she does not know as to what occupation, he does. When she had gone for examination, her mother was little sick regarding which she had stated to the investigating officer. The statement was taken under pressure and because of that she has not stated about it before the Magistrate. She denied that it was for the first time before the Court that she was saying about her mother suffering from fever, the said fever had continued for many days prior to occurrence which was being treated by the doctor of the village. She did not try to verify after calling at home whether the said news of her mother being sick was correct and went with Sandeep as soon as she heard about illness.

21. The accused had not told her the name of Doctor but had stated that he lived at small distance. After having travelled some distance, she had enquired from accused as to where she was being taken but she does not recollect as to when she asked the accused as to where she was being taken. Further stated that outside the school, she had asked the accused and also when she was reaching Railway Station, she had asked where she was being taken. From school to reach the Railway Station, it would take 15-20 minutes. Soon after getting out from the gate of school, the passage is uneven and lonely. When she was being taken through such passage she had asked as to where she was being taken and to which Doctor they were approaching to. The place where they had reached, there were no houses, there was lot of crowd outside of the Railway Station. When accused was taking her towards Railway Station, she had no doubt upon him because she was told about serious condition of her mother and that she was being taken to the Doctor and she had full faith in Sandeep. It is right to say that when the accused started taking her towards Kaccha road she had full doubt that she was not being taken to Doctor and on that passage after having travel for 20 to 25 minutes they reached at a lonely house and there was no board of any Doctor. When she became sure in mind that it was not Doctor’s clinic, even then she went inside the said house. The person who came out from that house, she did not make any complaint to him. Prior to this incident, she had not had any sexual relation with any person. When she returned from the place of occurrence, she was wearing the clothes which accused had provided her. After coming at the Police Station, she had shown the place to the Investigating Officer where the occurrence took place. She had denied that she had gone to school of her own free will and also returned on her own. She had given statement under Section 164 Cr.P.C. to the Magistrate which was signed by her which is exhibit Kha-1. In the said statement, she had stated that she had prior acquaintance with the accused-Sandeep and also stated that it was wrong to say that she gave statement to the Investigating Officer to the effect that Sandeep enticed her away and had taken her consent. She has further stated that she had given statement to the Investigating Officer that she had made a planning to go with Sandeep but had not stated that in accordance with the planning she came at Jansath Triaha Bus Adda and that there Sandeep met him. How this statement has been written by the Investigating Officer, she could not tell its reason and she had stated it to be wrong that she had given statement on legal advice and was concealing actual facts. She had stated to the Investigating Officer that the accused told her that her mother was serious, on which she became nervous, if the same was not written by the Investigating Officer, she could not tell its reason. She had also stated to the Investigating Officer that she was raped by the accused on the point of knife despite resistance and if the same was not written, she could not tell its reason. She was kept there for six days, told by her to the Investigating Officer, but if the same was not written by the Investigating Officer, she could not tell its reason. For writing the letters, papers were obtained from where, she does not know but they were brought by Sandeep, which were in her hand-writing. She had written 6-7 letters in the name of Sandeep, which she was asked to write but she did not calculate, in all, how many letters were written by her. In one of the such letters, it is written that she wants a mobile. The letters were got written forcibly by her which are Exhibit-Kha-2 to Kha-14 regarding which she had stated to the investigating officer but if the same was not written, she could not tell its reason. She had also stated about it in her statement under Section 164 Cr.P.C. before Magistrate but if the same was not written, she could not tell its reason. She had also stated before the Magistrate about illness of her mother, if the same was not written, she could not tell its reason. She denied that her mother was not sick on the date of incident and she was stating her to be sick on legal advice and lastly she had stated it to be wrong that her family members did not want to marry her to a person of her choice, therefore, she has been married in her own caste by her family members against her wish. It is also wrong to say that she was giving statement under pressure of her family. It is right to say that at present, she had two children.

