Judgment:
Kamlesh Sharma, J.
1. These two appeals (Criminal Appeals Nos. 254 of 1991 arid 36 of 1992) arise out of judgment dated 25-11-1991 passed by Additional Sessions Judge, Kullu, District Kullu whereby accused Mehbub All was convicted under Section 366, I.P.C. and sentenced to undergo rigorous imprisonment for a period of four years and to pay a fine of Rs. 5000/-, and in default of payment of fine he was to further undergo simple imprisonment for a period of one year. Out of the fine, if recovered, an amount of Rs. 3000/- was to be paid to the prosecutrix (PW-9) without any prejudice to her claim for damages, if any. Mehbub All filed appeal (Criminal Appeal No. 254 of 1991) to challenge his conviction and sentence, whereas, State of Himachal Pradesh filed (Criminal Appeal No. 36 of 1992) to challenge his acquittal under Sections 376 and 363, I.P.C.
2. The prosecution story in brief is that the accused, who professes Islam and was doing the work of repairing Sofa Sets in the hotels, was the tenant in the building of the father of the prosecutrix, namely, Sada Ram (PW-8) at Manali in the year 1981. Sada Ram and his wife, both teachers, along with their three children, were also residing in the same building. The prosecutrix, the third child of Sada Ram, was studying in matric standard and used to learn Urdu from the accused. On 16-2-1990 at about 8.30 P.M. she was found missing from the house and when frantic search made by the entire family in the vicinity and in the houses of relatives and friends failed, Sada Ram lodged a missing report Ex. PJ in Police Station Manali. He also got published the photo of the prosecutrix in the Punjab Kesari daily issue for 19th March, 1990 Ex. PM and got her photo telecast in the Television but with no result.
3. On 23-9-1990 the prosecutrix accompanied by her father Sada Ram came to Police Station Manali with a child in her lap and gave statement on the basis of which FIR Ex. PQ was registered. According to her, two years back when she was student of 10th Class, she used to go to the room of the accused, who was their tenant, to learn Urdu. One day finding her alone in the room, he started molesting her, to which she resisted and told him that she was minor and he should not indulge in such activities. Thereafter, the accused started writing love letters in Urdu to her, which she used to tear off without reading. Later on he started visiting her sleeping room and at times used to sleep in her bed and one day finding her alone he forcibly committed rape on her and thereafter continued indulging in the illegal act many a time. She has further stated that 13-14 months ago she had conceived from the accused and gave birth to a male child, who was then four months old. Her further statement was that when she was carrying pregnancy of six months, the accused told her that in case the members of her family came to know of it they would kill them, hence they should elope. Accordingly, as per the plan designed by the accused the prosecutrix met him at Kullu on 16-2-1990 and both of them went to Chandigarh, where she was put in rented house and the accused came back to Manali. Thereafter, the accused used to visit the prosecutrix casually and defray the expenses for her stay at Chandigarh. At last she delivered a male child when the accused was also present in the hospital. The prosecutrix has further stated that on 22-9-1990 when she was going back on the pillion of scooter of Asha Thakur (PW-6) after getting her child vaccinated, her cousin Vinod Kumar (PW-7), who was studying at Chandigarh, came across them on a bicycle and stopped them after recognising the prosecutrix. Thereafter he arranged for taxi and brought the prosecutrix to Manali. The prosecutrix further stated that she was kept illegally by the accused at Chandigarh by giving threats to her life and also that the accused had intentions to remove her to Bombay, for which he had already purchased the railway tickets.
