High Court
Case Details
Crl.A. 186/2010 PRESENT HON’BLE MR JUSTICE A. C. UPADHYAY This appeal is directed against the judgment and order dated 30th Septem ber, 2010 passed by the learned Assistant Sessions Judge, Barpeta in Sessions ca se No. 30/2009, sentencing the appellant to undergo rigorous imprisonment for se ven years with a fine of Rs 3000/- under Section 376(1) of the IPC and in defaul t to rigorous imprisonment for three months more. In tandem with this, appellant was also sentenced under Section 366(A) of the IPC to undergo rigorous imprison ment for five years with a fine of Rs 1000/- and in default to rigorous imprison ment for two months more. 1. One Sri Madan Das registered an ejahar with police alleging that on 12.2 .2009 at around 9 AM, on way back of home from the residence of one Maganath Tal ukdar of Lachit Nagar, his daughter was kidnapped near the Muguria temple by one unidentified accused and kept in a house at Sadari and thereafter she was taken to the house of the accused at Sarupeta and later at night molested her on the backyard of his house and then gave her a lift on his bicycle up to Kadamtal at Sarupeta on 13.2.2009. 2. On the basis of the ejahar, police registered a case(Patacharkuchi PS ca se no. 29/2009 under Sections 366(A)/376 of the IPC), reached the spot, recorded statement of the witnesses, drew a sketch, sent the victim for medical examinat ion. The police also got the statement of the victim recorded u/s 164 of the Cr PC. On completion of investigation, filed a charge-sheet under Sections 366(A )/376 of the IPC against the accused Afsar Ali. 3. On committal of the case for trial, the learned trial court framed a for mal charge under Sections 366(A)/376 of the IPC against the accused. The charges having been read out and explained to him, the accused pleaded to be innocent a nd demanded a trial.
Legal Reasoning
3. During trial, prosecution examined as many as 9 witnesses and on complet ion of recording of evidence of the witnesses, statement of the accused under Se ction 313 of the CrPC was recorded, where the stand of the accused was of total denial. Accused preferred not to adduce any evidence in defence. On completion of trial, the learned trial court convicted and sentenced the accused as aforesa id, giving rise to this appeal. 4. Following points for determination were considered by the learned trial court: (i) Whether on 12.2.2009 at around 6 AM the accused Afsar Ali had kidnapp ed the victim, an 18-year-old girl, while she was returning home from one Magnat h Talukdar’s house, with the intention to rape her? and (ii) Whether the accused had raped her on that day in a filed behind his house? 5. e: I would like to depict here-in-below the core of the prosecution evidenc PW1, Madan Das, the first-informant, deposed that the accused was not kn own to him. The victim daughter of PW.1 had gone to Pathsala alone to visit the house of Sailen Deka, when she was returning home on foot after visiting the hou se of Sailen Deka. A boy accosted her and asked her where she was going. The vic tim replied that she was going to her house at Ananda bazaar. As stated by PW.1, the boy induced her to go with him with the assurance of taking her to her hous e. Thereafter, the accused instead of taking his daughter in his house brought h er in another man’s house and kept her there. On that day as his daughter did no t come back home after visiting the house of Sailen Deka, PW.1 went out in searc h of her, but he could not find her. However, on the next day in the morning the victim herself appeared at home. On enquiry, she narrated the incident. Conse quently, an FIR was lodged by PW.1. PW.1 stated that his daughter was 12 years at the time of the alleged incident. 6. In cross examination, PW.1 has disclosed that the FIR was lodged at the Pathsala outpost. He has further revealed that he did not witness the incident n arrated in the FIR with his own eyes. 7. PW2 is the victim. Her evidence is pivotal in the facts and circumstance of the case, as being the victim of kidnapping and rape alleged to have been co mmitted by the accused. PW.2 has deposed that before the incident she had gone t o her uncle’s house. On the date of the alleged incident at around 6 AM, she was returning home from her uncle’s house on foot. At that time near Kanduguri the accused, who was identified by her in the dock of the court and whose name was not known to her, accosted her and thereafter asked her where she was going. She replied that she was going to her father’s house at Ananda bazaar. Then the ac cused told her that he would take her to Ananda bazaar later and thereby desiste d her from going to Ananda bazaar by stating that first he would take her to his sister-in-law’s house and from there he would take her to Ananda bazaar. Though she refused to go with the accused yet the accused persuaded her to go with him . Having no alternative she yielded to his persistent plea and rode on his bicyc le. Thereafter, she was taken to the sister-in-law’s house of the accused, where the accused, kept her during the day time. At around 5 PM the accused again too k her in a bicycle to take her to Sarupeta brought her in a field and forcefully committed sexual intercourse with her. At that time she screamed, but the accus ed asked her to remain silent. After ravishing her the accused took her to Sarup eta and boarded her in a Ananda Bazar bound vehicle. On reaching home, PW.2 narr ated the incident before her mother and thereafter her father lodged an FIR wit h the police. 8. In cross examination, PW.2 has disclosed that she was returning from Pat hsala on foot at around 6 AM. She has further revealed that when the accused acc osted her near Kandukona chowk, there were shops nearby and vehicles were runnin g on the road. When she was coming along with the accused, PW.2 did not tell any thing to people, who were also travelling through the road. PW.2 has further dis closed that she found a number of people, where she was kept by the accused at S adari, but she did not tell anything before them about the incident. The victim informed her father when she reached home and thereafter her father lodged the FIR with the police. 