IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 294 of 2010. Date of Decision: 1st July, 2011. _______________________________________________________ Chandu Ram ….Appellant. Versus State of Himachal Pradesh ..Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the appellant : Mr. D.S. Nainta, Advocate. For the respondent : Mr. A.K. Bansal, Additional Advocate General. ____________________________________________________ SURINDER SINGH, J(Oral). In Session Trial No.48/2009, accused/appellant hereinafter referred as ‘the accused’ was charged- sheeted for the offences punishable under Sections 363, 366 and 376 of the Indian Penal Code. Vide the impugned judgment he was acquitted of the offence under Section 376 of the Indian Penal Code, but convicted for the offences punishable under Sections 363 and 366-A of the Indian Penal Code, and sentenced to undergo simple imprisonment for a period of three years and to pay a fine of ` 5,000/-, under Section 363 of Whether reporters of the Local papers are allowed to see the judgment? - 2 - the Indian Penal Code and also to suffer simple imprisonment for a period of four years and to pay a fine of ` 10,000/- under Section 366 of the Indian Penal Code, with default clauses. Both the substantive sentences were ordered to run concurrently and the benefit of Section 428 of the Code of Criminal Procedure was also accorded. 2. The accused felt aggrieved by the impugned judgment of conviction and sentence, as such filed the present appeal. 3. Heard and gone through the evidence on record. 4. In short, facts giving rise to the present appeal can be stated thus. In the year 2008, the prosecutrix was studying in 9th standard in Senior Secondary School, Manali. At that time, her parents were working in the orchard of the ex-Minister Thakur Kunj Lal. The accused was employed as driver by one Mahesh a local resident. The prosecutrix and the accused developed intimacy. He used to meet her off and on and to take her in the vehicle for a joy-ride. The accused was already married, having three children. He gave a ‘mobile-Sim’ to her to facilitate her to establish the contact telephonically whenever required. - 3 - (ii) It is alleged that once the accused threatened to take her away forcibly, but she declined. (iii) However, on 31.12.2008, the accused informed her to come to bus-stand, Manali as he had some urgent work. While leaving her house, prosecutrix made a false excuse to her mother that she was going to school and reached Manali bus-stand to meet the accused. She met the accused at the scheduled place. He told her that he would buy gold and mobile to her. She should accompany him to Kullu. She readily agreed. Both reached Kullu, in a private bus. The accused did not alight at Kullu, rather he told her to accompany him upto Mandi and thereafter on reaching Mandi came to Shimla. When they reached Shimla, the accused told her to go to Jeori, where his sister had been residing. (iv) When the prosecutrix was not traceable, her father PW2 on 9.1.2009 lodged a report in Police Station, - 4 - Manali. Police as well as the parents of the prosecutrix were searching for the prosecutrix. (v) The prosecutrix reminded accused that he had promised to buy gold and mobile-phone, on this, he assured her that he would purchase the same at Jeori. Both of them reached Jeori. The prosecutrix was not having any money. Thus according to her, there was no option for her but to accompany the accused. When they reached Jeori, the accused took her in an auto to village Urban on the next day and stayed in the house of Veena. (vi) It is further alleged that during the intervening night of 1/2.1.2009, accused committed rape on her despite protests. They stayed in the house of Veena aforesaid till 3.1.2009. Thereafter, accused hired a room from one Khub Ram at a distance. They purchased local made mattress, which was used as bed in the rented - 5 - premises and stayed there till 22.1.2009, where she was sexually abused during the period aforesaid. (vii) The prosecutrix alleged that the accused did not purchase any gold or mobile-phone to her as promised. Thus she took ` 500/- from the landlord to come back to her village. She washed her clothes. Accused also accompanied her upto Bilaspur and from there he separated on the pretext that he had some work. (viii) On 23.1.2009, PW12 ASI Lal Chand came to know that she had gone to Kullu. Police was able to trace her and recorded her statement which culminated into FIR. (ix) The prosecutrix was got medically examined on the same day from PW1 Dr. Shashi Wapa. She did not notice any visible injury on her person. Secondary sexual characters were found fully developed. Three smears and two vaginal swabs were taken by the doctor, which were sealed and - 6 - sent for forensic examination. The prosecutrix was also referred to Radiologist for ascertaining skeletal age. PW10 Dr. M.L. Bandhu opined her age between 17 to 19 years. The M.L.C. of the prosecutrix is Ext.PB. (x) The accused was arrested on 4.2.2009. He was also got medically examined and the doctor found him fit to perform the sexual intercourse. (xi) During the investigation of the case, police also obtained birth certificate Ext.PD of the prosecutrix, which shows the date of birth of the prosecutrix as 16.11.1991. (xii) Police also prepared the site plan of the place of the alleged incident. Forensic report Ext.PW12/C was also obtained, but no semen was detected on the wearing apparels of the prosecutrix nor the blood and semen were detected on the vaginal swabs. 5. After completing investigation of this case, Challan was presented against the accused in the Court under - 7 - the aforesaid Sections. He was accordingly charge- sheeted. The accused abjured his guilt and claimed trial. 