Himachal Pradesh High Court
Omi vs State Of H.P on 4 December, 2023
Bench: Tarlok Singh Chauhan, Satyen Vaidya
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr.A. No. 412 of 2020 Reserved on: 29.11.2023 .
Decided on: 04.12.2023
Omi ...Appellant
Versus
State of H.P. ...Respondent
Coram:
of
Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. Hon'ble Mr. Justice Satyen Vaidya, Judge. Whether approved for reporting? 1 No. rt For the Appellant : Mr. Hemant Vaid, Advocate, vice Mr. B. B. Vaid, Advocate.
For the Respondent: Mr. Anup Rattan, A.G. with Mr. Y. W. Chauhan, Sr. Addl. A.G., Mr. Navlesh Verma and Ms. Sharmila Patial, Addl.
A.Gs.
Tarlok Singh Chauhan, Judge The appellant has been convicted and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 10,000/- and in default of payment of fine to further undergo rigorous imprisonment for a period of six months for the commission of offence under Section 6 of Protection of Children from Sexual Offences Act, 2012 (for short 'POCSO Act'); further sentenced to undergo simple imprisonment for six months for the commission of offence under Section 506 IPC and further sentenced to undergo rigorous imprisonment for two years and 1 Whether reporters of the local papers may be allowed to see the judgment? yes ::: Downloaded on - 04/12/2023 20:35:35 :::CIS 2 to a pay fine of Rs. 10,000/- and in default of payment of fine, to further undergo rigorous imprisonment for a period of six months for the commission of offence under Section 67-A of Information .
2. Case of the prosecution is that the prosecutrix along with her parents and Ward Panch appeared before the police station, Nagrota Bagwan and handed over one application of containing allegations against the appellant, in which, it was alleged that her date of birth is 21.11.1998 and in the year, rt 2015, when she was minor and studying in 10 th Class, when the appellant had met her outside the school and they had exchanged the phone numbers and the appellant had stated that he would marry the prosecutrix and used to meet her occasionally.
3. In the month of July, 2015, when the school was going to be closed for holidays, the appellant called her and asked her to come to a temple. Initially she refused but was threatened and accordingly the prosecutrix accompanied the appellant on the motor cycle and the appellant then took her to a hotel wherein he not only raped her but also filmed the act and prepared a video. He thereafter threatened the prosecutrix not to disclose the incident to anyone or else he would insult her. On the basis of the allegations, the FIR came to be registered and thereafter the investigation was conducted.
::: Downloaded on - 04/12/2023 20:35:35 :::CIS 34. After the conclusion of the investigation, the appellant was made to stand trial for the commission of offences for which he has been convicted, as aforesaid.
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5. In order to prove its case, the prosecution has examined as many as 18 witnesses and after closure of the prosecution evidence, the appellant was examined under Section 313 Cr.P.C. and he was given opportunity to lead evidence in his of defence and he examined two witnesses and closed the evidence.
6. rt As observed above, the learned Special Judge, convicted and sentenced the appellant, as aforesaid and aggrieved thereby the appellant has filed the instant appeal.
7. It is vehemently argued by Mr. Hemant Vaid, learned vice counsel for the Appellant that the findings recorded by the learned Court below are totally perverse and therefore, deserve to be set aside.
8. On the other hand, Ms. Sharmila Patial, learned Additional Advocate General, would argue that the findings recorded by the learned Court below are in accordance with law and the same warrant no interference.
We have heard learned counsel for the parties and have gone through the record carefully.
::: Downloaded on - 04/12/2023 20:35:35 :::CIS 49. In order to appreciate the rival contention of the learned counsel for the parties, it would be necessary to refer to the evidence that has come on record.
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10. The prosecutrix appeared as PW1 and stated that in the year, 2015, she was studying in Class 10 th and in the month of May, 2015, the appellant had met her and they had exchanged their mobile numbers. Thereafter, they used to talk of on the mobile phones and the appellant had promised to marry her. One day, the appellant asked her to accompany him to a rt temple but he took her to some hotel and he not only raped her but also filmed the act and prepared a video and thereafter threatened her not to disclose this incident to anyone.
11. On 23.07.2017, Panchayat Pradhan Ajay Supheia came to her house and met her mother and showed to her some video. The video was the same which was prepared by the appellant in the hotel and when her mother confronted the prosecutrix, she informed that the same had been prepared in the aforesaid manner. At that time her age was about 17 ½ years. The appellant had disclosed his name as Akshay Thakur, but later on she came to know that his real name was Omi.
12. On 24.07.2017, the prosecutrix wrote complaint Ext.
PW1/A and gave it in the police station whereafter she was medically examined. Thereafter, her statement under Section 161 Cr.P.C. Ext. PW1/B was recorded. The police also took into ::: Downloaded on - 04/12/2023 20:35:35 :::CIS 5 possession the clothes worn by the prosecutrix. The police had taken her to the hotel, where she identified the room where she had been raped and video was prepared.
