Bombay High Court
Bhagwan Laxman Rakshe vs The State Of Maharashtra on 20 September, 2016
Bench: A.I.S. Cheema
Criminal Appeal No.889/2015
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.889 OF 2015
Bhagwan s/o Laxman Rakshe
Age 24 years, Occu. Labour,
R/o Shekta, Tq. Georai,
District Beed. ... APPELLANT
VERSUS
The State of Maharashtra
through Police Station, Beed Rural,
(Copy to be served through
the Public Prosecutor,
High Court of Judicature
of Bombay, Bench at Aurangabad) ... RESPONDENT
.....
Shgri Avishkar Shelke, Advocate for appellant
Shri R.B. Bagul, A.P.P. for respondent
.....
CORAM: A.I.S. CHEEMA, J.
DATED: 20th September, 2016.
Date of reserving judgment : 25th August, 2016
Date of reserving judgment : 20th September, 2016.
JUDGMENT:
1. The appellant - original accused No.1 (hereinafter
referred as "accused") faced prosecution before the Additional
Sessions Judge, Beed in Sessions Case No.116/2013. Along
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with him, one Annasaheb Bhagwat Gavhane was arrayed as
accused No.2. In the incident concerned, prosecution alleged
involvement of one another juvenile in conflict with law -
Dnyaneshwar Kamble. The accused No.1 and 2 were charged
with offence under Sections 363. 366-A, 376 read with
Section 34 of the Indian Penal Code, 1860 (IPC in brief). By
way of additional charge, the original accused No.1 and 2
were charged with offence under Section 4 as well as Section
6 of the Protection of Children from Sexual Offences Act, 2012
("Act" in brief). Accused No.2 was additionally charged with
offence under Section 16 of the Act. After the trial, the
accused No.2 came to be acquitted of the charges which were
framed against him while the appellant - accused came to be
convicted under Sections 363 and 366-A of the Indian Penal
Code. For both these Sections, there is sentence of rigorous
imprisonment for 5 years and to pay fine of Rs.1000/-, and in
default, to suffer simple imprisonment for one month. The
accused has also been convicted under Section 4 of the Act
and sentenced to suffer rigorous imprisonment for 10 years
with fine of Rs.1000/-, and in default to suffer simple
imprisonment for one month. The Trial Court found that in
view of the conviction under Section 4 of the Act, need of
invoking Section 376 of the Indian Penal Code became
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redundant. The trial Court acquitted the accused of the
offence under Section 376 of the IPC and also Section 6 of the
Act, holding that, accused was not police officer etc.
2. The case of the prosecution in short may be stated
to be as under :
(a) P.W.9 is father and P.W.2 is mother of prosecutrix,
who has been examined in the trial Court as P.W.14
(hereinafter referred as "victim"). The brother of
the victim came to be examined as P.W.8. I am not
referring to the names of these persons (which can
be seen in the record) so as not to reveal identity of
the victim. I will refer to them as father, mother
brother and victim.
(b) On 3.5.2013, P.W.9 father of victim filed report
with Beed Rural Police Station, claiming that, on
2.5.2013 there was marriage of one Sheetal
Nagargoje at Kapildhar, Taluka and District Beed.
The victim and her family are residents of Shekta,
Taluka Georai, District Beed. The report claimed
that, for the marriage of Sheetal (P.W.7) the victim
had gone along with the bride to Kapildhar and was
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present at the time of marriage ceremony till about
4.00 p.m. The mother of the victim had also gone
for the marriage. The mother could not find the
victim after 4.00 p.m. and started searching for
her. She rang up her husband (father of victim)
and told the fact. The family searched for the
victim at the place of relatives and when the victim
was not found, the missing report (Exh.57) was
being filed. Photograph of the victim was affixed on
the same. In the missing report, the father
expressed suspicion rather on P.W.7 Sheetal for the
daughter going missing. The father followed up the
missing report with a complaint or reminder to the
Superintendent of Police on 4.5.2013 sending letter
Exh.58 that no action has been taken.
