Delhi District Court
State vs . Manoj Kumar on 4 June, 2010
State Vs. Manoj Kumar
IN THE COURT OF SHRI AJAY KUMAR KUHAR
ADDL. SESSIONS JUDGE-02: SOUTH EAST
PATIALA HOUSE COURT
NEW DELHI
IN RE: Session Case No. 36/09
State Vs. Manoj Kumar S/o Sh Madan Singh
R/o D-254, Chungi No. 3, Lal Kuan,
M.B. Road, New Delhi
FIR No. 348/08
PS Sangam Vihar
U/s 363/366/376/346 IPC
ORDER ON SENTENCE
I have heard the arguments of Ld. Addl. P.P for the state
and the convict on the point of sentence.
2. Ld. Addl.P.P for the state has submitted that the convict be
awarded adequate sentence keeping in view the nature and gravity of
the offence which may have deterrent effect as well as a lesson for the
convict.
3. The convict himself has made submissions on the point of
SC No.36/09 1
State Vs. Manoj Kumar
sentence. Although, he submitted that he is innocent but this aspect
need not be considered now when he has already been convicted and
his guilt has been proved, but still I gave him an option to make the
submissions about his innocence. He submitted that he does not even
know the prosecutrix and he has been falsely implicated in this case.
This statement is contrary to his statement under section 313
wherein he stated that the mother of the prosecutrix was not having
good relations with him as well as with his employer. If the
prosecutrix is not known to the convict, then how does he know the
mother of the prosecutrix. Therefore, his submissions does not inspire
much confidence. As to the awarding of sentence, he submitted that
he is a poor person. He has three brothers and one sister and he is the
eldest. His father is an agriculturists and he had come to Delhi to earn
his livelihood. This fact is admitted that he has no previous criminal
record.
4 Awarding an adequate sentence considering the nature of
crime is a great responsibility on the Court. In rape cases, one has to
keep in mind that no punishment can compensate the loss of the
women but an adequate sentence considering the circumstances of the
case can give some solace to the sufferings of the woman concerned.
In the case of State of A. P. Vs Bodem Sundara Rao 1995 (6) SCC
SC No.36/09 2
State Vs. Manoj Kumar
203, it was observed by the Hon'ble Supreme Court:
" In recent years it is noticed that crime against
women are on the rise. These crimes are an
affront to the human dignity of the society.
Imposition of grossly inadequate sentence and
particularly against the mandate of the Legislature
not only is an injustice to the victim of the crime in
particular and the society as a whole in general
but also at times encourages a criminal. The
courts have an obligation while awarding
punishment to impose appropriate punishment so
as to respond to the society's cry for justice against
such criminals".
5. The offence of rape has been considered to be a grave offence
by the Legislature, therefore, the minimum sentence was provided for
the offender of such an offence. Notwithstanding the minimum
sentence being provided the Legislature was also alive to the fact that
there may be circumstances and situation when the court may have to
take a soft stand and adopt a lenient view. Therefore, in proviso to
section (1) to section 376 IPC it is provided that a sentence less than
SC No.36/09 3
State Vs. Manoj Kumar
seven years can be provided to the convict if there are adequate and
special reasons.
6. In the present case the convict could not point out any
adequate or special reason to award him a sentence less than the
minimum provided for the offence under section 376 IPC. At the same
time, I am also of the view that it is not the case where the maximum
sentence needs to be awarded to the convict. Sentence under section
376 IPC can be extended upto Ten years and the same sentence can be
awarded for the offence under section 366 IPC. I may refer to the
observation made in the judgment in Rajender Singh Vs. State ILR
(2009) V Delhi 80 wherein it was held that "responsibility of a court
does not end by mere conviction in a criminal case. Appropriate
and adequate sentence must also be awarded keeping in mind the
need to protect the society from crime and need to adopt
corrective method as called for in the facts and circumstances of
each case."
