Case Note & Summary
The case arose from a criminal appeal filed by the appellant-accused challenging his conviction and sentence for offences under Sections 363, 366, and 376 of the Indian Penal Code. The prosecutrix, a 14-year-old minor girl, was the daughter of the first informant Sunita Sathe. In May 2012, the prosecutrix visited her maternal uncle Hanumant Awaghade's house in Kandhar during summer vacation, where she came into contact with the accused, who worked as a waiter in the uncle's hotel. After she returned home, on 30 July 2012, the accused visited her house at Javalke Satwai when she was alone. He coaxed her with promises of marriage and property and attempted to elope with her. When her mother and grandfather returned and saw the accused, he forcibly took the prosecutrix away. The mother lodged an FIR at Jamkhed Police Station, and Crime No. 105/2012 was registered under Sections 363 and 366 IPC. The police traced the accused and the prosecutrix to a rental premises in Bhimnagar, Daund, District Pune. Medical examination and investigation led to addition of Section 376 IPC. The accused was charged, pleaded not guilty, and faced trial before the Additional Sessions Judge, Ahmednagar, who convicted him and sentenced him to rigorous imprisonment. The appellant contended that the prosecutrix was a consenting party, her age was not conclusively proved, and the school leaving certificate was not admissible. The State argued that the prosecutrix was a minor, taken without guardian's consent, and consent was immaterial for rape. The High Court examined Section 361 IPC, which defines kidnapping from lawful guardianship, and found that the testimony of the prosecutrix, her mother, grandfather, uncle, and the landlady established that she was taken out of lawful custody without consent. On the issue of age, the court relied on the school leaving certificate produced by PW5, an assistant teacher, which showed the date of birth as 30 April 1998, and held it admissible under Section 35 of the Evidence Act. Together with oral evidence, it proved the prosecutrix was 14 years old, a minor under 18. Consequently, her consent was irrelevant, and the sexual intercourse constituted rape under Section 376 IPC. Finding no merit in the appeal, the High Court dismissed it and upheld the conviction and sentence.
Headnote
A) Criminal Law - Kidnapping from Lawful Guardianship - Essentials under Section 361 IPC - Indian Penal Code, 1860, Sections 361, 363 - The prosecution proved through testimonies of the prosecutrix, her mother, grandfather, uncle, and landlady that the accused took the minor prosecutrix, aged 14, out of the keeping of her parents without their consent. The court held that the ingredients of Section 361 were satisfied. (Paras 9-10) B) Evidence Law - Proof of Age - Admissibility of School Leaving Certificate - Indian Evidence Act, 1872, Section 35 - The prosecutrix's date of birth (30-04-1998) was established through the school leaving certificate (Exhibit 23) produced by PW5, an Assistant Teacher. The court held that such certificate is admissible under Section 35 of the Evidence Act and, together with oral evidence, proved the prosecutrix was a minor at the time of incident. (Paras 10-12) C) Criminal Law - Rape of Minor - Consent Immaterial - Indian Penal Code, 1860, Section 376 - Since the prosecutrix was below 18 years, her consent to sexual intercourse was legally irrelevant. The accused had physical relations with her under the pretext of marriage, which constituted rape irrespective of consent. The court upheld the conviction under Section 376. (Paras 13-14) D) Criminal Appeal - Dismissal - No Merit Found - The High Court found the trial court's appreciation of evidence correct and no grounds to interfere. Hence, the appeal was dismissed. (Para 14)
Issue of Consideration
Whether the prosecution proved beyond reasonable doubt that the accused kidnapped a minor girl from lawful guardianship and committed rape upon her.
Final Decision
Appeal dismissed. Conviction and sentence upheld.
Law Points
- Kidnapping from lawful guardianship under section 361 IPC requires female under 18 and taking out of keeping of lawful guardian without consent
- school leaving certificate is admissible under section 35 of Evidence Act to prove date of birth
- consent of minor below 18 years is immaterial for offence of rape under section 376 IPC.