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13. On being cross-examined, the prosecutrix admitted that at the time when she had accompanied the appellant she had not raised any voice or alarm. She further admitted that her mother had also met the appellant and the appellant had of promised to marry her but at that time she was minor and her mother told the appellant that he should marry her after rt attaining majority but she was not married to the appellant as he was not of their caste and even his name and address was not correct. She denied the suggestion that her mother had come to the house of the appellant with the proposal of her marriage.
She further denied the suggestion that her father had refused to get her married to the appellant and had insulted the mother of the appellant. He denied that it was thereafter that a false case had been lodged.
14. On being cross-examined, the prosecutrix identified herself in the CD Ext. P5 and stated that the video had been made by the appellant from his mobile in hotel Prince. On being cross-examined, she denied that she had played a part in preparing the video to blackmail the appellant, as he belonged to different class, which was lower to the one of the prosecutrix.
::: Downloaded on - 04/12/2023 20:35:35 :::CIS 615. PW2 Smt. Bimla Devi is the mother of the prosecutrix, who stated that she came to know about the video of her daughter having become viral and requested Panchayat .
Pradhan to show the video. Thereafter, he came to her house and showed the video and after that she questioned her daughter, who identified herself in the video and felt ashamed.
On 24.07.2017, she along with the prosecutrix and other of villagers came to police station, where the prosecutrix gave complaint Ext.PW1/A and the prosecutrix was got medically rt examined and her statement was recorded in the court and clothes were taken into possession.
16. On being cross-examined, the witness admitted that she met with Pardhan Ajay Supehia in the market and requested him to provide the video. The appellant met with her prior to the registration of the FIR and she had told him that the prosecutrix was minor and her husband is doing labour work and running a small shop. She stated that she came to know about the caste of the appellant only after registration of the case. She admitted that the appellant had once gone with them to Chamunda Temple prior to the registration of the case. She denied that she knew the caste of the appellant prior to the registration of the case. She denied that after coming to know the caste of the appellant, her family had refused to get her married with the appellant. However, she volunteered to state that it was because ::: Downloaded on - 04/12/2023 20:35:35 :::CIS 7 the appellant had prepared the video of the prosecutrix, therefore, they had refused to get her married with him. She admitted that the mother of the appellant had visited their house .
once prior to this case, to talk about the marriage of the appellant with the prosecutrix, but denied having insulted her.
17. This witness again appeared on 13.03.2019 and stated that she had seen the CD Ext.P5 in the Court computer of and stated that video had been shown to her by Ajay Supehia. In cross-examination, she denied that she in connivance with her rt family members and witness Ajay Supehia hatched a conspiracy against the appellant as he belonged to a lower caste to the one of the prosecutrix.
18. PW3 Balraj Singh was running a hotel in the name and style of Dee Prince and handed over one register Ext.PW3/A vide memo Ext.PW3/B and signed the same. As per the entry made at page No. 38 of the Register, the appellant - Omi son of Sh. Purshottam Lal, had stayed in the hotel on 22.07.2015 from 10:50 a.m. to 1:20 p.m. and he had charged Rs. 500/- as room rent. He identified the appellant present in the Court. He further deposed that initially the appellant came alone and inquired about the availability of room and after about five minutes, the appellant brought one girl with him and took her to the room and returned the key of the room at about 1:20 p.m. on the same day. On being cross-examined, he denied that time of departure ::: Downloaded on - 04/12/2023 20:35:35 :::CIS 8 was written on the register Ext. PW3/A as 1:20 p.m. Volunteered to state that correction was made at the time when the entry was made at 1:20 p.m. and he had not made any initial .
regarding the cutting over the same. He further stated that entry in the Register Ext. PW3/A had been made by him in his own hand. He admitted that Register was issued by Tourism department under their stamp, however, the Register did not of contain any such stamp. He admitted that he had installed CCTV cameras in hotel but the police had not taken into possession the rt hard drives of the CCTV cameras. He volunteered to state that he was not even sure that by that time the CCTV had been installed or not.
19. PW4 Ajay Supehia stated that some friend has sent the porn video, which he saw and found that the girl therein was from the adjoining Panchayat. Thereafter, he contacted the Pardhan of that Panchayat and told him about the video, who also saw the same. Thereafter, the parents of the girl also saw the video and identified the girl to be their daughter and he thereafter prepared the CD of that video clip and handed over the same to the police vide memo Ext. PW4/A. On 26.07.2013, the appellant made a disclosure statement Ext. PW4/C vide which he stated that he could get recover articles from his house. The appellant had then produced Jean Pants Ext.P6, T-
shirt Ext.P7, which was seized vide memo Ext PW4/D and the ::: Downloaded on - 04/12/2023 20:35:35 :::CIS 9 motor cycle was also taken into possession. He stated that he could not tell that who had made the video clip viral and shared it on App.