7. Taking guidance from this observation, I am of the view
that although there is no adequate and special ground for awarding the
sentence less than minimum prescribed, at the same time I am also not
SC No.36/09 4
State Vs. Manoj Kumar
inclined to enhance the sentence to more than minimum prescribed
under section 376 IPC. Hence, I award the following sentence to the
convict:-
"For the offence under section 363 IPC the convict is
sentenced to undergo Rigorous Imprisonment for a period
of Three Years and sentenced to pay fine of Rs 500/-, in
default he shall undergo Simple Imprisonment for 15 days.
For the offence under section 366 IPC the convict is
sentenced to undergo Rigorous Imprisonment for Four
Years and also to pay fine of Rs 500/-, in default he shall
undergo Simple Imprisonment for 15 days.
For the offence under section 346 IPC the convict is
sentenced to undergo Rigorous Imprisonment for One
Year.
For the offfence under section 376 IPC the convict is
sentenced to undergo Rigorous Imprisonment for Seven
Years and further sentenced to pay fine of Rs 1,000/-, in
default he shall undergo Simple Imprisonment for One
SC No.36/09 5
State Vs. Manoj Kumar
Month.
All the sentences shall run concurrently. The benefit of
section 428 Cr.PC. shall also be given to the convict.
Committal warrants be prepared. Copy of judgment and
order on sentence be given to the convict free of cost. File be
consigned to Record Room.
Announced in the open court (AJAY KUMAR KUHAR)
on 4th June 2010 Addl. Sessions Judge-02: South East
Patiala House Court: New Delhi
SC No.36/09 6
State Vs. Manoj Kumar
IN THE COURT OF SHRI AJAY KUMAR KUHAR
ADDL. SESSIONS JUDGE-02: SOUTH EAST
PATIALA HOUSE COURT
NEW DELHI
IN RE: Session Case No. 36/09
State Vs. Manoj Kumar S/o Sh Madan Singh
R/o D-254, Chungi No. 3, Lal Kuan,
M.B. Road, New Delhi
FIR No. 348/08
PS Sangam Vihar
U/s 376/363A/366A/34 IPC
Date of Institution : 22.10.2008
(received by transfer on 12.01.2009)
Date when case was
reserved for orders : 25.05.2010
Date of judgment : 03.06.2010
_________________________________________________________
JUDGMENT
The prosecution case in brief is as follows:-
On 28.06.2008 the prosecutrix along with her mother Smt Munni Devi came to the Police Post Pul Pehlad Pur, PS Sangam Vihar and gave the statement to the effect that on 29/30.05.2008 she was going to visit her cousin brother Rinku at Khanpur, when at around 11 am she met Sonu (accused shown in Khana No. 2), brother of the SC No.36/09 7 State Vs. Manoj Kumar accused Manoj Kumar on whose insistence she accompanied him as he had offered to drop her at Khanpur where she was going to meet her cousin brother. However, on the way three more boys boarded the TSR in which the prosecutrix was going with Sonu and she was taken to an unknown place where she was kept by Sonu for a week. After a week accused Manoj Kumar came and took her to New Delhi Railway Station and from there they boarded a train to Bihar and prosecutrix was taken to his native place by accused Manoj Kumar. She alleged that at his native place accused Manoj Kumar committed sexual intercourse with her against her wish four times and he had also asked the prosecutrix to tell her family members that she has married with him. She further alleged that she wanted to run away but was not allowed to leave the house and one day when she made an attempt to run away from the house she was caught and beaten by the accused and her mother (Smt Seema who is also shown in Khana No. 2). She further alleged that on 26.06.2008 accused brought her to Delhi where he left her at New Delhi Railway Station. She boarded the bus from New Delhi Railway Station and came to her house and disclosed her story to her mother. Her mother Smt Munni Devi brought her to Police Post. Her statement was recorded, which was sufficient for SI Om Prakash Pawar to recommend the registration of FIR under section 363/366A/376 IPC.SC No.36/09 8
State Vs. Manoj Kumar
2. However, prior to recommending of registration of the case he sent the prosecutrix to hospital for her medical examination. After having confirmed from the MLC that the prosecutrix has been subjected to sexual intercourse he sent the rukka and the case was registered.
