Iqbal vs State Of Kerala on 24 October, 2007

Supreme Court of India

PETITIONER:
Iqbal

RESPONDENT:
State of Kerala

DATE OF JUDGMENT: 24/10/2007

BENCH:
Dr. ARIJIT PASAYAT & P. SATHASIVAM

JUDGMENT:

J U D G M E N T CRIMINAL APPEAL NO 1463 OF 2007 (Arising out of SLP (Crl.) No.1287 of 2007)
Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. The challenge in this appeal is to the judgment of the learned Single Judge of Kerala High Court
dismissing the appeal filed by the appellant, while directing the acquittal of the co-accused. Both the
accused were convicted by the learned IInd Additional Assistant Sessions Judge, Thrissur for
offences punishable under Sections 366A and 376 read with Section 34 of the Indian Penal Code,
1860 (in short 'IPC').

3. Custodial sentence of two years and fine of Rs.10,000/- with default stipulation, sentences of
three years and fine of Rs.3,000/-were with default stipulation for the offences punishable under
Sections 376 and 366A read with Section 34 IPC respectively.

4. The background facts, as projected by prosecution in nutshell are as follows:

On 18.10.1993 at 7.00 a.m. both the accused, in furtherance of their common intention of
kidnapping, induced and procured a minor teenage girl (P.W.2), who had not attained the age of 14
and seduced her to have illicit intercourse with the first accused and first accused took her to
Mahadevapuram in Coimbatore District and committed rape in the house of CW8 at
Mahadevapuram. Since PW2 did not come back to her house, after making necessary enquiries,
PW1, father of PW2, went to Cheruthuruthy Police Station and lodged first information statement
and originally man-missing case was registered as Crime No.96 of 1993. The girl was not found out.
Finally, a criminal M.C. was filed before the High Court and on the basis of the direction of the High
Court, the Circle Inspector of Police found out PW2 and subsequently arrested the accused,
continued the investigation and charge was laid. The girl was produced before the Judicial First

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Class Magistrate's Court, Wadakkancherry on 30.11.1993 and it was recorded that she had stated to
the Magistrate that she was studying in ninth standard and she was staying with her father. She was
taken from the tuition center while she was going to Akshaya Tuition Centre, Ceruthuruthy. She
stated that she went with Iqbal, appellant and first accused, on her own will to Coimbatore on
18.10.1993 from Akshaya Tuition Centre. They were friends. Friend of first accused, namely, Sasi
was also with them. They changed the vehicles and finally second accused, Sasi did not accompany
them till Coimbatore. She also stated that she had intercourse with Iqbal, first accused, at
Coimbatore and not with any other persons, that she was aged thirteen years and six months at that
time and she was with Iqbal till she was produced before the Court. Statement under Section 161 of
the Code of Criminal Procedure, 1973 (in short 'Cr.P.C.') given by her to the police was also more or
less on the same lines. But, before the Court, she deposed in examination-in-Chief that she and her
friend PW4 went to the tuition center and an autorikshaw came there. From the autorikshaw, A2
Sasi and A1 Iqbal, got down and A1 told her to get into the autorikshaw to tell something and on his
persuasion she got into the autorikshaw and both of them took her to a place called Kolappully.
Thereafter, A2 brought a car and they went upto Palakkad and A2 Sasi left. From there, they went to
Coimbatore by bus. They took food and A1 took her to a hotel and forced her for intercourse and
thereafter they went to cinema etc. Thereafter, they came to the house of CW8 and they were staying
in that house. During cross-examination main endeavour of the accused was to show that she came
with him on her own will. Letters written by PW2, Exts. D1 to D3, were also produced and marked to
show that PW2 and A1 were in love and that was not allowed by the parents. Further, in cross
examination, he asked specifically whether she agreed for intercourse willingly to show that
intercourse was committed with consent. Evidence of PW4 also supports the evidence of PW2.
Evidence of PWs 8 and 9 doctors show that she had intercourse. Evidence shows that she went with
her own will and intercourse also was done voluntarily and not by force. It is clear from the evidence
that they were in love and wanted to marry, but parents of PW2 objected. Hence, they together
eloped and there is no kidnapping. School certificate as well as the deposition of father of PW2
shows that she was aged only 13 years and nine months at the time of incident. Hence, consent
cannot be taken as valid.

