Ishwari Rana vs State Of Uttarakhand on 10 October, 2023

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Uttarakhand High Court

Ishwari Rana vs State Of Uttarakhand on 10 October, 2023

The instant appeal has been preferred against the judgment and order dated 05.04.2019, passed by the Special Judge, POCSO/Sessions Court, Tehri Garhwal, District Tehri Garhwal, in Special Sessions Trial No.18 of 2018, State of Uttarakhand Vs. Ishwari Rana ("the case"). By the impugned judgment and order, the appellant has been convicted under Sections 363, 366 and 376(2)(n) IPC and Section 5(l)read with Section 6 of the Protection of Children from Sexual Offences Act, 2012 ("the Act"). The appellant has been convicted and sentenced as hereunder:-

(a) Under Section 363 IPC, three years' rigorous imprisonment with a fine of Rs. 5,000/-. In default of payment of fine, further simple imprisonment for a period of three months.

(b) Under Section 366 IPC, three years' rigorous imprisonment with a fine of Rs. 5,000/-. In default of payment of fine, further simple imprisonment for a period of three months.

(c) Under Section 376(2)(n) IPC, ten years' rigorous imprisonment with a fine of Rs.

10,000/-. In default of payment of fine, further simple imprisonment for a period of six months.

2. Heard learned counsel for the parties and perused the record.

3. Facts necessary to appreciate the controversy, briefly stated, are as follows: The victim, a young girl of 17 years of age, was staying with her deaf and dumb father in her village. Her mother had already died. On 05.03.2018, at about 8:30 AM, the victim left her house to get medicine from market, but she did not return. She was studying in class XI. A search was made. When she could not be located, an FIR was lodged on 14.03.2018 by her cousin, PW1, Khem Singh, based on which, a chik FIR was recorded and Case Crime No. 11 of 2018 under Sections 363, 366A IPC was lodged at Police Station Ghansali, District- Tehri Garhwal. On 16.06.2018, the victim was recovered from the house of the appellant. On 17.06.2018, the victim was 3 medically examined by PW4, Dr. Beena Singh, at Government Hospital, Baurari. She had no injury on her person. The victim, at the relevant time, told it to the Doctor that she was in relationship with the appellant for the last four years since then. She married the appellant on 05.03.2018 and started staying in a rented accommodation at Dehradun. They established continuous relations thereafter. The appellant did not commit any force upon her. The victim had told to the PW4, Dr. Beena Singh, that she had left her house on her own. During investigation, the Investigating Officer ("IO") collected blood samples, obtained Forensic Science Laboratory Report and prepared site plans. After completion of investigation, chargesheet under Sections 363, 366, 376 IPC and Section 5(l)/6 of the Act was submitted against the appellant, which is the basis of the case.

4. On 18.09.2018, charges under Sections 363, 366 and 376(2)(n) IPC and Section 5(l) read with Section 6 of the Act were framed against the appellant, to which he denied and claimed trial.

5. In order to prove its case, the prosecution examined 11 witnesses , namely, PW1, Khem Singh, the cousin of the victim, PW2, the victim, PW3, Jai Singh Negi, the Principal of the school, where the victim had studied, 4 PW4, Dr. Beena Singh, who medically examined the victim on 17.06.2018, PW5, Dr. Manisha, who took samples, PW6, Constable Rajkumar Bamola, who lodged the FIR and recorded it in the General Diary, PW7, Constable Narendra, who accompanied the IO when the victim was recovered from the residential accommodation of the appellant on 16.06.2018, PW8, Naresh Thapa, in whose Dhaba, the appellant was working as a cook, PW9, Varun Walia, who was the landlord of the appellant, PW10, Sahab Singh, the brother of the victim, and PW11, Vijay Kumar, the IO.

6. The appellant was examined under Section 313 of the Code of Criminal Procedure, 1973 ("the Code"). The appellant denied every allegation. He denied that he ever kidnapped the victim. He also denied that the victim was recovered from his custody. According to the appellant, he even did not know the victim. The appellant did not adduce any evidence in his defence.

7. After the conclusion of the trial, by the impugned judgment and order, the appellant has been convicted and sentenced, as stated hereinbefore. Aggrieved by it, the instant appeal has been preferred.