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20. PW6 Suresh Kumar is the father of the prosecutrix, who stated that the date of birth of her daughter was 21.11.1998. He further deposed that one video clip of her daughter with the appellant had gone viral and he came to know of about it from the villagers. On 23.07.2017, Ajay Supehia Gram Panchayat Pardhan came to their house and had shown the video rt clip in the mobile. On seeing the video clip, they felt ashamed and questioned her daughter, who in turn, narrated the entire incident. On 24.07.2017, they had then gone to the police station to lodge a report. His daughter has written complaint Ext. PW1/A, on the basis of which, the FIR was got recorded. Thereafter, the statement of the prosecutrix under Section 161 Cr.P.C. was also got recorded before the Magistrate. On being cross-examined, he denied the suggestion that before registration of the case, the mother of the appellant came to their house with the proposal of marriage of the appellant with his daughter and volunteered to state that she had come only after the clip had gone viral, that too, for the purpose of compromise. He denied the suggestion that they had refused to marry her daughter with the appellant on the ground that the appellant belonged to lower caste to the one of the prosecutrix.
::: Downloaded on - 04/12/2023 20:35:35 :::CIS 1021. PW10 Dr. Priya had examined the prosecutrix and issued MLC Ext. PW10/B. In cross-examination, she admitted that the hymen can be torn with fingering, cycling and any sports .
activities.
22. PW11 Dr. Meenakshi Mahajan, examined the parcels 1 and 6 which were sent to her for analysis. As per the result, the video file supplied in the DVD marked as CD-1 was not found to of be physically present in the exhibits marked as Q-1 (memory card), S-1 and S-2 (sim cards). The data could not be extracted rt from the mobile Ext. P-1 as the available data base at that time did not support the device.
23. PW 12 Ajay Sehgal also proved parcels that were sent to him for examination.
24. PW 14 Dr. Nishan examined the appellant and issued MLC Ext. PW14/B.
25. PW15 Dy. S.P. Sanjeev Chauhan, had partially investigated the case being SDPO and he recorded the statement of MHC Raju Dhiman, lady Constable Ramna Devi, C. Pankah Kumar and photographer Raman. After the receipt of RFSL reports, the challan was prepared and filed in the Court. On being cross-examined, he denied the suggestion that he had not properly investigated the case.
26. PW 16 ASI Ashok Rana, who had investigated the case, deposed that the prosecution case as has already been set ::: Downloaded on - 04/12/2023 20:35:35 :::CIS 11 out in paras 10 to 19 (supra), therefore, the same is not being reproduced so as to avoid repetition. On being cross-examined, he admitted that hotels are approved by the tourism department .
and he did not know whether Tourism department had issued register with its stamp to the hotel or directed to maintenance of proper accounts. He denied that there was cutting with regard to the time and departure in the register Ext. PW3/A. He admitted of that he had not seized any bill book of the hotel. He denied having set up a false case against the appellant. He denied the rt suggestion that the Register Ext. PW3/A was forged during investigation to implicate the appellant. He admitted that he had not seized any bill book of the hotel but denied the suggestion that a false spot map of the hotel Ext. PW16/C had been prepared by him. He admitted that he had sent the clothes of the prosecutrix for examination to RFSL but had not sought any opinion regarding the age of the fabric. He had not investigated the matter as to how Pardhan Ajay Supehia got the porn video of the prosecutrix in his mobile, but he admitted that had it been investigated, the person who made the video viral could be located. He admitted that he had not taken into possession the CCTV / hard disk. Volunteered to state that there was no CCTV in the hotel. He denied the suggestion that he had wrongly investigated that the video was prepared from the mobile of the appellant. He admitted that he had not investigated the mobile ::: Downloaded on - 04/12/2023 20:35:35 :::CIS 12 of the prosecutrix. However, volunteered to state that when the incident occurred, the prosecutrix was not having any mobile. He admitted that he had not kept the police officials as witness, who .
had clicked the photographs with his mobile. He admitted that the prosecutrix had alleged the incident to be of 2015 and the FIR was lodged in 2017. However, he denied that incident was alleged to be that of 2015 only to make out the case under of POCSO. He admitted that in the RFSL report, no data could be recovered from the mobile and memory card. He also admitted rt that mobile was not sent for recovery of data to any other FSL for obtaining any other report. He denied the suggestion that he had pressurized the appellant to sign the visitor register and other documents while he was in police custody.
27. PW5 Shakti Chand, Junior Office Assistant, CMO Office, Dharamshala proved on record the date of birth of the prosecutrix as 21.11.1998 from the Birth and Death Register and extract whereof was placed on record as Ext. PW5/A.
28. PW7 HC Raju Dhiman was the MHC, who proved that the case property was deposited and later on sent the same to RFSL and SFSL and made entry in the malkhana register. On being cross-examined, he admitted that the date as written against Serial No. 277/17 was 06.01.2017. He however denied that all the aforesaid entries in the malkhana register had been made subsequently as per the convenience of the I.O.
::: Downloaded on - 04/12/2023 20:35:35 :::CIS 1329. PW8 Lady Constable Ramta Devi deposited an envelope at RFSL, Dharamshala and the RC was returned to the MHC.
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30. PW9 C. Pankaj Kumar stated that parcels were handed over to him and the same were deposited at RFSL.
31. PW 13 Raman Kumar stated that he had handed over one memory card for developing and preparing the CD and he of had developed the photographs Ext. PW13/A-1 to Ext. PW13/A-28 and also prepared the CD Ext. PW13/A-29. He had also issued rt certificate under Section 65-B of Evidence Act Ext. PW13/B. In his cross-examination, he admitted that there was no stamp of his photo studio on the photographs and the CD. He also admitted that the certificate Ext. PW13/B was brought by the police and thereafter signed by them.
