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2014 DIGILAW 394 (MAD)

Ragavan & Puvial Ragavan v. Inspector of Police

2014-02-18

ARUNA JAGADEESAN

body2014
Judgment : 1. This Criminal appeal is filed against the judgment dated 17.10.2007 passed in SC.No.88/2007 by the learned Additional Sessions Judge, FTC I, Thanjavur, thereby convicting and sentencing the 1st Appellant/A1 for the offence under Section 363 of IPC to undergo one year rigorous imprisonment and to pay a fine of Rs. 500/-, in default to undergo one month simple imprisonment and convicting and sentencing each of the Appellants 2 to 5/A2 to A5 for the offence under Section 363 read with 109 of IPC to undergo one year Rigorous imprisonment each and to pay a fine of Rs. 200/- each in default to undergo one week Simple Imprisonment. 2. The case of the Prosecution is that the 1st Appellant/A1 and minor victim girl, PW.5 Ramya loved each other and on 04.10.2005, A1 taken away the victim girl for marrying her and the Appellants 2 to 5/A2 to A5 betted the said act of A1. A1 took the victim girl to Thiruppur and had sex with her. Hence, the Appellants were charge sheeted for the offence Under Section 366A and 376 read with 109 of IPC. 3. The case was taken on file in SC.No.88/2007 by the learned Additional Sessions Judge, FTC I, Thanjavur and necessary charges were framed. In order to bring home the charges against the accused, the prosecution examined 13 witnesses (PW.1 to PW.13) and also marked Exs. P1 to P9 and marked five material object (MO.1 to MO.5). On completion of the evidence on the side of the prosecution the accused were questioned under Section 313 Cr. Pc as to the incrimination circumstances found in the evidence of prosecution witnesses and the accused have come with the version of total denial and stated that they have been falsely implicated in this case. On the side of defence, DW.1 was examined and EX.D1 to D4 were marked. The court below, after hearing the arguments advanced on either side and looking in to the materials available on record, found the accused/appellants guilty and awarded punishments as referred to above, which is challenged in this Criminal Appeal. 4. This court heard the submission of the learned counsel on either side and also perused the material records placed. 5. The court below, after hearing the arguments advanced on either side and looking in to the materials available on record, found the accused/appellants guilty and awarded punishments as referred to above, which is challenged in this Criminal Appeal. 4. This court heard the submission of the learned counsel on either side and also perused the material records placed. 5. The learned counsel for the Appellants urges that the Trial Court Committed a serious error in convicting the Appellants for the offences under Section 363 of IPC, when they were charged only for the offence under Section s 366A and 376 of IPC. The learned counsel strenuously contended that the offence under Section 363 of IPC is not a minor offence within the meaning of Section 222 of Cr.PC and hence, the conviction and sentence passed by the court below has to be set aside. The learned counsel placed reliance on the judgment of this court dated 10.03.2011 in Crl.A.363 of 2005, where in it is held that the offence under Section 366A of IPC Is not a minor offences to Section 366 of IPC, So as to invoke Section 222(2) of Cr.PC and further, held that the conviction under Section 366A of IPC without there being a charge is illegal and set aside the conviction of the accused under Section 366A of IPC. 6. In this case, except the evidence of PW.5, the victim girl, there is no other evidence to bring home the guilt of the Appellants. The Trial Court after analyzing the evidence, found the Appellants not guilty under Section 366A of IPC and 376 of IPC, however convicted the 1st Appellants under Section 363 of IPC and the Appellants 2 to 5 under Section 363 read with 109 of IPC and imposed punishments as stated above. 7. PW.5 in her Chief examination, stated that she went to Thanjavur to her friend’s house and was standing in the Thiruvaiyaru bus stand . At that time the 1st Appellant came there and asked her to accompany him and promised to marry her. On the said assurance given by the 1st appellant she accompanied him to Thiruvaiyaru and then after getting money from the 5th Appellant they went to several places and later went to the 1st Appellant’s sister’s house. At that time the 1st Appellant came there and asked her to accompany him and promised to marry her. On the said assurance given by the 1st appellant she accompanied him to Thiruvaiyaru and then after getting money from the 5th Appellant they went to several places and later went to the 1st Appellant’s sister’s house. Since the parents and sister of the 1st Appellant apprehended that staying of the victim girl in their house would pose a problem, they went to Thiruppur and PW.2 saw them in the bus stand. It is in evidence that she stayed in a hostel for about one week and after coming to know that a complaint was lodged by her parents, she came back to Thiruvaiyaru and was taken to the police station. On the basis of the above said evidence, the trial Judge convicted the Appellants under Section 363 of IPC. 8. Admittedly, the 1st Appellant was charged under Section 366A and 376 of IPC and the other Appellants were charged for the above said offence with the aid of Section 109 of IPC. Now, the question that arises for consideration is as to whether the conviction of the Appellants under the above said offences is sustainable. 9. For better appreciation we may refer to Section 222 of Cr.PC, which reads as follows:- “Section 222:- When offence proved included in offence charges:- (1) When a person is charged with an offences consisting of several particulars, a combination of some only of which constitutes a complete minor offences and such combination is proved he may be convicted of the minor offence, though he was not charged with it. (2) When a person is charged with an offences and fact are proved which reduce with to a minor offence he may be convicted of the minor offence although he not charged with it. (3) When a person is charged with on offence he may be convicted of an attempt to commit such offence although the attempt is not separately charged. (4) Nothing in this Section shall be deemed to authorize a conviction of any minor offence where the condition requisite for the initiation of proceedings in respect of that minor offence have not been satisfied.” 