(c) Subsequently, P.W.2, the mother of victim on
6.5.2013, filed F.I.R. Exh.45 reporting to the police
that the victim, aged about 15 years, had been
studying in Rajmata Jijau Middle School in 9 th
Standard. There was marriage at Kapildhar in the
brotherhood, for which the victim had gone along
with bride Sheetal @ Balu (P.W.7). The bride had
called the victim on 29.4.2013 itself, and it was
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reported that, along with the marriage party she
and her son (P.W.8), aged about 10 years had gone
to Kapildhar. The husband remained back to attend
another marriage in the village Shekta. The victim
had gone along with the bride in jeep. The
marriage took place at around 2.00 p.m. and the
victim was seen to be around till 4.00 p.m.
Thereafter, she was not seen. When she was not
found, her son (P.W.8) told her that, some time
back he had seen her talking with juvenile
Dnyaneshwar and accused No.2 Anna Gavhane.
Even thereafter they searched for the victim and
came back to village Shekta and searched there
also. It was noticed that, accused No.1 Bhagwan,
aged 23 years, was also not in the village since
2.5.2013. The report alleged that, the accused
No.1 Bhagwan had enticed and made the victim run
away and that accused No.2 Anna and juvenile
Dnyaneshwar had helped the accused No.1 in this
regard. The victim had been taken away enticing
her with the promise of marriage. Thus, the
complaint.
Crime No.58/2013 was registered on such
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complaint on 6.5.2013 at about 12.30 noon. The
investigation was taken over by P.W.17 A.P.I.
Rangnath. He recorded statements of witnesses.
After some days on 14.5.2013, police traced the
location of the accused No.1 on the basis of location
of mobile and the victim and the accused were found
in an Omni Car parked on the side of the road about 3
Kms. from place called Badalwadi on Pune Solapur
Road in the Taluka area of Indapur, District Pune. On
the victim being found, she was taken to the police
Station. She was got medically examined. Accused
No.1 was also medically examined. Their clothes
were seized. The statement of victim was recorded.
Case of prosecution is that, accused No.2 and the
juvenile had forcibly taken her and pushed her in
Omni Car, which was driven by accused No.1.
Accused No.1 had taken her from place to places and
went on committing forcible intercourse with her.
The Car had broken down when police found them.
The investigating officer collected birth certificate of
the victim from school and the evidence collected
showed that the victim was a minor and
consequently, the charge sheet came to be filed for
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kidnapping and rape of the victim.
3. Trial Court framed charge under various Sections
as mentioned earlier. The accused persons pleaded not guilty.
The defence of the accused No.2 was of denial. Accused No.1
claimed that, he and the victim had a love affair and he did
not entice her to go with him. It is a defence that, rather the
victim herself ran away from the place of marriage at
Kapildhar and joined the accused who was waiting at fixed
spot in the Omni Car and she on her own went along with the
accused. In the defence and statement under section 313 of
the Code of Criminal Procedure, the accused claimed that, he
had not committed any sexual intercourse with her. The
accused being found with the victim from the Car as brought
in evidence, was not disputed.
4. Prosecution examined 17 witnesses. Accused No.2
examined himself in defence. Trial Court considered the
evidence and acquitted accused No.2, not accepting the
evidence of the victim that accused No.2 and the juvenile had
forcibly taken her. The evidence was read with statement
under Section 161 of the Code of Criminal Procedure, 1973
and trial Court held that, the role of accused No.2 in the
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kidnapping had not been proved beyond reasonable doubt. It,
however, found that, the victim was taken by accused No.1.
The acquittal of the accused No.2 has not been challenged and
I need not enter into that aspect.
