MANORANJAN Vs. STATE OF ORISSA

JUDGEMENT

(1.) Appellant No.1 having been convicted under sections 376 and 366, I.P.C. and sentenced to R.I. for eight years on each count with direction that the sentences would run concurrently, and appellant No.2 having been convicted under section 366/109, I.P.C. and sentenced to R.I. for six years, have preferred this appeal.

(2.) Prosecution case in nut-shell is that appellant No.1 kidnapped on 7-11-1983 P.W. 1, a minor girl, from the lawful custody of her parents from her college premises and after taking her to different places underwent a form of marriage with her and cohabited with her till 17-1-1984. The version of the prosecution as appears from the evidence of P.W. 1 is that since her school going days, i.e. class XI she was being approached by appellant No.1 through letters which she at first did not respond but later on acknowledged and they grew acquaintance. On the date of the occurrence, the appellant No.1 met her with a car outside her college and persuaded her to accompany him to Dhauligiri near Bhubaneswar. She though was reluctant at first accompanied him along with another friend of her, Manjushree. On the way appellant No.1 told her first to go to Konark and then to come back to Dhauligiri. They accordingly went to Konark and there leaving Manjushree in the car, went on a walk in the sea beach. While returning from Konark appellant No.1 stopped the car near Shiva Guest House at Dhauli Chhak where leaving both the girls in the car he went inside the Guest House and arranged some cold drinks for the girls and then all of them came back to Bhubaneswar. Manjushree got down from the car near Kalpana Chhak. While P.W. was to get down at her home, appellant No. 1 requested her to go to Shiva Guest House to have meals to which she agreed. At the Guest House instead of taking meals in the dining hall they went inside a room with the appellant No.1 informing P.W. 1 that he had arranged the meals to be taken inside that room. After taking meals, appellant No. 1 persuaded P.W. I, and against her wish copulated with her and thereafter both of them came back to Rajmahal Chhak and there while P.W. 1 was sitting inside the car, the appellant No.1 got down and talked with his friend appellant No.2 and from there all the three proceeded towards Unit 8. At Unit 8, P.W. 1 was taken to the house of a relation of the appellant No.2 and left there and appellant No.2 remained there with her while appellant No.1 went away with the car. Appellant No.1 came to that house at about 10 p.m. and both she and P.W. 1 remained in that house, that night. Appellant No.2 left that house in the night. Next day P.W. 1 was taken to Bapuji Nagar to the house of another person where there were four to five boy friends of the appellant No.1. Appellant No.1 went outside and brought a new saree for her. That night she spent with the family members of that house. Next day both the appellants came with another car driven by a driver. P.W. 1 was taken inside the car and made to fall flat on the seat with both the appellants sitting one at her head and the other at her feet and was taken to a room near the Sainik School to the quarters of some person where no family was staying and from there in the evening she was taken to Lakheswar Mahadev temple situated on Bhubaneswar-Cuttack road where some sort of marriage was gone through and there was exchange of garlands. That night they returned to the same quarters of Sainik School and stayed there for four to five days. The appellant No.1 persuaded her to remain like husband and wife to which she objected but when appellant No.1 further told that they had married in the temple, she consented and appellant No.1 had intercourse with her. Then appellant No.1 took herto Borhampur in another Ambassador car and kept her in a house for about twelve days and there also the copulation continued. Then she was taken to the house of Binapani Behera in Museum Flat at Bhubaneswar where they stayed for about ten to fifteen days as husband and wife and had sexual intercourse. One day the Crime Branch police came there and interrogated Binapani Behera as to whether any girl was concealed in her house to which she denied and thereafter she was taken to another house where she was locked from outside. The same day at around 10.00 a.m. she was rescued by the police.

(3.) In a case under sections 376 and 366, I.P.C. the age of the victim girl is of paramount importance her consent being a necessary ingredient in the offences depending upon her age. If her age is below sixteen years and she was raped, her consent is immaterial, but if she is above sixteen, sexual intercourse with her consent would not amount to rape. So far as the offence under section 366, I.P.C. is concerned, it would not be a case of kidnapping if she is above eighteen years though it may amount to abduction.