MOHAMED NISAR RIAZ KHAN Vs. SATATE OF MAHARASHTRA

JUDGEMENT

(1.) These appeals can be disposed of by common judgment. I intend to do so because both the appeals are filed against the self-same judgment and order passed by the Second Ad-hoc Additional Sessions Judge, Palghar, dated 6th June, 2003 in Sessions Case No. 32 of 2002. The appellants before this Court are accused No. 2 and accused No. 1 respectively. The appellants were charge-sheeted and tried for offence punishable under Sections 363, 366A and 376 r/w. 34 of I.P. Code along with four other accused. The other accused have been acquitted. The accused No. 1 has been convicted for offence punishable under Sections 363, 366A and 376 of I.P. Code, whereas appellant-accused No. 2 has been convicted for offence punishable under Section 363 r/w 34 of I.P. Code only.

(2.) For the arguments that I am called upon to consider and would be sufficient to dispose of both the appeals by his common judgment, it is not necessary to advert to the factual matrix of the case in extenso. Suffice it to observe that the appellants were tried for the accused offences on the allegation that the accused No. 1 took Kum. Anjum (P.W.3), when she had gone to attend her school on 12th October, 2001 with the help of accused No. 2 from the area within the jurisdiction of Saphale Police Station in Taluka Palghar, district Thane. From there they took her to Village-Jaitra in State of U.P. It is alleged that the accused No. 1 took Kum. Anjum (P.W.3) to different places until 3rd November, 2001. In the interregnum, the accused No. 1, with the help of one Rai Bahadur Arya, Ex-surpanch of village Jaitra, got prepared false birth certificate of Kum. Anjum. On the basis of the said certificate accused No. 1 and Kum. Anjun performed marriage as per Arya Samaj rituals. After performing such marriage on 22nd November, 2001, accused No. 1 committed forcible sexual intercourse on Kum. Anjum on several occasions. The prosecution case is that Kum. Anjum was below 16 years of age on the date of occurrence. In other words, the prosecution case is that the accused No. 1 with the help of accused No. 2 forcibly took away Kum. Anjum from the custody of lawful guardians and thereafter, accused No. 1 committed forcible intercourse on Kum. Anjum on several occasions. Thereby, committed offence, for which the said accused were tried before the lower Court. The accused pleaded not guilty. On analysing the evidence on record, the trial Court found as of fact that Kum. Anjum was below 16 years of age on the relevant date. On that finding, the trial Court proceeded to hold that the fact whether prosecutrix (P.W.3) consented for sexual intercourse or not or resisted the same was irrelevant because, the concerned accused would nevertheless be proceeded for having committed offence under Section 376 of I.P. Code, in view of clause sixthly of Section 375 of I.P. Code. On that reasoning, the lower Court proceeded to record finding of guilt against the appellants herein/accused Nos. 1 and 2, as noted earlier. The trial Court has however, not analysed the evidence to examine the issue as to whether the prosecutrix (P.W.3) was taken from the custody of her lawful guardians forcibly or she had gone with accused No. 1 on her own accord. In other words, whether it was a case of elopement or forcible removal or taking away of Kum. Anjum by accused No. 1; Without analysing this aspect, the trial Court has proceeded to record finding of guilt against both the accused Nos. 1 and 2 even for offence under Section 363 of I.P. Code.

(3.) Before this Court two points were agitated by the accused appearing for the appellants/accused Nos. 1 and 2. First contention raised on behalf of both the accused is that the finding of fact recorded by the trial Court on the factum of age of prosecutrix (P.W.3) at the relevant time or the date of occurrence, to be below 16 years of age, cannot be sustained.