3. The MLC prepared at AIIMS Hospital vide Ex. PW 8/A shows that hymen was ruptured and as per the history given the prosecutrix was subjected to 5/6 episodes of sexual intercourse. Accused was arrested on 28.06.2008 on the pointing out of the prosecutrix vide arrest memo Ex. PW 2/C and personal search memo Ex. PW 6/A. His disclosure statement was recorded vide Ex. PW 6/B. The railway ticket (Ex. P-1) dated 03.06.2008 was also recovered from accused Manoj Kumar which was taken into possession by the IO vide memo Ex. PW 6/D. Accused was medically examined vide MLC Ex. PW 4/A.
4. The next step taken by the Investigating Officer was to ascertain the age of the prosecutrix and for this purpose he sought the details of the prosecutrix from Government Girls Senior Secondary School, Railway Colony, Tuglakabad. Ms Manju Sharma, Principal of SC No.36/09 9 State Vs. Manoj Kumar the School gave the reply (Ex. PW 3/A) which shows the date of birth of the prosecutrix as 06.04.1995. The school leaving certificate Ex. PW 3/B also confirms the date of birth of the prosecutrix as 06.04.1995. The Investigating Officer also took the steps for Bone- Age Test of the prosecutrix which was also got done. As per the Bone-Age Test report, the age of the prosecutrix was between 13 to 16.4 years.
5. Thereafter, the statement of the prosecutrix was also got recorded under section 164 Cr.P.C. vide Ex. PW 7/D. After the investigation was completed the charge-sheet was filed in the court and the accused was charged for the offence under section 363/366 IPC read with section 34 IPC, section 346 IPC and 376 IPC. Accused pleaded not guilty and claimed trial.
6. The prosecution examined mother of the prosecutrix Smt Munni Devi as PW1 and the Prosecutrix as PW2. The statement of these two witnesses firstly prove that Smt Munni Devi, mother of the prosecutrix had gone to Kerala to look after her ailing daughter Rinki and the prosecutrix was left at home by her. She had received a call at Kerala when the prosecutrix was not traceable. Why the prosecutrix was not traceable, the reasons can be found in the statement of the SC No.36/09 10 State Vs. Manoj Kumar prosecutrix examined as PW2 wherein she has narrated the same story as was given by her to the police in her complaint (Ex. PW 2/A). The evidentiary value of the statement of the prosecutrix concerning the allegations which have been leveled against the accused will be considered in the later part of the judgment. The prosecution examined PW10 Sh Satish Kumar Ld. Magistrate who had recorded the statement of the prosecutrix under section 164 Cr.P.C.
7. To prove the age of the prosecutrix, the prosecution examined PW3 Smt Santosh Verma, TGT, Government Girls Senior Secondary School, Railway Colony, Tuglakabad who has proved the reply to the application of the IO Ex. PW 3/A issued by Ms Manju Sharma, Principal of the School. This confirms that the prosecutrix was a student in the said school in Class VII-C and her date of birth was 06.04.1995. This witness further stated that the date of birth was mentioned in the school record on the basis of the school leaving certificate issued by MCD Girls School, Lal Kuan, Chungi No. 2, New Delhi as Ex. PW 3/B. Prosecution had examined Dr K. Aparna Sharma, Department of Gynecology, AIIMS Hospital as PW8 who has proved the MLC of the prosecutrix as Ex. PW 8/A and she deposed that the prosecutrix was brought to the hospital by her mother and on her examination there was no external injury on her SC No.36/09 11 State Vs. Manoj Kumar person. On local examination, the external genitalia was normal. Hymen was ruptured. She further deposed that the vaginal swab was taken, sealed and handed over to the police. She further deposed that the possibility of rape is not ruled out. This witness when cross examined by Ld. Defence Counsel admitted that the hymen can be ruptured by many reasons like cycling, horsing or some perineal injury. She further deposed that the size of the opening of the hymen and the ease with which the finger can be inserted is self indicative of the frequency of the intercourse.
