Ishwari Rana vs State Of Uttarakhand
2023 Latest Caselaw 3039 UK

                                                             Reserved
   IN THE HIGH COURT OF UTTARAKHAND AT
                 NAINITAL
             Criminal Appeal No. 402 of 2019

Ishwari Rana                                    .....Appellant

                              Versus

State of Uttarakhand                      ........ Respondent

Present:-
            Mr. Lokendra Dobhal, Advocate for the appellant.
            Mr. V.S. Rawat, Brief Holder for the State of Uttarakhand.


                            JUDGMENT

Per: Hon'ble Ravindra Maithani, J.

The instant appeal has been preferred against the

judgment and order dated 05.04.2019, passed by the

Special Judge, POCSO/Sessions Court, Tehri Garhwal,

District Tehri Garhwal, in Special Sessions Trial No.18 of

2018, State of Uttarakhand Vs. Ishwari Rana ("the case").

By the impugned judgment and order, the appellant has

been convicted under Sections 363, 366 and 376(2)(n) IPC

and Section 5(l)read with Section 6 of the Protection of

Children from Sexual Offences Act, 2012 ("the Act"). The

appellant has been convicted and sentenced as hereunder:-

(a) Under Section 363 IPC, three years' rigorous

imprisonment with a fine of Rs. 5,000/-. In

default of payment of fine, further simple

imprisonment for a period of three months.

(b) Under Section 366 IPC, three years' rigorous

imprisonment with a fine of Rs. 5,000/-. In

default of payment of fine, further simple

imprisonment for a period of three months.

(c) Under Section 376(2)(n) IPC, ten years'

rigorous imprisonment with a fine of Rs.

10,000/-. In default of payment of fine,

further simple imprisonment for a period of

six months.

2. Heard learned counsel for the parties and

perused the record.

3. Facts necessary to appreciate the controversy,

briefly stated, are as follows: The victim, a young girl of 17

years of age, was staying with her deaf and dumb father in

her village. Her mother had already died. On 05.03.2018, at

about 8:30 AM, the victim left her house to get medicine

from market, but she did not return. She was studying in

class XI. A search was made. When she could not be

located, an FIR was lodged on 14.03.2018 by her cousin,

PW1, Khem Singh, based on which, a chik FIR was recorded

and Case Crime No. 11 of 2018 under Sections 363, 366A

IPC was lodged at Police Station Ghansali, District- Tehri

Garhwal. On 16.06.2018, the victim was recovered from

the house of the appellant. On 17.06.2018, the victim was

medically examined by PW4, Dr. Beena Singh, at

Government Hospital, Baurari. She had no injury on her

person. The victim, at the relevant time, told it to the Doctor

that she was in relationship with the appellant for the last

four years since then. She married the appellant on

05.03.2018 and started staying in a rented accommodation

at Dehradun. They established continuous relations

thereafter. The appellant did not commit any force upon

her. The victim had told to the PW4, Dr. Beena Singh, that

she had left her house on her own. During investigation, the

Investigating Officer ("IO") collected blood samples, obtained

Forensic Science Laboratory Report and prepared site

plans. After completion of investigation, chargesheet under

Sections 363, 366, 376 IPC and Section 5(l)/6 of the Act

was submitted against the appellant, which is the basis of

the case.

4. On 18.09.2018, charges under Sections 363, 366

and 376(2)(n) IPC and Section 5(l) read with Section 6 of the

Act were framed against the appellant, to which he denied

and claimed trial.

5. In order to prove its case, the prosecution

examined 11 witnesses , namely, PW1, Khem Singh, the

cousin of the victim, PW2, the victim, PW3, Jai Singh Negi,

the Principal of the school, where the victim had studied,

PW4, Dr. Beena Singh, who medically examined the victim

on 17.06.2018, PW5, Dr. Manisha, who took samples, PW6,

Constable Rajkumar Bamola, who lodged the FIR and

recorded it in the General Diary, PW7, Constable Narendra,

who accompanied the IO when the victim was recovered

from the residential accommodation of the appellant on

16.06.2018, PW8, Naresh Thapa, in whose Dhaba, the

appellant was working as a cook, PW9, Varun Walia, who

was the landlord of the appellant, PW10, Sahab Singh, the

brother of the victim, and PW11, Vijay Kumar, the IO.

6. The appellant was examined under Section 313

of the Code of Criminal Procedure, 1973 ("the Code"). The

appellant denied every allegation. He denied that he ever

kidnapped the victim. He also denied that the victim was

recovered from his custody. According to the appellant, he

even did not know the victim. The appellant did not adduce

any evidence in his defence.

7. After the conclusion of the trial, by the impugned

judgment and order, the appellant has been convicted and

sentenced, as stated hereinbefore. Aggrieved by it, the

instant appeal has been preferred.