As far as regards accused No.1 - the appellant is
concerned, trial Court found that, the offence of kidnapping
and committing forcible intercourse was established. Trial
Court found that the victim at the concerned time was minor
and thus, her consent was immaterial. As mentioned, the trial
Court invoked Section 4 of the Act and observed that, Section
376 was redundant. Trial Court observed that, Section 6 was
not attracted because the accused No.1 was not a police
officer nor a member of Armed Forces nor a public servant nor
managing jail hospital or educational institution and so,
Section 6 was not proved. (This observation is apparently not
correct and the trial Court did not properly read Section 5 of
the Act which deals with aggravated penetrative sexual
assault. Section 5(l) clearly provides that, whoever commits
penetrative sexual assault on the child more than once or
repeatedly is said to commit aggravated penetrative sexual
assault. This would attract Section 6 of the Act.) However,
against such finding of the trial Court and acquittal under
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Section 6, State has not come up in appeal and I may not go
into those details.
5. I have heard learned counsel for the appellant -
accused as well as A.P.P. for State. The learned counsel for
the accused took me through the evidence and submitted
that, statement of victim was recorded after she was found by
police where she had spoken in favour of accused, but later
contradicted her
ig statement to police which was earlier
recorded. According to the counsel, it was a case of
consensual going of the victim with the accused and looking to
the contradictions and omissions, the victim should have been
disbelieved that she had been forcibly kidnapped and raped.
The counsel submitted that, P.W.11 Dr. Deepali opined that
the victim was between the age of 12 to 14 on the basis of
ossification report she had obtained, but the Radiologist was
not examined. According to him, the doctor accepted that the
opinion regarding age varies by plus - minus two. Thus,
according to the counsel, the victim should not have been held
as below 16 years of age. It is stated that, the Head Master
of the school P.W.12 Avinash stated that, as per school
record, the date of birth was 5.6.1997. However, the victim
in her evidence stated that, her date of birth was 6.5.1997.
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Thus, according to him, there was variance regarding the date
of birth and exact age was not established. It is further
argued that, the prosecution did not prove that it was the
accused who enticed or induced the victim to leave the
marriage premises at Kapildhar. She went on her own and
thus, kidnapping was not established. The counsel stated
that, to apply Section 366-A of IPC, it will have to be
established the minor was procured to have sexual intercourse
with "another person". For this, the counsel relied on the case
of Mohd. Nisar Vs. State of Maharashtra reported in 2007
Cri.L.J. 562.
6. Counsel for the accused further submitted that,
looking to the provisions of Section 4 of the Act, it would be
appropriate to reduce the sentence to 7 years instead of 10
years as imposed by the trial Court. According to the counsel,
the accused is in jail since the time of arrest on 14.5.2013.
7. The learned A.P.P. for the State opposed the
submissions made by the learned counsel for the appellant -
accused. According to him, the victim was between the age of
12 to 14 at the time of incident, which takes care of the plus
minus of two years. He supported the reasons recorded by
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the trial Court. According to him, she was less than 16 years
of age at the time of incident. At the time of arguments, it
was noticed that, in IPC Section 375 defining rape was
substituted for the earlier provisions and w.e.f. 3.2.2013, the
law provided that it would be rape if the same was committed
with or without the consent of the woman when she is under
18 years of age. It was further submitted that, the Act
already provided that, child means a person below age of 18
years.
Thus, according to the A.P.P., looking at the matter
from any angle, the victim was a minor in the eyes of law.
She was taken out of the custody of her parents without their
consent and her willingness was immaterial. Apart from this,
in spite of suggestion, there was no admission from the victim
that she was in any love affair with the accused No.1. Her
evidence is that, she was threatened and taken and subjected
to forcible intercourse. The evidence of the witnesses as to
the manner in which the victim was found along with accused
No.1 on the Highway in the Omni Car standing on side of the
road was not at all disputed. The medical certificate showed
that, the hymen of the victim was ruptured. Reading the
medical evidence with the evidence of the victim shows the
kidnapping and rape and multiple forcible intercourse was
proved. According to the A.P.P., the earlier report of the
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parents to the police was that the daughter was missing and
suspicion rather on P.W.7 Sheetal was expressed and this
showed that, there was no love affair or else the parents
would have in the first instance itself suspected the accused.
8. In reply, the learned counsel for the accused
submitted that, between 2.5.2013 to 14.5.2013, the victim
was with the accused and there was no evidence that, she
tried to run away.
ig On her person there were no marks of
violence and thus, she was consenting party. Initially she
gave statement in favour of the accused, but later on resiled
at the time of evidence, it is stated.