4. During the trial the prosecutrix has appeared as PW-9 and has reiterated her statement under Section 154, Cr.P.C. She has given her age as 14 years when the accused had developed physical relations with her and committed sexual intercourse. She has added that the accused had come to know about her pregnancy before she came to know and used to administer some tablets for termination thereof and on having failed he enticed her away to Chandigarh by telling her that if she remained in the house, she would be murdered by her parents. The prosecutrix has further stated that at Chandigarh she was taken to the premises of Subhash Chand (PW-4) in Sector 16 and left there with the directions to her that if she would reveal anything to anyone she would be killed. Thereafter the accused visited her off and on. She has further stated that the accused used to tell her that he would take her to Bombay and would visit her after 2-3 months and if she would leak out this information to anyone in any manner she would be done to death. She has identified her signatures on the medical certificate Ex. PA. According to her, she was first taken by the landlord to the hospital but when the hospital authorities refused to admit her on the ground that there was danger to her life due to her tender age, the accused was called, who undertook responsibility and completed all the formalities and thereafter she was admitted to the hospital for the purpose of delivery. The prosecutrix was subjected to very long and embarrassing cross-examination taut she stuck to her stand that because of her young age she was unable to understand and resist the advances made by the accused by touching her breasts and private part and thereafter committing sexual intercourse on her. It is also stated that after the accused started having sexual intercourse with her, he used to threaten her that if she complained to her parents, they would not believe her as he was of the age of her father and he would blackmail her by naming some other person. According to her she had only menstruated twice before conception. She has denied that she was given beating by her mother after she had come to know about her conception and stated that she was given beating on account of studies and no member of her family could know of her pregnancy as she herself was ignorant of it till the accused told her about it. She has denied that she had voluntarily surrendered herself to the accused for sexual intercourse after marriage was solemnized with her with the consent of the first wife of the accused, who after coming to know about the affairs between the prosecutrix and her husband, the accused, had tried to caution and warn the prosecutrix. She has admitted that at the instance of the accused she was pretending to be his wife during her stay at Chandigarh and she used to give the name of the accused as her husband whenever she used to go for medical check-up. She has admitted that she did not reveal the fact of elopement to anyone except on one occasion she made complaint to an old lady, who was working as labourer nearby and the accused on coming to know of it had given her severe beatings. She has also denied that it was on her insistence to live separately at Bombay, that the accused had purchased tickets Exts. P-15 and P-16 and she has further denied the suggestion that she refused to accompany her cousin PW Vinod Kumar to Manali on the pretext that she was married to the accused and also that she never wanted to lodge the report with the police and had done so at the behest of her parents and relatives.
5. The father of the prosecutrix, namely, Sada Ram PW-8 in his statement has given the age of the prosecutrix as 17 years and 8 months at the time of his deposition in the Court. According to him the accused had been living with his three children, the eldest son of 21 years, second daughter of 19 years and third son of 18 years, in his house as tenant since 1987 and doing the work of repairing the sofas in the hotels and the prosecutrix used to learn Urdu from him. On 16-2-1990 when the prosecutrix was found missing from the house, the accused was also not in his house and had returned after about 12 days and on enquiry, he showed his ignorance about the whereabouts of the prosecutrix and even accompanied 2-3 times the father of the prosecutrix when he went in search of his daughter. As per the statement of Sada Ram, for the first time he had come to know from PW Vinod Kumar when he brought the prosecutrix to Manali that it was the accused who had eloped with the prosecutrix to Chandigarh. Later on he was told by the prosecutrix that the accused had seduced her to have illicit relations and made her pregnant and thereafter enticed her away to Chandigarh. He has produced the original horoscope Ex. P-1 and original matriculation certificate Ex. PP of the prosecutrix on record. In his cross-examination PW Sada Ram has admitted that he had no suspicion on the accused and denied that the prosecutrix had left a letter disclosing that she had 61/2 months pregnancy from the accused and she was going with him. He has further stated that the prosecutrix took birth on 18-11-1973 in Mission Hospital at Manali. He has admitted that in Himachal Pradesh the child is admitted in the school when he is plus five years but he had prepared his children at home and got them appeared in two classes in one year. Accordingly, the prosecutrix was admitted in Government Primary School, Manali Bazar and her date of birth was mentioned in her admission slip, either in first or in third standard, which he failed to remember. He has categorically denied that after he had come in possession of a letter written by one of his tenants, namely, Pappu, to the prosecutrix, he had given her beatings one month prior to her missing from the house and also that at that time she was already married to the accused. Though he has admitted that in the year 1987 he had got made a sofa from him by supplying wood and paying Rs. 3200/- to the accused yet has denied the suggestion that the accused had brought for him 8 pairs of 4' mattresses (dunlop) valuing Rs. 1400/- per pair, a television, a radio, two quilts, a sofa set valuing Rs. 3500/- from Chandigarh. This witness has gone on record to state that he could not believe when PW Vinod Kumar disclosed to him that the accused had eloped with the prosecutrix as he was of his age and retorted that it could be his son. He has also denied the knowledge of advance stage of pregnancy of the prosecutrix before she was found missing and also that the prosecutrix never wanted to foist this case on the accused and it has been done at the instance of other relations of this witness. Though in the end of his statement he has admitted that he had written letter Ex. DA to PW Asha Thakur, yet denied that he had personally contacted the prosecution witnesses to see that the accused is convicted by all means.