8. Learned counsel for the appellant would submit that the victim, in her statement, has stated that she and the appellant were married. The victim was above 15 years 5 of age. Therefore, no offence of rape is made out. Learned counsel would also submit that the victim, in her deposition, has categorically stated that she left the company of her father on her own. Therefore, it is argued that it is not a case of kidnapping. It is also submitted that the victim has not stated that the appellant repeatedly established physical relations with her. Therefore, the offence under Section 376(2)(n) IPC is not made out.

9. On the other hand, on behalf of the State, it is argued that the prosecution has been able to prove its case.

10. PW1, Khem Singh, is the cousin of the victim. He has stated that on 05.03.2018, the victim left her house but did not return. A search was made. Subsequently, he lodged the FIR on 14.03.2018.

11. PW2 is the victim. She has categorically stated that her date of birth is 20.12.2002. At the relevant time, she was studying in class XI. She had acquaintance with the appellant for four years prior to her statement. She was continuously talking to the appellant over telephone. She was in love with the appellant. She still loves the appellant. She had stated that she never knew as to whether the family members of the appellant were ready for their marriage or not, but she has stated that the appellant was 6 ready to marry her. The appellant is already married, and she knew it prior to the date of incident.

12. PW2, the victim, has stated that on 05.03.2018, the appellant had called her at Rishikesh. Thereafter, he took her to Dehradun. They married in a temple at Haridwar, and, thereafter, they were staying in a rented accommodation in Dehradun. They stayed as husband and wife. She has stated that on 16.06.2018, she was recovered by the police. She was medically examined and her statements under Section 164 of the Code was recorded.

13. PW3, Jai Singh Negi, is the Principal of the school where the victim had studied. He had proved the school documents, which include marksheet, transfer certificate, etc. Ex.A-8 is the High School marksheet, which records the date of birth of the victim as 20.12.2002. It may be noted that this is the date of birth, which the victim has stated.

14. PW4, Dr. Beena Singh, did examine the victim on 17.06.2018. She has stated as to what was told by the victim, when she was medically examined. According to her, the victim had then told that she was in relationship with the appellant for four years. On 05.03.2018, she left her house and married the appellant. They established relations continuously.

15. PW5, Dr. Manisha, took blood samples of the victim and the appellant. She has stated about it.

16. PW6, Constable Rajkumar Bamola, had proved the chik FIR and other police documents.

17. PW7, Constable Narendra, had accompanied the IO on 16.06.2018, when the victim was recovered from the rented accommodation of the appellant. He has stated about it.

18. PW8, Naresh Thapa, is the owner of the Dhaba, where the appellant was working. He has stated that he had seen a girl with the appellant, whom the appellant introduced as his wife.

19. PW9, Varun Walia, is the landlord, where the appellant was the tenant, and from whose premises, the victim was recovered.

20. PW10, Sahab Singh, is the brother of the victim. He was staying in Mumbai at the relevant time. He has stated as to how the victim left her house.

21. PW11, Sub Inspector Vijay Kumar, is the IO. He has stated about the investigation, what he has done. He prepared the site plan, documents relating to call details, the date of birth of the victim were procured. According to this witness, 8 when on 16.06.2018, he traced the location of the victim, he along with other Police Constables visited Dehradun, and with the help of the local police, recovered the victim. He has stated about the other steps, which he has taken, and the submission of chargesheet.

22. Insofar as the age of the victim is concerned, the prosecution has proved the school record of the victim. As per the high school examination marksheet, the date of birth of the victim is 20.12.2002. On 05.03.2018, the victim left her house with the appellant. He had called her at Rishikesh, which means, the victim was less than 16 years on the date of incident. The victim herself has stated that her date of birth is 20.12.2002. She was a minor. She was a child.

