VERY IMPORTANT POINT
As prosecution has failed to establish that prosecutrix was a minor on date of incident, no offence under Section 366A IPC was made out. As element of consent was not ruled out, it was not possible to uphold conviction under Section 376 or 366 IPC.

Headnote:Indian Penal Code, 1860-Sections 366A and 376 or 366-Offences of procuration of minor girl, rape or kidnapping/abducting a woman to compel her to marry or intercourse-Appellant a tuition teacher of prosecutrix PW 1-Alleged to have misused his trust-Prosecutrix was above 18 years as per PW 6 (father) but approximately 17 as per Doctor PW 10-Courts below taking it to be below 18 on date of incident-Whether correct? (No)-Result-Offence under Section 366A is not made out-Element of consent in going with appellant not ruled out-Case under Sections 376 or 366 not made out-Result-Appeal allowed-Conviction and sentence set aside.
       Held : In this background for the reasons already stated hereinabove we think that the prosecution has failed to establish that PW 1 was less than 18 years of age as on the date of incidence. If that be so, charge under 366A of which the appellant was found guilty by both the courts below shall fail. (Para 5)
       Held also : Therefore, both for the purpose of 366 and for the purpose of Section 376 IPC, there should be material to establish that either the alleged marriage or the intercourse has taken place without the consent of PW 1 if she is above the age of 18 years or 16 years as the case may be. (Para 5)
       Held (after examination of evidence): There is no doubt that the appellant who was a tuition teach he is not required in any other case. (Paras 7 & 8)

JUDGMENT

Santosh Hegde, J.-The appellant herein was convicted by the Sessions Judge, Sitamarhi in Sessions Trial No. 182/89 for offences punishable under Section 366A and 376 of the IPC and was sentenced to rigorous imprisonment for five years on each of those counts but the sentences were directed to run concurrently. On appeal, the High Court of Patna has confirmed the said sentence. It is against that judgment and conviction the appellant is before us in this Criminal Appeal.

2. Briefly stated the prosecution case is that the appellant was giving tuition to the prosecutrix Geeta Kumari and her sister at their residence. It is stated that on 30th April, 1989 at about 7 PM that appellant came to their house and in the presence of the family members told Geeta Kumari PW 1 that he won t be giving tuition on that day and went away. Immediately, thereafter, it is stated that PW 1 left the house telling the members of the family that she was going to grand-father s house to watch television. It is further stated that on the way she was met by the appellant and he on the pretext of taking her to a movie took her in his motor cycle towards Muzaffarpur. From Muzaffarpur, he took her in a train to Jasidih from where he took her to Devghar. The prosecution further states that there he forced PW 1 to marry him and made her sign certain papers. From Jasidih it is stated that the appellant and PW 1 left for Babadham on 8.5.89 and from there to Bajitpur on 9.5.89. During this stay, it is stated that appellant committed rape on PW 1. On 10.5.89, PW 1 was recovered from the house of the appellant by the police. After investigation, a case was registered against the appellant and he was charged as stated above and having been found guilty by the two courts below the appellant has filed this appeal.

3. The factum of the recovery of PW 1 from the house of the appellant is not in dispute. While it is the case of the prosecution that it is the appellant who either by inducement or threat took away PW 1 from her house, the defence case is that PW 1 had eloped with somebody and her love affair having failed with the person with whom she eloped and she being scared to get back to the house had come to the house of the appellant who then had informed PW 6, the father of the girl about PW 1 coming to his house. The defence further states that after being annoyed and having found none else to blame her father has foisted a false case against the appellant. As noticed above, one of the charges of which the appellant has been found guilty is under Section 366A which refers to procuration of a minor girl. To establish this charge, the prosecution has to prove that PW 1 was a minor on the date when she was taken away from her house. In regard to this fact, the prosecution relies on the evidence of PW 1 the girl herself, PW 6, her father and PW 10 the Doctor who examined her. So far as PW 1 s evidence is concerned it is prima facie not acceptable when she says that she was only 14 years on the date when she was taken away from her father s house. This evidence runs counter to all other material on record to which we shall refer presently.

4. PW 6 the father of the girl in his evidence has stated that he was married in the year 1952 and he had two daughters. The first daughter Reeta was born 12 years after his marriage which would be in the year 1964. He states that his second daughter was born six years after Reeta was born that would be 18 years after his marriage which will be 1970. If that be the year of birth of PW 1 then the incidence in question being in the year 1989, PW 1 ought to be 19 years on that day. This witness further says that PW 1 had appeared for her Board examination in the year 1988 and had failed. This also gives an indication that it is likely that the age of PW 1 on the date of incidence was around 19 years.

5. PW 10 the doctor in his evidence has stated that PW 1 s X-ray photograph showed partial epiphy seal fusion of iliac crest. In he

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2002 Supreme(SC) 1282

VERY IMPORTANT POINTAs prosecution has failed to establish that prosecutrix was a minor on date of incident, no offence under Section 366A IPC was made out. As element of consent was not ruled out, it was not possible to uphold conviction under Section 376 or 366 IPC.

VERY IMPORTANT POINT
As prosecution has failed to establish that prosecutrix was a minor on date of incident, no offence under Section 366A IPC was made out. As element of consent was not ruled out, it was not possible to uphold conviction under Section 376 or 366 IPC.