SANJAY JAGANNATH URSAL Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This appeal by accused No. 1 takes exception to the Judgment and Order passed by the IV Ad-hoc Additional Sessions Judge, kolhapur dated June 30, 2003 in Sessions Case No. 210 of 2002. The appellant/accused No. 1 along with Sou. Amita @ Sushila Jagannath ursal/accused No. 2 was charge-sheeted and tried for offence punishable under sections 363, 366-A read with section 34 of the Indian Penal Code and appellant/accused No. 1 was further charged for offence punishable under section 376 of the Indian Penal Code.

(2.) The prosecution case has been extensively set out in para 2 of the impugned Judgment. It is unnecessary to burden this Judgment by reproducing the same, as the sole question that has been argued before this Court in the present appeal is that the finding of fact recorded by the trial Court that shubhangi Shivaji Chougule (hereinafter referred to as 'the prosecutrix') was below 16 years of age is manifestly wrong and if that finding was to be set-aside and the defence version accepted tthat the prosecutrix was above 16 years of age, in that case, the appellant/accused No. 1 could not be proceeded for alleged offence, as the prosecutrix was a consenting party.

(3.) It is relevant to note that accused No. 2 has been acquitted by the trial court of all the charges. The trial Court by the impugned order has convicted the appellant/accused No. 1 for offence under section 376 of the Indian Penal Code as also for offence under sections 363 and 366-A of the Indian Penal Code. Insofar as conviction under section 366-A of Indian Penal Code is concerned, learned A. P. P. fairly accepts that the said provision cannot be invoked against the appellant/accused No. 1, who himself was responsible for committing rape on the minor. This is so because section 366-A of the Indian Penal Code provides for an offence against person who, by any means whatsoever, induces any minor girl under the age of eighteen years to go from any place or to do any act with intent that such girl may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with "another person". That offence, at best, could have been proceeded against accused No. 2. In the circumstances, the order of conviction and sentence imposed by the trial Court against the appellant/accused no. 1 for offence under section 366-A of the Indian Penal Code, cannot be sustained.