23. On this aspect, even no arguments have been raised on behalf of the appellant, in the instant appeal. In the impugned judgment, the court has recorded the findings on the date of birth of the victim. The court had concluded that, in fact, on the date of incident, the victim was 15 years, 2 months and 15 days old. She was a minor child. The finding recorded by the court below on the age of the victim may not be doubted. It is based on the material on record, which is admissible, and which has been proved. 9

24. It has been argued that the victim on her own had left her house and joined the company of the appellant. Therefore, it is not a case of kidnapping. It is also argued that since the victim is above 15 years of age, and according to her, she had married the appellant, therefore, it is not an offence of rape in view of Exception 2 to Section 375 IPC.

25. Before the argument is appreciated, it would be apt to examine the legal provisions on this aspect. Section 363 IPC provides punishment for kidnapping. Kidnapping from the lawful guardianship has been defined under Section 361 IPC. It reads as hereunder:-

"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 "lawful guardian" in this section include any person lawfully entrusted with the care or custody of such minor or other person. Exception.--This section does not extend to the act of any person who in good faith believes himself to be the father of an illegitimate child, or who in good faith believes himself to be entitled to the lawful custody of such child, unless such act is committed for an immoral or unlawful purpose."

26. Section 366 IPC provides punishment for a kind of kidnapping so as to compel a woman to marriage. It reads as hereunder:-

"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 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 a term 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."

27. The victim has categorically stated that she left her house on her own and joined the company of the appellant. She has stated that the appellant had called her on 05.03.2018. She met the appellant at Rishikesh. Thereafter, they solemnized marriage at Haridwar and returned to Dehradun, where they stayed together and established relations. Can it be said that it is a case of no enticement? Admittedly, there has been no application of force by the appellant in removing the victim from her legal guardianship.

28. In the case of S. Varadarajan Vs. State of Madras, AIR 1965 SC 942, on this aspect, the Hon'ble Supreme Court has discussed the legal provisions. In that case, a girl had left her house and stayed with a man as husband and wife. Under those circumstances, the Hon'ble Supreme Court held that, "She willingly accompanied 11 him and the law did not cast upon him the duty of taking her back to her father's house or even of telling her not to accompany him. She was not a child of tender years who was unable to think for herself but, as already stated, was on the verge of attaining majority and was capable of knowing what was good and what was bad for her. She was no uneducated or unsophisticated village girl but a senior college student who had probably all her life lived in a modern city and was thus far more capable of thinking for herself and acting on her own than perhaps an unlettered girl hailing from a rural area."

29. In the case of Thakorlal D. Vadgama Vs. State of Gujarat, (1973) 2 SCC 413, the Hon'ble Supreme Court further discussed the provisions of Section 361 IPC and observed that, "The two words "takes" and "entices", as used in Section 361 IPC are in our opinion, intended to be read together so that each takes to some extent its colour and content from the other. The statutory language suggests that if the minor leaves her parental home completely uninfluenced by any promise, offer or inducement emanating from the guilty party, then the latter cannot be considered to have committed the offence as defined in Section 361 IPC. But if the guilty party has laid a foundation by inducement, allurement 12 or threat, etc. and if this can be considered to have influenced the minor or weighed with her in leaving her guardian's custody or keeping and going to the guilty party, then prima facie it would be difficult for him to plead innocence on the ground that the minor had voluntarily come to him."

30. The law has further been summarised by the Hon'ble Supreme Court on this aspect in the case of Anversinh Alias Kiransinh Fatesinh Zala Vs. State of Gujarat ,(2021) 3 SCC 12. In Paragraphs 18 and 19, the Hon'ble Supreme Court observed as hereunder:-

"18. The ratio of S. Varadarajan v. State of Madras, (1965) 1 SCR 243 : AIR 1965 SC 942 : (1965) 2 Cri LJ 33 , although attractive 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 Court in S. Varadarajan v. State of Madras, (1965) 1 SCR 243 :

AIR 1965 SC 942 : (1965) 2 Cri LJ 33, 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 the 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 13 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 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."

31. In the instant case, admittedly, the victim was a minor. She was below 16 years of age. She has stated that she was in relationship with the appellant. The appellant had called her on 05.03.2018. Therefore, she left her house and met the appellant at Rishikesh.

32. The question that falls for consideration is as to whether the victim knew the full import of her actions, voluntarily abandoning the care of her guardians without assistance or enticement on the part of the appellant? The mental faculty and level of understanding of the victim has to be appreciated. It may be done while examining the attending circumstances.