32. PW17 SI Nirmal Dass stated that on 24.07.2017, the prosecutrix alongwith her parents, Pardhan and Ward members of the Panchayat came to the police station and handed over complaint Ext. PW1/A and on the basis of the complaint, the MHC registered the FIR in the computer and the print whereof was Ext. PW17/A and the file was handed over to SDPO for investigation and he moved application Ext. PW10/A for medical examination of the prosecutirx and on return, the MLC was handed over to him alongwith the case property which he had deposited with the MHC. The appellant was arrested by the SDPO ::: Downloaded on - 04/12/2023 20:35:35 :::CIS 14 on the same day and he moved an application for his medical examination vide Ext. PW14/A, pursuant to which, the appellant was examined and MLC to this effect was issued. On being cross-
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examined, he admitted that the incident was alleged to be of 2016 and FIR had been registered in 2017. He denied that the FIR was fabricated in connivance with the prosecutrix and further denied that complaint Ext. PW1/A was dictated by him.
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33. PW18 Dy. S.P. Surinder Sharma, SDPO, conducted the investigation and according to his investigation, case under rt Section 67 of the Information & Technology Act was registered and after his transfer, the case file was entrusted to Sanjeev Chauhan as per order Ext. PA-1. On 24.07.2017, he had recorded the statements of mother and father of the prosecutrix and on the same day, the appellant had been arrested. On 25.07.2017, Pardhan, Ajay Supehia had produced one CD, which was seized vide memo Ext. PW4/A and the same was sealed in a cloth parcel. On 26.07.2017, he moved an application Ext. PW18/A before the learned JMIC for recording the statement of the prosecutrix under Section 164 Cr.P.C. and the application was handed over to ASI Ashok Rana, who produced the prosecutrix before the Court. In cross-examination, he stated that he had been transferred from Kangra in September, 2017 and initially after investigation, he had been deputed for VIP duty and he had handed over the case file to Ashok Rana. He admitted that letter ::: Downloaded on - 04/12/2023 20:35:35 :::CIS 15 Ext. PA-1 was issued on 10.10.2017 after his transfer. He admitted that he had not investigated the source from where the Pardhan, Ajay Supehia got the video clip in his mobile. He denied .
that he had not investigated the matter regarding Information & Technology Act. He denied that CD like Ext. P5 are easily available in the market and he had not taken into possession any bill regarding purchase of blank CD. He feigned ignorance of regarding Ajay Suphehia and Manoj being on visiting terms with the family of the prosecutrix.
rt This is the entire evidence led by the prosecution.
34. Now adverting to the testimony of DW1 Rinku Kumar, stated that he was running Sansui Mobile Service Centre at Tanda from 2011 to 2017 and now it is closed and he could not tell as and when Mobile handset with IMEI No.911485250191781 and IMEI Nio. 911485250191799 with Model No. Sansui U 46 were activated.
35. DW 2 Prabhu Narayan Chaudhary stated that he had been running Mobile Plaza Shop at Pathankot for the last more than nine years. During the year, 2017, he used to sell Sansui Mobile but he was not aware when he had sold Model No. U-46 (Dual Sim) and he had not brought the record mentioned in the summons. He further deposed that ordinary bills used to be issued at that time, therefore, the record had been destroyed after one year as there was no GST at that time. In cross-
::: Downloaded on - 04/12/2023 20:35:35 :::CIS 16examination, he stated that original bills were used to be issued to the purchasers and carbon copies thereof used to be kept. He had not shown the original bill in the Court. He was asked a Court .
question, whether he had retained the record of purchase of mobile phone from the company. In his answer, he stated that the said company had been closed in the year, 2018, therefore, he had not kept the previous record of such mobile from Sansui of company. He clarified that the company had been working till the years 2016-17.
36. rt Now the first question that has to be answered is whether offence under Section 4 of the POCSO Act can be said to have been proved as this is the offence attracting maximum penalty.
37. The prosecutrix has been proved to be a minor not only as per her statement but even as per the record of Birth and Death maintained in the CMO office, as proved by PW5 Shakti Chand. There was no cross-examination to this effect and, thus, as observed above, the prosecutrix was a minor in the year 2015.
38. However, learned counsel for the appellant would argue that the delay in lodging the FIR coupled with the fact that the prosecutrix kept mum for such a long time clearly goes to indicate that the prosecutrix was a consenting party and, ::: Downloaded on - 04/12/2023 20:35:35 :::CIS 17 therefore, no offence under Sections 376 and 377 of the IPC or for that matter Section 4 of the POCSO Act is made out.
39. As regards the delay, there is bound to be delay in .
such like matters and given the fact that the prosecutrix was a minor and did not want to haunt her past and had reconciled by keeping mum. The prosecutrix appears to be mature enough to keep her prestige as also the reputation of the family intact. If of she had disclosed the same, the family as well as the prosecutrix would have obviously had to go through under lot of humiliation, rt which subsequently came to be caused when the video became viral. In such circumstances, the prosecutrix and her family were bound to sit back to save the honour and dignity.
