Himachal Pradesh High Court
Suraj Alias Thoia Alias Dumba vs State Of H.P on 23 August, 2023
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. A. No. 86/2020 Reserved on: 21.8.2023 Decided on : 23.8.2023 Suraj alias Thoia alias Dumba .....Appellant .
Versus
State of H.P. ....Respondent
Coram:
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. The Hon'ble Mr. Justice Ranjan Sharma, Judge.
of Whether approved for reporting?1 Yes For the Appellant: Ms. Seema Sood, Advocate. For the Respondent:
rt Mr. I. N. Mehta, Mr. Y.W. Chauhan, Sr. Addl. A.Gs, Ms. Sharmila Patial, Addl. A.G. & Mr. J. S. Guleria, Dy.A.G. ____________________________________________________________________ Justice Tarlok Singh Chauhan, Judge The appellant, after trial, has been convicted and sentenced for the offences punishable under Sections 363, 342, 506 of the Indian Penal Code ( for short, "IPC") and Section 6 of the Protection of Children from Sexual Offences Act (for short, "POCSO Act") and aggrieved thereby, has filed the instant appeal.
2 The prosecution case, in brief, is that the minor prosecutrix, aged about 15 years, was student of 10th standard.
On 28.6.2017 at about 5:15 A.M., when she came out of her house towards bathroom, the appellant, who was otherwise 1 Whether reporters of the local papers may be allowed to see the judgment? Yes.
::: Downloaded on - 24/08/2023 20:33:53 :::CIS 2doing labour work in stone crusher at 'B' Khad, was stated to be hiding there. It was alleged that the appellant caught hold of minor prosecutrix from back side, shut her mouth, threatened .
her with dire consequences and thereafter, made her to accompany him. The prosecutrix was taken in a tempo towards 'D' and from there to 'M' in one stone crusher, where he committed rape on her. It was further alleged that the appellant of wanted to marry her, but she refused being a minor. The appellant kept the prosecutrix in the room and did not permit rt her to come out.
3 On 29.6.2017 at about 1:15 P.M., mother of the prosecutrix came along with about 3-4 persons and saved her from the clutches of the appellant. The matter was reported to the police and the case came to be registered against the appellant, who was arrested on 29.6.2017 at 3:30 P.M. The medical examination of the prosecutrix as also the appellant was conducted by the police. Spot maps were prepared by the police on the identification of the prosecutrix. Statement of the prosecutrix under Section 164 Cr.P.C. was recorded by the concerned Magistrate on 3.7.2017. Birth certificate of the prosecutrix was procured, and clothes and samples having been taken into possession at the time of medical examination were sent to RFSL Dharamshala, upon which report was ::: Downloaded on - 24/08/2023 20:33:53 :::CIS 3 obtained by the police. Statements of the witnesses were recorded and on conclusion of investigation, challan was presented in the court.
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4 A prima facie case under Sections 363, 342, 506 IPC and under Section 6 of POCSO Act was made out against the appellant, to which he pleaded not guilty and claimed trial.
5 In order to prove its case, the prosecution examined of as many as 15 witnesses and thereafter statement of the appellant under Section 313 Cr. P.C. was recorded, wherein he denied rt the prosecution case and pleaded innocence. An opportunity was given to the appellant to lead evidence, however he did not lead any evidence in his defence.
6 Learned Special Judge after evaluating the oral as well as documentary evidence convicted and sentenced the appellant, as finds mention in paras 56 to 58 of the judgment, which read as under:-
56. Accordingly, keeping in view the facts and circumstances of this case, convict Suraj @ Thola@ Dumba is sentenced as under:
i) to undergo rigorous imprisonment for three years and to pay fine of Rs.5,000/- under Section 363 IPC and in default of payment of fine, to undergo simple imprisonment for two months:
ii) to undergo rigorous imprisonment for six months and to pay fine of Rs.1,000/- under Section 342 IPC and in default of payment of fine, to undergo simple imprisonment for one month;::: Downloaded on - 24/08/2023 20:33:53 :::CIS 4
iii) to undergo rigorous imprisonment for two years and to pay fine of Rs.2,000/- under Section 506 IPC and in default of payment of fine, to undergo simple imprisonment for three months;
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iv) to undergo rigorous imprisonment for Ten years and to pay fine of Rs. 12,000/- under Section 6 of POCSO Act 2012 and in default of payment of fine, to undergo simple imprisonment for six months.