9. I have gone through the evidence. Regarding the
victim going missing on 2.5.2013, there are witnesses
examined. P.W.2 is the mother of victim. Her evidence read
with the evidence of P.W.9, the father of victim as well as
P.W.8, the brother of victim shows that, these people are
residents of Shekta and victim was residing with them. Victim
went for the function of marriage with P.W.7 Sheetal from
Shekta to Kapildhar. The evidence of these witnesses as well
as P.W.6 Babasaheb Misal who also attended the marriage as
well as P.W.7 Sheetal shows that, the victim indeed was
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present at Kapildhar at the time of marriage. The marriage
appears to have taken place in the afternoon and the evidence
is that, after about 4.00 p.m., she was not to be seen and
there was frantic search by the mother which did not yield
results. P.W.2, the mother called up the husband P.W.9 and
informed. The evidence shows that, these people searched at
Kapildhar as well as Shekta, but the victim was not to be
found. Consequently, P.W.9 father filed report Exh.57 on
3.5.2013, in which rather he expressed doubts on P.W.7
Sheetal, the bride to be responsible for his missing daughter.
10. Then the evidence of P.W.2 and P.W.9, parents of
victim, which shows that, noticing that the accused No.1
Bhagwan was also not to be seen in the village since 2.5.2013
and his Omni Car was also not there, the mother filed F.I.R.
Exh.15, reporting that they had learnt from the brother of
victim that the victim had been seen on the date of marriage
talking with P.W.2 Annasaheb and the juvenile Dnyaneshwar
and that the accused No.1 Bhagwan was missing since
2.5.2013 from the village. And so the F.I.R. claimed that
accused No.2 and juvenile Dnyaneshwar kidnapped the victim.
It appears from the evidence of these parents and P.W.8, the
brother that, the brother claimed that he had seen accused
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No.2 and juvenile Dnyaneshwar talking with the victim some
distance away from the place of the marriage and the
evidence of the brother is that, both those persons told the
victim that her mother was feeling giddy and to come with
them but she was not ready and they forcibly took her on
motorcycle. Even the victim has deposed in this regard
claiming that she was forcibly taken by those two persons.
However, further discussion regarding that aspect is not
necessary as the accused No.2 has been acquitted and the
juvenile has not been tried in this Sessions Trial. The material
fact remains that, the victim claimed that she had been
forcibly taken and was indeed found subsequently in the Car
of accused No.1 with him on Highway. There is evidence of
P.W.10 Police Constable Ramesh stating that he was attached
at Police Constable to Jalas Chowki Highway Police on Pune
Solapur Road. He was present in the Police Station on
14.7.2013. The witness appears to have confused with regard
to the month as the undisputed other evidence on record
shows that the victim was found on 14.5.2013. The evidence
of P.W.10 Ramesh is that, he was told by the Hawaldar that
A.P.I. from Beed has come as location of Bhagwan who has
kidnapped minor is noticed at Badalwadi and he was directed
to go with the A.P.I. According to him, he phone called his
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friend Mane, resident of Badalwadi area, asking him to collect
information about the Maruti vehicle in which the accused had
kidnapped a minor. There is evidence of P.W.16 Santosh
Mane, who has corroborated this P.W.10 claiming that on
14.5.2013, at about 10.00 a.m., he was in his field and
received phone call from Constable Bhosale, asking whether
there is Omni Car in the vicinity. He deposed that, he saw
that vehicle while returning to his house and accordingly
informed Bhosale.
ig P.W.16 deposed that, police of Indapur
and Beed then reached the spot and took custody of boy and
girl from that Omni Car. This witness pointed out towards the
accused as the same person. No cross-examination of P.W.16
was done by the accused and thus, the evidence on this count
was unchallenged. The evidence of P.W.10 Constable Ramesh
and P.W.15 Shivaji Kadam shows that, along with A.P.I., the
police had gone in the vehicle of this P.W.15 and when they
reached the concerned spot, at some distance from
Badalwadi, they found the Omni vehicle standing. P.W.16
Mane appeared to have already caught the said boy and girl.