6. One more important witness is Shakuntla Sharma PW-14, Central Head Teacher, Government Primary School, Manali Bazar, who produced the admission record of the prosecutrix in the second standard in Government Primary School, Kullu and Government Primary School, Manali. She has produced and proved a copy of original admission form dated 26-10-1979 and a copy of original application Ex. PZ filed by PW Sada Ram, the father of the prosecutrix at the time of her admission in Government Primary School, Kullu, a copy of school leaving certificate Ex. PZA from Government Primary School, Kullu, which was presented at the time of admission at Government Primary School, Manali and a copy of the extract of the admission and withdrawal register wherein at Serial No. 10345 the name of the prosecutrix is mentioned, who was admitted in Government Primary School, Kullu on 26-10-1979 till 4-10-1980. A copy of the extract of the admission and withdrawal register of Government Primary School, Manali Ex. PZC is also produced and proved wherein the name of the prosecutrix is mentioned at Serial No. 7997 who was admitted on 6-10-1980 and remained in the school till 13-4-1983. The application for admission in Government Primary School, Manali filled in by PW Sada Ram is also on record as Ex. PZD. In all these documents, the date of birth of the prosecutrix is mentioned as 18-11 -1973. In cross-examination this witness has admitted that no municipal or panchayat record showing the date of birth of the prosecutrix is in the school record as there was no such requirement in those days. She has further explained that a ward is admitted in the first standard on his completion of five years and ten months but since the prosecturix was a private candidate in the first standard, she was accorded the permission in the second standard by the BEO and also the production of municipal record regarding the date of birth is insisted upon but if it is not available the parents or the guardian may give affidavit duly sworn in before the Magistrate 1st Class but in the present case no such affidavit was filed by the parents of the prosecutrix regarding her date of birth.
7. From the statements of other witnesses, namely Subhash Chand PW-4, Ravinder Kumar PW-5, Asha Thakur PW-6 and Vinod Kumar PW-7 the prosecution story that the prosecutrix was taken to Chandigarh by the accused on 16-2-1990 and kept there in the rented premises till she was noticed by her cousin PW Vinod Kumar and brought to Manali on 22-9-1990, during which period she delivered a male child in the Government Hospital at Chandigarh, has been duly proved. However, we need not refer to their statements in view of the defence of the accused as revealed from the trend of cross-examination of the prosecution witnesses and his statement under Section 313 Cr.P.C. He has admitted that he was tenant of PW Sada Ram, the father of the prosecutrix, from 1987 to September, 1990 and at that time he was married and having three children of the ages between 16 to 19 years. He has further admitted that during those days the prosecutrix was studying in matric but denied that her age was 13 to 14 years. According to the accused the age of the prosecutrix was more than 16 years. He has further denied that the prosecutrix used to learn Urdu from him when she was studying in matric and stated that he knew very little Urdu, but admitted that during those days he was casual visitor to the house of PW Sada Ram being tenant in the same building. He has admitted that he was not in Manali at the time the prosecutrix was found missing from the house and came back after about 12 days but denied that PW Sada Ram made any enquiry from him about the whereabouts of the prosecutrix as the mother of the prosecutrix knew it well that she had gone with him to Chandigarh. Denying the allegations of molesting and rape, the accused has come forward with the story that he had solemnized the marriage with the prosecutrix at Kullu Masjid and thereafter lived with her as husband and wife in a room provided by her father PW Sada Ram in the second floor of the building. He has further admitted that he took the prosecutrix to Chandigarh and kept her in the house of PW Subhash Chand, where he had been visiting her after short intervals of 2-3 days but has denied that he used to threaten the prosecutrix with her life if she dared to speak anything to anyone. He has admitted that the prosecutrix delivered a male child in May, 1990 in the Government Hospital when he was also present and had signed the history sheet Ex. PR which was already filled in by the prosecutrix before his arrival in the hospital. According to him as per the wish of the prosecutrix to go to Bombay and settled there with him, where his younger brother has got a house, he had purchased tickets for Bombay. In reply to the question that why the witnesses have deposed against him, he has taken the stand that it is on the instigation of the husband of the sister of the mother of the prosecutrix who is S.H.O. at Police Station, Bilaspur and also because the relatives of the prosecutrix were not happy with his marriage with the prosecutrix. He has further stated as under :-
I had been a tenant of Sada Ram. We were in visiting terms in the house of each other. I had a television and Ashma used to visit our premises to see the programmes. She used to call me uncle.