57. The period during which the convict had been in judicial /police custody, shall be set off under section 428 Cr.P.C., against substantive sentences only and not of against the sentence in default.
58. The convict has not paid the amount of fine. Out of the awarded amount of fine, Rs.5000/- shall be paid to the rt victim under section 357(1) Cr.PC. The amount of fine, if not paid even after the expiry of period of appeal, shall be recovered from the convict from his property under sections 421 Cr.P.C. by the District Collector Kangra, as arrears of land revenue and on such realization an, an amount of Rs.5,000/- shall be granted to the victim. Further, the copy of the judgment be sent to the DLSA Kangra at Dharamshala, for considering the payment of appropriate compensation to the victim under the Victim Compensation Scheme, 2012 or any other scheme.
7 It is vehemently argued by learned counsel for the appellant that the learned Special Judge has not correctly appreciated the evidence on record, more particularly, that of the age of the prosecutrix, who, in any case was major. She would further argue that this is a case of consensual relationship where the prosecutrix out of her own free will and ::: Downloaded on - 24/08/2023 20:33:53 :::CIS 5 volition had accompanied the appellant as the appellant wanted to marry her.
8 On the other hand, learned Deputy Advocate .
General would argue that since the prosecutrix was less than 15 years of age at the time of incident, she was allured and kidnapped by the appellant and therefore, the appellant has been rightly convicted and sentenced by the learned Special of Judge.
9 In order to appreciate rival contentions of the rt learned counsel for the parties, one would require to refer to the evidence of the prosecution.
10 The prosecutrix appeared as PW5 and stated that at the relevant time, she was studying in 10th standard. On 28.6.2017 at about 5:15 A.M., while she was going to bathroom, the appellant came there and caught hold of her after gagging her mouth. He threatened to kill her if she did not accompany him. The appellant was working as labourer at 'C' khad, where she was taken by him firstly in a bus and then in a tempo. She further deposed that there was a room at crusher, where some articles were kept and it was dirty. The appellant wanted to marry her, but she told that she was minor and asked him to take her back to the house. She stated that the appellant committed sexual intercourse with her on two ::: Downloaded on - 24/08/2023 20:33:53 :::CIS 6 occasions during the night of 28th and 29th June. Thereafter, at about 12:00/1:00 P.M. in the night, her mother alongwith 3-4 persons came there and then brought her back to her home.
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The police came in morning and recorded her statement, Ext.
PW3/A. She was medically examined and her statement under Section 164 Cr.P.C. Ext.PW5/A was recorded in the court. She deposed that the Doctor had seized her clothes, i.e. T-shirt Ext.
of P2, Pants, Ext.P3, belt Ext.P4.
11 In her cross-examination, she denied that she rt knew the appellant prior to the occurrence, though volunteered that she met him once. She further denied that she had been meeting the appellant in his house, which was not liked by her mother. She denied that she had gone on 28th June out of her own will with the appellant. She denied that when appellant asked her to go back, then she jumped into 'L' Khad and appellant saved her. She further denied that she used to talk with the appellant from the mobile phone of her mother. She denied that the appellant had not sexually assaulted her and she deposed before the Court or the police on the asking of her mother. She denied that she had falsely implicated the appellant in the instant case.
12 PW6, Marmindo, mother of the prosecutrix, deposed that at the time of occurrence in question, the prosecutrix had ::: Downloaded on - 24/08/2023 20:33:53 :::CIS 7 completed 14 years. She stated that she was illiterate and did not remember the date of occurrence, however said that in the month of July 2017, in the morning after 4:00 A.M., the .
prosecutrix was not found inside the house and she thought that she might have gone out. When she did not come back, then she got suspicion and searched her here and there and finally went to bus stop, where one person told her that one boy of was taking away the prosecutrix by catching hold of her. Her husband was ill at that time. She went to crusher where the rt appellant had been working and asked his whereabouts, but the persons there did not tell her, rather they said to her that they were not her servants. Then her son telephoned his friends and came to know that the appellant was at 'M' crusher. Then she along with three persons went to said crusher, wherein, in one room the appellant had committed sexual intercourse with the prosecutrix. The prosecutrix and the appellant were found there. The prosecutrix then narrated the incident to her that she had been forcibly taken by the appellant by gagging her mouth and he had committed forcible sexual intercourse with her. She further deposed that thereafter she came to the police post and also informed the Pradhan. In the morning, the police had come to her house and made inquiries from her daughter. Thereafter, the police got the spot identified from ::: Downloaded on - 24/08/2023 20:33:53 :::CIS 8 the prosecutrix, where the appellant had committed sexual intercourse with her. The police brought back the prosecutrix to police station, whereafter, she was taken to Court.