The evidence shows that, the victim and the accused No.1
were sitting in the Car. The cross-examination of P.W.15
Shivaji shows that, P.W.16 Mane at the concerned time was
accompanied with two friends and these people were standing
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near the vehicle which was standing by the side of the road.
The evidence of P.W.15 is that, he had asked accused No.1
why he did like this and he claimed that, he had love affair
with the victim and was going to marry her. As per this
witness, even the girl replied in the same fashion. Thus, what
appears is that, in the couple of days after the victim was
taken when she was with him she was under his threat (as
deposed by her) or came under his influence to initially
support him.
11. In the evidence, the victim deposed that, she was
taken in the Omni Car by the accused and when she shouted,
he had pressed her mouth. The Car proceeded towards
Solapur. Her evidence is that, she was unable to tell the
names of the places. The evidence is that, the accused used
to halt at places where there was no locality and used to
commit forcible intercourse on her in the vehicle. Only the
two of them were in the Car. She deposed that, the accused
committed forcible intercourse with her 4-5 times. She
deposed that, when she was refusing and shouting, the
accused was threatening her. The evidence is that, at a place
the vehicle developed mechanical defect and the police
reached and caught them. She deposed that, when the police
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was making enquiries with her, she was unable to tell
properly. (Thus the initial support to accused). I have gone
through the cross-examination of the victim. In the cross-
examination, it was suggested to her that, her menstruation
started on 8.5.2013. She denied the suggestion. It was then
suggested that, as the menstruation started on 8.5.2013,
there was no intercourse between them from 8.5.2013 to
14.5.2013. Even this suggestion was denied. Substance
remains that, the fact of forcible intercourse alleged by her
after she was taken on 2.5.2013 is not challenged. The
witness cannot be said to be shattered on this count. It was
suggested to her that, she voluntarily left with the accused
No.1 for performing marriage. The suggestion was denied.
She was confronted with the portions of her statement to
police earlier. The portions from her earlier statement to
police have been proved at Exh.78, which relate to questions
like - "If she had told to police that she had recorded mobile
number of accused No.1 which was printed on the car; that
she had talk with the accused on telephone; that they used to
talk with each other on telephone since last four months; that
she rang up accused on 30.4.2013 and asked him to come at
Kapildhar on 2.5.2013 and then they would run away and
perform marriage; that on the day of marriage at about 3.20
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p.m., she left marriage hall and went directly to the vehicle of
the accused; and that they had taken meals at Tembhurni".
The evidence shows that, the victim had been taken by the
accused in his Car from Kapildhar from place to places and the
victim was with him from 2.5.2013 to 14.5.2013. The
evidence of victim is that, she was being threatened so as not
to shout and giving her threats, the accused had been
committing forcible intercourse. The victim was of tender age
(which I will discuss) and it was not difficult to pressurize such
a person so as to speak in favour of the accused when the
police party caught hold of the accused with victim on
14.5.2013. The argument that she had no injuries is thus not
material. A school going young girl from village caught in
such manner could be influenced with passage of days to
speak in favour of accused when they were caught. The
contradictions and omissions, in the circumstances, would not
be material. Important is that, after the accused and victim
were found, the accused was got examined from P.W.11 Dr.
Deepali and the doctor found that the accused was capable of
performing sexual intercourse and the victim when got
examined from P.W.1 Dr. Deepali, it was found that the
hymen of the victim was ruptured and opined that sexual
intercourse had been committed on her. In the
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circumstances, and taking overall view of the evidence, the
evidence of victim deserves to be accepted that she was taken
by accused and there were instances of forcible intercourse on
her.
12. Regarding the age, the evidence shows that, the
victim was studying in 9 th Standard. The evidence of P.W.2,
the mother is that, the victim was admitted in the school
when she was about 5-6 years old and that she had not failed
in any Standard. The mother herself has studied up to 5 th
Standard and it is not that she is illiterate as such. There is
evidence of P.W.12 Avinash Pandit, the Head Master of school,
who has proved certified copy Exh.74 from the school record.