But one day, I gave a hint to her expressing my desire and gave a note thereon in case, I would ask a question from her whether she would give reply. On this she had sent a message in writing through a child. Then I told her that I had fallen in love with her. She told me that she had also been in love with me prior to my expressing the said feelings.
Thereafter both of us were exchanging the letters and both of us used to destroy it. My wife Fatima also noticed our activities, on this she felt offended and left my house for some time. I also told Ashma that she used to call me uncle, therefore, she should behave like uncle, but she kept on weeping throughout the day.
She was more than 16 years of age at that time and expressed her desire to solemnize marriage with me. We both got married in Masjid at Kullu. Sada Ram provided a separate room on the second floor to us where we had resided together as husband and wife. Ashma got pregnant and expressed her desire to go to Chandigarh. She was taken for delivering the child at Chandigarh. She wanted to settle down with me at Bombay for that 1 had arranged for the tickets of rail. Ashma was kept in the rented premises by me at Panchkula and after the delivery she was kept in Sector 15 House No. 129 owned by the father of Ravinder PW-I never did anything against her will. When I was arrested and taken to Panchkulla along with Ashma, by the police, on the way Ashma told me that in fact the entire plot and conspiracy against me had been hatched up by her Masad (the husband of the sister of Ashma's mother), who was a SHO somewhere, in police and belonged to Bilaspur.
In fact, I had married with Ashma, who was more than 16 years and from this wedlock a male child is born. Ashma used to take money for daily needs from me after the marriage. She also used to take money from my another wife Fatima. However, Ashma used to take her food with her parents. When Ashma became pregnant after the marriage her mother also knew this fact.
The father of Ashma was supplied T.V. and matresses by me but no payment by her father Sada Ram was made to me. He had also not paid anything to me when I had manufactured a sofa on his order.
When Ashma was taken by Vinod and Asha Thakur PWs, she was having gold ornaments arid other valuables but I do not know where those articles have gone. The marriage photos and Nlkahnama were also misplaced from Panchkulla.
I am innocent.
8. The accused has produced his wife Fatima as DW-1 and wife of his brother Mehmood, namely, Afsari, DW-2, and Abdul Jawahar DW-3 in his defence. DW Fatima has given the age of the prosecutrix as 15 years in the year 1987 and 17 years at the time of her deposition in the Court. According to her she had seen her husband at one time in the room of the prosecutrix and stopped talking with her, who later on told her that she was unnecessarily suspicious and there was nothing in between her and the accused, but when she found that the accused and the prosecutrix continued meeting each other and did not pay any heed to her advice, she allowed them to marry. As per the statement of this witness the age of the prosecutrix was 16!/2 years at the time her Nikah with the accused was performed at Kabristan and Masjid at Dhalpur in the presence of one Khan, who was then lodged in Sub Jail, Kullu and his son who was aged 18-19 years. In her cross-examination this witness has stated that Nikah was performed in the month of February about 21/2 years ago. She has admitted that she did not complain regarding the relations of the accused with the prosecutrix to her parents, as she had told that she was not afraid of them. Giving the details of the alleged marriage between the accused and the prosecutrix, she has stated that only a Kutcha receipt was issued by the Mulla solemnizing the marriage, which was handed over to the prosecutrix. She has admitted that DW Abdul Jawahar was lodged in Jail in a narcotic case. She has admitted that the marriage of the prosecutrix with the accused was kept secret from her parents as she wanted to reveal it herself and face the situation.
9. DW Afsari has stated that when the accused had brought the prosecutrix to her house, her pregnancy was visible. As per this witness, she had accompanied the prosecutrix to the hospital when she had gone there for the purpose of her delivery and she had advised her to intimate her parents about her delivery, which she had done as per her statement made on a later date. This witness has further stated that the prosecutrix refused to accompany a boy in a taxi, who was claiming to be her brother and she was forcibly taken by him.
