Consent is immaterial in cases of minors under 16 years; sexual intercourse with a minor constitutes rape irrespective of their consent under Section 375 IPC.

JUDGMENT

1. The present appeal is filed under section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code") for setting aside judgment dated 19.01.2006 (herein referred to as the "impugned judgment") and order on sentence dated 19.01.2006 passed by the Court of Additional Sessions Judge, Karkardooma Courts, Delhi (hereinafter referred as the "trial court") passed in Sessions Case bearing no 53/2004 arising out of FIR bearing no 375/2003 registered under sections 363 of the Indian Penal Code, 1860 (hereinafter referred to as "the IPC") at P.S Preet Vihar.

2. Briefly stated relevant facts as emerging from the record are that Mahender Kumar was residing at house bearing no 11-B, Parwana Road, Old Brij Puri, Delhi alongwith his family including daughter S who was born on 23.02.1988 and was a student of 10th Class in the year 2003. Ismile was working in a toy factory situated in front of the house of Mahender Kumar and used to tease S. Son 11.09.2003 at about 3:00 PM had gone to Sachdeva Book Shop situated at Chander Nagar and on the way Ismile asked S to talk with him and thereafter S accompanied him to some distance. Saidul who was friend of Ismile also came there after 10 minutes and both of them called an auto-rickshaw. They forcibly pushed S into auto-rickshaw and taken her to a house situated at Tugalpur near Noida which belonged to Mausi/Khala (maternal aunt) of Saidul. S was kept in the said house and on 12.09.2003 maternal aunt of the Saidul arranged another rented house in the same village where S was kept. Ismile committed sexual intercourse with several times during the period with effect from 11.09.2003 to 09.12.2003 forcibly.

2.1. Mahender Kumar searched S on 11.09.2003 but S could not be traced. Mahender Kumar (hereinafter called as "the complainant") lodged a complaint regarding missing of Son 12.09.2003 to SI Kishan Kumar wherein the complainant suspected Ismile for missing of S. SI Kishan Kumar prepared rukka on the basis of complaint made by the complainant and FIR bearing no. 0375/2003 was got registered under section 363 IPC at P.S. Preet Vihar. The investigation in pursuance of FIR bearing no 0375/2003 was assigned to SI Kishan Kumar (hereinafter referred to as the "Investigating Officer"). The complainant on 09.12.2003 received a call from STD booth situated in Noida regarding presence of S. Thereafter the complainant alongwith the Investigating Officer and other police officials went to Noida and searched STD booth which was found to be belonged to Lokesh. The complainant and the Investigating Officer met Lokesh who informed them about presence of S, Ismile and Saidul in a room and from where S was recovered. Ismile and Saidul were also found there and were arrested. The Investigating Officer during course of investigation collected school certificate in respect of S, S and Ismile were medically examined, exhibits were collected, statement of S was also recorded under section 164 of the Code. The Investigating Officer after completion of investigation filed charge-sheet for offences punishable under sections 363/366/377/34 IPC before the concerned Court of Metropolitan Magistrate.

2.2. The case was ordered to be committed to the Court of Sessions. The trial Court vide order dated 07.08.2004 charged the Ismile and Saidul for the offences punishable under sections 366/34 IPC and 365/34 IPC. Ismile was also charged for the offence punishable under section 376 IPC. Is