8. Learned counsel for the appellant would submit

that the victim, in her statement, has stated that she and

the appellant were married. The victim was above 15 years

of age. Therefore, no offence of rape is made out. Learned

counsel would also submit that the victim, in her

deposition, has categorically stated that she left the

company of her father on her own. Therefore, it is argued

that it is not a case of kidnapping. It is also submitted that

the victim has not stated that the appellant repeatedly

established physical relations with her. Therefore, the

offence under Section 376(2)(n) IPC is not made out.

9. On the other hand, on behalf of the State, it is

argued that the prosecution has been able to prove its case.

10. PW1, Khem Singh, is the cousin of the victim. He

has stated that on 05.03.2018, the victim left her house but

did not return. A search was made. Subsequently, he

lodged the FIR on 14.03.2018.

11. PW2 is the victim. She has categorically stated

that her date of birth is 20.12.2002. At the relevant time,

she was studying in class XI. She had acquaintance with

the appellant for four years prior to her statement. She was

continuously talking to the appellant over telephone. She

was in love with the appellant. She still loves the appellant.

She had stated that she never knew as to whether the

family members of the appellant were ready for their

marriage or not, but she has stated that the appellant was

ready to marry her. The appellant is already married, and

she knew it prior to the date of incident.

12. PW2, the victim, has stated that on 05.03.2018,

the appellant had called her at Rishikesh. Thereafter, he

took her to Dehradun. They married in a temple at

Haridwar, and, thereafter, they were staying in a rented

accommodation in Dehradun. They stayed as husband and

wife. She has stated that on 16.06.2018, she was recovered

by the police. She was medically examined and her

statements under Section 164 of the Code was recorded.

13. PW3, Jai Singh Negi, is the Principal of the

school where the victim had studied. He had proved the

school documents, which include marksheet, transfer

certificate, etc. Ex.A-8 is the High School marksheet, which

records the date of birth of the victim as 20.12.2002. It may

be noted that this is the date of birth, which the victim has

stated.

14. PW4, Dr. Beena Singh, did examine the victim on

17.06.2018. She has stated as to what was told by the

victim, when she was medically examined. According to her,

the victim had then told that she was in relationship with

the appellant for four years. On 05.03.2018, she left her

house and married the appellant. They established relations

continuously.

15. PW5, Dr. Manisha, took blood samples of the

victim and the appellant. She has stated about it.

16. PW6, Constable Rajkumar Bamola, had proved

the chik FIR and other police documents.

17. PW7, Constable Narendra, had accompanied the

IO on 16.06.2018, when the victim was recovered from the

rented accommodation of the appellant. He has stated

about it.

18. PW8, Naresh Thapa, is the owner of the Dhaba,

where the appellant was working. He has stated that he had

seen a girl with the appellant, whom the appellant

introduced as his wife.

19. PW9, Varun Walia, is the landlord, where the

appellant was the tenant, and from whose premises, the

victim was recovered.

20. PW10, Sahab Singh, is the brother of the victim.

He was staying in Mumbai at the relevant time. He has

stated as to how the victim left her house.

21. PW11, Sub Inspector Vijay Kumar, is the IO. He has

stated about the investigation, what he has done. He prepared

the site plan, documents relating to call details, the date of

birth of the victim were procured. According to this witness,

when on 16.06.2018, he traced the location of the victim, he

along with other Police Constables visited Dehradun, and

with the help of the local police, recovered the victim. He

has stated about the other steps, which he has taken, and

the submission of chargesheet.

22. Insofar as the age of the victim is concerned, the

prosecution has proved the school record of the victim. As

per the high school examination marksheet, the date of

birth of the victim is 20.12.2002. On 05.03.2018, the victim

left her house with the appellant. He had called her at

Rishikesh, which means, the victim was less than 16 years

on the date of incident. The victim herself has stated that

her date of birth is 20.12.2002. She was a minor. She was a

child.

23. On this aspect, even no arguments have been

raised on behalf of the appellant, in the instant appeal. In

the impugned judgment, the court has recorded the

findings on the date of birth of the victim. The court had

concluded that, in fact, on the date of incident, the victim

was 15 years, 2 months and 15 days old. She was a minor

child. The finding recorded by the court below on the age of

the victim may not be doubted. It is based on the material

on record, which is admissible, and which has been proved.

24. It has been argued that the victim on her own

had left her house and joined the company of the appellant.

Therefore, it is not a case of kidnapping. It is also argued

that since the victim is above 15 years of age, and according

to her, she had married the appellant, therefore, it is not an

offence of rape in view of Exception 2 to Section 375 IPC.

