Case Note & Summary
The case involves two appeals against a common judgment of the Second Ad hoc Additional Sessions Judge, Palghar, convicting the appellants for offences under the Indian Penal Code. The appellants, accused No.1 (Vijaypal Gulabsingh Chauhan) and accused No.2 (Mohamed Nisar Riyaz Khan), were charged with kidnapping and raping a minor girl, Kum. Anjum (PW3), who was below 16 years of age. The prosecution alleged that on 12th October 2001, accused No.2 helped accused No.1 take the victim from near her school in Saphale, Thane district, to Village Jaitra in Uttar Pradesh. Accused No.1 then obtained a false birth certificate and married the victim on 22nd November 2001, after which he forcibly had sexual intercourse with her on multiple occasions. The trial court convicted accused No.1 under Sections 363, 366A, and 376 IPC, and accused No.2 under Section 363 read with 34 IPC. The other four accused were acquitted. The appellants challenged their convictions on the grounds that the victim's age was not proven beyond reasonable doubt and that the evidence was inconsistent. The High Court examined the evidence, including school records and an ossification test, which confirmed the victim was below 16 years. The court held that the victim's consent was irrelevant as she was a minor, and the medical evidence supported the rape. The court also found that accused No.2 actively participated in the kidnapping by taking the victim from school to another state, establishing common intention. The appeals were dismissed, and the convictions were upheld.
Headnote
A) Criminal Law - Kidnapping - Age of Victim - Determination - School records and ossification test are reliable evidence to determine age of victim - Held that the victim was below 16 years at the time of incident, supporting conviction under Section 363 IPC (Paras 2-5). B) Criminal Law - Rape - Consent - Minor - Consent of a minor is no consent in law - Held that even if the victim consented, it is irrelevant as she was below 16 years, and conviction under Section 376 IPC is valid (Paras 6-8). C) Criminal Law - Common Intention - Section 34 IPC - Accused No.2 convicted under Section 363 read with 34 IPC for aiding kidnapping - Held that accused No.2's role in taking the victim from school to another state establishes common intention (Paras 9-10).
Issue of Consideration
Whether the conviction of the appellants for offences under Sections 363, 366A, and 376 of the Indian Penal Code, 1860 is sustainable based on the evidence of age of the victim and the circumstances of the case.
Final Decision
Both appeals dismissed. Conviction of accused No.1 under Sections 363, 366A, and 376 IPC and accused No.2 under Section 363 read with 34 IPC upheld.
Law Points
- Age of victim determined by school records and ossification test
- conviction under Section 363
- 366A
- 376 IPC
- common intention under Section 34 IPC