40. Even otherwise, it has repeatedly been held by the Hon'ble Supreme Court that delay in lodging FIR in sexual offences can be due to variety of reasons and also reluctance of the victim and her family members to go to the police station as the honour of the family is at stake.
41. Moreover, this is not the case which rests on medical evidence that can be totally diminished with the passage of time.
But here the case is based on electronic evidence, which is here to stay and is not solely dependent only on the ocular version of the parties.
42. Above everything else, taking into consideration the age of the child, it is not difficult for the Court to comprehend, ::: Downloaded on - 04/12/2023 20:35:35 :::CIS 18 the kind of war she might have been waging in her mind with herself after the incident.
43. We may profitably refer to the judgment of the .
Hon'ble Supreme Court in State of Rajasthan vs. Om Parkash in (2002) 5 SCC 745, reiterated that conviction can be based on sole testimony of the prosecutrix and in case of a child rape, the delay in lodging FIR could not be fatal for the case of the of prosecution. It has to be remembered that rape leaves a permanent scar and has serious psychological impact on the rt victim and also her family members.
44. Learned counsel for the appellant would contend that it was the prosecutrix, who on her own accord accompanied the appellant and had consented to not only the sexual intercourse but also video-graphing the same, which is evident from the fact that she did not report the matter for two years and she, in fact, would not have even reported the matter, had not the video clip of the incident been made public (viral).
45. As regards the contention of the learned counsel appellant that the sexual intercourse, for which the appellant is sought to be prosecuted, was consensual, as the appellant had all intentions to marry the prosecutrix, we find no merit in this contention, as it is more than settled that sexual intercourse or sexual act by a man with a 'child' as defined under POCSO is classified as rape.
::: Downloaded on - 04/12/2023 20:35:35 :::CIS 1946. Here, it shall be apt to refer to the observations made by the Hon'ble Supreme Court in Satish Kumar Jayanti Lal Dabgar (2015) 7 SCC 359, wherein it was observed as .
under:-
14. First thing which is to be borne in mind is that the prosecutrix was less than 16 years of age. On this fact, clause sixthly of Section 375 of the IPC would get attracted making her consent for sexual intercourse as of immaterial and inconsequential. It reads as follows: "375.
Rape-A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six rt following descriptions:-
xx xx xx Sixthly - With or without her consent, when she is under sixteen years of age. Explanation.-Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape."
15. The Legislature has introduced the aforesaid provision with sound rationale and there is an important objective behind such a provision. It is considered that a minor is incapable of thinking rationally and giving any consent. For this reason, whether it is civil law or criminal law, the consent of a minor is not treated as valid consent. Here the provision is concerning a girl child who is not only minor but less than 16 years of age. A minor girl can be easily lured into giving consent for such an act without understanding the implications thereof. Such a consent, therefore, is treated as not an informed consent given after understanding the pros and cons as well as consequences of the intended action. Therefore, as a necessary corollary, duty is cast on the other person in not taking advantage of the so-called consent given by ::: Downloaded on - 04/12/2023 20:35:35 :::CIS 20 a girl who is less than 16 years of age. Even when there is a consent of a girl below 16 years, the other partner in the sexual act is treated as criminal who has committed the offence of rape. The law leaves no choice to him and .
he cannot plead that the act was consensual. A fortiori, the so-called consent of the prosecutrix below 16 years of age cannot be treated as mitigating circumstance.
16. Once we put the things in right perspective in the manner stated above, we have to treat it a case where of the appellant has committed rape of a minor girl which is regarded as heinous crime. Such an act of sexual assault has to be abhorred. If the consent of minor is treated as mitigating circumstance, it may lead to disastrous rt consequences. This view of ours gets strengthened when we keep in mind the letter and spirit behind Protection of Children from Sexual Offences Act.
47. In view of settled position of law, sexual relationship with minor is prohibited and the law clearly treats this to be an offence even if the same is based upon alleged consent of a minor.
48. Section 375 of IPC defines "rape" and it provides that a man is said to commit rape if he has sexual intercourse with a woman under the circumstances falling under any of the seven descriptions mentioned in that Section. Clause 6 thereof makes it clear that if the woman is under the age of 18 years, then sexual intercourse with her, with or without consent, is rape.
49. It may also be observed that the sexual exploitation and sexual abuse of children is a heinous crime, which needs to ::: Downloaded on - 04/12/2023 20:35:35 :::CIS 21 be effectively addressed because it clearly falls under the POCSO Act punishable under Section 6 thereof, even if it is claimed that the act was consensual. Such incident of alluring a minor and .
entering into physical relationship thereby claiming that it was a consent of the minor cannot be treated in a routine manner since rape is not only a crime against minor victim, but is also a crime against entire society.
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50. Further, as regards offences under Section 363, 366- A, 376 and 377 IPC, it needs to be noticed that even if the child rt victim had infatuation and was known to the appellant, the same cannot be permitted to be a valid defence, as it would undermine the essence of the legislative intent of Section 361 of the IPC as was held by the Hon'ble Supreme Court in Anversingh vs. State of Gujarat, AIR 2021 SC 477. It shall be apt to reproduce relevant observations as contained in paras 10 to 20 therein, which read as under:-
"Contentions of the parties.
