H. Barua, J.
1. Heard Mr. S. Alim and Mr. T. Son, learned Counsel for Shri Santosh Sarkar and Shri Krishna Bahadur Tamang, each being the appellant in Criminal Appeal No. 04 (AP)/2007 and No. 09 (AP)/2006 respectively. Also heard Mr. N. Lowang, learned Additional Public Prosecutor for the respondent, the State of Arunachal Pradesh.
2. By this common judgment and order, this Court proposes to dispose of the Criminal Appeal No. 04(AP)/2007 and Criminal Appeal No. 09(AP)/2006 preferred by Shri Santosh Sarkar and Shri Krishna Bahadur Tamang respectively, both appellants, since the facts and the law involved therein are common and similar in nature.
3. Both the appellants above named were tried by the learned Additional Sessions Judge, Fast Tack Court, Basar, Arunachal Pradesh, under Section 366 read with Section 34 of the Indian Penal Code, while appellant Santosh Sarkar was alone tried under Section 376 of the IPC. Both the appellants were convicted under Section 366 read with Section 34 of the IPC by the learned trial Court and sentenced each of them to suffer rigorous imprisonment for 4 (four) years and fine of Rs. 2,000/- (two thousand) only and in default of payment of fine to suffer R.I. for six months, each, while appellant Santosh Sarkar alone was convicted and sentenced to suffer rigorous imprisonment for 6 (six) years and pay a fine of Rs. 2,000/- (two thousand) only in default to pay the fine to suffer R.I. for 6 (six) months.
4. Feeling aggrieved by the impugned judgment and order, dated 26.10.2006 and 30.10.2006, passed in BSR/SESS. Case No. 201/2002 by the learned trial Court, both the present appeals have been filed by the appellants challenging its legality and correctness thereof.
5. It would be appropriate for this Court, before going into the merit of the appeals, to project the case of the prosecution, which finds place in both the appeals. It would be pertinent to mention hereat that the prosecution in both the appeals is one and the same.
6. Victim, PW-1 is the daughter of P.W. 2. During the relevant period, she was a student of Class-VIII and was about 14 (fourteen) years of age. On the relevant day, she had been to school but did not return home till the evening hours. PW-2, her father and PW-3, her mother both searched for her whereabouts but failed but after various search, it came to their knowledge that appellant Santosh Sarkar alongwith appellant Krishna Bahadur Tamang had taken away their girl (PW-1) in a Maruti Van unto a river wherefrom both Santosh Sarkar and the girl had crossed the river and left for somewhere else. The father of the victim accordingly lodged FIR, Ext. 1 before police. Police registered a case and commenced investigation. During the course of investigation, the girl was recovered and the appellant Santosh Sarkar was arrested. Rape on the girl (PW-1) was alleged to have been committed by the appellant Santosh Sarkar. The vehicle in which the girl was taken was also seized by police. Appellant Krishna Bahadur Tamang was also subsequently arrested. The victim was produced before a Medical Board for her medical examination and opinion as regard the age of the victim. Medical Board examined the victim and submitted their report. The I.O. (PW-6) after completion of the investigation submitted charge sheet against both the appellants under Sections 363/366/34 of the IPC and under Section 376 of the IPC alone against Santosh Sarkar. After laying of the charge sheet, the case was committed to the Court of Session. Learned Additional Sessions Judge having found materials against both the appellants framed charge under Sections 366 read with Section 34 of the IPC while a charge under Section 376 IPC alone was framed against appellants Santosh Sarkar. Altogether 9 (nine) witnesses were examined by the prosecution. No defence evidence either oral or documentary was adduced by the defence side. The appellants were examined under Section 313 of the Code of Criminal Procedure. They pleaded their innocence. Defence case is of total denial. At the conclusion of the trial, the learned trial Court convicted both the appellants and sentenced as herein above stated.
7. Learned counsel for the appellants at the very out set of the argument submitted that the learned trial court failed to appreciate facts and evidence on record in its proper perspective and thus erroneously rendered finding of conviction, which, however, cannot sustain in law. It is argued by the learned Counsel for the appellants that the victim being at the age between 16 to 17 years had left with the appellant, Santosh Sarkar at her own accord and there was no inducement, threat, nothing of the sort whatsoever was given by the appellants to the victim. Nor force was used to go with them. Victim, it is argued, was in love with the appellant Santosh Sarkar since Santosh Sarkar had a Garage nearby her house. Intimacy developed in between them, which resulted love and affection towards each other. So, in the face of facts appearing in the evidence on record, learned Counsel for the appellants argued that no punishment can be awarded against the appellants under Section 366 of the Indian Penal Code.
