Prithvi Singh vs State of Haryana

A.S. Bains, J.

The appellant was convicted for an offence under Section 366 of the Indian Penal Code and sentenced to four years'' rigorous imprisonment and a fine of Rs. 500/, in default six months'' rigorous imprisonment. Hence this appeal against his conviction and sentence.

Mr. D.S. Bali, learned counsel for the appellant brought to my notice the finding of the trial Court in paras 8 and 9 of the judgment. In para 8, the trial Court had observed that the appellant had from the very beginning the intention to commit illicit intercourse with Raksha Devi PW and held that it is satisfied that the appellant abducted Raksha Dev PW with intent to seduce her illicit intercourse and committed an offence under Section 366, Indian Penal Code. But in para 9 of the judgment, the trial Court acquitted the appellant of the charge under Section 376, Indian Penal Code and observed as follows :

"As regards the offence under section 376 IPC the age of Raksha Devi PW was 26 years. A reading of her statement would go to show that she had ample opportunity to raise noise or resist. Her statement that she did not do so on account of fear of the accused cannot hold water and it would appear that either she was a consenting party or somehow or other became a consenting party to the illicit intercourse alleged to have been committed by the accused upon her and if so, the offence would not be covered by Section 376, IPC. Atleast the case of the prosecution regarding the offence under the Section 376 IPC against the accused is not free from doubt.

Thus it is evident that the prosecutrix was a consenting party for the intercourse committed by the appellant. The prosecutrix was taken by the appellant on 12th May, 1981 and produced before a Magistrate on 4th July, 1981 and during this period she remained at various place, travelled by bus and by air and did not raise a little finger although she had ample opportunity to report the matter or protest against her abduction by the appellant. Since the intercourse committed by the appellant was with her consent, the ingredients to complete the offence under Section 366, Indian Penal Code are not satisfied. Two main ingredients to prove an offence under Section 366, Indian Penal Code, arekidnapping and abduction of a women to compel her to marry any person against her willseduce her or force her to illicitintercourse. None of the aforesaid ingredients are satisfied. As observed by the trial Court, the prosecutrix was a consenting party to the intercourse. There is nothing on the record to show that she was compelled to marry any person against her will. In the circumstances, I am of the view that the conviction of the appellant under Section 366, Indian Penal Code is not justified. The appellant is accordingly given the benefit of doubt and acquitted.

In the result, the appeal is allowed and the conviction and sentence of the appellant recorded by the trial Court are set aside.