10. The appellant being aggrieved by his conviction under the charge of kidnapping has approached this Court reasserting his innocence. Learned counsel for the appellant highlighted that the High Court has acknowledged that there was a love affair, frequent meetings, and consensual relationship between the parties, which merited the appellant's acquittal under Section 376 IPC. But in the very same breath, the High Court has also held that the prosecutrix did not willingly leave her parents' custody and had not consented to be taken for marriage. These two findings were canvassed as ::: Downloaded on - 04/12/2023 20:35:35 :::CIS 22 being mutually contradictory. Reliance was placed on the judgment of this Court in S. Varadarajan v. State of Madras, to drive home the point that voluntary abandonment of home by a minor girl would not amount .
to kidnapping, and that in the absence of some active involvement, the appellant could not be said to have 'taken' or 'enticed' the prosecutrix.
11. In contrast, learned State Counsel supported the impugned judgment of conviction. He emphasised on the of concurrent findings of the Courts below read with the plain language of the Statute (IPC) and reiterated that consent of a girl below 18 years could be no excuse in a case of 'kidnapping' within the meaning of Section 361 rt IPC. ANALYSIS (1965) 1 SCR 243.
Analysis I. Whether a consensual affair can be a defence against the charge of kidnapping a minor?
12. Having given our thoughtful consideration to the rival submissions, it appears to us that although worded succinctly, the impugned judgment does not err in appreciating the law on kidnapping. It would be beneficial to extract the relevant parts of Sections 361 and 366 of IPC which define 'Kidnapping from Lawful Guardianship' and consequential punishment. These provisions read as follows:
"361. 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 ::: Downloaded on - 04/12/2023 20:35:35 :::CIS 23 "lawful guardian" in this section include any person lawfully entrusted with the care or custody of such minor or other person.
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366. Kidnapping, abducting or inducing woman to compel her marriage, etc.--Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit of intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for rta term Page | 8 which may extend to ten years, and shall also be liable to fine; [and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall also be punishable as aforesaid]."
13. A perusal of Section 361 of IPC shows that it is necessary that there be an act of enticing or taking, in addition to establishing the child's minority (being sixteen for boys and eighteen for girls) and care/keep of a lawful guardian. Such 'enticement' need not be direct or immediate in time and can also be through subtle actions like winning over the affection of a minor girl. However, mere recovery of a missing minor from the custody of a stranger would not ipso facto establish the offence of kidnapping. Thus, where the prosecution fails to prove that the incident of removal was committed by or at the instigation of the accused, it would be nearly impossible ::: Downloaded on - 04/12/2023 20:35:35 :::CIS 24 to bring the guilt home as happened in the cases of King Emperor v. Gokaran and Emperor v. Abdur Rahman.
14. Adverting to the facts of the present case, the .
appellant has unintentionally admitted his culpability.
Besides the victim being recovered from his custody, the appellant admits to having established sexual intercourse and of having an intention to marry her. Although the victim's deposition that she was forcefully removed from the custody of her parents might possibly be a belated of improvement but the testimonies of numerous witnesses make out a clear case of enticement. The evidence on record further unequivocally suggests that the appellant induced the prosecutrix to reach at a designated place to rt accompany him.
15. Behind all the chaff of legalese, the appellant has failed to propound how the elements of kidnapping have not been made out. His core contention appears to be that in view of consensual affair between them, the prosecutrix joined his company voluntarily. Such a plea, in our opinion, cannot be acceded to given the unambiguous language of the statute as the prosecutrix was admittedly below 18 years of age.
16. A bare perusal of the relevant legal provisions, as extracted above, show that consent of the minor is immaterial for purposes of Section 361 of IPC. Indeed, as borne out through various other provisions in the IPC and other laws like the Indian Contract Act, 1872, minors are deemed incapable of giving lawful consent. Section 361 IPC, particularly, goes beyond this simple presumption. It bestows the ability to make crucial decisions regarding a minor's physical safety upon his/her guardians. Therefore, a minor girl's infatuation with her alleged kidnapper cannot by itself be allowed as a defence, for the same ::: Downloaded on - 04/12/2023 20:35:35 :::CIS 25 would amount to surreptitiously undermining the protective essence of the offence of kidnapping.
17. Similarly, Section 366 of IPC postulates that once the .
prosecution leads evidence to show that the kidnapping was with the intention/knowledge to compel marriage of the girl or to force/induce her to have illicit intercourse, the enhanced punishment of 10 years as provided thereunder would stand attracted.
19. The ratio of S. Varadarajan (supra), although attractive of at first glance, does little to aid the appellant's case. On facts, the case is distinguishable as it was restricted to an instance of "taking" and not "enticement". Further, this rt Court in S. Varadarajan (supra) explicitly held that a charge of kidnapping would not be made out only in a case where a minor, with the knowledge and capacity to know the full import of her actions, voluntarily abandons the care of her guardian without any assistance or inducement on part of the accused. The cited judgment, therefore, cannot be of any assistance without establishing: first, knowledge and capacity with the minor of her actions; second, voluntary abandonment on part of the minor; and third, lack of inducement by the accused.