22. From the above statement of this witness, it transpires that she appears to have gone with the accused of her own free will becuase when she was given news by the accused that her mother was serious and was taken to a doctor and that she was also being taken to the same place i.e. to the said doctor’s place where her mother was under treatment, on a rickshaw by the accused, and the rickshaw turned to a lonely place, she ought to have realised that something was amiss and that she was going to be taken to a wrong place but she does not appear to have raised any alarm and meekly submitted to the demand of accused to go to the said place where he wanted her to take and then despite her having seen the said place not bearing any name plate of the doctor, she merely at the asking of the accused, entered the said house inviting the threat to herself. This conduct of her’s appears to be suspicious and points to her willingness to accompany the accused. It has also come in evidence on record that she had written various love-letters to the accused which indicates that they had infatuation towards each other and therefore, voluntarily she accompanied the accused. There are numbers of discrepancies with respect to the relevant details which were stated before the Court and were earlier stated before investigating officer and also in her statement under Section 164 Cr. P.C. given before the Magistrate, which also appears to make her testimony before the trial court to be not wholly believable as regards having been raped against her wish as well as being abducted with force to have physical relationship with the accused.

23. However, it is apparent that she, according to the high school certificate, is found to be a minor on the date of incident.

24. P.W.-4, Dr. Sangeeta Gupta, Senior Consultant, District Women Hospital, Meerut, has stated that on 08.02.2012, the victim was brought before her for medical examination by constable Pramila Singh and on being identified by the said constable and having taken the consent of the victim, she was medically examined which report is Exhibit-Ka-2. She did not find any external injury upon the body of the victim, hymen was found old torn and healed. There was no bleeding found from her private part nor of any other kind. No spermatozoa was found present and also no further opinion could be given by her about rape on the basis of her findings. She has proved her medical examination report and supplementary report which are Exhibit-Ka-2 and Ka-3 respectively. In cross examination, this witness has stated no injury was found on the body of the victim nor on her private part. The hymen which was found torn, could be two months old or even 7-8 days old also. No definite opinion could be given by her about victim having been raped. She also could not give any opinion about the victim being habitual of sexual intercourse.

25. P.W.-6, Smt. Tejwati w/o Dharam Pal, who is Principal of Kisan Inter College, Muzaffarnagar, has stated that on the order of Court, she had brought school records of the victim, whose name is at Serial No.36 of the S.R. Register in which, the admission of the student is entered at Serial No.3693 to 3792 and in that Register at Serial No.3766, the name of the victim is recorded, by which her date of birth is 01.05.1995. The victim had come to her college after having passed class VIIIth from earlier school, namely, Madhyamik Vidyalaya, Tajpur and on the basis of her T.C., she was given admission in her college. The victim had passed class Xth from her college in the year 2008-09. The photocopy of the said record (Exhibit-Ka-6) has been filed by her. In cross examination, she has stated that she is giving statement on the basis of school record. In her school, she was admitted in class IXth, but the documents on the basis of which, she was given admission, were not before her today. She does not know the victim personally. Exhibit-Ka-6 is prepared by the clerk of the said institution, but does not contain signature of the clerk, hence she cannot reveal her name. Before her, the secondary copy of Exhibit-Ka-6 is there. Who had got her age recorded in class first and whether the same was correctly written, she could not tell anything about it, but she said that victim’s admission was done on the basis of T.C. of the school although the verification of T.C. was not done and she had denied the suggestion that at the instance of Som Dutt Sharma and because of being teacher of the school, she was giving false statement.

26. The statement of this witness is believable because whatever she has stated, has been stated on the basis of school records in which the date of birth of the victim is found to be 01.05.1995. There is no reason for us to disbelieve her statement in this regard. It is also clearly stated by the witness that the admission of the victim is made in her college on the basis of T.C. from earlier school. Therefore, we do not find any infirmity in her statement and on the basis of her statement, it is found proved that the date of birth of the victim was recorded as 01.05.1995 which was correctly written and on the basis of that her age is found to be 17 years and 1 day on the date of incident.

27. On the basis of other evidence, learned trial court has convicted the accused under Section 363 I.P.C. and has acquitted under Section 366 and 376 I.P.C. We have to evaluate the evidence afresh and see whether the learned trial court has misread the evidence and has arrived on wrong conclusion or the same has correctly drawn.

28. Learned counsel for the appellant-accused has vehemently argued that the conviction has been made against the weight of evidence on the record and same is bad in the eye of law and hence, the same deserves to be set aside.