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13 In cross-examination, she admitted that she could not read and write, and could only put her thumb impression.
She deposed that the police had not recorded her statement, but had conducted only inquiry. The police had not read over of any statement to her. She denied that the prosecutrix was having friendship with the appellant for the last two years. She rt denied that she knew the appellant very well as he had been visiting her house. She deposed that she had seen the appellant for the first time on the day when he had committed the offence and had not seen earlier. She denied that the prosecutrix used to talk to the appellant from her mobile. She volunteered that she was not having any mobile phone, but her children had got mobile phone. She denied that the appellant had not committed sexual intercourse with the prosecutrix. She further denied that the prosecutrix had left the house with one bag and she had told her that she was going with the appellant.
She denied that she had tutored the prosecutrix to depose in the court. She denied that she along with prosecutrix had falsely implicated the appellant in the instant case. She stated that at the bus stop, some male person had told her that a boy ::: Downloaded on - 24/08/2023 20:33:53 :::CIS 9 had taken away the prosecutrix, but she did not know his name. She denied that the prosecutrix had not identified any place to the police.
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14 PW13 Honey deposed that on 28.6.2017 at about 8:00/8:30 A.M., PW6 came to his house and told that the prosecutrix was missing and the appellant had taken her away to 'M'. He also accompanied PW6 to 'M' and later on his father of PW14 Israyal also reached there. He further deposed that at that time, the appellant was taking bath and the prosecutrix rt was sitting there. Thereafter, PW6 also reached there and they took the prosecutrix to 'B' Khad and Pradhan Timbar Raj also reached in the house of PW6. In his cross-examination, he deposed that he could not tell whether the appellant used to visit the house of PW6. He denied that he had not gone to the spot.
15 PW14 Israyal, stated that he had gone to 'M', where the prosecutrix was found and then the prosecutrix was brought to 'B' Khad and Pardhan also came there. In his cross-
examination, he deposed that PW6 had told that the prosecutrix had gone with the appellant, but he could not tell whether the appellant was well known to PW6 and used to visit house of PW6. He deposed that when he reached the spot, the appellant and prosecutrix were inside the shed.
::: Downloaded on - 24/08/2023 20:33:53 :::CIS 1016 This, in all, is the direct evidence available on record.
17 As regards link evidence, PW1 Sunil Kumar, who .
was working as Labourer in 'N' crusher at 'M', deposed that on 28.6.2017 at 11:30 A.M., the appellant came to him at 'M' and told that he was going to home in Manipur and went away. On the next morning, he came to know that the appellant had been of arrested. He deposed that the police had visited the place where the appellant stayed in a room at 'M' and taken photographs.
rt 18 PW2 HHC Tara Chand deposed that in the year 2017, he was M.C. at Police Post Kandhwal and the Incharge had received telephonic information from Pardhan that the appellant had taken away a minor girl, qua which rapat, Ext.
PW2/A was lodged.
19 PW3 LC Jeevna Kumari, deposed that she had accompanied S.I. Ishwari Parshad to 'B' Khad, where statement of the prosecutrix, Ext. PW3/A was recorded. At that time, mother of the prosecutrix was with her. She had taken the prosecutrix to Civil Hospital, Nurpur and obtained MLC along with sealed parcels containing clothes, swab et. of the prosecutrix and handed over the same to the Investigating Officer. She had also accompanied the prosecutrix to the Court ::: Downloaded on - 24/08/2023 20:33:53 :::CIS 11 of Judicial Magistrate for recording her statement under Section 164 Cr.P.C. In her cross-examination, she denied that the prosecutrix had told that she had gone herself to meet the .
appellant. She also denied that the statement was not read over and explained to the witnesses and only their signatures were obtained.
20 PW12 ASI Najjar Singh deposed that on 29.6.2017, of HHC Janak Raj brought the statement of the prosecutrix recorded by PW3 for registration of case, on the basis of which rt FIR, Ext.PW13A was registered in the police station. He further deposed that he had made endorsement Ext. PW12/A on the rukka, Ext. PW3/A and thereafter sent back the case file to SI Ishwari Parshad. In his cross-examination, he denied that at the time of entering the FIR, computer system was not working properly.
