State of Chhattisgarh vs Nahru

I.M. Quddusi, J.—This appeal has been filed by the State against the judgment and order dated 10-8-1994 passed by the Additional Sessions Judge, Khairagarh, District Rajnandgaon in Sessions Trial No. 157/1993 acquitting the respondent of the charges for the offence punishable under Sections 363 and 366 of the IPC while convicting the respondent for the offence punishable u/S. 376 of the IPC and sentencing him only for the period already undergone. The prosecution story in brief is that on 6-8-1993 Khelandas (P.W.2) had gone to attend the hearing of a case in the Court of Khairagarh. When he returned to his home, his daughter was found missing. On search being made, she was not found in the village and the accused respondent, who was his neighbour, was also not there. On suspicion he searched for both the prosecutrix and accused and when they were not found, a missing report was lodged by him in the police Station Khairagarh on 7-8-1993 informing that during his search he came to know that the uncle of accused Mohan was residing in Bhilai and they might have gone there and on his further enquiry in Bhilai, he came to know that the prosecutrix was residing in the house of the accused. The police had gone to the house of Samaru where the prosecutrix was recovered and she was sent to medical examination. The accused was also medically examined. On the basis of the FIR lodged by Khelandas, offence under Sections 363, 366 and 376 of the IPC was registered against the respondent. After complete investigation, the challan was filed.

The prosecution in order to prove the guilt of the accused has examined 14 witnesses.

The learned Addl. Sessions Court having regard to the facts situation and the evidence on record held that the prosecutrix was below 16 years of age and it is not established that the accused has committed forcible sexual intercourse with her, however, where the age of female is below 16 years of age, in that case the sexual intercourse even with the consent of the prosecutrix also comes within the ambit of rape and thus, although the trial Court has convicted the respondent u/s 376 of the IPC but sentenced him to undergo the jail sentence only for the period already spent by the respondent in jail that is for 8 months and 11 days. At the same time, the learned trial Court acquitted the respondent of the offence punishable under Sections 363 and 366 of the IPC.

Learned State Counsel submits that on the basis of material evidence produced before the trial Court by the prosecution the case against the respondent u/Ss. 363 and 366 of the IPC was fully established and there was no occasion to acquit the respondent for the said offence. He further submits that having found that the respondent is guilty of an offence punishable u/S. 376 of the IPC, the learned trial Judge ought to have convicted the respondent accordingly but the jail sentence for the period undergone by the respondent i.e. 8 months and 11 days has been imposed by the learned Court, which is not justified.

We have heard learned counsel for the parties and have also gone through the records.

P.W.2 Khelandas, has deposed that his daughter has studied in a school and at that time, he told the teacher that her date of birth was 14-7-1978. He has further stated that he noted her date of birth in copy book as 14-7-1978 and on that basis this information was given. He has brought the copy book which was exhibited as Ex. P-6 where the date of birth of the prosecutrix was mentioned as 14-7-1978. P.W.14 Kamta Prasad Tiwari, who was a School Assistant, has also deposed that at the time of admission of Kuntibai (P.W.1) in the school, he had mentioned her date of birth as 14-7-1978 in the register on the basis of information given by her father. That apart, Dr. Smt. Jindani (P.W.4) who examined the prosecutrix on 11-8-1993 has opined that the prosecutrix was aged above 15 years.

Learned Court below has held that the age of the prosecutrix was 15 years but did not pay attention towards the minimum punishment prescribed u/s 276 of the IPC. The respondent accused remained in jail only for about 8 months and 11 days and the sentence has been imposed u/S. 376 only for the said period already undergone without mentioning adequate and special reasons in the judgment for awarding such a lesser sentence. Further the acquittal u/Ss. 363, and 366 has also been made without any adequate reason except on the ground that there was no inducement or allurement.

It has come in evidence that the respondent accused was a married person and the same was in the knowledge of the prosecutrix as she has made statement about this. Further, she has also stated that the accused has told her that he would marry her but she did not agree for the same and she was taken away forcibly on cycle and the respondent had thus removed the prosecutrix from the lawful guardianship of her father. In this regard, the provisions of Section 361 of the IPC are liable to be perused, which are quoted as under :

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 lawful custody of such child, unless such act is committed for an immoral or unlawful purpose.

A bare reading of Section 361 of the IPC shows that it is necessary to prove that the female should be under the age of 18 years and is taken away out of the keeping of lawful guardianship of her guardian without the consent of the guardian. In this case, it has been established by the statements of the prosecutrix that she was kidnapped and removed from the lawful guardianship of her guardian and the age of the prosecutrix, as proved by Dr. Jindani (P.W.6) was 15 years Therefore, the prosecution was successful in proving that the age of the prosecutrix was 15 years and she was removed from the lawful guardianship of her guardian. Regarding the offence of rape, the prosecutrix has stated that she did not give her consent. However, consent or no consent to the prosecutrix is not relevant as she was below 16 years of age and the trial Court itself has convicted the accused u/S. 376 of the IPC. In this regard, punishment prescribed in Section 376 is also liable to be perused, which is quoted as under :

Punishment for rape.- (1) Whoever, except in the cases provided for by sub-section (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or a term which may extend to ten years and shall also be liable to fine unless the woman raped is his own wife and is not under twelve years of age, in which cases, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both :

Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years.

(2) Whoever,-

(a) being a police officer commits rape -

(i) within the limits of the police station to which he is appointed; or

(ii) in the premises of any station house whether or not situated in the police station to which he is appointed; or

(iii) on a woman in his custody or in the custody of a police officer subordinate to him; or

(b) being public servant, takes advantage of his official position and commits rape on a woman in his custody as such public servant or in the custody of a public servant subordinate to him; or

(c) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a woman''s or children''s institution takes advantage of his official position and commits rape on any inmate of such jail, remand home, place or institution, or

(d) being on the management or on the staff of a hospital, takes advantage of his official position and commits rape on a woman in that hospital; or

(e) commits rape on a woman knowing her to be pregnant; or

(f) commits rape on a woman when she is under twelve years of age; or

(g) commits gang-rape,

shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine :

Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years.

In view of the above provisions and from the statements of the prosecution witnesses, it has been established that the respondent was also guilty of having committed offence punishable u/Ss. 363 and 366. Therefore, the appeal is liable to be and is hereby allowed convicting the accused-respondent of the charges u/Ss. 363 and 366 of the IPC.

With regard to imposition of sentence, since the minimum sentence is Rigorous Imprisonment for 7 years u/S. 376 of the IPC, we propose that minimum sentence of 7 years would be adequate at this stage. Therefore, the sentence of 7 years rigorous imprisonment with fine of Rs. 500/- is awarded to the respondent/accused u/S. 376 of the IPC. In case the fine amount is not paid, he shall have to undergo further sentence of R.I. for 3 months on this count. Further, as discussed above, the evidence on record makes it clear that at the time of incident the prosecutrix was below 16 years of age, therefore, she is minor for the purpose of the offence u/Ss. 363 and 366 of the IPC and in this regard the judgment of the trial Court acquitting the respondent accused being ill founded, is hereby set aside. Consequently the respondent/accused is also convicted u/Ss. 363 and 366 of the IPC and sentenced to undergo R.I. for 3 years and to pay a fine of Rs. 500/- on each count, failing which, the accused/respondent shall have to undergo sentence for an additional period of 3 months on each count.

It is made clear that all the sentences shall run concurrently. It is directed that the respondent be taken into custody forthwith to undergo the aforesaid sentence u/Ss. 376, 363 & 366 of the IPC. However, the respondent shall be entitled for set off of the period already undergone by him.