Document Fragment View
Fragment Information
Showing contexts for: rpc in Bashir Ahmad Matoo & Anr. vs State Of Jk Through P/S Khanyar, ... on 30 January, 2018Matching Fragments
01. The broad features of the case, as carved out from the FIR and the other material gathered during the course of the investigation of the case, are that, on the 25th of May, 2003, the complainant lodged a complaint before the authorities of police station Khanyar, stating therein that her minor daughter (Ms X), left her home before a period of six days to offer prayers at the Shrine of Peer Dastageer Sahib but did not return. The complainant tried to trace her whereabouts. She did not succeed in her efforts. Later on, she came to know that her daughter has been kidnapped by the accused No.1, namely, Bashir Ahmad Matoo, with the connivance of his wife, namely, Dilshada (accused No.2), who, by deceitful means, enticed/ kidnapped her with the intention to commit rape upon her person. On the basis of this information, an FIR bearing No. 66 of the year 2003 was registered at Police Station, Khanyar, for the commission of offences under Sections 363, 366A, 376 and 109 RPC and the investigation ensued. On the completion of the investigation of the case, a chargesheet, for the commission of offences under Section 363 and 376 RPC and for the commission of offences under Section 366A and 109 RPC was laid against the accused No.1 and 2 respectively in the Court of the learned Chief Judicial Magistrate, Srinagar and the learned Chief Judicial Magistrate, Srinagar by his order dated 14th of June, 2003 committed the case to the Court of learned Principal District & Sessions Judge, Srinagar. By his order of even date, the learned Sessions Judge, transferred the case to the Court of learned Additional Sessions Judge, Srinagar, for disposal under law. Thereafter, by order dated 21st of June, 2003, of the Court of the learned Additional Sessions Judge, Srinagar, the accused No.1, namely, Bashir Ahmad Matoo, was charged for the commission of offences under Section 363, 366-A, 376 RPC and the accused No.2, namely, Dilshada, was charged for the commission of offences under Section 363, 366-A, 376 and 109 RPC. The accused denied the charge and claimed to be tried. Accordingly, the prosecution was asked to produce the evidence in support of its case. The prosecution examined as many as 10 witnesses to bring home the guilt of the accused. The prosecution evidence was closed on 23rd of February, 2007 and the case was posted for recording the statements of the accused under Section 342 Cr.P.C. These statements of the accused were recorded on 19th of July, 2007. The accused, in these statements, denied the occurrence and the case was posted for advancing arguments in terms of Section 273 Cr.P.C. On 27th of July, 2007, the Court directed that it was not a case of no evidence and asked the accused to produce their evidence. The accused examined two witnesses in defence and it was on 5th of May, 2008, that the evidence in defence was closed and the case was posted for advancing arguments. On the culmination of the trial, in terms of the judgment dated 28th of April, 2014, the learned trial Court held the accused No. 1 to be guilty of offences punishable under Sections 376, 363, 109 RPC and the accused No.2 was found guilty of offences punishable under Sections 366-A, 363, 376, 109 RPC. Thereafter, on the 10th of May, 2014, the accused No. 1, namely, Bashir Ahmad Matoo, was convicted and sentenced to undergo imprisonment for a period of 10 years and a fine of Rs. 10,000/- under Section 376(1) RPC, in default of the payment of fine, he was directed to undergo simple imprisonment for six months. The accused was also sentenced to undergo imprisonment of 3 years and 6 months and a fine of Rs. 5,000/- for offences under Sections 363, 109 RPC. In default of the payment of fine, he was directed to undergo simple imprisonment of two months. The accused No.2, namely, Dilshada, was convicted and sentenced to undergo imprisonment of ten years under Sections 366(A) RPC and a fine of Rs. 10,000/- was also imposed upon her and, in default of the payment of fine, she was directed to undergo further simple imprisonment of six months. The accused was also sentenced to undergo imprisonment of seven years under Section 363 RPC and a fine of Rs. 5,000/- was also imposed upon her and, in default of the payment of fine, she was directed to undergo simple imprisonment for a further period of two months. Further, the accused No.2 was also sentenced to undergo imprisonment of 3 years 6 months under Sections 376, 109 RPC and a fine of Rs. 2,000/- and, in default of the payment of fine, she was directed to undergo simple imprisonment of one month. All these sentences, on both the convicts, were directed to run concurrently.
In order to arrive to a just conclusion, I deem it necessary to analyze and examine the basic ingredients of Section 375 R.P.C punishable under Section 376 R.P.C, ingredients of Sec 361 RPC Punishable under Section 363 RPC and ingredients of Section 366 A RPC so as to appreciate as to whether acts of the accused attract the ingredients of Section 375 361 and 366 A RPC so as to make their acts punishable under Sec 376, 363, 366A RPC.
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.
As far as the ingredients of Section 375 RPC are concerned it provides (i) that a man is said to commit rape who has sexual intercourse with the woman against her will (ii) without her consent and also with or without her consent when she is under 16 years of age and in the present case, the accused no 1 has committed rape upon the prosecutrix who is only aged about 14/15 years. The accused has committed rape upon her forcibly and she being a minor, so the question of consent as such does not arise at all. The witnesses have stated that the prosecutrix was raped by the accused. It has been stated by the prosecutrix that she was kidnapped by accused no 2 and raped by accused No. 1, the prosecutrix was immediately examined by the doctor who has opined that her hymen was ruptured and she was subjected to rape. These facts lead to the inescapable conclusion that accused No. 1 committed rape upon the prosecutrix as such; the ingredients of Section 375 RPC are fulfilled.
As far as the ingredients of offence of kidnapping as defined by Section 361 RPC and punishable under Section 376 RPC are concerned, it provides that 1) there should be enticement by deceitful means, 2) enticement should be of a minor, 3) taking away must be from the lawful guardianship and 4) taking must be without the consent of the lawful guardianship.
So far as the facts of the present case are concerned, the prosecution case is that the prosecutrix is a minor, was allured by the accused No. 2 by deceitful means and was take to her home where she was held forcibly by deceitful means and on the pretext and promise that she will be provided employment and, as such, was kept in their illegal custody for 5/6 days without the consent and knowledge of her guardian and as far as the evidence led in by the prosecution is concerned, all the witnesses have stated that the prosecutrix was kidnapped by the accused and detained in their home for about 5/6 days and the prosecutrix was recovered from the illegal custody of the accused so, as such, the ingredients of Section 361 RPC punishable under Section 363 RPC have been fulfilled Section 366 RPC have been fulfilled.