33. PW1 is the cousin of the victim, who was staying in the village. He has stated that the victim lost her mother long back. She was staying with her father in the village, who was deaf and dumb. Her one brother was working in a hotel in Mumbai. The victim comes from a poor family. She was a young girl of 15 years of age. She was studying in class XI. According to her, she met the appellant in a marriage. Thereafter, they started talking with each other. 14 They started talking over phone. The appellant already had a wife. He was already married. The victim states that even after knowing that the appellant is married, she wanted to marry him. She also tells that she never knew as to whether the other family members of the appellant were ready for their marriage or not. If all these factors are taken together, it leads to one conclusion alone that the level of understanding of the victim was not mature. Her decision was not free. She had no knowledge of full import of her actions or she was definitely unaware of the consequences of her leaving the custody of her father. In the instant case, it cannot be said that the victim left her house on her own free will. The victim has stated that on 05.03.2018, the appellant had called her, therefore, she left her house and met the appellant at Rishikesh. Under the facts and circumstances of the case, it is enticement. The appellant was mature and married. He ruled the mind of a young child, i.e. the victim; enticed her and induced her to leave her father's house. Therefore, in this case, the court below has rightly held that the appellant did commit offence under Sections 363 and 366 IPC. It is a case of kidnapping for a purpose.

34. The another question that has been raised is with regard to applicability of Exception 2 to Section 375 IPC. Section 375 IPC is as follows:-

"375. Rape.--A man is said to commit "rape" if he--

(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or

(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or

(c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or

(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions:--

First.--Against her will.

Secondly.--Without her consent.

Thirdly.--With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.

Fourthly.--With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

Fifthly.--With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

Sixthly.--With or without her consent, when she is under eighteen years of age. Seventhly.--When she is unable to communicate consent.

Explanation 1.--For the purposes of this section, "vagina" shall also include labia majora.

Explanation 2.--Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal 16 communication, communicates willingness to participate in the specific sexual act:

Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.

Exception 1.--A medical procedure or intervention shall not constitute rape.

Exception 2.--Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape."

35. A bare perusal of Exception 2 to Section 375 IPC reveals that sexual acts by a man with his own wife, above 15 years of age is not rape. Now, the question that falls for consideration is as to whether the victim and the appellant were ever married? The victim has so stated in her statement, but the appellant denied everything. He even denied that he knows the victim. He denied of having married the victim. He denied of having stayed with the victim ever. He has also denied that the victim was recovered from his custody. The marriage is not proved.

36. This defence, the appellant has not taken. Under these circumstances, cannot it be said that the appellant enticed the victim even in the name of marriage? Therefore, it cannot be said that it is the case in which the provisions of Exception 2 to Section 375 IPC are applicable.

37. Learned counsel for the appellant has also argued that the victim has not stated that the appellant 17 established relations with her repeatedly. Instead, it is argued that the victim has stated that the appellant never forced upon her. Their relationship were consensual and were made with the free will of the victim.

38. The victim, in her examination-in-chief, in Para 3 has stated that after marriage, they both stayed together as husband and wife for three months. In Para 21 of her examination, she also tells that the appellant never applied any force on her and the physical relations were established with her own will. The victim has stated that they stayed as husband and wife for a long period. The victim was medically examined on 17.06.2018 at a government hospital. At that time, she told it to the Doctor that after marriage, they continuously established physical relations. Evidence is to be appreciated in totality.

39. The statement of the victim establishes that the appellant repeatedly established physical relations with her. The victim being minor, her consent has no significance. These physical relations amount to rape. It is repeated rape. Therefore, this Court is of the view that the prosecution has been able to prove the charge under Section 376(2)(n) IPC beyond reasonable doubt against the appellant.

40. In view of the foregoing discussion, this Court is of the view that the court below has rightly convicted and 18 sentenced the appellant. There is no merit in this appeal. It deserves to be dismissed.

41. The appeal is dismissed.

42. Let the lower court record, along with a copy of this judgment, be sent back to the court concerned.

(Ravindra Maithani, J.) 10.10.2023 Ravi Bisht

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