25. Before the argument is appreciated, it would be

apt to examine the legal provisions on this aspect. Section

363 IPC provides punishment for kidnapping. Kidnapping

from the lawful guardianship has been defined under

Section 361 IPC. It reads as hereunder:-

"361. Kidnapping from lawful guardianship.-- Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship.

Explanation.--The words "lawful guardian" in this section include any person lawfully entrusted with the care or custody of such minor or other person. Exception.--This section does not extend to the act of any person who in good faith believes himself to be the father of an illegitimate child, or who in good faith believes himself to be entitled to the lawful custody of such child, unless such act is committed for an immoral or unlawful purpose."

26. Section 366 IPC provides punishment for a kind

of kidnapping so as to compel a woman to marriage. It

reads as hereunder:-

"366. Kidnapping, abducting or inducing woman to compel her marriage, etc.--Whoever kidnaps or abducts any woman 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 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, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall also be punishable as aforesaid."

27. The victim has categorically stated that she left

her house on her own and joined the company of the

appellant. She has stated that the appellant had called her

on 05.03.2018. She met the appellant at Rishikesh.

Thereafter, they solemnized marriage at Haridwar and

returned to Dehradun, where they stayed together and

established relations. Can it be said that it is a case of no

enticement? Admittedly, there has been no application of

force by the appellant in removing the victim from her legal

guardianship.

28. In the case of S. Varadarajan Vs. State of

Madras, AIR 1965 SC 942, on this aspect, the Hon'ble

Supreme Court has discussed the legal provisions. In that

case, a girl had left her house and stayed with a man as

husband and wife. Under those circumstances, the Hon'ble

Supreme Court held that, "She willingly accompanied

him and the law did not cast upon him the duty of

taking her back to her father's house or even of telling

her not to accompany him. She was not a child of

tender years who was unable to think for herself but, as

already stated, was on the verge of attaining majority

and was capable of knowing what was good and what

was bad for her. She was no uneducated or

unsophisticated village girl but a senior college student

who had probably all her life lived in a modern city and

was thus far more capable of thinking for herself and

acting on her own than perhaps an unlettered girl

hailing from a rural area."

29. In the case of Thakorlal D. Vadgama Vs. State of

Gujarat, (1973) 2 SCC 413, the Hon'ble Supreme Court

further discussed the provisions of Section 361 IPC and

observed that, "The two words "takes" and "entices", as

used in Section 361 IPC are in our opinion, intended to

be read together so that each takes to some extent its

colour and content from the other. The statutory

language suggests that if the minor leaves her parental

home completely uninfluenced by any promise, offer or

inducement emanating from the guilty party, then the

latter cannot be considered to have committed the

offence as defined in Section 361 IPC. But if the guilty

party has laid a foundation by inducement, allurement

or threat, etc. and if this can be considered to have

influenced the minor or weighed with her in leaving her

guardian's custody or keeping and going to the guilty

party, then prima facie it would be difficult for him to

plead innocence on the ground that the minor had

voluntarily come to him."

30. The law has further been summarised by the

Hon'ble Supreme Court on this aspect in the case of

Anversinh Alias Kiransinh Fatesinh Zala Vs. State of

Gujarat ,(2021) 3 SCC 12. In Paragraphs 18 and 19, the

Hon'ble Supreme Court observed as hereunder:-

"18. The ratio of S. Varadarajan v. State of Madras, (1965) 1 SCR 243 : AIR 1965 SC 942 : (1965) 2 Cri LJ 33 , although attractive at first glance, does little to aid the appellant's case. On facts, the case is distinguishable as it was restricted to an instance of "taking" and not "enticement". Further, this Court in S. Varadarajan v. State of Madras, (1965) 1 SCR 243 : AIR 1965 SC 942 : (1965) 2 Cri LJ 33, explicitly held that a charge of kidnapping would not be made out only in a case where a minor, with the knowledge and capacity to know the full import of her actions, voluntarily abandons the care of her guardian without any assistance or inducement on the part of the accused. The cited judgment, therefore, cannot be of any assistance without establishing: first, knowledge and capacity with the minor of her actions; second, voluntary abandonment on part of the minor; and third, lack of inducement by the accused."

"19. Unfortunately, it has not been the appellant's case that he had no active role to play in the occurrence. Rather the eyewitnesses have testified to the contrary which illustrates how the appellant had drawn the prosecutrix out of the custody of her parents. Even more crucially, there is little to suggest that she was aware of the full purport of her actions or

that she possessed the mental acuities and maturity to take care of herself. In addition to being young, the prosecutrix was not much educated. Her support of the prosecution version and blanket denial of any voluntariness on her part, even if presumed to be under the influence of her parents as claimed by the appellant, at the very least indicates that she had not thought her actions through fully."