8. The prosecution had also examined HC Ved Prakash as PW5 who was working as Duty Officer and had registered the FIR Ex. PW 5/A on the basis of the rukka given by SI Om Prakash.
9. SI Om Prakash was examined as PW7. Ct Anil who was along with the Investigating Officer during the investigation was examined as PW6. HC Ram Kumar who had taken the prosecutrix for medical examination on 27.06.2008 has been examined as PW9.
10. The incriminating evidence which had come in the statement of the witnesses was put to the accused when he was SC No.36/09 12 State Vs. Manoj Kumar examined under section 313 Cr.P.C. However, accused has not taken any defence except that of a false implication. The reason for false implication was that the mother of the prosecutrix had an enmity with his employer and wanted to extort money from them, therefore, he was falsely implicated. But this defence is not substantiated by the accused. This is a bald defence without showing any reason why the mother of the prosecutrix was inimical towards him and his employer. Perhaps he had nothing to bring on record in his defence, therefore, he did not choose to lead defence evidence.
11. Ld. Addl. P.P for the State had argued in short and submitted that the statement of the prosecutrix goes un-rebutted and there is no circumstance which can put the statement of the prosecutrix under shadow of doubt. He further argued that the medical report confirms that the prosecutrix has been subjected to sexual intercourse. The statement of the prosecutrix categorically proves that she was subjected to sexual intercourse without her consent and forcibly. He further argued that the age of the prosecutrix was less than 16 years, therefore, the consent even otherwise is not material in this case and thus the case of the prosecution stands proved.
12. Ld. Counsel for the accused had argued against the SC No.36/09 13 State Vs. Manoj Kumar prosecution case taking the plea that the conduct of the prosecutrix shows that she had accompanied the accused without any force and with her consent. Here I would like to mention that the submission of the Ld. Defence Counsel is contrary to the defence taken by the accused in his statement under section 313 Cr.PC. wherein he denied that the prosecutrix had accompanied him to his native place at Bihar. Ld. Counsel for the accused had further argued that it is improbable and unbelievable that accused was able to take the prosecutrix to his native place in train without there being any resistance from the prosecutrix. He had further argued that the prosecution case is falsified from the fact that Smt Munni Devi, mother of the prosecutrix had lodged a missing report on 25.06.2008 vide DD No. 12 recorded at Police Post Pul Prahlad Pur, PS Sangam Vihar. In this DD No. 12 it is stated that the prosecutrix was missing from 15.06.2008. This is contrary to the statement of the complainant in the complaint (Ex. PW . 2/A) as well as her statement in the court as PW2. He submitted that the prosecutrix in her statement deposed that she was taken away by Sonu, brother of the accused on 29/30.05.2008. Ld. Counsel for the accused submitted that this contradiction in the statement of two witnesses makes the prosecution case doubtful. He further argued that the prosecutrix herself has stated in Ex. PW. 2/A that she was in love with the accused Manoj Kumar and she has deposed that she has met SC No.36/09 14 State Vs. Manoj Kumar Sonu, brother of the accused Manoj Kumar as well as accused Manoj Kumar at her friend 's house. Ld. Defence Counsel took the exception to the fact that the prosecution did not cite or examine Ms Swati at whose residence the prosecutrix used to meet accused Manoj Kumar and his brother Sonu. Ld. Counsel has summarized his argument by saying that this is a false and fabricated case just to extort money from the accused and circumstances of the case require corroboration to the statement of the prosecutrix and it is not the case where implicit reliance can be placed in the statement of the prosecutrix.
13. Before considering the statement of the prosecutrix I deem it appropriate to discuss the value of the statement of the prosecutrix in a rape case. In the case of State of Punjab Vs Gurmeet Singh 1996 (2) SCC 384 the Hon'ble Supreme Court had posed a very pertinent question, why should the evidence of a girl or a woman who complaints of rape or sexual molestation, view with doubt, disbelief or suspicion? The Hon'ble Supreme Court observed as under:-
"The corroborative evidence is not an imperative component of judicial credence in every case of rape. The corroboration as a judicial reliance is not a condition is not required by law but a guidance of prudence under given circumstances."