21 PW11 Rajinder Sogha, photographer, deposed that the Investigating Officer had handed over his personal mobile containing photographs and he had prepared the photographs, Ext. PW11/A-1 to PW11/A-7 and C.D., Ext.PW11/B. He had made entry of the same in the register at Sr. No. 6137, photocopy whereof is Ext. Ext. 11/C. He further deposed that he had issued certificate, Ext.PW11/D in compliance of Section 65-B of the Evidence Act. He stated that on 3.7.2017, the ::: Downloaded on - 24/08/2023 20:33:53 :::CIS 12 statement of the prosecutrix was recorded before concerned Judicial Magistrate under Section 164 Cr.P.C. and he had prepared the DVD of the same vide Ext. PW11/E and handed .
over the same to the Investigating Officer after making the entry of the same at Sr. No. 6135, Ext. PW11/F. He had also issued certificate, Ext. PW11/G. In his cross-examination, he deposed that after preparing the photographs, he had returned the of memory card of alleged mobile to the Investigating Officer. He denied that the computer system was not protected and could be assessed rt by anybody. He further denied that the photographs had been tampered with at the instance of the police.
22 PW10, Shishak Shai, deposed that on the application, Ext. PW10/A moved by the police, he had issued copy of birth register, Ext. PW10/B wherein the date of birth of the prosecutrix was recorded as 25.10.2002. No cross-
examination of this witness was conducted, therefore, date of birth of the prosecutrix has been admitted by the appellant.
23 PW15 HC Ravinder Singh deposed that he was MHC in Police Station Nurpur. On 29.6.2017, SI Ishwari Parshad, Incharge, Police Post Kandhwal had deposited the case property with him and the entry qua the same was made by him in register No. 19 at Sr. No. 181/2017, abstract whereof is Ext.
::: Downloaded on - 24/08/2023 20:33:53 :::CIS 13PW8/A. He further deposed that on 4.7.2017, he had sent the aforesaid case property to RFSL, Dharamshala through HHC Kamal Kishore vide R.C. No. 2016/17, Ext. PW8/B, who had .
handed over the receipt back to him after deposit. He further deposed that the case property was not tampered with while it remained in his possession. In his cross-examination, he denied that the aforesaid case property had been tampered by him of when it was in his possession.
24 PW4 HHG Kamal Kishore deposed that on 4.7.2017, rt MHC Police Station Nurpur had handed over to him the sealed parcel with one docket for depositing the same at RFSL, Dharamshala, which he had deposited at RFSL, Dharamshala, in an intact condition, vide R.C. No. 206/17 and on return, the receipt of the same was handed over to MHC. In his cross-
examination, he denied that the alleged parcel deposited with RFSL, Dharamshala was not sealed.
25 As regards medical evidence, PW7 Dr. Neelam Verma, deposed that on 29.6.2017, the police had moved an application, Ex.PW7/A, for medical examination of the prosecutrix, aged about 14 years. She stated that the patient was brought with alleged history of sexual assault. On examination of the prosecutrix, she found that hymen was torn, old healed tags were present around circumference of hymen.
::: Downloaded on - 24/08/2023 20:33:53 :::CIS 14She further stated that swabs were taken from vagina and four slides were prepared from them and the articles i.e. vaginal swabs, two in number, vaginal slides four in number, cut pubic .
hairs, blood samples and clothes i.e. black T-shirt Ex.P2, with white print thereon, light blue jeans pants Ex.P3, dark blue underwear Ex.P5, black leather belt Ex.P4 were handed over to the police. She had issued MLC Ex.PW7/B and after receipt of of RFSL report, she had also given opinion Ex.PW7/C. In her cross-examination, she admitted that the prosecutrix had told rt that she knew the appellant for the last two years and at the time of examination of prosecutrix, her mother was also present there and revealed the history to her.
26 PW9 Dr. Jatinder Kumar deposed that on application Ex.PW9/A moved by the police, he had conducted medical examination of the appellant. As per his opinion, there was nothing to suggest that the appellant was unable to perform sexual intercourse. He further stated that after medical examination of the appellant, he had handed over to the police the articles i.e. combed and plucked hair of the appellant, penis swab with two slides, dark blue underwear and blood sample for DNA analysis on FTC card. He had issued MLC Ex.PW9/B. In his cross-examination, he stated that he had mentioned in the MLC that the appellant had given history of being beaten by ::: Downloaded on - 24/08/2023 20:33:53 :::CIS 15 some persons and noted injures i.e. bruise on right side of neck 6 cms X 3 cms red in colour, bruise on right temple 3 X 2 cms red in colour.
