CASE NO.: Appeal (crl.) 1463 of 2007 PETITIONER: Iqbal RESPONDENT: State of Kerala DATE OF JUDGMENT: 24/10/2007 BENCH: Dr. ARIJIT PASAYAT & P. SATHASIVAM JUDGMENT:
J U D G M E N T
CRIMINAL APPEAL NO 1463 OF 2007
(Arising out of SLP (Crl.) No.1287 of 2007)
Dr. ARIJIT PASAYAT, J.
1. Leave granted.
2. The challenge in this appeal is to the judgment of the
learned Single Judge of Kerala High Court dismissing the
appeal filed by the appellant, while directing the acquittal of
the co-accused. Both the accused were convicted by the
learned IInd Additional Assistant Sessions Judge, Thrissur for
offences punishable under Sections 366A and 376 read with
Section 34 of the Indian Penal Code, 1860 (in short ‘IPC‘).
3. Custodial sentence of two years and fine of Rs.10,000/-
with default stipulation, sentences of three years and fine of
Rs.3,000/-were with default stipulation for the offences
punishable under Sections 376 and 366A read with Section 34
IPC respectively.
4. The background facts, as projected by prosecution in
nutshell are as follows:
On 18.10.1993 at 7.00 a.m. both the accused, in
furtherance of their common intention of kidnapping, induced
and procured a minor teenage girl (P.W.2), who had not
attained the age of 14 and seduced her to have illicit
intercourse with the first accused and first accused took her to
Mahadevapuram in Coimbatore District and committed rape
in the house of CW8 at Mahadevapuram. Since PW2 did not
come back to her house, after making necessary enquiries,
PW1, father of PW2, went to Cheruthuruthy Police Station and
lodged first information statement and originally man-missing
case was registered as Crime No.96 of 1993. The girl was not
found out. Finally, a criminal M.C. was filed before the High
Court and on the basis of the direction of the High Court, the
Circle Inspector of Police found out PW2 and subsequently
arrested the accused, continued the investigation and charge
was laid. The girl was produced before the Judicial First Class
Magistrate’s Court, Wadakkancherry on 30.11.1993 and it was
recorded that she had stated to the Magistrate that she was
studying in ninth standard and she was staying with her
father. She was taken from the tuition center while she was
going to Akshaya Tuition Centre, Ceruthuruthy. She stated
that she went with Iqbal, appellant and first accused, on her
own will to Coimbatore on 18.10.1993 from Akshaya Tuition
Centre. They were friends. Friend of first accused, namely,
Sasi was also with them. They changed the vehicles and finally
second accused, Sasi did not accompany them till Coimbatore.
She also stated that she had intercourse with Iqbal, first
accused, at Coimbatore and not with any other persons, that
she was aged thirteen years and six months at that time and
she was with Iqbal till she was produced before the Court.
Statement under Section 161 of the Code of Criminal
Procedure, 1973 (in short ‘Cr.P.C.’) given by her to the police
was also more or less on the same lines. But, before the Court,
she deposed in examination-in-Chief that she and her friend
PW4 went to the tuition center and an autorikshaw came
there. From the autorikshaw, A2 Sasi and A1 Iqbal, got down
and A1 told her to get into the autorikshaw to tell something
and on his persuasion she got into the autorikshaw and both
of them took her to a place called Kolappully. Thereafter, A2
brought a car and they went upto Palakkad and A2 Sasi left.
From there, they went to Coimbatore by bus. They took food
and A1 took her to a hotel and forced her for intercourse and
thereafter they went to cinema etc. Thereafter, they came to
the house of CW8 and they were staying in that house. During
cross-examination main endeavour of the accused was to
show that she came with him on her own will. Letters written
by PW2, Exts. D1 to D3, were also produced and marked to
show that PW2 and A1 were in love and that was not allowed
by the parents. Further, in cross examination, he asked
specifically whether she agreed for intercourse willingly to
show that intercourse was committed with consent. Evidence
of PW4 also supports the evidence of PW2. Evidence of PWs 8
and 9 doctors show that she had intercourse. Evidence shows
that she went with her own will and intercourse also was done
voluntarily and not by force. It is clear from the evidence that
they were in love and wanted to marry, but parents of PW2
objected. Hence, they together eloped and there is no
kidnapping. School certificate as well as the deposition of
father of PW2 shows that she was aged only 13 years and nine
months at the time of incident. Hence, consent cannot be
taken as valid.