9. PW3, Dr. Bhaskarcharja Bez, who had examined the victim on 13.2.2009 in connection with this case disclosed that on 13.2.2009 at 12.35 PM he examined th e victim escorted by ASI Ramen Dutta Thakuria. On her examination, PW.3 neither found recent sign of sexual intercourse nor found any mark or sign of violence i n her body and her private parts. PW.3 has further revealed that as per the X-ra y report the approximate age of the victim was 12 to 13 years, which was done by Radiologist doctor Kumudeswar Sarma. 10. PW4 Smti Babita Roy in her deposition stated that the victim was taken t o her house about three months ago by the accused present in the dock. On that d ay the accused accompanied by the victim turned up in their house and told her t o keep the victim till he takes her back, with a request to provide her with mea ls. At around 7/7.30 PM the accused again appeared at her house and took the vic tim away. PW.4 has further stated that the victim on being asked disclosed her n ame. The victim further disclosed on being quarried that her house is situated a t Ananda Bazar and on that day she was coming from Pathsala to Ananda bazaar and the accused had told her that he would escort to her house, but during night th e accused would keep her at his house and on the next morning, he would take the victim to her father’s house. 11. In cross examination, PW.4 has disclosed that the accused is known to he r since long before as he used to visit her husband’s pan shop now and then. PW. 4 further revealed that before being taken away from their house her husband als o met the victim. 12. he victim did not complain of any sexual assault before PW.4 and PW.5. PW5, Tapan Roy deposed to corroborate the testimony of his wife PW.4. T PW6 Smti Rani Boro, who was working as Judicial Magistrate 1st class at 13. Bajali Sub-division on tat day pursuant to the order of the Sub-divisional Judic ial Magistrate she recorded the statement of the victim u/s 164 CrPC. PW7, Arun Kr Bora is the investigating officer, had deposed that on 12.2 14. .2009 he was working as the incharge of Pathsala outpost and on that day at arou nd 7 AM one person named Magnath Talukdar resident of Lachit Nagar, Pathsala con veyed him a telephonic information that the victim who came to his house at arou nd 11-12 years disappeared from his house since 6 AM on that day on the basis of the said telephonic information he entered GD entry no. 262 dated 12.2.2009 at around 7 AM and started to investigate the matter by opening miscellaneous case diary. He also informed the incharge of various police station under the Barpeta district for recovery of the victim. On that next day that is on 13.2.2009 at a round 12 PM the informant Madan Das the father of the victim lodged an FIR regar ding disappearance of his daughter, when she was returning home and his daughter was kidnapped from the road near Muguria temple and thereafter she was ravishe d. On 13.2.2009 at around 9 AM the said person left the victim at Sarupeta from where she returned home. 15. parels of the victim, who was medically examined on 13.2.2009. In cross examination, he disclosed that he did not seize the wearing ap 16. PW1, Madan Das set the criminal law in motion by lodging an FIR. Except being the first informant, PW.1 neither saw the accused before the incident nor witnessed the alleged incident. 17. Evidecen fo the victim is vital in this case coupled with the evidence o f the doctor, PW.3, who proved the radiological age of the victim to be 12 to 13 years, it can be safely concluded that victim was minor in age at the time of o ccurrence. More so, the minor age of the victim at the time of occurrence has n ot been disputed by the defence. 18. In a case of kidnapping with rape, the onus is always on the prosecution to prove affirmatively each ingredient of offences it seeks to establish and su ch onus never shifts. Now, on due appraisal of the evidence of the evidence on r ecord as well as from the radiological report it appears that the victim was not more than 13 years of age at the time of the occurrence. On the date of the occurrence at 6 AM, while she was returning from her 19. uncle’s house to her own house at Ananda Bazar the accused accosted her and indu ced her to go with him assuring her that he would take her to Ananda Bazar and i n that pretext the accused took her to in a place called Sadari and kept her the re in the house of PW4 and 5. During the day time and in the evening he took her to his own house and molested her in a secluded place in a field behind his hou se. Thereafter on the next day in the morning the accused took her in a bicycle and got her boarded in Ananda Bazar found vehicle. 20. PW4 in her evidence supported by her statement u/s 164 CrPC exhibited a s exhibit 3 stated that the accused had taken the victim at her house and kept t he victim in her house saying that he would take the victim in the afternoon. PW .5 stated that at around 7/7.30 Pm when he came back closing his pan shop, he me t the accused who was about to take the victim along with him. The accused told PW.5 that he would keep the victim at his house during the night and thereafter in the next morning, he would take her to her father’s house. The corroborative evidence of both PW4 and 5 amply supports the material version of the prosecuti on case, so far as the keeping of the victim by the accused under his custody. Nothing could be elicited during cross examination to demolish their evidence, s o far as the identify of the accused is concerned. Accused was known to them sin ce before the incident. Though they did not witness the incident of rape alleged to have been committed on the victim it was natural for them in not witnessing the incident of rape. However, PW.4 and PW.5 have firmly established the identit y of the accused, who took the victim a minor girl in their house, apparently wi thout the consent of the parents or guardian.
