A minor female over 16 years of age is legally capable of giving consent to sexual intercourse under the Indian Penal Code, such that sexual activity between a minor aged 16-18 and an adult, if consensual, does not constitute the offence of rape under Section 376.

SURYA PARTAP SINGH , J. (Oral):

A trial held by Additional Sessions Judge, Fast Track Court, Gurgaon, hereinafter being referred to as ‘trial Court’ only with regard to a case arising out of FIR No.16 dated 08.01.2003, Police Station Ferozepur Jhirka, culminated into conviction of accused, vide judgment dated 28.08.2004, hereinafter being referred to as ‘impugned judgment’ only. Aggrieved of the above mentioned judgment of conviction an appeal has been preferred by the convict, hereinafter being referred to as ‘appellant’ only.

The above mentioned FIR was lodged for the commission of offence punishable under Sections 363, 366-A, 376 and 120-B of the Indian Penal Code, hereinafter being referred to as ‘IPC’ only, and the allegations against the appellant was that appellant had taken away a minor girl out of the lawful guardianship without the valid consent of guardian, and that he kidnapped/abducted and raped her, and thus, committed the offences punishable under Sections 363, 366-A and 376 of IPC.

Briefly stating the fact emerging from record are that the FIR of this case came into being at the instance of ‘Risal Singh’, hereinafter being referred to as ‘complainant’ only. In his statement, given by the above named complainant, that before the police on 08.01.2003, it was stated that in the intervening night of 2-3 January, 2003, when he woke up he found that his 16 years daughter namely XXX, hereinafter being referred to as ‘victim’ only, was missing. According to complainant he tried to search her whereabouts and in that endeavour he came across a person named Hasan, who told him that in the intervening night of 2-3 January 2003, in late hours he had seen Mange Ram, hereinafter being referred to as ‘appellant’ only, roaming in front of the house of the complainant. According to complainant he had a strong doubt that his daughter had been enticed by the appellant with ulterior motive.

The case set out by the prosecution before the learned trial Court was that in view of above mentioned statement of complainant formal FIR of this case was lodged and the investigation taken up and that during the course of investigation on 10.01.2003 the appellant and the victim were traced. As per prosecution appellant was duly arrested, and that on interrogation he had suffered a confessional statement wherein he confessed that he had enticed the victim and took her away from the lawful guardianship of her parents. According to prosecution it was also raveled by the appellant that he had taken away the victim in the maruti van, and that in his above mentioned endeavour his cousin namely ‘Santosh’ and husband of cousin namely ‘Sher Singh’ were also involved. According to prosecution in view of above mentioned information provided by the appellant the maruti van used in the commission of offence along with its driver namely ‘Ashu’ and the cousin of appellant namely ‘Santosh’ and her husband namely ‘Sher Singh’ were arrested and sent to the Court to face trial.

Once the investigation was complete, the final report under Section 173 Cr.P.C. was filed by the police in the Court of learned Judicial Magistrate, who committed the case to the Court of Sessions. Before the Court of learned Sessions Judge, i.e. the learned trial Court, opportunity was given to the prosecution to lead its evidence, and the prosecution in support of its stand had examined following witnesses:-

In order to bring home charges against the accused the prosecution had also proved certain documents on record. The documents relied upon by the prosecution and marked with exhibits were as under:-