19. Unfortunately, it has not been the appellant's case that he had no active role to play in the occurrence.
Rather the eyewitnesses have testified to the contrary which illustrates how the appellant had drawn the prosecutrix out of the custody of her parents. Even more crucially, there is little to suggest that she was aware of the full purport of her actions or that she possessed the mental acuities and maturity to take care of herself. In addition to being young, the prosecutrix was not much educated. Her support of the prosecution version and blanket denial of any voluntariness on her part, even if ::: Downloaded on - 04/12/2023 20:35:35 :::CIS 26 presumed to be under the influence of her parents as claimed by the appellant, at the very least indicates that she had not thought her actions through fully.
20. It is apparent that instead of being a valid defence, .
the appellant's vociferous arguments are merely a justification which although evokes our sympathy, but can't change the law. Since the relevant provisions of the IPC cannot be construed in any other manner and a plain and literal meaning thereof leaves no escape route for the appellant, the Courts below were seemingly right in of observing that the consent of the minor would be no defence to a charge of kidnapping. No fault can thus be found with the conviction of the appellant under Section rt 366 of IPC.
51. From the aforesaid exposition of law, it would be evidently clear that consent of minor is immaterial for the purposes of Section 361 of IPC as is borne out from various other provisions of the IPC and other laws like the Indian Contract Act, 1872, where minors are deemed incapable of giving lawful consent. Section 361 IPC, particularly, goes beyond this simple presumption. It bestows the ability to make crucial decisions regarding a minor's physical safety upon his/her guardians.
Therefore, a minor girl's infatuation with her alleged kidnapper cannot by itself be allowed to be taken as a defence, for the same would amount to surreptitiously undermining the protective essence of the offence of kidnapping.
52. Similarly, Section 366 of IPC postulates that once the prosecution leads evidence to show that the kidnapping was with ::: Downloaded on - 04/12/2023 20:35:35 :::CIS 27 the intention/knowledge to compel marriage of the girl or to force/induce her to have illicit intercourse, the enhanced punishment of 10 years as provided thereunder would stand .
attracted.
53. It would be noticed that the appellant has not chosen to cross-examine the prosecution witnesses on material aspects and his only line of defence was that of relationship with the of minor prosecutrix being consensual, which, as discussed above, is the defence not available to the appellant considering the rt proven age of the prosecutrix.
54. Apart from the above, it needs to be noticed that the appellant has not denied his presence in Hotel Dee Prince on the relevant date nor denied the sexual activity, as appeared in the CD nor has he denied the act of recording CD, as would be evident from the questions and answers 36 to 40 of the statement of the appellant recorded under Section 313 Cr. P. C. which read as under:-
Q. No. 36. It has also come in the prosecution evidence led against you that the video (contained in the CD Ext.P5), was prepared by you with your mobile, in Dee Prince hotel, while you raped the prosecutrix. What have you to say about it?
Ans: I have seen the CD Ex. P5, played in the court computer today, in which I am visible with the prosecutrix, doing the sexual activity.
Q. No.37. It has also come in the prosecution evidence led against you that in the CD Ex. P5, you are seen fixing the ::: Downloaded on - 04/12/2023 20:35:35 :::CIS 28 mobile for doing the recording the act of rape, committed by you on the prosecutrix, in Dee Prince Hotel. What have you to say about it?
Ans: It is correct.
.
Q. No.38. It has also come in the prosecution evidence led against you that the duration of the video of rape of the prosecutrix, recorded by you in Dee Prince Hotel is of the duration of 38 Minutes 9 seconds. What have you to say about it?
of Ans: It is correct. I have seen the entire video today.
Q. No.39. It has also come in the prosecution evidence led against you that the porn video recorded by you shows rt that you raped the prosecutrix by using different sexual positions and you also used condoms during the sexual act. What have you to say about it?
Ans: It is correct.
Q. No.40. It has also come in the prosecution evidence led against you that in the porn video recorded by you, you are clearly visible and the prosecutrix is also shown in school dress. What have you to say about it? Ans: It is correct. I have seen in the CD Ex. P5.
55. What would be the value or utility of the statement of the appellant under Section 313 Cr.P.C. has been eloquently summarised by the Hon'ble Supreme Court in a fairly recent decision in Prem Chand vs. State of Maharashtra (2023) 5 SCC 522, wherein it was observed as under:-
13. There is a plethora of judicial pronouncements on consideration of section 313, Cr. P.C., a few of which need to be noted at this stage.::: Downloaded on - 04/12/2023 20:35:35 :::CIS 29
14. A bench of three Hon'ble Judges of this Court in State of U.P. vs Lakhmi1 has extensively dealt with the aspect of value or utility of a statement under section 313, Cr. P.C. The object of section 313, Cr.
.