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27 As regards investigation of the case, the same was conducted by PW15 Ishwari Parsad, who stated that on 29.6.2017 at 8.30 A.M. one telephonic message was received from Pardhan that the prosecutrix was kidnapped by the of appellant and recovered during the night hours on 28.6.2017 at 'B' Khad. He further stated that the statement of prosecutrix rt Ex. PW3/A was recorded. He had made an endorsement on the same and sent Rukka Ex. PW15/A to Police Station Nurpur for registration of case. He further deposed that he had visited the spot and prepared the spot map Ex.PW15/B, and recorded statements of witnesses Marmindo and Pardhan Timber Raj. He further stated that the appellant was arrested on the same day.
He stated that the medical examination of the appellant was got done and he obtained MLC Ex. PW9/B. On the identification of the spot at 'M' by the prosecutrix, he prepared the spot map Ex.
PW15/C and recorded the supplementary statements of prosecutrix and PW1 as per their respective version. He further stated that on 3.7.2017 the statement of prosecution under section 164 Cr.P.C. was recorded by the concerned Judicial Magistrate. He stated that the birth certificate of the prosecutrix ::: Downloaded on - 24/08/2023 20:33:53 :::CIS 16 was obtained and according to which the date of birth of prosecutrix was 25.10.2002. He had recorded the statements of witnesses and deposited the case property with MHC, Police .
Station Nurpur. After the receipt of RFSL report Ex. PA, he had obtained the final opinion on MLCs of the appellant as well as prosecutrix from Medical Officer, Civil Hospital, Nurpur.
28 This, in sum and substance, is case of the of prosecution as deposed by its witnesses.
29 As regards the appellant, he, in his statement rt recorded under Section 313 Cr.P.C., stated that the prosecutrix was known to him for the last about 2-3 years. He admitted that his medical examination was conducted and blood sample was taken on FTA card for DNA profiling, but denied rest of the prosecution case for want of knowledge. He stated that since he belonged to Manipur, therefore, a false case was registered against him.
30 Learned counsel for the appellant would argue that taking prosecution case at its best, this was a case of consensual sexual intercourse, for which the appellant could not have been prosecuted, more particularly, when he had all intentions to marry the prosecutrix.
31 However, we find no merit in the aforesaid submission as it has been duly proved by PW10 that on the ::: Downloaded on - 24/08/2023 20:33:53 :::CIS 17 basis of the record, the age of the prosecutrix was 25.10.2002 and thus, on the date of incident i.e. 28.6.2017, she was less than 15 years of age (14 years and 8 months) and being minor, .
her consent cannot be recognized in the eyes of law.
32 The Hon'ble Supreme Court in Independent Thought vs. Union of India, (2017) 10 SCC 800 has gone to the extent by holding that sexual intercourse or sexual act by of a man, even with his wife under 15 years of age, is classified as "rape".
33rt 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 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 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."::: Downloaded on - 24/08/2023 20:33:53 :::CIS 18
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.
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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, of 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 rt necessary corollary, duty is cast on the other person in not taking advantage of the so-called consent given by 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 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 consequences. This view of ours gets strengthened when we keep in mind the letter and spirit behind Protection of Children from Sexual Offences Act.
::: Downloaded on - 24/08/2023 20:33:53 :::CIS 1934 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.
35 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 of seven descriptions mentioned in that Section. Clause 6 thereof makes it clear that if the woman is under the age of 18 years, rt then sexual intercourse with her, with or without consent, is rape.
36 In view of the principles of law enunciated by the Hon'ble Supreme Court, consent, if any, given by the victim girl for the alleged physical relationship being a minor cannot be treated as a consent in the eyes of law.
37 It may also be observed that the sexual exploitation and sexual abuse of children is a heinous crime, which needs to 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 ::: Downloaded on - 24/08/2023 20:33:53 :::CIS 20 a routine manner since rape is not only a crime against minor victim, but is also a crime against entire society.
38 Adverting to the facts herein, there is no evidence .
whatsoever suggesting that the prosecutrix had consented to be taken away from her parents lawful custody or had consented to sexual intercourse. Since the prosecutrix was minor at the time of occurrence, even alleged claim that sexual of intercourse was with her consent is immaterial as the circumstances herein clearly point out that the prosecutrix had rt been abducted with a intention to have sexual intercourse with her.
