IMPORTANT POINT
For offence of kidnapping, consent of minor who is taken away or enticed is wholly immaterial.

JUDGMENT

Arijit Pasayat, J.-Perversity and degradation of mind sometimes reach rock bottom of humanness when tiny girl become victims of sexual assault and libidinous behaviour. One wonders to what low level of depravation, perpetrators of such crimes can condescend. The case at hand is one such shocking case where the victim was about five years of age. We do not propose to indicate the name of the victim, who suffered the traumatic experiences on 24.2.1986. The accused-appellant and another person who faced trial with him allegedly committed offences of kidnapping and attempted rape punishable under Sections 363, 366 and 376 read with Section 511 of the Indian Penal Code, 1860 (for short the IPC ). The victim was called and taken away by the accused-appellant who was known to her, for fulfilling his lust and her absence was noticed by her octogenarian grandmother (PW-5). She went out in search of her. After going to a short distance, she could hear the cries of the victim and rushed to the house of the accused from where her sound was coming. She found the victim naked and accused-appellant lying on top of her while acquitted accused was standing nearby. The father of the victim (PW 6) lodged the report on learning about the incident from the victim and PW-5. Initially there was an attempt to settle the matter which was not accepted by the father of the victim. Information was lodged at the police station. The girl was medically examined and charge sheet was placed after completion of investigation.

2. The accused persons pleaded innocence and false implication on account of litigations. The trial Court found the accusations established so far as commission of charged offences under Section 363 and 366 IPC are concerned and awarded custodial sentence of 3 years for the first two offences, and 4 years for the last one. However, finding that the other accused was not properly described or identified in the first information report he was entitled to the benefit of doubt. For holding the accused guilty reliance was placed on the evidence of eyewitness (PW 5). The accused-appellant preferred an appeal before the High Court of Punjab and Haryana. By the impugned judgment, the High Court upheld the conviction so far as offences relatable to Sections 363 and 366 IPC are concerned, but set aside the conviction recorded under Section 376 read with Section 511 IPC.

3. In support of the appeal, learned counsel for the appellant submitted that the prosecution has tried to improve its case at different stages. Nowhere at the investigation stage, it was stated that the accused took the victim by putting hand on her mouth; but in Court such an improvement was made. With reference to the conviction under Sections 363 and 366, it is submitted that the ingredients necessary for constituting the said offences have not been made out and the case has not been proved beyond reasonable doubt. The behaviour of PW-5 is unnatural. It is quite improbable that a grandmother finding her granddaughter being sexually assaulted by any person would silently take the victim away without even giving a tongue-lashing to the accused. The Courts below have lost sight of the fact that there were litigations pending between accused s family and the family of the father of the victim. Since the co-accused has been acquitted by the trial court said factor should have weighed with the Courts below. PW-5, the so-called eyewitness admittedly had defective eyesight and was hard of hearing. It is hard to believe that the victim was crying in such a loud voice that PW-5 who is hard of hearing could hear it, but none others.

4. In response, learned counsel for the respondent-State submitted that PW-5 s evidence is cogent and trustworthy. The victim was playing outside at 1.30 p.m. Noticing her absence she went out to search for her. This is a natural behaviour. The child was recovered from the house of the accused in naked condition. Whether the child was taken by putting her