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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

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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

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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 \026 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 \026 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 \026 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.       

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        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.