IMPORTANT POINTS
(1) Procuration of minor girl – Even if there is consent, accused cannot be absolved of criminal liability if child is a minor.
(2) Even in case of Ossification Test, there could be a difference of two years, either way.

JUDGMENT :

K. VINOD CHANDRAN, J.

The appeal arises from the order of the Revisional Court which confirmed the conviction and sentence of the accused/appellant under Section 366-A of the Indian Penal Code, 1860¹[“IPC”] as handed over by the Trial Court and confirmed by the Appellate Court.

2. Mr. Abhijit Basu, learned Senior Counsel appearing for the appellant pointed out that the conviction under Section 366-A is totally misconceived since none of the ingredients under the provision are attracted in the above case. The allegation is one that the appellant having taken away the victim with an intention of marrying her. There is absolutely no allegation of any sexual advance having been made against the victim by the accused or any third party. The fact remains that victim who was a major, had roamed around for about two months and returned home to raise the allegation against the appellant. There are gross inconsistencies in the evidence of the victim and her parents as to the cause leading to the alleged abduction; which makes the story completely unbelievable. Neither has the appellant induced the victim nor was there any likelihood of she being forced or seduced to illicit intercourse with any other person. The victim was not proved to be a minor girl and the courts below have erred aggregately in convicting the appellant. Ms. Prerna Singh, learned standing counsel appearing for the respondent-State, vigorously, opposed the contention raised by the learned counsel for the appellant. The expert evidence proved beyond doubt that the girl was a minor and there is no question of consent arises. The fact that the accused had taken her from the lawful custody of her parents was proved beyond doubt. The desire of a marriage with the victim, as entertained by the accused brings in a likelihood of sexual intercourse which in the context of the age of the victim attracts the offence. The Courts below have convicted the accused on valid evidence.

3. We have given anxious consideration to the evidence recorded, especially since it has been found to be proved beyond reasonable doubt that the accused has committed the offence charged. We have to immediately notice that there is absolutely no allegation of any sexual act having been committed against the victim nor even a sexual advance made. The victim also does not speak of any apprehension of a likelihood of an illicit intercourse being thrust upon her by either the appellant or any other person.

4. In the trial, eleven witnesses were examined as PWs 1 to 11 and the nine exhibits marked included the portions of the statements made under Sections 161 and 164 of the Code of Criminal Procedure, 1973²[“Cr.P.C.”]. The material object, namely; the white coloured tracks jeep was also produced before the Court.

5. On the allegations, suffice it to notice that the appellant is said to have forced the victim into a jeep on 03.05.2001, after having developed a friendly relationship with the family of the victim and taken her to three different locations inside the State. The abduction was alleged to be since that appellant had a desire to marry the victim. At the last location, the victim escaped and came back to her father after which the First Information Report³[ “F.I.R.”] was registered on information given by the victim to the police; when the father took her to the police station.

6. PWs 1 and 2 are the parents and PW 7 is the victim, the alleged minor child. PWs 1, 2 and 7 spoke of a close relationship with the appellant; whose marriage they had attended and PW 8 deposed that she along with her brother had visited the accused and his family and stayed at their residence with the consent of her parents. Strangely, the allegation levelled was there before the marriage of the appellant, he had sought the hand of PW 7; which was denied by her family. We cannot but notice that as per the evidence, the friendly relationship between the families continued even after the marriage and the allegation is tha