The testimony of a rape victim cannot be disbelieved unless there are strong circumstances emitting against its veracities (Rafiq SC No.36/09 15 State Vs. Manoj Kumar Vs. State of UP 1980 (4) SCC 262). In case of State of Punjab Vs Gurmeet Singh (supra) the Hon'ble Supreme Court was of the view that the evidence of a victim of sexual assault also stands at the par of an injured witness and to an extent is even more reliable. Just as a victim who has sustained some injury is considered to be a good witness in the sense that he is least likely to shield the real culprit the evidence of victim of sexual offence is entitled to a great weight, absence of corroboration not withstanding. So the position of law is that the statement of the prosecutrix carries a sense of credibility and unless there are compelling circumstances which justify the rejection of the statement of the prosecutrix. The statement of prosecutrix can be relied upon even without independent corroboration.
14. PW2 prosecutrix has deposed that on 29/30.05.2008 she was going to her cousin Rinku at his home at Khanpur. She had met Sonu (brother of accused Manoj) at about 11 am at Lal Kuan bus stand who offered her a lift in a TSR. She further deposed that initially she refused but lateron on his insistence she boarded the TSR with Sonu but on the way at Okhla morh three more boys sat in the TSR and they took her to an unknown place. where she was kept for about a week. After one week accused Manoj came there and took her forcibly to his native place at Bihar. PW2 further deposed that SC No.36/09 16 State Vs. Manoj Kumar accused Manoj had asked her to say that they have married if somebody asks some question. She further deposed that accused Manoj had kept her in his house at Bihar and had committed rape 3-4 times. She further deposed that whenever she resisted she was slapped. She further deposed that accused did not let her go but after one month he brought her to New Delhi Railway Station from where she had boarded a bus for Badarpur and came to her house where she described the incident to her mother and immediately they went to lodge the complaint. She proved her complaint at Ex. PW. 2/A.
15. The statement of prosecutrix nowhere is shaken. It is in total consonance with her statement given to the IO on the basis of which case was registered and also the statement given by her to the Ld. Magistrate under section 164 Cr.P.C, Ex. PW. 2/B. In the cross examination of this witness Ld. Defence Counsel had put certain questions which reflect that accused Manoj was known to her for about 2-3 months prior to the incident and he used to visit the home of her friend and the prosecutrix also used to visit her friend's house. Ld. Defence Counsel had put the question to the prosecutrix as to why she did not raise noise or made any complaint to the TSR driver or any person when she was taken at New Delhi Railway Station or to anybody in the train during the transit to Bihar. PW2 has deposed in SC No.36/09 17 State Vs. Manoj Kumar the cross examination that the room where she was kept by Sonu used to be locked/latched from outside and she had shouted also but nobody could hear her cries. She deposed that she could not raise any noise in the bus or say anything to any person in the transit as the accused had asked her not to speak anything or to tell anything to anybody and she was threatened. She further clarified that accused had threatened her and whenever she made effort to raise noise accused used to stop her by putting his hand on her mouth.
16. Ld. Defence Counsel had put much emphasis on the fact that the prosecutrix as per the prosecution case was taken by the accused to Bihar in a train but she never raised noise or complained to anybody at any point of time. This means that she had willingly gone with the accused and no force or inducement was used by the accused.
