The prosecution must prove that a minor was induced to engage in illicit intercourse for a conviction under section 366A, which was not established in this case.

JUDGMENT :

Heard the learned counsel for the appellant and the learned counsel for the State at length.

2. This appeal arises out of judgment of conviction dated 21.07.2014 and order of sentence dated 23.07.2014 in S.C. No. 60 of 2013 whereby and whereunder learned Principal Sessions Judge, Pakur convicted the appellant under Sections 366A and 376 of the Indian Penal Code and sentenced him RI for 10 years with fine of Rs. 25,000/- for the offence under Section 366A and 376 of the Indian Penal Code each.

3. Learned counsel for the appellant submits that from the evidence of the victim if it is read with her statement recorded under section 164 Cr.PC (Exhibit-2) the only conclusion which can be arrived at is that no offence either under section 376 of IPC or under section 366A of IPC has been committed. He submits that all the other witnesses are related and hearsay witnesses, thus their statement cannot be relied upon in support of the fact that any offence under section 376 of IPC has been committed. He further submits that even if the statements are taken to be correct, and if at all this appellant had taken the victim with him (though denied), then also no offence under section 366A of IPC is made out, as she was not taken to have any sexual intercourse with any other person. He submits that there was love affair between the parties for which she herself fled and stayed with this appellant in his house.

4. Learned counsel for the State submits that the victim is a minor aged about 15 to 16 years. As per the Indian Penal Code the age of consent is 18 years and since the victim is less than 18 years it cannot be said that the sexual relationship which has developed between the appellant and the victim is consensual. He further submits that admittedly victim was recovered from the house of the appellant which suggests that this appellant had induced her and taken her to his house. So far as physical relationship is concerned, he submits that the victim as PW4 had deposed that she was raped by this appellant and sexual intercourse was against her wish. The appellant thus has been rightly convicted under section 366A and 376 IPC.

5. We have gone through the evidence of prosecution witnesses and other documents. The FIR is at the instance of the father of the victim who is PW3. He stated that the victim who was aged about 14 years had gone to the house of her aunt, when his brother-in-law informed that this appellant has kidnapped his daughter. The informant thereafter went to the police station and submitted an application informing the police that the appellant has kidnapped his daughter after inducing her to marry. FIR was registered under section 366A of IPC. The police after investigation recovered the victim girl from the house of the appellant thereafter charge-sheet was submitted under sections 366A and 376 of IPC and cognizance was taken. After commitment, charge was framed and as the appellant pleaded not guilty he was put on trial. Altogether eight witnesses were examined on behalf of the prosecution. Some documents were also exhibited. After considering the evidence and the arguments adduced by the parties, learned trial Court convicted the appellant and sentenced him accordingly.

6. After hearing learned counsel for the parties, we find that the most important witness in this case is the victim herself who is PW4. She in her evidence, supports the case of the prosecution and the FIR and stated that she was kidnapped by this appellant and was taken to his house where she was raped. She admitted that her statement was recorded under section 164 Cr.PC and what she had stated before the Magistrate under section 164 Cr.PC is her correct statement. When we go through the statement recorded under section 164 Cr.PC, we find that she has given absolutely a different story. She stated that she was in love with this appellant, thus fled with him to marry, as her father was not agreeable to the said marriage. In her statement under sec