It is from school admission register of the victim showing that
the victim had been admitted to that school on 18.6.2011 and
in the school record, since then the date of birth shown of the
victim was 5.6.1997. P.W.12 Avinash proved this document
on the basis of original record. He deposed that, the original
register was in his handwriting and that he had recorded the
date of birth as per Zilla Parishad School Leaving Certificate
which had been brought by the victim. Although that
certificate of Zilla Parishad school had not been brought on
record, the acts performed by P.W.12 were in ordinary course
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of business much before the present incident took place and
there is no reason to doubt the acts of P.W.12 performing
duty in ordinary course of business. The learned counsel for
the appellant - accused relied on the case of Sunil Vs. State
of Haryana, reported in 2010(1) SCC 742 to submit that,
in that matter, interalia the Supreme Court observed that,
admission form of the school had not been produced which
would have been primary evidence regarding age of the
prosecutrix.
According to the counsel, the document of Zilla
Parishad School Leaving Certificate should have been brought
on record and thus, the evidence of P.W.12 should be
discarded. I have gone through the judgment in the matter of
"Sunil Vs. State of Haryana" (supra). The Hon'ble Supreme
Court in that matter took note of various infirmities, holes and
lacunae and the prosecution version in that matter, and in
para 34 of the judgment, held that, on consideration of the
totality of the facts and circumstances of that case, it would
be unsafe to convict the appellant therein. In the present
matter, I have kept in view the observations of the Supreme
Court in that matter. The present matter will have to be
considered on cumulative effect of facts proved in this matter.
Reference needs to be made to the recent judgment of the
Hon'ble Supreme Court wherein the Hon'ble Supreme Court
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referred to the procedure to be followed in determination of
age under Rule 12 of the Juvenile Justice (Care and Protection
of Children) Rules, 2007. This was in the matter of Jarnail
Singh Vs. State of Haryana , reported in (2013) 7
Supreme Court Cases 263 . The Rule relates to Child or
Juveniles in conflict with law, but the Hon'ble Supreme Court
found that, similar approach can be taken in determining the
age of prosecutrix. Keeping in view provisions of above Rule
12 and the above judgment of the Hon'ble Supreme Court,
after the matriculation or equivalent certificate, the date of
birth certificate from the school first attended is given
primacy. No doubt in the present matter the date of birth
certificate is not from the first school. However, the evidence
of P.W.12 Head Master Avinash is that, he had made the entry
on the basis of school leaving certificate of the Zilla Parishad
school which had been attended. The witness P.W.12 Avinash
does not have any reason to depose in favour of victim or
against the accused. He acted in the discharge of his duties
and the cross-examination cannot be said to have shattered
his evidence that on the basis of official acts performed, he
had taken the entry regarding date of birth of the victim as
5.6.1997. Relying on the evidence of P.W.12, it needs to be
held that, the prosecution proved that as per school record,
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the date of birth of the victim was 5.6.1997.
13. Apart from this, there is evidence of P.W.14, the
victim herself. In her oral evidence, she deposed that, her
date of birth is 6.5.1997. No doubt the school record shows
that, her date of birth is 5.6.1997 and she stated the same to
be 6.5.1997. This is slight variation or slip of tongue, but in
the cross-examination of the victim, her evidence regarding
her date of birth was not denied or challenged. Take it to be
5.6.1995 or 6.5.1997, on the date of incident of 2.5.2013, she
would still be less than 16 years. This is apart from the fact
that, at the concerned time, Section 375 of IPC had already
been changed and the relevant age had become 18 years.
Even under the Act, the relevant age is 18 years.
14. Again there is evidence of P.W.11 Dr. Deepali, who
has deposed that, she had got done X-ray of the victim and
obtained Radiologist report and opinion and found that the
victim at the relevant time was between 12 to 14 years of
age. In the cross-examination, she denied that, her opinion
of the age was based only on the opinion of the Radiologist.
