Consent in sexual intercourse and the age of the prosecutrix are crucial factors in determining the offence under Section 376 IPC.

JUDGMENT :

V.K. Sharma, J.

The appellant/accused No. 1, Satbir Singh, who was charged under Sections 363, 366 and 376 read with Section 120B of the Indian Penal Code (in short 'IPC') alongwith co-accused Subdha Devi, Ishwar Singh and Prem Lata, who were arraigned under Sections 363 and 366A read with Section 120B IPC, was tried by the learned Additional Sessions Judge, Fast Track Court, Shimla, Himachal Pradesh, in Sessions Trial No. 3-S/7 of 2010. The trial ended in his conviction for the offence u/s 376 IPC and acquittal on the remaining counts and imposition of consequent sentence of rigorous imprisonment for seven years and fine of Rs. 10,000/- and in default further rigorous imprisonment for six months vide the impugned judgment/order dated 18.10.2010/20.10.2010. The co-accused were acquitted of all the charges. Being aggrieved, he is in appeal before this Court. For the sake of convenience, whereas accused No. 1 Satbir Singh shall hereinafter be referred to as the 'convict', the co-accused shall be denoted as, A2 Subdha Devi, A3 Ishwar Singh and A-4 Prem Lata.

2. The law enforcing machinery was set in motion in this case by the complainant, Poshu Ram, who submitted complaint dated 04.07.2009, Ex. PW-10/D, to the learned Sub Divisional Judicial Magistrate, Rohru, District Shimla, Himachal Pradesh, which though later on recoiled on him as well, as would be seen hereinafter, and is to the following effect, on the basis of which FIR No. 91 of 2009, Ex. PW-10/C, dated 07.07.2009, under Sections 363, 372, 373 and 109 IPC, which is re-production of the complaint itself, was registered at PS Rohru:

Sir,

The complainant submits as under:-

1. That the complainant is the permanent resident of village Khalai, Sub Tehsil Tikkar Tehsil Rohru, Distt. Shimla H.P. and is married and has got two daughters Smt. Ram Kali who is married and is of 26 years of age and other daughter Kumari Raksha who is studying in 6th class in Government Secondary School Tikker and the complainant, is employed as Chowkidar on regular basis in the H.P.P. W.D. Sub Division Tikkar for the last more than 15 years and has got rented house at Tikker proper where the complainant reside with his family members.

2. That Smt. Shanti is married at village Bardhar, in Tehsil Shilai Distt. Sirmour and she has got three daughters and two sons and her husband is a black smith having limited income. That Smt. Shanta who is closely related to the complainant bought her minor daughter (name withheld to protect the identity of the prosecutrix, who shall hereinafter be called as 'P') to the complainant 9 years before and has shown her helplessness to provide clothing, other necessities of life such as food etc. and requested the complainant being closely related to maintain her daughter and promised that in later period of life she will be maintaining the complainant and his wife at the time of odd hours. On this the complainant took the custody of the minor through her mother Shanti Devi 9 years before and kept her as his daughter with him at Tikker and provided every necessities of life and at present she was living with the complainant for the last more than 9 years and is of the age of about 15 years.

3. That the complainant use to purchase milk from the accused No. 1 as she has kept Jarsi Cows at her village at Thana as such she is to prove daily some time 1/2 Kg. sometime 1 Kg. Milk to complainant and use to talk with the minor daughter 'P' oftently.

4. That the accused No. 1 has got married her one daughter Smt. Premlata at village Kembla Tehsil Kembla Distt. Rohtak Haryana as was told by accused Smt. Subdha and this marriage of her daughter has taken place two years before and Smt. Subdhas son in law from Haryana used to come in Thana village of Sub Tehsil Tikker, Distt. Shimla H.P.

5. That the accused No. 1 Smt. Subdha use to take 'P' to her village at Thana oftently and some time use to stay at her residence Thana and she is to give every sought of allurement to her good compan