39 Even if the minor prosecutrix had an infatuation and was known to the appellant, the same cannot be permitted to be a valid defence as it would amount to undermining essence of legislative intent under Section 361 of 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 re- asserting his innocence. Learned counsel for the appellant highlighted that the High Court has acknowledged that there was a love affair, frequent meetings, and ::: Downloaded on - 24/08/2023 20:33:53 :::CIS 21 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 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 of 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 rt impugned judgment of conviction. He emphasised on the 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 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 ::: Downloaded on - 24/08/2023 20:33:53 :::CIS 22 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.
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Explanation.--The words "lawful guardian" in this section include any person lawfully entrusted with the care or custody of such minor or other person.
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 of 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 rt description for a 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 ipsofacto 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 - 24/08/2023 20:33:53 :::CIS 23 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.
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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 improvement but the testimonies of numerous witnesses of 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. 5 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 ::: Downloaded on - 24/08/2023 20:33:53 :::CIS 24 the same 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 at first glance, does little to aid the appellant's of 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 (supra) explicitly rt 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 ::: Downloaded on - 24/08/2023 20:33:53 :::CIS 25 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.
.
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 of appellant, the Courts below were seemingly right in observing that the consent of the minor would be no defence to a charge of kidnapping. No fault can thus be rt found with the conviction of the appellant under Section 366 of IPC.
40 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 minor prosecutrix being consensual, which, as discussed above, is the defence not available to the appellant considering the proven age of the prosecutrix.
41 Moreover, we are of the considered view that when a plea of consent is raised, then the act of enticing away and rape is admitted unequivocally. One cannot blow hot and cold at the same time. In a plea of consent, the admission of incident is there and the accused has to prove the consent to secure his acquittal. But, at the same time, the victim should be in a ::: Downloaded on - 24/08/2023 20:33:53 :::CIS 26 position to give valid consent. Further, the consent should be free and should not be under threat or misrepresentation etc. "Consent" and "Complaint" of offence cannot find place on the .
same coin. When the act is with consent, the question of complaint does not arise. Similarly act of complaint does not involve consent.
42 As a last ditch effort, learned counsel for the of appellant would argue that the learned Special Judge has not specified as to whether the sentences, so imposed upon the rt appellant, are to run consecutively or concurrently.
43 The contention of the learned counsel for the appellant appears to be right as is evident from paras 56 to 58 of the impugned judgment (as extracted above in para 6).
44 A perusal of Section 31 of the Criminal Procedure Code reveals that it refers to the jurisdiction of court to impose punishment when the accused is found guilty for two or more offences during a single trial. Section 31 of Cr.P.C. is reproduced below for ready reference:-
"31. Sentence in cases of conviction of several offences at one trial.--
(1) When a person is convicted at one trial of two or more offences, the Court may, subject to the provisions of section 71 of the Indian Penal Code (45 of 1860), sentence him for such offences, to the several punishments prescribed therefor which such Court is competent to ::: Downloaded on - 24/08/2023 20:33:53 :::CIS 27 inflict; such punishments when consisting of imprisonment to commence the one after the expiration of the other in such order as the Court may direct, unless the Court directs that such punishments shall run concurrently.
.
(2) In the case of consecutive sentences, it shall not be necessary for the Court by reason only of the aggregate punishment for the several offences being in excess of the punishment which it is competent to inflict on conviction of a single offence, to send the offender for trial before a higher Court: Provided that--
of
(a) in no case shall such person be sentenced to imprisonment for a longer period than fourteen years;
(b) the aggregate punishment shall not exceed twice the rt amount of punishment which the Court is competent to inflict for a single offence.
(3) For the purpose of appeal by a convicted person, the aggregate of the consecutive sentences passed against him under this section shall be deemed to be a single sentence."
45 Section 31 of Cr.P.C. empowers the trial court with the discretion to determine that sentences for two or more offences passed in one trial would run simultaneously or consequently, depending on the nature of the offences and any aggravating or mitigating factors that may be present. However, this discretion must be used while taking into account the type of offence committed and the facts & circumstances of the case.
Hon'ble the Apex Court has propounded the law in this context ::: Downloaded on - 24/08/2023 20:33:53 :::CIS 28 through a plethora of pronouncements and the settled legal position on this topic is vital to discuss here.
46 In Mohd. Akhtar Hussain @ Ibrahim Ahmed .
Bhatti v. Assistant Collector of Customs reported in (1988) 4 SCC 183, the Hon'ble Supreme Court has propounded the fundamental principle that convictions resulting from a single transaction justify running of the sentences concurrently. The of relevant paragraph of the aforesaid case is reproduced below:-
"The basic rule of thumb over the years has been the so called single transaction rule for concurrent sentences. If a rt given transaction constitutes two offences under two enactments generally, it is wrong to have consecutive sentences. It is proper and legitimate to have concurrent sentences. But this rule has no application if the transaction relating to offences is not the same or the facts constituting the two offences are quite different."