She deposed that, the age of the victim could not be 16 to 18
years for the reason that, the line of fusion exists below the
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age of 14 years or up to 14 years and then disappears. Her
evidence regarding age of the victim to be between 12 to 14
at the concerned time was on the basis of the X-ray plates she
had obtained. No doubt the X-ray plates were not proved in
the trial Court and the Radiologist was not examined, but the
evidence of the doctor who was medical officer in the District
Hospital, Beed, is based on her own examination of the victim
and supporting X-ray which she got done in the discharge of
her official functions.
ig Thus, the evidence of P.W.11 Dr.
Deepali would be required to be given some weighage
regarding her opinion.
15. Keeping in view the school record, the oral
evidence of the victim as well as the medical evidence of
P.W.11 Dr. Deepali, in any case the victim must be said to be
minor and it could not be said that she was above 18 years of
age.
16. The learned counsel for the appellant - accused
relied on the case of Mohd. Nisar Vs. State of Maharashtra
(supra) and referring to observations of this Court in para 12
of that judgment, stated that, Section 366-A of the IPC could
be applied only if the minor girl was taken so as to force or
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seduce her to illicit intercourse with "another person" and
could not be applied if the accused had taken her to himself
commit the forcible intercourse.
17. In the present matter, the accused was charged
with Section 366-A of the IPC. Even if the submission is to be
accepted that Section 366-A would get attracted if a minor girl
is kidnapped with intention that she should be forced or
seduced to illicit intercourse with "another person", still there
appears no reason why Section 366 of IPC should not be
applied. The basic ingredients are included in Section 366 of
IPC also. Section 366 of IPC, apart from abduction or
inducing a woman to compel her marriage, interalia, deals
with offence of kidnapping with intention that the woman may
be forced to illicit intercourse. Even for such offence, the
punishment prescribed is of 10 years. In Section 366-A also,
the punishment prescribed is of 10 years. It would be thus
appropriate to convert the conviction awarded by trial Court
under Section 366-A into a conviction under Section 366 of
IPC and otherwise maintain the sentence as was passed by
the trial Court.
18. I have gone through the judgment of the trial
Criminal Appeal No.889/2015
Court. The Trial Court rightly found the accused guilty of
kidnapping as well as committing repeated forcible intercourse
on the victim who was minor. The accused has been rightly
convicted for offence under Section 363 of the IPC as well as
Section 4 of the Protection of Children From Sexual Offences
Act, 2012.
19. There is substance in the argument of the A.P.P.
that, had there been a love affair, the parents would not have
in earlier filed Missing Report Exh.57 on 3.5.2013 suspected
the bride Sheetal, whose marriage the victim had gone to
attend. In the circumstances, taking a minor girl by the
accused out of the guardianship of her parents for so many
days cannot be looked at lightly so as to reduce the sentence
imposed by the trial Court under Section 4 of the Act. No
interference on that count is called for. It is not a case of
consensual going of victim with the accused.
In judgment, Trial Court gave benefit to accused
under Section 428 of the Code of Criminal Procedure w.e.f.
20.5.2013 to 14.5.2015 when judgment was passed. Facts
proved and charge sheet show, he was arrested on 14.5.2013.
The benefit shall be given from 14.5.2013 instead of
20.5.2013.
Criminal Appeal No.889/2015
ORDER
(A) The conviction and sentence of the appellant -
accused under Section 363 of the Indian Penal Code, 1860
and under Section 4 of the Protection of Children From Sexual
Offences Act, 2012, as imposed by the trial Court, is
maintained.
(B) The conviction imposed by the trial Court under
Section 366-A of the Indian Penal Code, 1860 is converted
into conviction under Section 366 of the Indian Penal Code,
1860 and the ig appellant-accused is sentenced to suffer
rigorous imprisonment for five years and to pay fine of
Rs.1000/- (Rupees one thousand) and in default, to suffer
simple imprisonment for one month.
The appellant-accused is entitle to set off period of
imprisonment suffered since 14.5.2013. Order of trial Court is
converted accordingly.
22. The appeal is disposed of in these terms.
( A.I.S. CHEEMA, J.)