10. DW Abdul Jawahar, who was produced from Judicial Lock-up in Sub Jail, Kullu, has deposed that in February, 1988 the accused had come to him along with a girl, who told her age as 161/2 years or 17 years and showed her willingness for marriage. Though this witness has given the account as to how a marriage is solemnized in the Masjid, yet he has not stated that any such marriage was performed between the prosecutrix and the accused. He has only stated that on their enquiry from both the accused and the prosecutrix before the Mulla, they had refused that they had sexual intercourse prior to that date. In his cross-examination he has given the name of Mulla as well as the other witness who has not been produced by the accused. He has admitted that he was under-trial prisoner in an N.D.P.S. case. He has admitted that child marriage is illegal and a girl below the age of 18 years cannot be legally married in any religion. He has further stated that he was the only Muslim residing in Kullu for the last 30 years and no marriage of any girl of any age was solemnized in the Masjid at Kullu in his presence. In the next breath he has denied that the accused had not married a Hindu girl in his presence. This witness has admitted that he was involved in 40 Excise cases got registered by his landlord to force him to vacate the premises, and out of which he was convicted in one case but acquitted by the High Court.
10A. On the basis of the evidence on record the Addl. Sessions Judge in his impugned judgment has come to the conclusion that the age of the prosecutrix when she left the house of her parents on 16-2-1990 was 16 years and three months and 15 years and 10 months when the first coitus is said to have been done 5-6 months prior to 16-2-1990 as per the prosecution story. However, relying upon the judgment of the learned single Judge of this Court in Bittu alias Anand Singh v. State of Himachal Pradesh 1986 Sim LC 113, the Additional Sessions Judge has held that the age of the prosecutrix was a little short of her consenting age, hence no offence under Section 376, I.P.C. is made out, specially when the consent of the prosecutrix is clearly made out from the circumstances on record regarding the coitus. The skeleton age opined by the Radiologist has also not been accepted as decisive and uncontrovertible keeping in view that it admits error of three years on either side. As per the Additional Sessions Judge, even for the offence under Section 363, I.P.C. the requisite age of 18 years as on 16-2-1990 falls short and the accused has been acquitted. However, he has been convicted under Section 366, I.P.C. holding that the accused had induced the prosecutrix to leave her place by deceitful means. It is also held that the accused had been acting in a mala fide manner and he had created the circumstances for the prosecutrix knowing it to be likely that she will be compelled or forced to be seduced for illicit intercourse, thus she left her house to Chandigarh and accompanied the accused under compulsion and not of her own free volition.
11. After scanning the evidence and hearing learned counsel for the parties we would proceed to examine the findings of the Additional Sessions Judge in respect of the age of the prosecutrix, on which the case of the prosecution hinges in respect of the offences under Sections 363 and 376, I.P.C. So far oral testimony is concerned, as per the father of the prosecutrix PW Sada Ram she was 17 years and 8 months on 14-8-1991. He has also produced and proved a copy of the horoscope Ex. PN and Matriculation Certificate Ex. PP, in which the date of birth of the prosecutrix is mentioned as 18-11-1973. He has explained that the record of the Mission Hospital, Manali, wherein the prosecutrix was born on 18-11-1973, could not be produced as it got gutted in fire. According to him, he did not remember whether the prosecutrix was admitted in the school in first standard or third standard, though he had been preparing her at home and making her to appear in two classes simultaneously after getting permission from the Block Education Officer. He has also stated that the admission forms were filled in by him. The prosecutrix has also given her age as 17 years and 8 months on the date of her examination in the Court on 17-8-1991. According to her she was less than 14 years at the time when she was sexually assaulted. She has denied the suggestion put in cross-examination that she had voluntarily surrendered herself to the accused for sexual intercourse. No cross-examination was made to dispute her statement regarding her age at the time she was molested or subjected to sexual intercourse. PW Sada Ram is fully corroborated in respect of the age of the prosecutrix by the record produced by PW Shakuntla Sharma. In all the documents produced and proved by PW Shakuntla Sharma, namely, Exts. PY, PZA, PZB, PZC and PZD, the date of birth of the prosecutrix is mentioned as 18-11-1973, which was though got recorded by the father of the prosecutrix PW Sada Ram at the time of her admission in the school yet it can be accepted as correct, as he at the relevant time had no reasons to give wrong date of birth of the prosecutrix. It is explained by PW Shakuntla Sharma in her statement that at the time of admission of the prosecutrix there was no requirement of producing municipal or panchayat record in respect of date of birth of a ward and otherwise also in the absence of such record the affidavit of the parents or guardian is accepted as proof of the date of birth. In the present case PW Sada Ram, the father of the prosecutrix had given a certificate on the admission form submitted at the time of admission of the prosecutrix in the school on 26-10-1979 that the date of birth i.e. 18-11-1973 given therein was correct to his belief and record of Municipality or Birth Register of Chowkidar. Therefore, on the basis of the oral as well as documentary evidence, which is consistent, the date of birth of the prosecutrix can safely be taken as 18-11-1973.