31. In the instant case, admittedly, the victim was a

minor. She was below 16 years of age. She has stated that

she was in relationship with the appellant. The appellant

had called her on 05.03.2018. Therefore, she left her house

and met the appellant at Rishikesh.

32. The question that falls for consideration is as to

whether the victim knew the full import of her actions,

voluntarily abandoning the care of her guardians without

assistance or enticement on the part of the appellant? The

mental faculty and level of understanding of the victim has

to be appreciated. It may be done while examining the

attending circumstances.

33. PW1 is the cousin of the victim, who was staying

in the village. He has stated that the victim lost her mother

long back. She was staying with her father in the village,

who was deaf and dumb. Her one brother was working in a

hotel in Mumbai. The victim comes from a poor family. She

was a young girl of 15 years of age. She was studying in

class XI. According to her, she met the appellant in a

marriage. Thereafter, they started talking with each other.

They started talking over phone. The appellant already had

a wife. He was already married. The victim states that even

after knowing that the appellant is married, she wanted to

marry him. She also tells that she never knew as to whether

the other family members of the appellant were ready for

their marriage or not. If all these factors are taken together,

it leads to one conclusion alone that the level of

understanding of the victim was not mature. Her decision

was not free. She had no knowledge of full import of her

actions or she was definitely unaware of the consequences

of her leaving the custody of her father. In the instant case,

it cannot be said that the victim left her house on her own

free will. The victim has stated that on 05.03.2018, the

appellant had called her, therefore, she left her house and

met the appellant at Rishikesh. Under the facts and

circumstances of the case, it is enticement. The appellant

was mature and married. He ruled the mind of a young

child, i.e. the victim; enticed her and induced her to leave

her father's house. Therefore, in this case, the court below

has rightly held that the appellant did commit offence under

Sections 363 and 366 IPC. It is a case of kidnapping for a

purpose.

34. The another question that has been raised is with

regard to applicability of Exception 2 to Section 375 IPC.

Section 375 IPC is as follows:-

"375. Rape.--A man is said to commit "rape" if he--

(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or

(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or

(c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or

(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions:--

First.--Against her will.

Secondly.--Without her consent.

Thirdly.--With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.

Fourthly.--With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

Fifthly.--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 substance, she is unable to understand the nature and consequences of that to which she gives consent.

Sixthly.--With or without her consent, when she is under eighteen years of age. Seventhly.--When she is unable to communicate consent.

Explanation 1.--For the purposes of this section, "vagina" shall also include labia majora.

Explanation 2.--Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal

communication, communicates willingness to participate in the specific sexual act:

Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.

Exception 1.--A medical procedure or intervention shall not constitute rape.

Exception 2.--Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape."

35. A bare perusal of Exception 2 to Section 375 IPC

reveals that sexual acts by a man with his own wife, above

15 years of age is not rape. Now, the question that falls for

consideration is as to whether the victim and the appellant

were ever married? The victim has so stated in her

statement, but the appellant denied everything. He even

denied that he knows the victim. He denied of having

married the victim. He denied of having stayed with the

victim ever. He has also denied that the victim was

recovered from his custody. The marriage is not proved.

36. This defence, the appellant has not taken. Under

these circumstances, cannot it be said that the appellant

enticed the victim even in the name of marriage? Therefore,

it cannot be said that it is the case in which the provisions

of Exception 2 to Section 375 IPC are applicable.

37. Learned counsel for the appellant has also

argued that the victim has not stated that the appellant

established relations with her repeatedly. Instead, it is

argued that the victim has stated that the appellant never

forced upon her. Their relationship were consensual and

were made with the free will of the victim.

38. The victim, in her examination-in-chief, in Para 3

has stated that after marriage, they both stayed together as

husband and wife for three months. In Para 21 of her

examination, she also tells that the appellant never applied

any force on her and the physical relations were established

with her own will. The victim has stated that they stayed as

husband and wife for a long period. The victim was

medically examined on 17.06.2018 at a government

hospital. At that time, she told it to the Doctor that after

marriage, they continuously established physical relations.

Evidence is to be appreciated in totality.

39. The statement of the victim establishes that the

appellant repeatedly established physical relations with her.

The victim being minor, her consent has no significance.

These physical relations amount to rape. It is repeated rape.

Therefore, this Court is of the view that the prosecution has

been able to prove the charge under Section 376(2)(n) IPC

beyond reasonable doubt against the appellant.

40. In view of the foregoing discussion, this Court is

of the view that the court below has rightly convicted and

sentenced the appellant. There is no merit in this appeal. It

deserves to be dismissed.

41. The appeal is dismissed.

42. Let the lower court record, along with a copy of

this judgment, be sent back to the court concerned.

(Ravindra Maithani, J.) 10.10.2023 Ravi Bisht