17. I would like to deal with this issue regarding the willingness of the prosecutrix to accompany the accused. When a person willingly accompanies any other person it carries a tacit consent of that person to accompany other person. In case of rape when a woman has been subjected to rape or when she has been kidnapped the question of consent acquires importance and when the prosecutrix level allegations that she has been raped or kidnapped by SC No.36/09 18 State Vs. Manoj Kumar the accused it is for the accused to prove the element of consent and the burden will lie upon him. However, he need not lead evidence in this regard independently and can rely upon the circumstances and plead that the prosecutrix was taken by him with her consent or he had physical relations with the prosecutrix with her consent. As it has been held in case of State of HP Vs Shrikant Shikari 2004 (8) SCC 153 the question of consent is really a matter of defence by the accused and it was for him to place material to show that there was consent. In case of State of Karnataka Vs. B. Sudhkara @ Sudha 2008 (II) SCC 38 the Hon'ble Supreme Court was of the view that the court cannot consider the element of consent in the circumstances of the case when such a plea of consent is not taken by the accused during the trial. In the present case also, although the Ld. Defence Counsel has taken the plea that there was consent, in the sense that the prosecutrix did not raise any resistance when she was taken to Bihar but no such plea has been taken by the accused during the trial or in his statement under section 313 Cr. P.C. When the accused was confronted with incriminating evidence he did not take the plea that the girl had accompanied him with her consent or he had physical relations with her with consent. So the question of consent in the present case does not arise at all and at this stage the accused cannot take plea of consent of the prosecutrix.
SC No.36/09 1918. Ld. Counsel for the accused had argued that the conduct of the prosecutrix in silently accompanying the accused sounds highly improbable. It may sound improbable but it is not unusual. When a person is under threat or under fear his reaction to threat or fear may vary from other person. Different person would react in a different manner when faced with a threat or fear. The prosecutrix in her statement has clearly stated that she was feeling threatened when she was taken to Bihar. Moreover the girl was just 14-1/2 years old and one can understand the pressure which might have been caused on her mind by such fearful circumstance.
19. Taking the argument of the Ld. Defence Counsel with regard to the issue of consent I would say that even if the court takes for granted that there was consent, the accused cannot come out from the web of culpability, reason being that the consent of the prosecutrix was immaterial in this case. As per the prosecution case she was less than 16 years on the date of commission of the act. The prosecution had examined PW3 Ms Santosh Verma from the Government Girls Secondary School, Tuglakabad. She had produced the school record which shows that the prosecutrix was a student in Class-VII in the year 2008 and her date of birth was 06.04.1995. The offence has taken SC No.36/09 20 State Vs. Manoj Kumar place in the month of May/June 2008 so definitely the prosecutrix was less than 16 years of age on the date of offence. Ld. Defence Counsel had submitted that as per the Bone-Age Test conducted in this case the age of the prosecutrix was between 13 to 16.4 years. When the question of age arise the court has to give more credence to the school record and then to the Bone-Age Test report. In case of State of Chattisgarh Vs. Lekh Ram AIR 2006 SC 1746 it was held that the Registers maintained by school is admissible in evidence to prove the date of birth of person concerned in terms of section 35 of the Indian Evidence Act. In the case of Manjeet Vs. State 2006 VI AD Delhi 224 it was observed by the Delhi High Court that the test conducted by the Radiologist is not an accurate test as it leaves margin of two years and, therefore, the weightage must be given to the school record and the presumption is that the age mentioned in the school record is correct unless shown to be otherwise.
20. In the present case there is nothing on record to suggest that there is manipulation in the school record. The entries have been made by the school authorities in the normal course of their duties and thus the entries are reliable. Once the question of age attains the finality to the effect that the prosecutrix was 16 years of age on the date of the commission of the offence, the plea of consent becomes irrelevant.
SC No.36/09 2121. The consent of the prosecutrix is also of no consequence for the offence under section 363 IPC if she is less than 18 years of age. The offence under section 363 IPC is committed when a minor is taken out of the custody of the lawful guardian. The consent of the lawful guardian only can take the case out of the ambit of section 363 IPC. The statement of prosecutrix PW2 and PW1 Munni Devi, her mother, would show and prove that the accused has taken the prosecutrix out of the custody of the lawful guardian without consent.