12. So far the skeletal age of the prosecutrix is concerned, it is determined as 17 to 19 years as per the report Ex. PC dated 3-10-1990 of ossification test conducted by Dr. G. D. Gaur (PW-2) on 1-10-1990. This witness has admitted in cross-examination that there can be variation in respect of the skeletal age by three years on either side. In view of this, the Additional Sessions Judge has rightly held that it cannot be accepted as decisive or conclusive but he is not right in holding that its benefit should go to the accused in view of the overwhelming oral and documentary evidence on record about exact date of birth and age of the prosecutrix.
13. Though, as per the statement of the prosecutrix she was 14 years of age when she was sexually assaulted by the accused, yet in view of her further statement that the accused had committed sexual intercourse with her about 5-6 months before taking her to Chandigarh on 16-2-1990 and the cross-examination on behalf of the accused of PW Sada Ram that the prosecutrix was pregnant by 61/2 months when she was taken to Chandigarh on 16-2-1990 and in view of the medical evidence on record that she gave birth to a male child on 15-5-1990 as stated by Doctor K. L. Rastogi (PW-10), it can be safely held that the prosecutrix was less than 16 years of age when first coitus had been committed, to be nearing exact, she was about 15 years and 9 months or 15 years 10 months.
14. In the background proved on record that the accused, who was of the age of the father of the prosecutrix and was having daughter of her age and sons elder to her, had committed breach of trust imposed upon him by the parents of the prosecutrix by sending her to him for learning Urdu and had made her victim of his lust, he is not entitled to the benefit of the age of the prosecutrix falling a little short of her consenting age of 16 years as has been given by the Additional Sessions Judge. The observations of learned single Judge in Bittu alias Anand Singh v. State of Himachal Pradesh 1986 Sim LC 113 (supra) are in the context of the facts of that case and do not lay down legal principle to be applied in all the cases of rape that if the age of the prosecutrix falls short of consenting age of 16 years by a few days or a few months the benefit will be given to the accused. The case in hand is shocking one where a girl of tender age, who was student of 10th Class, was sexually exploited by the accused, who was in the capacity of her tutor. It is believable that she was not able to understand the consequences of sensual pleasure of physical contact with the opposite sex i.e. the accused, because of her tender age and background, but the accused, who was not only married but also father of three grown-up children, very well knew that by developing physical relations with the prosecutrix he was ruining her physically, mentally, morally as well as socially and thereby not only spoiling her future but also the honour and reputation of her family. It can better be imagined than explained how humiliated and stigmatized the parents and close relatives of a rape victim feel. In this background the accused cannot be given the benefit of age of the prosecutrix falling a little short of 16 years, the age of discretion provided under Section 376, I.P.C. It will be doing violence to the provisions of Section 376, I.P.C. if such a benefit is given in a case like the present one in which it is clearly established that the age of the prosecutrix was less than 16 years when she was sexually assaulted, molested and repeatedly raped, as a result of which she became pregnant and completely lost her identity as a young girl of respectable family and daughter of parents who were teachers.