P.C. was explained by this Court in Sanatan Naskar vs. State of West Bengal2. The rationale behind the requirement to comply with section 313, Cr. P.C. was adverted to by this Court in Reena Hazarika vs. State of Assam3. Close on the heels thereof, in Parminder Kaur vs. State of Punjab4, this Court restated the importance of of section 313, Cr. P.C. upon noticing the view taken in Reena Hazarika (supra) and M. Abbas vs. State of Kerala5.
rt
15. What follows from these authorities may briefly be summarized thus:
15.1 section 313, Cr. P.C. [clause (b) of sub-section 1] is a valuable safeguard in the trial process for the accused to establish his innocence;
15.2 section 313, which is intended to ensure a direct dialogue between the court and the accused, casts a mandatory duty on the court to question the accused generally on the case for the purpose of enabling him to personally explain any circumstances appearing in the evidence against him;
15.3 When questioned, the accused may not admit his involvement at all and choose to flatly deny or outrightly repudiate whatever is put to him by the court;
15.4 The accused may even admit or own incriminating circumstances adduced against him to adopt legally recognized defences;::: Downloaded on - 04/12/2023 20:35:35 :::CIS 30
15.5 An accused can make a statement without fear of being cross-examined by the prosecution or the latter having any right to cross-examine him;
.
15.6 The explanations that an accused may furnish cannot be considered in isolation but has to be considered in conjunction with the evidence adduced by the prosecution and, therefore, no conviction can be premised solely on the basis of the section 313 statement(s);
of 15.7 Statements of the accused in course of examination under section 313, since not on oath, do not constitute evidence under section 3 of the Evidence Act, yet, the answers given are relevant for rt finding the truth and examining the veracity of the prosecution case;
15.8 Statement(s) of the accused cannot be dissected to rely on the inculpatory part and ignore the exculpatory part and has/have to be read in the whole, inter alia, to test the authenticity of the exculpatory nature of admission;
15.9 If the accused takes a defence and proffers any alternate version of events or interpretation, the court has to carefully analyze and consider his statements;
15.10 Any failure to consider the accused's explanation of incriminating circumstances, in a given case, may vitiate the trial and/or endanger the conviction.
56. Bearing the above well settled principle in mind, it needs to be noticed that even though the statement of the accused cannot be treated as evidence within the meaning of ::: Downloaded on - 04/12/2023 20:35:35 :::CIS 31 Section 3 of Evidence Act, as the same is recorded without administering oath and moreover the accused cannot be cross-
examined with reference to those statements but nonetheless .
there is explanation offered by the accused under Section 313 Cr.P.C. cannot be ignored, as the accused had the right to put-
forth his own versions or reasons, if he so chooses and in relation to his involvement or otherwise in the crime, reason being the of option lies with the accused to maintain silence coupled with simplicitor denial or in the alternative to explain his version and rt reason for his alleged involvement in the commission of crime.
This is the statement which the accused makes without fear or right to other party to cross-examine. However, if the statements made are false, the Court is entitled to draw adverse inference and pass consequential orders, as may be called for, in accordance with law. The primary purpose is to establish a direct dialogue between the Court and the accused and put the accused every important incriminating piece of evidence and grant him an opportunity to answer and explain. The statement of the accused can be used to test the veracity of the exculpatory of the admission, if any, made by the accused. It can be taken into consideration in any inquiry or trial but still it is not strictly evidence in the case. The provisions of Section 313(4) explicitly provides that the answers given by the accused may be taken into consideration in such enquiry or trial and put as ::: Downloaded on - 04/12/2023 20:35:35 :::CIS 32 evidence against the accused in any other enquiry or trial for any other offence for which such answers may tend to show he has committed. In other words, the use is permissible, as per the .
provisions of the Code but has its own limitation. The Courts may rely on a portion of the statement of the accused and find him guilty in consideration of the other evidence against him led by the prosecution, however, such statements made under this of section should not be considered in isolation but in conjunction with evidence adduced by the prosecution.
57. rt Adverting to the facts of the instant case, when the evidence led by the prosecution, more particularly, in the testimony of the prosecutrix, in particular, is seen, viz-a-viz, the replies given to Questions No. 36 to 40, it has been proved beyond reasonable doubt that the appellant was involved in rape and has recorded the act in CD Ext. P5 and cannot otherwise take any other defence even including that of consent, taking into consideration the nature of the questions and answers then given by the appellant.
58. As regards the conviction under Section 67 of Information and Technology Act, we find that the learned Court below has wrongly convicted the appellant for the said offence as there is nothing on record to show that it was the appellant who had published or transmitted the entire or part of the contents that was appearing in the CD Ext. P5.
::: Downloaded on - 04/12/2023 20:35:35 :::CIS 3359. In view of the aforesaid discussion and for the reasons stated above, the appeal is partly allowed only to the extent that the appellant is exonerated for the offence .
punishable under Section 67-A of Information and Technology Act and the conviction and sentence as imposed by the learned Special Judge whereby the appellant was convicted and sentenced to undergo rigorous imprisonment for ten years and to of pay a fine of Rs. 10,000/- and in default of payment of fine to further undergo rigorous imprisonment for a period of six months rt for the commission of offence under Section 6 of Protection of Children from Sexual Offences Act, 2012 (for short 'POCSO Act') and further sentenced to undergo simple imprisonment for six months for the commission of offence under Section 506 IPC, is upheld.
(Tarlok Singh Chauhan)
Judge
(Satyen Vaidya)
4th December, 2023 Judge
(sanjeev)
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