8. Per contra to the submission of the learned Counsel for the appellants, the learned Public Prosecutor referring to the evidence of PW-1, PW-2 and PW-3 and the doctors, who were examined as PW-4, PW-5 and PW-7 argued that the consent of a minor is no consent. As per evidence of the doctors, the age of the victim is in between 16 to 17 years and she is accordingly a minor girl. In that view of the matter, it cannot be said that she is major one and had given her consent to go alongwith the appellant Santosh Sarkar. Evidence of the doctors, PW-4, PW-5 and PW-7 are carefully perused by this Court wherefrom it appears that at the relevant time of examination of the victim, she was in between 16 to 17 years of age. Evidence of the doctors are not found to have been shattered in any manner through cross-examination by the defence in respect of the age of the victim. Thus, from their evidence, the age of the victim girl appears to be in between 16 and 17 years. Learned counsel for the appellants while arguing this case in the context of the age of the victim girl submitted that since no school certificate was produced and proved at the time of trial, evidence of the doctors cannot be held reliable. A school certificate is regarded as best evidence in the proof of age of a child. Argument so advanced by the learned Counsel for the appellants cannot be accepted in view of the fact that PW-4, PW-5 and P.W.-7 all arrived at a decision after clinical examination of the victim and ossification test. It is true that two years plus minus can be calculated at a given age of a child. It can go in either way. If the age of the girl is 16 years plus minus two years, it can be either 14 years or 18 years. Now, in this context let us consider the evidence of P.W.-2 and P.W. 3, who are the parents of the victim (P.W. 1). The parents are the best persons to say about the age of their child. So, as per their evidence, the age of the girl at the relevant point of time was 14 years and she was a student of Class-VIE. Learned Sessions Judge while taking this matter into consideration, had discussed all the facts and circumstances of the case and the evidence on record and came to a finding that at the relevant point of time the girl was minor in between 16 to 17 years of age. So, when the victim girl was a minor and she went alongwith appellant Santosh Sarkar at the instance of himself and the other appellant, it cannot be said that the victim was major had gone with her own will. This Court has no hesitation to hold on the facts and circumstances of the case and the evidence on record that victim girl was a minor at the relevant point of time.
9. Now, let us discuss about the charge of kidnapping. It is alleged that both the appellants kidnapped the victim from the lawful guardianship of PW-2 and PW-3. In this context, it would be appropriate for us to discuss the evidence of PW-1, the victim herself. The victim in her evidence categorically stated that while she was going to school, both the appellants came to her and asked to board a Maruti Van saying that they would move around for some time. Since appellant Santosh Sarkar was known to her, she without any hesitation boarded the said Maruti van. It is stated by PW-1, the victim that Maruti van was driven by appellant Krishna Bahadur Tamang. The Maruti van moved towards R.K. Mission School and noticing that on the way she asked appellant Santosh Sarkar about their destination. In reply to her query, appellant Santosh Sarkar told that he had some thing to collect from ahead and would be returned soon. In the process, the appellants Santosh Sarkar and Krishna Bahadur Tamang had taken the vehicle nearby a river and keeping appellant Santosh Sarkar and herself threat, appellant Krishna Bahadur Tamang came back with the vehicle. Thus, the acts on the part of both the appellants makes it palpably clear that both the appellant had with some pre-concerted intention to take the girl from the lawful guardianship of PW-2 and PW-3. It is also in her evidence that she travelled alongwith the appellant Santosh Sarkar unto Gauhati and also to Siliguri where a marriage had been performed with the appellant Santosh Sarkar. It is further stated by her that a Magalsutra was put on her neck and vermilion (sindur) on her forehead. By doing so, she was made to believe that she is the wife of appellant Santosh Sarkar. After marriage, she had sexual intercourse with the appellant Santosh Sarkar. It is argued by the learned Counsel for the appellants that appellant Krishna Bahadur Tamang being the driver of the said Maruti van had given a lift to both the appellant Santosh Sarkar and the victim unto to river and did not play any part in taking PW-1. To prove this aspect no evidence is found on record that appellant Santosh Sarkar had paid taxi fare to appellant Krishna Bahadur Tamang for such lift. The manner in which both the appellants had taken the victim (PW-1) apparently go to show that they had preconcerted mind to take the girl from the lawful guardianship of her parents. There is no evidence on record to show that appellant Krishna Bahadur Tamang did ever objected in taking the minor girl in his vehicle by the appellant Santosh Sakar. This fact coupled with non-payment of taxi fare to appellant Krishna Bahadur Tamang by appellant Santosh Sarkar makes the case of the prosecution acceptable that both the appellants had the intention to take the girl, PW-1 from the lawful custody of her parents. Learned trial court in the context of the charge, discussed all points in detail including the application of Section 34 of the IPC.
