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2002 Supreme(P&H) 1341
PUNJAB & HARYANA HIGH COURT
R.L.Anand and K.S.Garewal JJ.
Amarjit
Versus
State Of Haryana
Criminal Appeal No. 196-DB of 2000,
Decided On : DECEMBER 3, 2002
The main legal point established in the judgment is that the conviction for rape under Section 376 of the Indian Penal Code requires proof that the sexual intercourse was committed against the will or without the consent of the victim.
Headnote:
Kidnapping - Indian Penal Code - Section 366, Section 376(2)(g)
Fact of the Case:
The appellants were convicted under Sections 366 and 376 of the Indian Penal Code for kidnapping and rape of the prosecutrix. The prosecutrix was allegedly kidnapped and confined for 17 days, during which one of the appellants committed rape against her will.
Finding of the Court:
The court found that the prosecutrix was less than 18 years of age and was kidnapped from her lawful guardianship. However, the court acquitted the appellants of the charge under Section 376 as it was not proved that the sexual intercourse was committed without the prosecutrix's consent. The court maintained the conviction under Section 366 for kidnapping.
Issues: The main issues were the age of the prosecutrix, whether the rape was committed without her consent, and whether the appellants were guilty of kidnapping and rape.
Ratio Decidendi: The court held that the prosecutrix was less than 18 years of age and was kidnapped from her lawful guardianship, leading to the conviction under Section 366. However, the court acquitted the appellants of the charge under Section 376 as it was not proved that the sexual intercourse was committed without the prosecutrix's consent.
Final Decision: The appeal of the appellants was partly allowed. Their conviction and sentence under Section 376(2)(g) I.P.C. was set aside, but their conviction and sentence under Section 366 I.P.C. was maintained.
R.L.Anand, J.
1. Amarjit son of Hargender and Suraj Bhan son of Duli Chand have filed the present criminal appeal and it has been directed against the judgment dated 17.2.2000 and order dated 28.2.2000 passed by Additional Sessions Judge, Sonepat, who convicted both the appellants under Sections 366 and 376 of the Indian Penal Code and sentenced as under :-
(1) Amarjit : i) To undergo RI for 12 years and to pay a fine of Rs. 10,000/- under Section 376(2)(g) of Indian Penal Code and in default of payment of fine to undergo further RI for two years.
ii) To undergo RI for 5 years and to pay a fine of Rs. 5,000/- under Section 366 Indian Penal Code and in default of payment of fine to undergo further RI for one year
(2) Suraj Bhan : i) To undergo RI for 10 years and a fine of Rs. 10,000/- under Section 376(2)(g) of Indian Penal Code and in default of payment of fine to undergo further RI for two years.
ii) To undergo RI for 5 years and to pay a fine of Rs. 5,000/- under Section 366 Indian Penal Code and in default of payment of fine to undergo further RI for one year
The learned trial Court also ordered that all the sentences of both the accused shall run concurrently and out of the fine, if recovered, a sum of Rs. 25,000/- should be given to Ms. Asha Rani prosecutrix.
2 Both the appellants were charge-sheeted firstly, that on 13.5.1998 at about 10.00 a.m. in the area of City Sonepat they kidnapped Asha daughter of Om Parkash with intent that she may be forced or seduced to illicit intercourse and thereby they allegedly committed an offence punishable under Section 366 Indian Penal Code; secondly, that from 13.5.1998 to 30.5.1998 in the area of Village Aalupur, District Bhiwadi (Rajasthan) in furtherance of their common intention which was to have illicit intercourse with Asha, appellant Amarjit committed rape upon her for 17 days and thereby both the appellants allegedly committed an offence punishable under Section 376(2)(g) Indian Penal Code.
3. F.I.R. in this case was registered with the police on a complaint Ex. P6 dated 14.5.1998 made by Ran Niwas son of Hari Singh, Jogi by caste, resident of Indra Colony, near High School, Bahalgarh, Police Station Rai (Sonepat) and it was addressed to the Superintendent of Police, Sonepat. The complainant stated that on 13.5.1998 at about 10.00 a.m. his Bhanji (sisters daughter) Asha Rani daughter of Om Parkash resident of Indra Colony accompanied him on his scooter to Geeta Vidya Mandir Girls College, Murthal Road, Sonepat to obtain an admission form for 12th standard and after leaving her at the said college he proceeded to the vegetable market, Sonepat for some shopping. When he returned to the college after shopping, he did not find Asha Rani. He made enquiries and searched her here and there but could not get any clue. Thereafter he told the story to his family members as well as Smt. Bala, mother of the girl. All his family members searched for the girl but all in vain. At night they came to know that Asha Rani has been enticed away under a threat by Suraj Bhan son of Duli, caste Kumhar, resident of Deepalpur, Police Station Rai, District Sonepat and he might have accompanied by his companions whose names he did not know. With these allegations he made a prayer to the Superintendent of Police to take appropriate action and Asha Rani may be get recovered. A photograph of the girl was also attached with the complaint. On the basis of this application Ex. P6 the Superintendent of Police ordered for the registration of a case and formal FIR No. 302 dated 14.5.1998 under Sections 363 and 366 Indian Penal Code was registered by SI Ram Parkash of Police Station City Sonepat. It is the case of the prosecution that both the appellants firstly kidnapped the prosecutrix and thereafter on 13.5.1998 she was taken to Rajasthan and was confined for 17 days from 13.5.1998 to 30.5.1998 in a room where Amarjit had been performing sexual intercourse with the prosecutrix against her will and con