47 In V.K. Bansal Vs. State of Haryana & Anr.
(2013) 7 SCC 211, the Hon'ble Supreme Court has held that even if there are varied complaints filed against a prisoner but they are arising out of a single transaction, then the discretion shall incline towards the benefit if the prisoner. If different complaints can be construed to be arising from a single transaction, then, in the case at hand, there is no doubt that both he charges are emerging from the same single transaction ::: Downloaded on - 24/08/2023 20:33:53 :::CIS 29 (FIR No.16/2017). The relevant paragraphs of the afore-
mentioned judgment are as follows:
"14. In. Madan Lal's case (supra) this Court relied upon .
the decision in Akhtar Hussain's case (supra) and affirmed the direction of the High Court for the sentences to run concurrently. That too was a case under Section 138 of the Negotiable Instruments Act. The State was aggrieved of the direction that the sentences shall run concurrently and had appealed to this Court against the of same. This Court, however, declined interference with the order passed by the High Court and upheld the direction issued by the High Court.
rt
15. In conclusion, we may say that the legal position favours exercise of discretion to the benefit of the prisoner in cases where the prosecution is based on a single transaction no matter different complaints in relation thereto may have been filed as is the position in cases involving dishonour of cheques issued by the borrower towards repayment of a loan to the creditor."
48 Where an accused is convicted and sentenced for several offences at one trial, the Court may direct that the sentences shall run concurrently. In the absence of such direction by the Court, sentences shall run consecutively. It is not obligatory for the trial court to direct in all cases that the sentences shall run concurrently, however, it is well-established that failure to specify the same causes trouble in interpretation in future.
::: Downloaded on - 24/08/2023 20:33:53 :::CIS 3049 The type of offences committed, as well as the facts and circumstances of the case, will determine whether a directive for concurrent running of sentences should be issued .
in a particular case. The discretion must be used in a judicially sound manner and not casually. It is safe to conclude that the basic rule is that the sentences must be directed to run concurrently if the accused is found guilty of two or more of offences that are arising out of one and the same transaction and there are no special circumstances to do so.
50rt According to Section 31(1) of the Criminal Procedure Code, sentences would run consecutively unless they are specifically ordered to run concurrently. The court of first instance is required by law to clarify in clear terms whether multiple sentences would run concurrently or consecutively when pronouncing the sentence.
51 In Nagaraja Rao Vs. Central Bureau of Investigation (2015) 4 SCC 302, it was propounded by Hon'ble the Supreme Court that it is obligatory for the Court awarding punishments to specify whether the sentence should be running concurrently or consecutively and if it fails to do so, it will be considered a mistake committed on its part and an even graver mistake if the omission to mention the same turns out to be detrimental to the accused-appellants.
::: Downloaded on - 24/08/2023 20:33:53 :::CIS 3152 In O.M. Cherian Vs. State of Kerala, AIR 2015 SC 303, the Hon'ble Supreme Court summarized the core principles that it is normal rule that multiple sentences are to .
run concurrently when the case of prosecution was based on single transaction in the following words:
"12. The words in Section 31 Code of Criminal Procedure "....sentence him for such offences, to the several punishments prescribed therefor which such Court is of competent to inflict; such punishments when consisting of imprisonment to commence the one after the expiration of the other in such order as the Court may direct" indicate rt that in case, the Court directs sentences to run one after the other, the Court has to specify the order in which the sentences are to run. If the Court directs running of sentences concurrently, order of running of sentences is not required to be mentioned. Discretion to order running of sentences concurrently or consecutively is judicial discretion of the Court, which is to be exercised as per established law of sentencing. The court before exercising its discretion Under Section 31 Code of Criminal Procedure is required to consider the totality of the facts and circumstances of those offences against the accused while deciding whether sentences are to run consecutively or concurrently.