10. Section 366 IPC provide punishment for kidnapping. In the Section itself, it is said that whoever adducts or kidnaps any woman with intention to seduce her to illicit intercourse or marriage against her will with the person/ persons, who kidnaps/kidnap is/are liable to be punished as provided in the section itself. It is argued by the learned Counsel for the appellants that since the victim had gone alongwith the appellant Santosh Sarkar at her own accord and since she was in knowledgeable age, the provision of Section 366 cannot be applied as against these appellants. Section 362 of the IPC provides the definition of abduction. It says whoever by force compels or by any deceitful means induces any person to go from any place is said to have abduct this person. For the purpose of application of Section 362 IPC, the age is not material. Any person can be abducted but for the purpose of application of Section 361 kidnapping from lawful guardianship; the age is material one. From the evidence on record we have found that the age of the victim was in between 16 and 17 years and she was apparently a minor at that time. Therefore, there is nothing to disbelieve in the evidence of PW-1, P W-2 and PW-3 in regard to taking of the victim girl and also the age of the victim. Therefore, their evidence also receives assistance from the evidence of the doctors, PW-4, PW-5 and PW-7. This court, therefore, in view of the facts and circumstances of the case and the evidence on record and the discussion made by the learned trial court with reference to taking of the victim (PW-1) does not find any plausible ground to discard the evidence that the appellants on the relevant date and time had not kidnapped the victim, PW-1. The argument so advanced by the learned Counsel for the appellants cannot carry any force to reject the case of the prosecution.
11. Learned Addl. P.P. in the context of kidnapping of the victim girl, the PW-1, submitted that there is nothing in the record to show otherwise that the appellants did not resort to such an act of kidnapping. While referring to the age of girl, he has also led me through the evidence of PW-4, PW-5 and PW-7, the doctors. This court is, therefore, constrained to hold that the evidence available on record and the facts narrated cannot deny the fact of taking of the victim (PW-1) from her lawful guardianship on the relevant date. This court does not see any ground to accept the case of the appellants in this regard. Therefore, this Court maintains the conviction and sentence so awarded by the learned trial court under Sections 366/34 of the IPC.
12. Learned trial court also convicted the appellant Santosh Sarkar under Section 376 for committing rape on the victim (PW-1). There is no dispute that the victim was not with the appellant Santosh Sarkar. It is in the evidence of PW 1, the victim herself stated that she was taken away by both the appellants while she had been going to school in a Maruti van. Appellant Santosh Sarkar had taken her to many destinations including Siliguri. She was garlanded with a Mangalsutra and vermilion (sindur) was put on her forehead. She was also told that she would be the wife of the appellant Santosh Sarkar. It is also in the evidence that both the appellant Santosh Sarkar and the victim were living together as husband and wife and had sexual intercourse in between them. Section 375 of the IPC speaks for the circumstances while Section 376 provides punishment for rape. A man is said to commit rape under the following circumstances:
First- Against her will.
Secondly- Without her consent.
Thirdly- With her consent, when her consent
has been obtained by putting her or
any person in whom she is interested
in fear of death or of hurt.
Fourthly- With her consent, when the man knows
that he is not her husband, and that her
consent is given because she believes
that he is another man to whom she is or
believes herself to be lawfully married.
Fifthly- With her consent, when, at the time of
giving such consent, by reason of unsoundness
of mind or intoxication or the administration
by him personally or through another of any
stupefying or unwholesome substance, she is
unable to understand the nature and consequences
of that to which she gives consent.
Sixthly- With or without her consent, when she is
under sixteen years of age.
13. In this case we are Very much concerned with the circumstances falling under Clauses 1, 2 and 6. We have already found from the evidence of doctors plus the evidence of parents that the victim at the relevant point of time was 14 years of age. Doctors of course have opined the age of the girl in between 16 and 17 years. If according to the medical jurisprudence, two years plus minus is calculated at the given age, the age of the victim at the relevant point of time can be calculated 14/16 years if subtracted from and if added to it would stand at 18/19 years. Therefore, the circumstances appearing in Clause 6 of Section 375 of the IPC is very much found in favour of the prosecution and from the facts and evidence on record as against the appellant Santosh Sarkar. From the cross-examination of the witnesses, more particularly, the evidence of PW 1, it is nowhere found that the defence was successful in rebutting her evidence in the context of sexual intercourse with appellant Santosh Sarkar after the so called marriage. When positive evidence is not rebutted either by cross-examination or adducing evidence in regard to sexual intercourse by one person with a woman, it cannot be held that no such sexual intercourse ever occurred in between them. The same theory can be applied herein both the appeals also wherefrom we cannot infer from the evidence of PW-1 that the appellant Santosh Sarkar had no sex with her. The learned trial court after thorough discussion, deliberation and marshalling of the evidence on record and the facts, came to a finding that appellant Santosh Sarkar after putting vermillion (sindur) and Mangalsutra made PW-1 to believe that he was the husband and thus induced her to give consent for sex. The words 'with' or 'without' appearing in Section 375 of the IPC under 6th circumstance can be very much applied as against the appellant Santosh Sarkar since PW-1, the victim, was admittedly under the age of 16 years and her consent is no consent at all, if such consent, even if given, is immaterial for the purpose of Section 376 IPC under the facts and circumstances on record.
14. Having considered all the facts and circumstances of the case and evidence on record, this Court does not find any cogent and sufficient ground to interfere with the impugned judgment and order of conviction and sentence as awarded to both the appellants. The impugned judgment and order of conviction are accordingly affirmed.
In the results, both the appeals fail.