5. Placing reliance on evidence of PW2, who is the victim, the learned Trial Court found both the
accused persons guilty and sentenced them as aforesaid. In appeal, the High Court by the impugned
judgment, noted that the charges have been established so far as the appellant is concerned, while
directing the co-acquittal of the co-accused.

6. In support of the appeal, learned counsel for the appellant submitted that the evidence of the
victim PW2 clearly shows that she was in love with the appellant and had gone with him on her own
will. Letters (Ex. D1 to D3) clearly established this fact. It was further submitted that the evidence of
PW2 indicated that though victim and appellant were in love, the parents objected to it. It is also
pointed out that in the cross-examination she had admitted that she had sexual intercourse with the
appellant on her own free will and consent and there was no force used. The High Court, however,
found that girl victim was aged about 13 years and 9 months and, therefore, the consent was of no
consequence so far as allegation of rape is concerned. The conviction as recorded by the Trial Court
was affirmed. However, on special circumstances which had weighed, the High Court imposed the
sentence below the prescribed minimum, reduced the sentence to three years rigorous

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imprisonment and fine of Rs.10,000/- in respect of the offence punishable under Section 376 IPC.
However, his conviction and sentence relating to Section 366A was affirmed. The sentences imposed
were directed to run concurrently. As noted above, the stand of the appellant was that there was no
rape involved and in any view, Section 366A has no application.

7. So far as the legality of conviction for offence punishable under Section 376 IPC is concerned,
Section 375 IPC needs to be noted. The same reads as follows:

375. Rape.- A man is said to commit "rape"

who, except in the cases hereinafter excepted, has sexual intercourse with a woman under
circumstances falling under any of the six exceptions:-

First Against her will.

Secondly- Without her consent.

Thirdly- With her consent, when her consent has been obtained by putting her on any person in
whom she is interested in fear of death or of hurt.

Fourthly - With her consent, when the man knows he is not her husband, and that her consent is
given because she believed that he is another man to whom she is or believed herself to be lawfully
married.

Fifthly With her consent, when, at the time of giving such consent, by reason of unsoundness of
mind or intoxication or the administration by him personally or through another of any stupefying
or unwholesome the nature and consequences of that to which she gives consent.

Sixthly with or without her consent, when she is under sixteen years of age. "

8. Clause 'sixthly' clearly stipulates that sexual intercourse with a woman with her or without her
consent when she is under 16 years of age, amounts to rape. The evidence on record clearly
establishes that the victim was less than 16 years of age and, therefore, the conviction for offences
punishable under Section 376 IPC cannot be faulted.

9. The residual question is of applicability of Section 366A IPC. In order to attract Section 366A IPC,
essential ingredients are (1) that the accused induced a girl; (2) that the person induced was a girl
under the age of eighteen years; (3) that the accused has induced her with intent that she may be or
knowing that it is likely that she will be forced or seduced to illicit intercourse; (4) such intercourse
must be with a person other than the accused; (5) that the inducement caused the girl to go from any
place or to do any act.

10. In the instant case, the admitted case of the prosecution is that girl had left in the company of the
accused of her own will and that she was not forced to sexual intercourse with any person other than

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the accused. The admitted case is that she had sexual intercourse with the accused for which,
considering her age, conviction under Section 376 IPC has been maintained. Since the essential
ingredient that the intercourse must be with a person other than the accused has not been
established, Section 366A has no application.

11. In the result, the conviction for offence punishable under Section 366A IPC is set aside while the
conviction and sentence imposed in respect of offence punishable under Section 376 IPC is
maintained.

12. The appeal is allowed to the aforesaid extent.

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