13. Section 31(1) Code of Criminal Procedure enjoins a further direction by the court to specify the order in which one particular sentence shall commence after the expiration of the other. Difficulties arise when the Courts impose sentence of imprisonment for life and also sentences of imprisonment for fixed term. In such cases, if the Court does not direct that the sentences shall run ::: Downloaded on - 24/08/2023 20:33:53 :::CIS 32 concurrently, then the sentences will run consecutively by operation of Section 31(1) Code of Criminal Procedure There is no question of the convict first undergoing the sentence of imprisonment for life and thereafter .
undergoing the rest of the sentences of imprisonment for fixed term and any such direction would be unworkable. Since sentence of imprisonment for life means jail till the end of normal life of the convict, the sentence of imprisonment of fixed term has to necessarily run concurrently with life imprisonment. In such case, it will of be in order if the Sessions Judges exercise their discretion in issuing direction for concurrent running of sentences. Likewise if two life sentences are imposed on the convict, rt necessarily, Court has to direct those sentences to run concurrently."
53 In a fairly recent judgment of the Hon'ble Supreme Court in Sunil Kumar @ Sudhir Kumar Vs. The State of Uttar Pradesh reported in (2021) 5 SCC 560, this predicament was discussed and it was held that it is imperative upon the trial court to specify whether the sentence would run consecutively or concurrently and further to even specify the order of sentence if the sentences are to run consecutively and not to leave the same to be dealt with at a subsequent stage.
The relevant paragraphs of the afore-mentioned judgment are as follows:
"11. For what has been provided in Section 31(1) CrPC read with the expositions of this Court, it follows that the Court of first instance is under legal obligation while ::: Downloaded on - 24/08/2023 20:33:53 :::CIS 33 awarding multiple sentences to specify in clear terms as to whether they would run concurrently or consecutively. In the case of Nagaraja Rao (supra), this Court expounded on this legal obligation upon the Court of first instance in .
the following terms:-
"11. The expressions "concurrently" and "consecutively"
mentioned in the Code are of immense significance while awarding punishment to the accused once he is found guilty of any offence punishable under IPC or/and of an offence punishable under any other Special Act arising out of one trial of or more. It is for the reason that award of former enure to the benefit of the accused whereas award of latter is detrimental to the accused's interest. It is therefore, legally obligatory upon the court of first instance while awarding sentence to specify in rt clear terms in the order of conviction as to whether sentences awarded to the accused would run "concurrently" or they would run "consecutively"."
12. As noticed, if the Court of first instance does not specify the concurrent running of sentences, the inference, primarily, is that the Court intended such sentences to run consecutively, though, as aforesaid, the Court of first instance ought not to leave this matter for deduction at the later stage. Moreover, if the Court of first instance is intending consecutive running of sentences, there is yet another obligation on it to state the order (i.e., the sequence) in which they are to be executed. The disturbing part of the matter herein is that not only the Trial Court omitted to state the requisite specifications, even the High Court missed out such flaws in the order of the Trial Court.
54 Finally, it was concluded by the Hon'ble Supreme Court in Sunil Kumar's case (supra) as follows:
::: Downloaded on - 24/08/2023 20:33:53 :::CIS 34"21. While closing on the matter, we deem it appropriate to reiterate what was expounded in the case of Nagaraja Rao (supra), that it is legally obligatory upon the Court of first instance, while awarding multiple punishments of .
imprisonment, to specify in clear terms as to whether the sentences would run concurrently or consecutively. It needs hardly an emphasis that any omission to carry out this obligation by the Court of first instance causes unnecessary and avoidable prejudice to the parties, be it the Accused or be it the prosecution."
of 55 In the instant case, mandate under Section 31 Cr.P.C. was not followed as learned Special Judge did not rt specify whether the sentences would be running concurrently or consecutively and has, therefore, committed a mistake and as a matter of fact, even graver mistake by omission as the same terms to be detrimental to the appellant. The appellant instead of suffering sentence of 10 years is required to undergo sentence of 15 years and six months because of omission on the part of the learned Special Judge.
56 This court is of the considered view that unless there are special circumstances to pass an order regarding running of sentence consecutively, in a routine manner, an order to run sentence concurrently should have been passed by the learned Special Judge otherwise appellant would suffer way harsher punishment than the legislature intended.
::: Downloaded on - 24/08/2023 20:33:53 :::CIS 3557 In view of aforesaid discussions and for the reasons stated hereinabove the appeal is partly allowed and the impugned judgment shall stand modified to the extent that the .
sentences, as imposed upon the appellant by the learned Special Judge, will run concurrently. Pending application(s), if any, also stands disposed of.
(Tarlok Singh Chauhan) Judge of (Ranjan Sharma) 23.8.2023 Judge (pankaj) rt ::: Downloaded on - 24/08/2023 20:33:53 :::CIS