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High Court Of Delhi
MAHABIR PERSHAD - Appellant
Versus
STATE OF DELHI - Respondent
Decided On : 10/06/1998
{'KEYWORD': 'Abduction of Minor', 'SUBJECT': 'Age of Consent', 'ACT SECTION LIST': 'Sections 363, 366, 366-A, 376, Indian Penal Code', 'SUMMARY': "The court held that the prosecutrix, who was between 14 and 16 years old at the time of the incident, had voluntarily gone with the accused, her brother-in-law, and that her consent was therefore relevant. The court also held that the accused's conviction under Section 376, IPC, for rape was not sustainable as the prosecutrix was above the age of consent. However, the court upheld the accused's conviction under Sections 363, 366, and 366-A, IPC, for kidnapping and abduction."}
Fact of the Case:
The accused, Mahabir Parsad, was convicted under Sections 363, 366, and 376, IPC, for kidnapping, abduction, and rape of his sister-in-law, Vidya Devi. The prosecutrix, who was between 14 and 16 years old at the time of the incident, had gone with the accused voluntarily and stayed with him for about a month. She did not raise any alarm or mention to anyone that she had been forcibly abducted.
Finding of the Court:
The court found that the prosecutrix had voluntarily gone with the accused and that her consent was therefore relevant. The court also found that the accused's conviction under Section 376, IPC, for rape was not sustainable as the prosecutrix was above the age of consent. However, the court upheld the accused's conviction under Sections 363, 366, and 366-A, IPC, for kidnapping and abduction.
Issues: 1. Whether the prosecutrix had voluntarily gone with the accused. 2. Whether the accused's conviction under Section 376, IPC, for rape was sustainable.
Ratio Decidendi: 1. The court held that the prosecutrix had voluntarily gone with the accused based on the following factors: - The prosecutrix and the accused were close relations. - The prosecutrix had stayed in the house of her maternal uncle, which was adjoining to the house of the accused, for about a year and nine months. - The accused had proposed to the prosecutrix on a number of occasions. - The prosecutrix had not raised any alarm or mentioned to anyone that she had been forcibly abducted during the time she was with the accused. 2. The court held that the accused's conviction under Section 376, IPC, for rape was not sustainable as the prosecutrix was above the age of consent. The court relied on the statement of the prosecutrix, her mother, and the radiologist, who had estimated her age to be between 14 and 16 years at the time of the incident. The court also noted that the radiologist had stated that the age given was approximate and could vary by up to two years due to climatic, dietary, and hereditary differences.
Final Decision: The court partly allowed the appeal and acquitted the accused under Section 376, IPC, for rape. However, the court upheld the accused's conviction under Sections 363, 366, and 366-A, IPC, for kidnapping and abduction, and reduced the sentence to the period already undergone.
( 1 ) THIS appeal is directed against the judgment of the learned Additional Sessions Judge, Delhi, by which the appellant Mahabir Parsad was convicted under Sections 363,366 and 376, IPC. Brief facts necessary to dispose of this appeal are recapitulated as under:
( 2 ) IN this case, the accused appellant is very closely related to the prosecutrix. The prosecutrix, Vidya Devi, is the sister-in-law (his wife s younger sister) of the accused. The appellant, a Hawker, was married to Sushma, the elder sister of the prosecutrix. Sushma was a patient of tuberculosis and so the accused was keen to marry the prosecutrix Vidya Devi.
( 3 ) SHYAM Lal, Public Witness -1, maternal uncle of the prosecutrix lodged a reportwith the police that his sister s daughter Vidya Devi was living with him for about 1 1/2 years and that the accused was residing in the house adjascent to his house have been missing since 31. 7. 1975. Shyam Lal further mentioned in the FIR that Sushma was suffering from T. B. , so the accused did not keep her with him. Mahabir Parsad, appellant expressed his keen desire to marry Vidya Devi, but he did not agree.
( 4 ) SHYAM Lal further stated that on 31st July, 1975, at about 8. 3. 0 p. m. when he returned to his house after attending to his usual business of vending Kulfi on a Rehri, he found that Vidya Devi was not present at his house. On enquiry, he found ;that Mahabir Parsad was also not present at his house. So, he suspected that Mahabir Parsad, accused, had abducted Vidya Devi with the intent to marry her. The investigation was started on his lodging the report. On 28. 8. 1975, about a men in after the lodging of the FIR, an informer gave the information to the Sub-Inspector Jai Chand that Mahabir Parsad was present with Vidya Devi in a room at Nabi Karim, Paharganj, New Delhi. The Sub-inspector along with some other constables had gone to the aforesaid premises and found Mahabir Parsad accused along with Vidya Devi present inside the room. The Investigating Officer recorded the statement of Vidya Devi under Section 161, Criminal Procedure Code and produced her before the Court and her statement under Section 164, Criminal Procedure Code was recorded on 17. 5. 1977. In that statement, she stated that about one year and 9 months ago, the accused/ appellant came to the house of her maternal uncle Shyam Lal and asked her to accompany him to the Bazaar. The accused took her in a three-wheeler scooter to the Railway Station and from there the accused took her to Etah, UP. She further mentioned in her statement that when she was near the Raja Garden, she asked him as to where he was taking her, the accused instead of reply had shown her a knife and threatened her she got frightened and became silent due to the fear of knife.
( 5 ) SHE further stated in her statement that the accused took her to Dharamshala, and kept her there for 20-22 days, and there he had committed rape on her many a time without her consent. She further stated that the accused had taken her to Katchla for a holy dip in the Ganges. From there, the accused brought her to Delhi and kept her in the house of one Babu Lal at Nabi Karim, Paharganj, New Delhi. In her cross-examination, she stated that she was never admitted to any school. She mentioned that because of the threat of the knife she did not raise an alarm and stayed with the appellant for all these days. In the cross-examination, she had mentioned that she was about 14 years of age at the time of the incident.
( 6 ) THE mother of the prosecutrix Mohar Shree, Public Witness -6 was also examined. According to her, the age of the prosecutrix was about 16 years when her statement was recorded on 17. 5. 1977. The prosecutrix was examined by Dr. M. C. Bhatia, Radiologist on 1. 9. 1975. According to him, the age of the prosecutrix was merely 15 years. He had mentioned in his evidence that this is an approximate age with variation of one year. He further submitted that it is correct
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