Decision
Before we hold the accused guilty of offence under Section 366A of IPC, 21. the following facts are required to be established- (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 tha t it is likely that she will be forced or seduced to illicit intercourse; (4) su ch intercourse must be with a person other than the accused; (5) that the induce ment caused the girl to go from any place or to do any act. (See Iqbal v. Sta te of Kerala, (2007) 12 SCC 724). In the instant case, the admitted case of the prosecution is that the gi 23. rl had left in the company of the accused of her own will and that she was not f orced to sexual intercourse with any person other than the accused. Since the essential ingredient of the intercourse of the victim with a person other than the accused has not been established, Section 366-A has no application. 24. But fact remains that in the light of the principle laid down by the Hon ’ble Supreme Court in the case of Shamnsaheb M. Multtani (2001)2 SCC 577, Court is authorized to convict and sentence the accused under Section 363 IPC, althoug h the said charge was not framed against him, as the offence under Sections 366A and 363 IPC are cognate offences having common main ingredients, if ingredients of offence under Section 363 IPC are established. 25. In Sannaia Subba Rao v. State of Andhra Pradesh, (2008) 17 SCC 225, the Apex Court held as follows: 49. Already a case of kidnapping was alleged against the appellants in respect o f which a charge under Section 366-A IPC was also framed and, therefore, the acc used persons knew that they were being charged for taking away a minor out of th e custody of the lawful guardian and they got full opportunity to defend themsel ves as against such an allegation. 50. The ingredients of Section 363 IPC involve an act of kidnapping of any perso n from the lawful guardianship. Kidnapping from the lawful guardianship is defin ed under Section 361 IPC, where it is stated that whoever takes or entices any m inor under sixteen years of age if a male, or under eighteen years of age if a f emale, 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, a case of kidnapping is made out. 51. Section 366-A IPC also envisages an act of kidnapping of a minor girl out of the lawful guardianship with the intention of committing sexual intercourse whi ch is of a higher degree than that of an offence under Section 363 IPC. 52. Section 366-A IPC is a major offence whereas Section 363 IPC is a minor offe nce compared to that of Section 366-A IPC. There is, therefore, a difference in respect of the said two offences in respect of the punishment also. Section 366- A IPC envisages a maximum punishment of ten years whereas Section 363 IPC envisa ges a punishment of seven years. 53. Under the provisions of Section 222 of the Code, a provision is made that in a case where the accused is charged with a major offence and the said charge is not proved, the accused could be convicted for a minor offence if such a case i s made out though he was not charged with the same. 54. In Tarkeshwar Sahu v. State of Bihar (2006) 8 SCC 560 : this Court after re lying upon the decision of this Court in Lakhjit Singh v. State of Punjab 1994 Supp (1) SCC 173 and Shamnsaheb M. Multtani v. State of Karnataka (2001) 2 SCC 577 held that if the offence committed is clearly covered and has the ingredient s of a minor offence, in that event, the Court is empowered to convict the perso n under minor offence by invoking the provisions of Section 222 CrPC. 55. In Willie (William) Slaney AIR 1956 SC 116 it was stated by this Court that the object of the charge is not to introduce a provision that goes to the root o f the jurisdiction but to enable the accused to have a clear idea of what he is being tried for and of the essential facts that he has to meet. The said decisi on was a Constitution Bench decision of this Court which has stood the test of t ime and is being followed repeatedly by this Court. (See State of W.B. v. Laisal Haque (1989) 3 SCC 166 :Kammari Brahmaiah v. Public Prosecutor, High Court of A