29. From the side of learned A.G.A., it has been vehemently argued that the accused-respondent has been wrongly acquitted of offences under Sections 366 and 376 I.P.C. The prosecution has proved its case to the hilt on the basis of cogent evidence and yet misinterpreting the same, the trial court has passed the acquittal order. Hence, the order of acquittal under Sections 366 and 376 IPC needs to be set aside and the accused should be convicted under the aforesaid sections.

30. We have perused the record and have heard the arguments of both sides.

31. First of all, we would take of the matter as to whether the offence under Section 363 I.P.C. is made out against the accused or not. The said section says that whoever kidnaps any person from India or from lawful guardianship shall be punished with imprisonment of either description for a term which may extend to seven years and shall also be liable to fine. But the kidnapping is defined under Section 361 I.P.C. which shows that whoever takes or entices any minor under 16 years of age if a male, or under 18 years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian or such minor or person of unsound mind without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship.

32. The above section clearly contains the ingredients that; (1) prosecution has to prove taking or enticing away a minor or a person of an unsound mind. (2) such minor must be under 16 years of age, if a male, or under 18 years of age, if a female (3) the taking or enticing must be out of the keeping of the lawful guardian of such minor or person of unsound mind (4) such taking or enticing away must be without the consent of such guardian.

33. In the light of above ingredients, we find that the age of the victim is found to have been proved by P.W.-6 who is the Principal of the college from where the victim has passed out the examination of high school in which her date of birth is recorded to be 01.05.1995 and on that basis her age on the date occurrence i.e. 02.05.2012 comes to 17 years and 1 day and hence, it is conclusively proved that the victim was minor on the date of incident. It may also be mentioned here that when the victim was minor, it would be meaningless whether she taken away out of the custody of her parents with or without her (victim’s) consent because her consent would not have any meaning she being a minor.

34. Now before giving final opinion in respect of the offence under Section 363 I.P.C., whether the same is found proved or not, we would like to consider the evidence on record and also in respect of the other two offences i.e. offence under Sections 366 and 376 I.P.C.

35. For an offence under Section 366 I.P.C., following ingredients are required to be fulfilled.

(i) Kidnapping or abducting of any woman;

(ii) Such kidnapping or abducting must be –

(i) With intent that she may be compelled or knowing it to be likely that she will be compelled to marry any person against her will; or

(ii) In order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse; or

(iii) By means of criminal intimidation or otherwise by inducing any woman to go from any place with intent that she may be, or knowing that she will be, forced or seduced to illicit intercourse.

It is immaterial whether the woman kidnapped is a married woman or not.

36. For an offence under Section 376 IPC, following ingredients are required to be proved.

(i) Sexual intercourse by a man with a woman;

(ii) The sexual intercourse must be under circumstances falling under any of the six clauses given under Section 375, I.P.C.;

(iii) That the accused had sexual intercourse with his own wife aged under 12 years.

Moreover, an apparent consent is not a real consent, and rape is committed in the following case:

(a) where submission is procured by threats of personal violence;

(b) where the consent is obtained by fraud as to the nature of the act. (c) where the consent is obtained by impersonating the woman’s husband;

(d) where the female is so mentally deficient or young or drunk that her knowledge and understanding are such that she is not in a position to decide whether to consent or resist.

37. Section 375 IPC provides:- “A man is said to commit “rape” if he

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Sixthly. – With or without her consent, when she is under eighteen years of age.

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38. The victim as P.W-3 has stated that when she came out from the college, Sandeep and his friend were standing outside who told that her mother’s condition was serious due to which she became nervous and when accused told that her mother was being brought there only but she would have to also go with him and thereafter, he took her on a rickshaw along with his friend and kept roaming on the same for about half an hour, whereafter she was taken in lonely house under the impression that she was being taken to a doctor where her mother was being treated but she did not find any board of doctor over the said house and a person came out of the said house, thereafter she was asked to go inside the house and thereafter the accused bolted the door from inside and committed rape upon her and she was remained over there for about six days where she was being fed food also and rape was committed at the point of knife.