5. Placing reliance on evidence of PW2, who is the victim,
the learned Trial Court found both the accused persons guilty
and sentenced them as aforesaid. In appeal, the High Court by
the impugned judgment, noted that the charges have been
established so far as the appellant is concerned, while
directing the co-acquittal of the co-accused.
6. In support of the appeal, learned counsel for the
appellant submitted that the evidence of the victim PW2
clearly shows that she was in love with the appellant and had
gone with him on her own will. Letters (Ex. D1 to D3) clearly
established this fact. It was further submitted that the
evidence of PW2 indicated that though victim and appellant
were in love, the parents objected to it. It is also pointed out
that in the cross-examination she had admitted that she had
sexual intercourse with the appellant on her own free will and
consent and there was no force used. The High Court,
however, found that girl victim was aged about 13 years and 9
months and, therefore, the consent was of no consequence so
far as allegation of rape is concerned. The conviction as
recorded by the Trial Court was affirmed. However, on special
circumstances which had weighed, the High Court imposed
the sentence below the prescribed minimum, reduced the
sentence to three years rigorous imprisonment and fine of
Rs.10,000/- in respect of the offence punishable under
Section 376 IPC. However, his conviction and sentence relating
to Section 366A was affirmed. The sentences imposed were
directed to run concurrently. As noted above, the stand of the
appellant was that there was no rape involved and in any view,
Section 366A has no application.
7. So far as the legality of conviction for offence punishable
under Section 376 IPC is concerned, Section 375 IPC needs to
be noted. The same reads as follows:
375. Rape.- A man is said to commit “rape”
who, except in the cases hereinafter excepted,
has sexual intercourse with a woman under
circumstances falling under any of the six
exceptions:-
First Against her will.
Secondly- Without her consent.
Thirdly- With her consent, when her consent
has been obtained by putting her on any
person in whom she is interested in fear of
death or of hurt.
Fourthly – With her consent, when the man
knows he is not her husband, and that her
consent is given because she believed that he
is another man to whom she is or believed
herself to be lawfully married.
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 the
nature and consequences of that to which she
gives consent.
Sixthly with or without her consent, when
she is under sixteen years of age. ”
8. Clause ‘sixthly’ clearly stipulates that sexual intercourse
with a woman with her or without her consent when she is
under 16 years of age, amounts to rape. The evidence on
record clearly establishes that the victim was less than 16
years of age and, therefore, the conviction for offences
punishable under Section 376 IPC cannot be faulted.
9. The residual question is of applicability of Section 366A
IPC. In order to attract Section 366A IPC, essential ingredients
are (1) that the accused induced a girl; (2) that the person
induced was a girl under the age of eighteen years; (3) that the
accused has induced her with intent that she may be or
knowing that it is likely that she will be forced or seduced to
illicit intercourse; (4) such intercourse must be with a person
other than the accused; (5) that the inducement caused the
girl to go from any place or to do any act.
10. In the instant case, the admitted case of the prosecution
is that girl had left in the company of the accused of her own
will and that she was not forced to sexual intercourse with any
person other than the accused. The admitted case is that she
had sexual intercourse with the accused for which,
considering her age, conviction under Section 376 IPC has
been maintained. Since the essential ingredient that the
intercourse must be with a person other than the accused has
not been established, Section 366A has no application.
11. In the result, the conviction for offence punishable under
Section 366A IPC is set aside while the conviction and
sentence imposed in respect of offence punishable under
Section 376 IPC is maintained.
12. The appeal is allowed to the aforesaid extent.