B.S. Chauhan, J. - (1.) All the three appeals have been preferred against the common judgment and order dated 14.7.2003 passed by the High Court of Judicature at Madras in Criminal Appeal Nos. 981 and 986 of 2002, by which the High Court had disposed of the said appeals preferred by the Appellants against the judgment and order of the trial court dated 24.6.2002, in Sessions Case No. 30 of 2000, by which Appellant Murugan @ Settu (A.1) had been convicted under Sections 366 and 376 of the Indian Penal Code, 1860 (hereinafter referred to as Rs. IPC) and awarded the sentence of rigorous imprisonment for 3 and 7 years on those counts respectively. Other Appellants stood convicted under Sections 366 r/w 109 Indian Penal Code and were sentenced for 3 years rigorous imprisonment.
(2.) FACTS: (A) The prosecution case reveals that on 11.2.1998 at 9.00 A.M., Murugan @ Settu (A.1) with an intention to marry the minor girl Shankari (PW.4), aged 14 years studying in 8th standard, kidnapped her from S.S.K.V. School, Kancheepuram, by stating that her mother, Parimala (PW.15) was seriously ill and had been admitted to hospital. Shankari (PW.4) took permission to leave the school from her teacher, Rajeshwari (PW.5) and also informed about the said fact to her classmate P. Megala (PW.6). (B) Shankari (PW.4) was taken by A.1 in an auto bearing No. TN 21 B 6582 to Kamatchi Amman Temple, where Shiva (A.2) also came and both of them took Shankari (PW.4) to Orikai road stating that they were going to the hospital. (C) On being questioned by Shankari (PW.4), she was threatened by A.1 and A.2 that if she made noise they would spoil her life. She was taken to the house of Smt. Logammal (PW.7), the grand-mother of A.2 at Kaliampoondi, at about 1.00 P.M. They stayed there at night. On 12.2.1998, M.P. Ekambaram (PW.1), father of Shankari (PW.4) lodged an FIR in Crime No. 209 of 1998 that his daughter had gone to attend the school on 11.2.1998 and did not return. Thus, she was missing. (D) On the same day, i.e. 12.2.1998, Ramalingam @ Ramu (A.3) came from Kancheepuram. All the accused compelled Shankari (PW.4) to get married with A.1 and, accordingly, A.1 tied Rs. Thali in Shankaris neck. A.1 and A.3 took Shankari (PW.4) to Bangalore leaving A.2 at Vellore. They went to New Lingapuram, Bangalore, to the house of Rajeshwari (PW.9), sister of A.3 and stayed there up to 24.2.1998. During this period, A.1 raped the prosecutrix Shankari (PW.4) many times. They reached Chennai and stayed in the house of Vijayalakshmi (PW.12). (E) As there had been an FIR in respect to the fact that Shankari (PW.4) had been missing, Pugazhendhi (PW.19), Inspector of Police, Kanchi Taluk Police Station after receiving the information that A.1 and prosecutrix Shankari (PW.4) would appear before the court at Kancheepuram reached there, and made a written application before the Judicial Magistrate, Kancheepuram for sending A.1 and Shankari (PW.4) for medical examination. The application was accepted. (F) Dr. Parasakthi (PW.18) examined Shankari (PW.4) and issued a medical certificate, Ex.P-10 to the effect that she had been sexually assaulted. Dr. K. Gururaj (PW.20) examined A.1 on 26.3.1998 and issued certificate Exs.P-14 and P-15 to the effect that he was not impotent. He also examined Shankari (PW.4) and issued certificates including Ex.P-16 giving his opinion that she was about 18 years of age. (G) After completing the investigation, charge sheet was submitted. Subsequently, the trial court framed the charges against A.1 under Sections 366 and 376 Indian Penal Code and so far as A.2 and A.3 were concerned, they were charged under Sections 366 r/w 109 Indian Penal Code and Sections 376 r/w 109 Indian Penal Code. As all the three Appellants denied the charges and claimed trial, they were proceeded with trial. (H) In support of its case, the prosecution examined 21 witnesses and 12 documents were exhibited and marked. Five properties were also marked. In defence, the Appellants examined a photographer as DW.1. Three documents i.e. D1 to D3 were also exhibited and marked. After concluding the trial, the Sessions Court convicted all the Appellants and imposed punishment as aforesaid. (I) Being aggrieved, all the three Appellants preferred Criminal Appeals before the High Court which have been disposed of by the common judgment and order impugned herein with certain modifications in the conviction and sentence so far as A.2 and A.3 are concerned. It set aside their conviction under Sections 366 r/w 109 Indian Penal Code and convicted them under Sections 363 r/w 109 Indian Penal Code and imposed punishment of two years. Hence, these appeals.
(3.) Shri G. Sivabalamurugan, learned Counsel appearing for the Appellants, has challenged the concurrent findings recorded by the courts below mainly on the grounds that the courts failed to appreciate that Shankari (PW.4) had gone voluntarily with A.1 as she was in love with him and wanted to marry him and not under compulsion of any one else. A.2 and A.3 had played no role in their affair or marriage. All independent witnesses i.e. Smt. Logammal (PW.7); Rajeshwari (PW.9) and Vijayalakshmi (PW.12) turned hostile. Shankari (PW.4) was major as opined by Dr. K. Gururaj (PW.20) who issued certificate to the effect that she was about 18 years of age. The courts erred in placing reliance upon the birth certificate of Shankari (PW.4) either given by the Municipality or by the School on the basis of the School Register. In the birth certificate issued by the Municipality, the name of the prosecutrix was not mentioned. Neither M.P. Ekambaram (PW.1), father nor Parimala (PW.15), mother of the prosecutrix, was able to state the correct age and they were not sure about the date of birth and age of Shankari (PW.4). In such a fact-situation, conviction of the Appellants is liable to be set aside.;