39. In this regard, her statement is found to be inconsistent because there are numbers of discrepancies in the statement given before the Magistrate under Section 164 Cr.P.C. as well as the statement given to police 161 Cr.P.C. it is unbelievable that she being 17 years of age and being a student of B.A.-I, would not verify about her mother being so seriously sick that she would consent to accompany the accused and would go to a place which was absolutely lonely. While she was being taken on a rickshaw over there, she did not raise any alarm though she was being taken to an unusual place where there was hardly possibility of any doctor. All this appears to be unnatural. Thereafter upon reaching the said house, despite having seen that no board of doctor was there, she facilely entered the house at the instance of accused and allowed herself to be exposed to the accused, also seems to be little unnatural. She remained there for about six days and was being fed food also, it also leads to doubt that a person could stay for such a long duration without any resistance shown. All this is required to be seen in the backdrop of the fact that she has admitted that the accused was her neighbour whom she knew from before and several letters are also filed on record which show that she used to write love letters to the accused. It all shows that she, if at all accompanied to the accused to the place of occurrence, it cannot be doubted that she went there of her own free accord.

40. The doctor has clearly stated that she had not found any external or internal injury upon the body of the victim although, she had found her hymen old torn and healed but did not express any definite opinion about the victim having been raped. No spermatozoa was reported to have been found by her. From the said evidence, we form opinion that it does not appear to be a case where the victim was subjected to rape against her wish because had there been any forceful sexual intercourse, there could be possibility of some injuries being received by the victim which is not the case here. Therefore, with respect to the offence under Section 376 IPC, we are not convinced that case of rape is made out against the accused.

41. The evidence which has come on record and has been extensively quoted above, also does not suggest that with a view to forcing her to have illicit intercourse or to marry the accused, she was abducted or intimidated. Therefore, the necessary ingredients of section 366 IPC are also not found present in this case.

42. But, as regards offence under Section 363 I.P.C., we are of the opinion that the offence appears to be made out because the victim is indisputably a minor as has been held by the trial court on the basis of the evidence on record and therefore, even if she had been taken away by the accused with her consent, the same would not be treated to be a valid consent under law and it would be held that she was taken out of possession of her lawful guardian and hence, the ingredients of offence under Section 363 I.P.C. appear to be satisfied in the present case and in view of that, we find that the trial court does not appear to have committed any error in holding the accused guilty under Section 363 I.P.C.

43. However, we find that the trial court has awarded punishment to the accused-appellant on the higher side and the same requires to be reduced. From the arguments, it appears that both the victim and the accused have got married and the victim has two children and they (both victim and accused) are well settled in their lives and the accused has remained in jail for a long time. In such circumstances, we find that the ends of justice would be met in this case, if the sentence is reduced to five months simple imprisonment and fine of Rs.50,000/- and in default of payment of fine, additional imprisonment of two months and we modify the same accordingly.

44. Since the accused is on bail, his personal bonds and bail bonds are discharged. He shall be taken into custody if he has not already served out the above sentence and has not deposited the fine. In case, he has already served out the above sentence, the accused-appellant shall deposit fine of Rs.50,000/- within a month in the concerned court. On the deposit of fine as directed above, the appellant-accused shall be released, if not wanted in any other case. Out of the amount of fine so deposited by the accused, Rs.40,000/- shall be paid to the victim after proper identification by the trial court and Rs.10,000/- shall go to the State. In default of payment of fine, as directed above, the accused-appellant shall serve out the sentence as ordered and modified by this Court.

45. In view of the above, the Criminal Appeal No.829 of 2018 stands partly allowed.

46. With regard to Government Appeal filed from the side of the State, we are of the view that we do not find any infirmity in the impugned judgment with respect to acquittal of the accused for offence under Sections 366 and 376 I.P.C. because we are convinced that the said abduction of the victim was not made with intention to force her to marry with the accused or to have illicit intercourse, and due to lack of evidence on record with respect to her being raped as no injury was noticed on the body of the victim nor any such proof was produced. In that view of the matter, we are not inclined to interfere with the impugned judgment and believe that this appeal lacks merit and the same is liable to be dismissed and is accordingly dismissed.

47. Let a copy of this judgment be sent to the trial court for compliance.

(Dinesh Kumar Singh-I, J.) (Ramesh Sinha, J.)

Order Date :- 26.2.19

Vivek Kr.