15. The defence of the accused that they had fallen in love and thereafter got married in a Masjid, is only a cock and bull story and an afterthought to escape from the criminal liability. The statements of his wife DW Fatima and his jailmate DW Abdul Jawahar in respect of the marriage are prima facie false and only an attempt to help the accused. What to talk of any documentary evidence, even Kachi Chit which was alleged to have been issued by the Mulla as a proof of solemnization of the marriage, has not been produced. There are material contradictions in the statements of DWs, such as, the accused has stated that after solemnization of the marriage the father of the prosecutrix PW Sada Ram provided them a room in his house where they lived as husband and wife but his wife DW Fatima has stated that the marriage was kept secret at the instance of the prosecutrix. In fact, in the facts and circumstances on record it is more than clear that the prosecutrix fell prey to the lust of the accused sometimes in the middle of 1989, if not earlier, when definitely she was not of consenting age and thereafter she herself became puppet in the hands of the accused, more specifically, when she became pregnant.
16. In view of this background we are not in agreement with the Additional Sessions Judge that the consent of the prosecutrix is made out from the facts and circumstances on record regarding the coitus. Even If presumed, it is of no consequence, as she was definitely below 16 years of age at the time she was subjected to coitus and the offence under Section 376, I.P.C. is clearly made out. Therefore, we set aside the acquittal of the accused and hold him guilty for the continuous rape of the prosecutrix when she was less than 16 years of age, as a result of which she became pregnant and thereafter lost her free will arid consent to oppose and resist the accused from using her as an object of satisfying his carnal desires. By no stretch of imagination it can be said that the prosecutrix had surrendered to the accused voluntarily even after attaining the age of discretion i.e. 16 years.
17. So far offence under Section 363, I.P.C. is concerned, the Additional Sessions Judge is wrong in coming to the conclusion that it is not cogently proved, in view of his own findings that the age of the prosecutrix is proved to be 16 years and 3 months on 16-2-1990 when she was taken away to Chandigarh from the lawful custody of her parents at Manali in view of the age of 18 years prescribed under Section 361, I.P.C. to conclude an offence under Section 363, I.P.C. Therefore, we also set aside the acquittal of the accused and convict him under Section 363, I.P.C.
18. As regards the finding of the Additional Sessions Judge that the offence under Section 366, I.P.C. is made out, we do not find any infirmity in it. He has rightly held that after the prosecutrix acquired the knowledge that she was pregnant, she must he under great stress, strain and tension and was not in a position to take any voluntary decision and in such a situation she had no alternative but to concede to the inducement of the accused that in order to save herself from the wrath of her parents and the social stigma she should elope with him to Chandigarh. According to her, the accused had gone to the extent of telling her that she might be killed by her parents on their coming to know of her pregnancy. It has come on record that it was the accused who had masterminded and financed the elopement of the prosecutrix with him from the custody of her parents from Manali as well as her stay at Chandigarh. It was he who had taken the premises on rent at Chandigarh and made necessary arrangements for her delivery. He had also hatched the plan to go to Bombay and had purchased tickets Exts. P-15 and P-16 for the train. From these circumstances on record it is proved beyond reasonable doubt that the prosecutrix was kidnapped with the intention as well as knowledge that she will be forced or seduced to illicit intercourse. She might not have left the house of her parents had the accused taken her parents into confidence instead of telling the prosecutrix that they might kill her after acquiring the knowledge that she was pregnant from the accused.
19. In the result, the appeal (Criminal Appeal No. 254 of 1991) filed by the accused is rejected and the appeal (Criminal Appeal No. 36 of 1992) filed by the State is allowed and the findings of the Additional Sessions Judge in respect of the acquittal of the accused under Sections 363 and 376, I.P.C. are set aside and he is held guilty for the offences under Sections 363, 366 and 376, I.P.C.
20. We have heard the learned counsel for the accused on the quantum of sentence. In the facts and circumstances on record the accused does not deserve any leniency and he is sentenced as under :-
1. Five years rigorous imprisonment and a fine of Rs. 5.000/ under Section 376, I.P.C. and in default of payment of fine further rigorous imprisonment for one year.
2. Four years rigorous imprisonment and a fine of Rs. 4,000/- under Section 363, I.P.C. and in default of payment of fine further rigorous imprisonment for nine months.
3. The sentence under Section 366, I.P.C. as awarded by the Additional Sessions Judge is maintained.
All these sentences will run concurrently. Out of the amount of fine, if recovered, a sum of Rs. 10,000/- will be paid to the prosecutrix as compensation. The accused will be given remission for the period already undergone. He is directed to surrender to the Sessions Judge, Kullu District within a period of three weeks.