6. To prove its case, the prosecution examined its witnesses and the accused was also examined under Section 313 of the Code of Criminal Procedure. He alleged his false implication in the case. The circumstances which were found attendant upon, were also denied by him. He took up the stand that the prosecutrix called him to her house. Upon seeing him, her parents became angry, since he belongs to a lower caste and he was framed falsely in the present case. 7. The accused was called upon to enter into his defence, but no evidence in defence was led. 8. The cross-examination of the prosecutrix was pointed out towards the fact that she and the accused were having love affairs and she being major, was a consenting party. The learned trial Court did not believe the defence story in its entirety, but however, on the scrutiny of the evidence came to the conclusion that the rape was not committed on the prosecutrix, as such the accused was acquitted for the offence under Section 376 of the Indian Penal Code, but held that she was minor, hence, convicted and sentenced under - 8 - Sections 363 and 366-A of the Indian Penal Code as aforesaid, thus the present appeal. 9. On the very story as propounded by the police vide its report and the version made by the prosecutrix during the trial of the case, in my opinion, the offence under Section 366-A of the Indian Penal Code is absolutely not made out because, it is incumbent upon the prosecution to establish by cogent evidence the following elements to constitute the offence aforesaid: (i) the accused induced a girl; (ii) the girl was under eighteen years of age; (iii) the girl was induced to go from a place or to do an act; (iv) the accused did as above with intent that such girl may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person. 10. The scrutiny of facts in evidence on record does not prove the last element, of the Section aforesaid. Therefore, the ingredients of Section 366-A of the Indian Penal Code are not made out. But insofar as Sections 366 and 363 of the Indian Penal Code are concerned, for that the prosecutrix testified that though she voluntarily accompanied the accused, but there was an allurement to her given by the accused to provide her gold and mobile-phone and took her to Jeori (Rampur Bushahr) as aforesaid. She had accompanied him on such an allurement. In such a situation, the age of the prosecutrix assumes importance. - 9 - 11. According to PW2 Kamru Nag, Panchayat Sahayak, the date of birth of the prosecutrix is recorded as 16.11.1991 in the birth register and he proved the birth certificate Ext.PD to this effect. Thus, the age of the prosecutrix at the relevant time comes to slightly more than 17 years, but less than 18 years. The same date of birth has been depicted in the school admission record. To prove it, PW9 Tashi Angmo, Principal, Senior Secondary School, Manali has been examined. This witness issued the certificate Ext.PW9/A on the basis of school admission record, which also reflects the same date of birth. Both these witnesses were cross-examined by the accused, but no material could be extracted from them which could help the accused. Therefore, the prosecutrix is proved to be less than 18 years. 12. Since the prosecutrix is proved to have been allured by the accused to accompany him as aforesaid, therefore, this allurement cannot be said to be a free consent of the prosecutrix to accompany the accused. Since the prosecutrix is proved to be less than 18 years and evidence on record establishes that she was kidnapped by the accused from her lawful guardianship, therefore, the accused is proved to have committed the offence under Section 363 of the Indian - 10 - Penal Code. An intention to seduce subsequent to the elopement is an essential part of Section 366 of the Indian Penal Code. The evidence on record also proves that under the circumstances aforesaid, she was compelled to accompany the accused from one place to another, the accused did so with the intent that the prosecutrix would be forced to illicit intercourse. Therefore, the accused is held guilty for the offences under Sections 363 and 366 of the Indian Penal Code and is accordingly convicted. Since the offence under Section 363 of the Indian Penal Code has merged into the graver offence under Section 366 of the Indian Penal code, therefore, no separate sentence under Section 363 of the Indian Penal Code is required to be passed. 13. As far as the sentence is concerned, learned Counsel for the accused submitted that the accused has three children to maintain and he has been in custody with effect from 4.2.2009. Further that the prosecutrix and the accused had developed intimacy and love affairs. They were roaming in and around Manali town together, therefore, the accused cannot be solely held responsible to the entire episode. 14. I have considered the above arguments. Keeping in view the extenuating and mitigating circumstances - 11 - and also the fact that the accused is in the custody for the last about two years and five months, the interest of justice will be met in case the accused is sentenced under Section 366 of the Indian Penal Code to undergo imprisonment for the period already undergone and to pay a fine `15,000/- and in default of payment of fine to undergo simple imprisonment for a period of six months. If the fine amount is realized, the accused be set at liberty and out of the fine amount `10,000/- be paid to the prosecutrix as compensation. 15. In result the appeal is partly allowed to the above extent. 16. Send down the record. July 1, 2011. (Surinder Singh), (rc) Judge.