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2002 DIGILAW 1545 (RAJ)

Khalikuddin S/o Naimuddin v. State of Rajasthan

2002-09-05

A.C.GOYAL

body2002
JUDGMENT 1. - This appeal is directed against the judgment dated 6.11.2000, whereby learned Sessions Judge, Baran, convicted and sentenced the accused-appellant with 3 years R.I. and fine of Rs. 1,000/- in default 6 months R.I. for an offence u/s. 366 IPC and 5 years RI and fine of Rs. 3,000/-, in default one year, R.I. for an offence u/s. 376 IPC. 2. The prosecution case in brief is that PW-2 Udalal, father of the girl PA Gulab Bai, submitted a written report Ex.P/1 at Police Station Bhanwargarh on 10.2.1999, stating therein that the informant was the resident of Parania and at the time of incident was working at Kota. His wife alongwith children was residing in village. When the informant came to his house, he was informed by his wife that 12-13 days back, Naimuddin and his son Khaliquddin came to her and said that they were going to Madhopur to attend a marriage and asked to send her daughter Gulab Bai alongwith them but she refused and went to the field. In her absence, they took away his daughter. Mukesh Barman, Visvanath and Smt. Santra Bai have seen them going. When Naimuddin returned to the village, his wife enquired about her daughter but he pleaded ignorance. The age of the girl was 13-14 years. Formal FIR Ex.P/3 was registered. The victim Gulab Bai was recovered on 2.3.1999 vide Memo Ex.P/4. She was medically examined and after completion of the investigation, charge-sheet came to be filed. In due course the case came up for trial before the learned Sessions Judge, Baran, who framed the charges u/s. 363, in the alternative u/ss. 366 & 376 IPC. The accused pleaded not guilty and claimed trial. The prosecution examined as many as ten witnesses. The accused was examined as provided by Section 313 Cr.P.C. He denied the prosecution evidence but did not lead any evidence in defence. The learned trial Judge having heard final submissions came to the conclusion that all the three charges were proved beyond doubt and convicted and sentenced the accused-appellant as stated here-in-above. No separate sentence was passed for an offence u/s. 363 IPC. 3. I have heard learned counsel for the' appellant and learned Public Prosecutor. At the very out-set, learned counsel did not challenge the conviction of the appellant. He confined his submissions on the point of sentence only. Although the conviction of the appellant u/ss. No separate sentence was passed for an offence u/s. 363 IPC. 3. I have heard learned counsel for the' appellant and learned Public Prosecutor. At the very out-set, learned counsel did not challenge the conviction of the appellant. He confined his submissions on the point of sentence only. Although the conviction of the appellant u/ss. 363, 366 & 376 IPC is not challenged. I have scanned the entire evidence. The important aspect of the case is the age of the victim. According to the statement of PW-1 Smt. Pramila, mother of the victim the age of her daughter was 13 to 14 years at the time of incident. PW-2 Udalal is the father of the victim. He stated that his daughter was about 12 to 13 years of age. PW-3 is the victim, who stated her age 13 years when her statement was recorded by the trial Court on 10.8.1999. Ex.P/5 is the progress report of the victim, issued by Head Master of Government Secondary School, Parania and her date of birth is mentioned as 2.5.1986. PW-8 Dr. Mustaq Ahmad Ansari, medically examined her on 3.3.1999. She was also x-rayed. According to his opinion the age of the victim was about 13 to 14 years. Thus in view of the entire evidence the age of the victim was 14 years at the relevant time. 4. The next important point is as to whether irrespective of the fact the victim was below 16 years of age, she was a consenting party or not. This incident according to the prosecution case, took place in the last week of January 1999. The report was lodged after 12-13 days and the victim was recovered on 2.3.1999. Thus the victim remained with the appellant for more than a month. PW-3 victim stated before the trial Court that one day prior to this occurrence the appellant told her that he wanted to marry her but she declined. On the next day, Gulnaz sister of the accused came to her house and told her that they had to go Sawaimadhopur, to attend a marriage and then she accompanied the appellant and his family members. They reached Bhanwargarh by bus. On the next day, Gulnaz sister of the accused came to her house and told her that they had to go Sawaimadhopur, to attend a marriage and then she accompanied the appellant and his family members. They reached Bhanwargarh by bus. The Sarpanch of that village and one Bissu, met her there and on a query made by them she told that she was going to Madhopur then they went to Kota and from Kdta, the parents of the appellant went to Madhopur and she came to Jaipur with the appellant and stayed in a hotel where the appellant had sex with her. Next day they went to Sawaimadhopur from Jaipur and stayed in a hotel where the appellant again had sex with her. Then she went to Dausa with the appellant and took a room on rent where they stayed for a month and during that period the appellant had sex with her. It was also stated by her that during the day the appellant used to go on work and other people were residing near about that room bit she did not disclose to any body. It was further stated by her that after a month her brother came to Dausa, alongwith police and accused was also present at that time and she was taken to the Police Station. 5. On perusal of the entire statement of the victim, it is proved that she herself accompanied the appellant and was a consenting party. In other words the appellant had sex with her consent, as she remained in the company of the appellant for more than a month and was taken from one place to another and during the whole period she did not make any complaint to any body although she had every opportunity to do so. 6. According to Section 361 IPC, whoever takes or entices any minor girl under 18 years of age out of the keeping of the lawful guardianship of such minor is said to kidnap which is punishable u/s. 363 IPC. Section 366 IPC provides punishment of kidnapping or abducting with an intention as provided in this Section. Section 375 IPC defines the offence of rape and rape even with consent when the victim is under 16 years of age. Section 366 IPC provides punishment of kidnapping or abducting with an intention as provided in this Section. Section 375 IPC defines the offence of rape and rape even with consent when the victim is under 16 years of age. As stated here-in-above the age of the victim was about 14 years at that time and thus the question of her consent has no. meaning as far as the commission of this offence is concerned. Thus the conviction of the appellant under the said Sections is upheld. 7. Section 376(1) IPC provides that the punishment for such an offence sly all not be less than seven years but a proviso has been added which provides 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. Learned counsel contended that in view, of the consent of the victim, lessor sentence may be awarded. Reliance was placed upon Ummaid Nath v. State of Rajasthan, 1999 (2) RCC 1383 , wherein the age of the prosecutrix was found below 16 years at the time of occurrence and the prosecutrix went with the accused willingly and thus the rigorous imprisonment of ten years u/s. 376 IPC was reduced to five years rigorous imprisonment. 8. In Rajan & Ors. v. The State of Rajasthan, 2002 (1) Cr.L.R. (Raj.) 778 , the age of the girl was found thirteen and half years i.e. below 16 years at the relevant time and she was found a consenting party, therefore, in view of the Proviso to Section 376(1) IPC, the sentence of ten years rigorous imprisonment awarded by the trial Court was reduced to three years rigorous imprisonment. In the present case the accused-appellant has served the sentence for more than a period of three years and six months and keeping in view the entire discussion made hereinabove, and in the light of the two judgments of this Court, it would meet the ends of justice to sentence the accused- appellant with the sentence already undergone. 9. Consequently, this appeal is partly allowed. The conviction of the accused-appellant u/ss. 363, 366 & 376 IPC is maintained. He is sentenced to the period of more than three years and six months already undergone by him. The appellant is in jail. 9. Consequently, this appeal is partly allowed. The conviction of the accused-appellant u/ss. 363, 366 & 376 IPC is maintained. He is sentenced to the period of more than three years and six months already undergone by him. The appellant is in jail. He be released Prthwith, if not required in any other case.Appeal partly allowed. *******