M.M.PUNCHHI, J. - (1.) PARDEEP Kumar, appellant was tried for offences under Section 363/366/376, Indian Penal Code by Shri H.S. Bakhshi, Additional Sessons Judge, Gurdaspur. The learned Judge acquitted the appellant of the charge under Section 366, Indian Penal Code but convicted him for the other two offences. The appellant was awarded 9 months rigorous imprisonment and to pay fine of Rs. 100/- for the offence under Section 363. Indian Penal Code, and rigorous imprisonment for 1-1/2 years and to pay a fine of Rs. 100/- for the offence under Section 376, Indian Penal Code. The sentence were ordered to run concurrently. Aggrieved against the order of the learned Additional Sessons Judge, the appellant has come up in appeal.
(2.) THE appellant belonging to the weaker sections of the society. The prosecutrix Darshna Kumari too belongs to the weaker sections of the society. Their respective families were making their ends meet by doing casual labour. They were neighbours living in a locality in the town of Pathankot. Only two or three houses intervened their respective houses. On 23.6.1986 Darshna Kumari had reason to leave her house to locate her mother who had gone out earlier in the day, and had for the purpose taken a rickshaw. While mobile, the appellant also came and took a seat with her threatening her that she should accompany him otherwise he would kill her. Frightened as she was, Darshna Kumari kept mum and was taken to Amritsar by the appellant. They spent the night in the precincts of the Golden Temple. Next day she was removed to the house of some one where they got a separate room to spend the night. The appellant had sexual intercourse with her twice against her will and without her consent in that while. Next morning, he took her back to the Golden Temple where they spent the night. Still next morning, the appellant told her that he would get her admitted to the Nari Niketan, Amritsar. However, he left her in lurch and told her to go to Nari Niketan by herself. She managed to reach there and at the gate, started crying. At the behest of the Chowkidar, Miss Charan Kaur, Assistant Superintendent (P.W. 3) took pity on her and admitted her in that institution. She sent the letter Exhibit PE to Puran Chand, father of the prosecutrix who turned up on 1.7.1980 and took his daughter away. On their return to Pathankot, they came across a local Police Inspector to whom the occurrence was narrated by the prosecurtix. She was medically examined on 2.7.1980. So was the appellant when arrested on 2.7.1980. After the trial, the learned Judge came to the conclusion that the prosecurtix was under 16 years of age for according to the birth certificate Exhibit PJ, she was born 20.9.1964 and that document was said to relate to her. Her parents who appeard as prosecution witnesses in the case, were unanimous that she was their second child and their eldest daughter was 18 years of age. The children following the prosecutrix were another daughter of 12 years of age, and three sons still younger to her. Dr. Jasbir Kaur, however, gave the opinion that the prosecutrix was between 14-17 years of age. That fluctuation was set at rest with the aid of birth certificate Exhibit PJ and the finding was recorded that the prosecutirx was not of such age as to be capable of giving consent for sexual intercourse.
(3.) WITH regard to the offence under Section 363/366, Indian Penal Code, the learned Judge observed as follows :- "The question of consent is of importance. Darshana did not raise alarm at any point of time. It is strange that the accused had a sent in her rickshaw but she did not raise hue and cry. She could easily complaint to the rickshaw puller and for that matter, to any one going on the road. The bus in which she was taken was full of passengers. There must have been a large number of persons in the Golden Temple and in the house in which she was kept. There were several others to whom the accused had introduced Darshana as his wife. In fact, she preferred to keep mum and that gives positive indication of her consent. It was explained that she was frightened on account of the accused having threatened her with a knife and that is simply a fabrication. It was nothing new for Darshna to leave the house with boy friends, in view of what Charan Kaur State Dr. Jasbir Kaur (P.W. 1) also deposed that Darshna's hymen was completely torn and she was used to sexual intercourse. Such a condition perhaps could not have been there with two acts of sexual intercourse by the accused. I am therefore, of the opinion that the element of force or threat alleged by Darshna was actually not used by the accused and Darshana, in any case, was a consenting party. In view of the said position of law, despite that fact that Darshna might have been a consenting party to her elopement, the offence under Section 363, Indian Penal Code stands committed. Accordingly, the accused is convicted under Section 363, Indian Penal Code though he is alleged of the offence under Section 366, Indian Penal Code." Learned counsel for the appellant in the first instance rightly contended that in view of the finding recorded by the learned trial Judge, the conviction under Section 363, Indian Penal Code was not maintainable. The learned Judge has dubbed the prosecution a consenting party to her elopement. Now if she eloped, the question of the appellant having taken her or enticed her out of the lawful guardianship of her parents is out. Accordingly, without much ado, the conviction of the appellant under Section 363, Indian Penal Code and the consequently sentence has go to be set aside, which is hereby done.;