The central legal point established in the judgment is that the conscious act of a minor, who is in the age of discretion, in accompanying an individual does not constitute force as required for charges under Sections 376/366/363 of the IPC.

Indermeet Kaur, J.

1. This appeal is directed against the impugned judgment and order of sentence dated 16.04.2001 and 23.04.2011 respectively wherein the appellant has been convicted under Sections 376/366/363 of the IPC and has been sentenced to undergo RI for a period of 7 years and to pay a fine of Rs.2,000/- and in default of payment of fine, to undergo SI for 3 months for the offence under Section 376 of the IPC; for the offence under Section 366 of the IPC, he has been sentenced to undergo RI for a period of 3 years and to pay a fine of Rs.1,000/- and in default of payment of fine, to undergo SI for 2 months; for the offence under Section 363 of the IPC, he has been sentenced to undergo RI for a period of 3 years and to pay a fine of Rs.1,000/- and in default of payment of fine, to undergo SI for 2 months. The sentences were to run concurrently. Benefit of Section 428 of the Cr.PC had been granted to the appellant.

2. The nominal roll of the appellant has been requisitioned. It reflects that as on the date, when he had been granted bail, he has suffered incarceration of about 4- ½ years.

3. Version of the prosecution was unfolded in the statement of the prosecutrix examined as PW-5. Admittedly the appellant was known to her prior to the date of the incident. Her version is that on 17.02.1999 at about 05:30 pm, she was standing at the public water tank near her house when the appellant asked her to accompany him for sightseeing; she went with him; he took her to the railway station; she was threatened there; the appellant took her to his village in Bihar in a train. She stayed there for 2-3 days pursuant to which she was recovered.

4. Her mother Madhu has been examined as PW-6. She has deposed that her daughter was found missing and she suspected the appellant. So also is the version of her father Satish Kumar examined as PW-7. He also suspected the appellant when he learnt about the missing of his daughter. The victim was recovered on 21.02.1999 when she was medically examined by Dr. Suman Bala examined as PW-8. As per her version, the findings are suggestive of sexual intercourse; no injury was noted upon the victim but her hymen was torn.

5. The date of birth of the victim was established through the version of Virender Jain (PW-4) who had brought the record of date of her birth proved as Ex.PW-4/A as 25.05.1983 evidencing the fact that as on the date of the offence (17.02.1999) she was aged 15 years and about 8-9 months.

6. In the statement of the accused recorded under Section 313 of the Cr.PC, he has stated that he has been falsely implicated in the present case due to enmity.

7. No evidence was led in defence.

8. On the basis of the aforenoted evidence both oral and documentary, the accused has been convicted for the aforenoted offences and sentenced accordingly.

9. On behalf of the appellant, arguments have been addressed in detail. It is pointed out that the victim was at the age of discretion and she fully understood and conscious of her act; she had accompanied the accused voluntarily as she knew him. She has admitted that she stayed with the accused 2-3 days in his village at Bihar; she was treated well; in her cross-examination, PW-5 has admitted she had gone for sightseeing with the accused. Submission being that the offence under Sections 363/366 & 376 of the IPC clearly not made out. Further submission being that had it been a case of force, injuries would have been noted upon her person but no such injury was noted in her MLC. In the alternate, it is pointed out that keeping in view the fact that out of 7 years RI, the appellant has already undergone a sentence of about 4- ½ years, the proviso of Section 376 of the IPC be put into operation and in this case, there are adequate and special reasons for reducing the sentence of the appellant. To support this submission, learned counsel for the appellant has placed reliance upon a judgment of this Court reported as 2010 Crl. L.J 1756 Mohd. Imran K