22. So far as the offence under section 376 IPC is concerned the statement of the prosecutrix PW2 prove beyond doubt that she had been subjected to sexual intercourse 3-4 times by the accused without her consent. At the cost of repetition, I would say that consent of prosecutrix has no relevance in the present case, as it is a case of statutory rape. The prosecutrix was less than 16 years of age when she was subjected to sexual intercourse by the accused. The statement of PW8 Dr. K. Aparna Sharma provides the corroboration to the statement of the prosecutrix. She deposed that the possibility of rape in this case cannot be ruled out. The medical examination of the prosecutrix reveal the rupture in the hymen. Ld. Counsel for the accused had argued that the hymen can be ruptured due to various reasons. However, this argument lost its strength when PW8 stated in SC No.36/09 22 State Vs. Manoj Kumar the cross examination that the size of the opening of the hymen and the ease with which finger can be inserted is self indicative of the frequency of the intercourse. In view of this observation of Dr. K. Aparna Sharma there is no need to look out for any other reason for the rupture of the hymen of the prosecutrix.
23. The statement of the prosecutrix that she was subjected to sexual intercourse by the accused cannot be disbelieved in the absence of any circumstance which could reflect of some motive in the mind of the prosecutrix to falsely implicate the accused. During the entire cross examination of prosecutrix PW2, I could not gather any material to suspect the statement of the prosecutrix and discard the same. The defence of the accused that the mother of the prosecutrix had enmity with him and his employer and she wanted to extort money from them, is without any substance. Accused has not explained what was the cause of such enmity if any between the mother of the prosecutrix and the accused and his employer. When he has taken the defence that the mother of the prosecutrix was inimical towards him than the cause of such enmity must be in his knowledge, therefore, he should have come out with the cause of such enmity. Even the law cast such a duty upon him. Section 106 of the Indian Evidence Act says that when any fact is especially with the knowledge of any person, the burden of proving that fact is upon him. When the prosecution had initially discharged SC No.36/09 23 State Vs. Manoj Kumar its obligation of establishing the guilt of the accused beyond doubt it is for the accused to prove the facts which are specially within his knowledge and are relevant and have a bearing on the prosecution case. The accused in this case did not substantiate his plea of inimical relation between the mother of the prosecutrix and him. Therefore, this plea is not sufficient to shake the credibility of the statement of the prosecutrix.
24. Now I come to the offence under section 366 IPC. If a person kidnap a woman with the intent, inter-alia, that she may be forced or seduced to illicit intercourse, he will be liable for the offence under section 366 IPC. Thus intention of the accused is the basis of the offence under section 366 IPC. The volition, the intention and conduct of the woman do not determine the offence. Although, they may have some bearing upon the intent with which the woman was kidnapped. The intention of the accused is the vital factor. The crucial word in section 366 IPC are "forced or seduced to illicit intercourse." When the expression force as used in section 366 IPC is considered in the context in which it has been used in the section, one would understand that it does not speak of only physical force. Even the circumstances can act as a force upon a woman. Therefore, if a woman under the stress of circumstances succumbed to the force one SC No.36/09 24 State Vs. Manoj Kumar cannot say that she has consented for the act. Similarly, if the woman has been induced to illicit intercourse by enticement or by some persuasion, direct or circumstantial it would amount to seducing by the accused. Thus, if the circumstances reflect that the accused had an intention to force or seduce a woman to illicit intercourse at the time of kidnapping or abduction, as the case may be, section 366 IPC would be attracted. In the present case, the facts and circumstances and the evidence leads to a logical conclusion that the accused had the intention to force or seduce the prosecutrix for illicit intercourse. For the said purpose, he wrongfully confined prosecutrix at his native place.
25. The evidence on the record manifest the guilt of the accused beyond reasonable doubt. The accused knew that the prosecutrix was under the age of consent and any sexual intercourse with her would be a statutory rape and thus she was a jail bait, therefore, he should not have bitten the bait. The accused having done so is held guilty for the offence under section 363 and 366 IPC read with section 34 IPC and 346 IPC and 376 IPC and convicted accordingly.
Announced in the open court (AJAY KUMAR KUHAR)
on 3rd June 2010 Addl. Sessions Judge-02: South East
Patiala House Court: New Delhi
SC No.36/09 25
State Vs. Manoj Kumar
SC No.36/09 26