10. (4) Nothing in this Section shall be deemed to authorize a conviction of any minor offence where the condition requisite for the initiation of proceedings in respect of that minor offence have not been satisfied.” 10. Section 222(1) of Cr.PC deals with a case, “when a person is charged with an offence consisting of several particulars, the Section permits the court to convict the accused of the minor offence, though he was not charged with it.” 11. Section 222(2) of Cr.PC deals with a similar, but slightly different situation as given below:- “when a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence, although he is not charged with it “. 12. Though the expression is not defined in the code, it can be discerned from the context that the test of minor offences is not merely that the prescribed punishment is less than the major offence. Only if the two offence are cognate offences where in the main ingredients are common, the one punishable among them with a lesser sentence can be regarded as minor offence vis-a-vis the other offence. 13. The comparison of the offence under Section 363 of IPC is vastly different from the formation of the offence under Section 366A of IPC and hence, the former cannot be regarded as minor offence vis-a-vis the latter. The ingredients needed to establish the offence under Section 366A of IPC are:- (i) that a minor girl below the age of 18 years is induced by the accused, (ii) that she is induced to go from any place to do any act and (iii) that she is so induced with intent that she may be knowing that it is likely that she will be forced or seduced to illicit intercourse with another person. Where as we may note the difference in the legal position between the offence under Section 366A and Section 363 of IPC. To bring home an offence under Section 363 of IPC the prosecution has to establish that the accused has either taken or enticed away a mirror who was under 18 years of age and that the said taking or enticing has been made out of the keeping of a lawful guardian without the consent of such guardian. 14. To bring home an offence under Section 363 of IPC the prosecution has to establish that the accused has either taken or enticed away a mirror who was under 18 years of age and that the said taking or enticing has been made out of the keeping of a lawful guardian without the consent of such guardian. 14. The above said two offences are distinct and different categories and it cannot be said that Section 363 of IPC is a minor offence in relation to an offence under Section 366A of IPC within the meaning of Section 222 of Cr.PC. while the basics constituent of an offence under Section 366A of IPC is that the minor girl is abducted in order to force her or seduce her to illicit intercourse with another person where as under Section 363 of IPC, it is merely that the victim girl under 18 years of age is enticed from lawful guardianship without the consent of such guardian. 15. In the instant case, there is no evidence that the victim girl was under 18 years of age at the time of occurrence. PW.1 the father of the victim girl has admitted that he has not handed over the age certificate or the birth certificate of the victim girl to the police. Even in chief examination, he merely stated that the victim girl was studying 11th standard, but he is silent with regard to her age. PW.12 the investigating officer too stated that he has not taken any efforts to get the birth certificate from her school nor produced any age certificate. PW.6 Doctor, who conducted radiological examination, stated that she was above 17 years and below 18 years of age. 16. The Honourable Supreme Court in AIR-1965-SC-942 (S.Varadarajan Vs. State of Madras) has held that if a girl, who is in the verge of attaining majority and capable of knowing the full import of what she is doing and went on her own accord, the same cannot make out an offence under Section 363 of IPC. Applying the said principles to facts of the present case, when the evidence indicated that she left the house voluntarily without any force or compulsion by any of the accused and she had gone with the 1st Appellant on her own to various places no offence under Section 363 of IPC would be attracted. Applying the said principles to facts of the present case, when the evidence indicated that she left the house voluntarily without any force or compulsion by any of the accused and she had gone with the 1st Appellant on her own to various places no offence under Section 363 of IPC would be attracted. As a corollary, Appellant 2 to 4 are also entitled for acquittal. 17. That apart, throughout the trial, A1 was asked to defend himself against the charge under Section 366A and 376 of IPC and at no stage, he was notified that he would be tried for offence under Section 363 of IPC. Similar is the situation with other accused also. Therefore, in view of the conviction of offence under Section 363 of IPC, the Appellants/accused had been put to serious prejudice, as they had no notice of the offence of which they were convicted and were not asked to explain the points on which their conviction is held to be bad. As the Appellants were convicted by the Trial Court without such an opportunity being granted to them I am of the considered view that the conviction of the 1st Appellant under Section 363 of IPC and the Appellants 2 to 5 under Section 363 read with 109 of IPC cannot be sustained. 18. In the result, this Criminal Appeal is allowed and the impugned judgment of conviction and sentence is set aside. The Appellant are acquitted of the charges leveled against them. The bail, if any executed by the Appellants shall stand cancelled and the fine amount, if any paid by them, shall be refunded to them.