State of Haryana vs Islam

K.S. Tiwana, J.

Jamila alias Majidan alias Mahindro PW8 is the daughter of Bhulla PW6 who was residing in village Chhalaundi, District Kurukshetra. According to the prosecution, Bhulla and his family members including his daughter take out their livelihood by working as agricultural labourers. Jamila whose date of birth, according to the birth certificate Exhibit PG was 20.5.1962 also used to work as a labourer.

Some time before this occurrence, which took place on 18.5.1979 at about 7 a.m., Jamila had gone to the fields of Sarpanch of the village to case herself. Islam accused who also used to reside in village Chhalaundi caught hold of her and committed rape on her against her will and consent. After that he threatened her with dire consequences in case she informed about that to her parents.

On 18.5.1979 Bhulla PW6 and other members of his family had gone to work in the sugar cane field of Kuldip Singh of village. Chhalaundi Jamila had not gone with them. Islam accused accompanied by one Mulla came to her house and told her that her maternal grandfather was ill at Ladwa. Believing the statement of Islam accused as correct, she accompanied him. Mulla separated from them at some distance from the village. After covering some distance Islam accused forcibly took her in a sugarcane field of village Chhalaundi. He kept her there for two days and nights. During this interval he committed sexual intercourse with her.

Ismail PW7 a brother of Bhulla PW6 at about 2.30 p.m. near village Bann, saw Islam accused taking Jamila on a bicycle towards Ladwa. When Jamila did not return to the house, Bhulla PW6 was worried. Ismail told him what he had seen. Both of them searched for her at different place, but could not find her. On 25.5.1979, Bhulla PW6 went to Police Station, Ladwa and at 8.30 p.m. made the report. The police also started searching for Islam accused and Jamila.

From the sugarcane fields Islam accused took Jamila to Saharanpur and forcibly kept her there for some days on the railway station. He used to conceal her during day time and during the night he used to keep her with him. Iqbal Mohammad alias Chhota, her maternal uncle in the relationsihp met her at railway station. She narrated the incident to Iqbal Mohammad who directed the accused to leave with her parents. Iqbal Mohammad threatened to deal with Islam severely in case he failed to return Jamila to her parents. Islam then removed her from Saharanpur. They came to busstop of village Barsami. From there Islam accused wanted to take her to some other place. They sat under a Shisham tree. Islam held Jamila by her hand. Ram Nath Assistant Sub Inspector PW9 accompanied by Bhulla PW6 and Islam PW7 were going in a bus in search of Jamila. Seeing Jamila with Islam accused sitting under a Shisham tree, Bulla PW6 and Ismail PW7 asked to stop the bus. The bus was stopped and accused and Jamila were apprehended. Salwar of Jamila was taken into possession which was found by the Chemical Examiner to be stained with semen.

On 29.5.1979 Dr. (Mrs.) Usha Sharma PW3, on medical examination of Jamila found her to be habitual to sexual intercourse. She was found ten weeks'' pregnant.

On 29.5.1979, Dr. S.C. Sharma PW2 on medical examination of Islam accused found him to be potent and fit to perform sexual intercourse.

At the trial, the prosecution examined Bhulla PW6, Ismail PW7, and Jamila PW8 who narrated the facts noticed in the earlier part of this judgment. The rest of the prosecution witnesses examined at the trial were of formal nature.

When examined at the close of the prosecution case, the accused denied the case as set up against him. He stated that he was engaged to Jamila PW8. He further stated that Jamila came to the house of his sister village Dabki near Saharanpur. He was called by his sister. Jamila told him that she did not want to go back to her house as per parents were gong to marry her to an old man. She requested him to take her to the court and marry her. He took her to Saharanpur where he marred her through Nikah ceremony. Two/three days thereafter he took her to Saharanpur Courts, where she filed a complaint against her parents. They were sitting in the Court premises when Ladwa police took them in custody.

The learned trial Judge found that the sexual intercourse was committed by Islam accused with Jamila with her consent and acquitted Islam accused of the charge under Section 376 Indian Penal Code. The accused was also acquitted of the charge under Section 363 I.P.C. on the basis of consent.

Feeling dissatisfied with the order of acquittal under Section 363 I.P.C, the State of Haryana has come to this Court in appeal.

We have gone through the records of the case and heard the counsel for the parties. Bhulla PW6 stated that he used to reside in village Mehra District Kurukshetra when prosecutrix Jamila was born to his wife from his loins. Her name at the time of birth was Jamila and she later on came to be known by the name of Mahjidan and Mahindro also. The prosecution produced. Exhibit PG, a copy of the birth certificate issued by the health authorities showing that a female child named Jamila was borne to the wife of Bhulla PW6 on 20.5.1962. This shows that on the day of the occurrence when Jamila went away from the house of her father Bhulla PW6 she was two days less than 17 years of age. She was minor and her age was one year and two days less than the statutory age for the purpose of kidnapping under Section 363 IPC. Bhulla PW6 being a father was her natural guardian as she was unmarried. Nobody could take Jamila PW8 from the protective custody of Bhulla PW6 until she had attained 18 years of age. It is immaterial whether Jamila left the custody of her father willingly with her consent or she was enticed away by the accused, the fact remains that she was recovered from the custody of Islam accused. He has also admitted that he married her and after that on 29.5.1979 she was recovered from his custody. We are not much concerned with the place, from where she was recovered in view of the admission of the accused that he had married her when she was still a minor. The manner in which Jamila was going with Islam from 18.5.1979 till 29.5.1979, when she was recovered, depicts consent on her part. She did not complain to anybody although she travelled in a truck in which a police constable was there. She remained at Saharanpur railway station where people were moving about but she did not complain to anybody that she had been brought by Islam accused after kidnapping and that she had been subjected to sexual intercourse against her will. All these things are immaterial since Jamila is proved to be below the age of 18 years.

The protective custody of the father does not come to an end even if the minor himself/herself abandons the custody of his/her parents. The offence of kidnapping is made out against Islam accused as he misused his position and kept Jamila under his charge and married her. The offence of kidnapping under Section 363 IPC is thus clearly made out. The learned trial Judge committed a grave error in treating the consent of a minor at par with the consent of a major. Minor''s consent is no consent in the eye of law. The order of acquittal is thus against the provisions of the statute which has resulted in illegality. Even on the basis of consent such an illegality cannot be permitted to stand. The order has to be set aside.

For the foraging reasons, the order of acquittal under appeal is set side and the appeal is accepted.

The next question which arises is as to what sentence should be impose on Islam accused. Jamila has stated that on earlier occasions Islam had committed sexual intercourse with her about which she did not complain to her parents. The possibility may not be ruled out that even that act was with consent. She was again a consenting party in eloping with Islam accused. In these circumstances when Jamila PW8 was a consenting party, we do not intend imposing a severe sentence. From the record, we have taken that Islam accused had already spent 15 days in custody during trial. In our view the sentence of 15 days which detention he has already undergone during trial and has to be set off against the punishment to be awarded, should meet the ends of justice.

JUDGMENT accordingly.