Consent of a minor is not valid under law, affirming the conviction for rape while setting aside the kidnapping conviction due to lack of evidence.

JUDGMENT :

Pradeep Kumar Srivastava, J.

1. The present appeal is directed against the judgment and order of conviction and sentence dated 31.08.2006 passed by learned Additional Sessions Judge, FTC No. IV, Dhanbad in S.T. No.402 of 2001 whereby and whereunder, the appellant has been held guilty for the offences under sections 376 and 366A of Indian Penal Code and sentenced to undergo R.I. of 7 years and 5 years respectively. Both sentences are directed to run concurrently.

FACTUAL MATRIX

2. Factual matrix giving rise to this appeal is that the informant was in judicial custody in connection with Topchanchi P.S. Case No.11 of 2001 along with his two sons and he was released on bail on 19.04.2001, when the informant returned to his home, then he came to know from his wife that his minor daughter aged about 14 years has been taken out by Umesh Pandey, Nagesh Pandey, Lalita Devi and Noor Mohammad by inducing her to solemnize marriage with Umesh Pandey. It is further alleged that the appellant and other associates have kidnapped his daughter by taking advantage of absence of the informant. It is further alleged that the informant’s wife had gone to the house of Umesh Pandey, where she was threatened on the point of pistol saying that he has solemnized marriage with her minor daughter.

3. On the basis of written report of the informant Jagdamba Rawani, Topchanchi P.S. Case No.54 of 2001 dated 21.04.2001 was registered against the accused persons for the offence under sections 366A r/w 34 of IPC. In course of investigation, the victim girl was recovered from the house of the appellant (Umesh Pandey). The statement of the victim girl was recorded under section 164 of Cr.PC and she has disclosed about commission of rape with her by the accused Umesh Pandey, hence section 376 ofIPC was also added in the FIR. The victim girl was sent for medical examination and after completion of investigation, charge-sheet under sections 366A, 376, 420/34 of IPC was submitted against four accused persons namely Nagesh Pandey, Lalita Devi, Noor Mohamad and Umesh Pandey. After cognizance, the case was committed to the court sessions, accordingly S.T. Case No.402 of 2001 was registered and trial proceeded against all the accused persons for the offence under section 366A, 420 r/w section 34 of IPC and separate charge was framed against Umesh Pandey for the offence under section 376 of IPC. After conclusion of trial, the other accused persons have been acquitted whereas the present appellant was held guilty and sentenced as stated above.

4. Learned counsel for the appellant has argued that the victim girl was major aged about 19 years and the appellant and the victim girl eloped with their free consent and sexual intercourse was established voluntarily with the full consent of the victim girl and the appellant. The prosecution has brought nothing concrete documentary evidence on record to establish the fact that the victim girl was minor at the time of marriage with the accused/appellant. The victim girl has deposed before the court in her statement recorded under section 164 of Cr.P.C. under the influence of her parents. The learned trial court has acquitted other accused persons for the offence under sections 366A and 420 of IPC, therefore, the present appellant is also entitled for acquittal in this case as no ingredients either for the offence under sections 376 and 366A ofIPC has been established by the prosecution.

In alternative, it is submitted that this case is originating out of love-affair between the victim girl and the appellant, and marriage could not be solemnized due to dissenting guardians. The appellant has remained in custody throughout of the trial of the case for 5 years and has sufficiently been punished for his guilt, therefore, his sentence may be reduced to the extent of imprisonment already undergone, which will serve the ends of justice in this case.

5. On the other hand, learned A.P.P. appearing for the State refuting the aforesaid cont