Every Abduction of a Minor Female Cannot Be Construed to Be an Offence Under Section 366 IPC; Intention of Accused is Important: Chhattisgarh HC

It definitely holds a lot of relevance that the Division Bench of the Chhattisgarh High Court while ruling on a very significant legal point pertaining to the abduction of a minor female has in a learned, laudable, logical and latest judgment titled Thanda Ram Sidar vs State of Chhattisgarh in CRA No. 595 of 2024 and cited in Neutral Citation No.: 2024:CGHC:26587-DB that was pronounced just recently on 22.07.2024 has minced just no words to underscore clearly that not every abduction of a minor female automatically constitutes an offence under Section 366 of the Indian Penal Code. It is perfectly in order that the Chhattisgarh High Court underscored the dire necessity of examining the accused’s intention behind the abduction to determine the applicability of Section 366 IPC. Most crucially, the Division Bench clearly points out in para 20 that, “Moreover, in the statement recorded under Section 164 CrPC before the Magistrate, the victim has not stated anything about the commission of rape. Even from perusal of the MLC report of the victim (Ex.P-18) given by Dr. Avanish Kaur (PW-9), it is quite clear that there was no external injury found over the body of the victim and on internal examination, the hymen membrane was not torn. The uterus was of normal size, cervix and vagina were healthy and as per opinion of the said Doctor, the victim may be virgin & no signs of sexual intercourse was seen in victims body. Moreover, as per FSL report (Ex.P-29) also semen stains and human sperm were not found in the underwear of the victim, vaginal slides of the victim and underwear of the accused. As such, we are of the considered opinion that the prosecution has failed to establish its case beyond reasonable doubt that the appellant has committed rape on minor victim.” This alone explains why it is explicitly mentioned in the “Head-Note” of this notable judgment holding that, “Every abduction of a minor female cannot be construed to be an offence under Section 366 IPC and the same needs to be corroborated from the statement of the victim and other medical and forensic evidences available on record with regard to the intention of the accused.” No denying it!

At the very outset, this brief, brilliant, bold and balanced judgment authored by the Hon’ble Mr Chief Justice Ramesh Sinha for a Division Bench of the Chhattisgarh High Court comprising of himself and Hon’ble Mr Justice Ravindra Kumar Agarwal sets the ball in motion by first and foremost putting forth in para 1 that, “The appellant has preferred this appeal under Section 374(2) of Code of Criminal Procedure, 1973 (for short, ‘CrPC’) questioning the impugned judgment dated 28.02.2024 passed by the learned Special Judge (POCSO Act), Mahasamund, District – Mahasamund in Special Session Trial No. H-08/2023, whereby the trial Court has convicted and sentenced the appellant with a direction to run all the sentences concurrently in the following manner:

CONVICTION SENTENCE

U/s 363 of IPC R.I. for 5 years and fine of Rs.1,000/-, in default of payment of fine additional imprisonment for 1 month

U/s 366 of IPC R.I. for 7 years and fine of Rs.2,000/-, in default of payment of fine additional imprisonment for 2 months

U/s 4(2) of the POCSO Act R.I. for 20 years and fine of Rs. 10,000/, in default of payment of fine additional imprisonment for 6 months

U/s 506 Part-2 of IPC R.I. for 01 year and fine of Rs.1,000/-, in default of payment of fine additional imprisonment for 1 month.”

To put things in perspective, the Division Bench then envisages in para 2 that, “Case of the prosecution, in brief, is that, complainant Mayadhar Sidar (PW-2), who is the father of the victim, lodged a report in the Sankara Police Station on 29.11.2022 that on the night of 17.11.2022, accused – Thandaram Sidar, who is his distant relative, after alluring his minor daughter, aged 14 years, took her away on his motorcycle and after searching for the victim, he went to his house, pacified his daughter and brought her back home. After a few days, on 28.11.2022, when Thandaram again abducted his daughter and was fleeing away, he was stopped by his wife and Dhaneshwar Pareshwar, then the accused threatened them to kill by saying that he would abduct his daughter and take her away. On the report of the complainant, First Information Report was registered in Sankara Police Station under Sections 363, 506 IPC under Crime Number 217/2022. During investigation, the victim told during interrogation that on 24.10.2022, she and her younger siblings were at home, then Thandaram came to their house, when her siblings went out of the house to play, Thandaram threatened her and established forceful physical relations with her and threatened to kill her if she told the incident to anyone. On the night of 17.11.2022, the accused lured her and took her to his village on a motorcycle. The next day his parents brought her back home. After this, Thandaram used to call her and threaten her, “Come with me, otherwise I will kill your family.” After that, on 28.11.2022, Thandaram was again trying to take her away, when her parents caught him. On the basis of the statement of the accused, the offense of Sections 366, 376 of Indian Penal Code and Section 6 of Protection of Children from Sexual Offenses Act, 2012 was added. After obtaining consent from the victim and her father, the victim’s genitals were examined by the doctor. Vaginal slides and underwear obtained after examining the private parts of the victim were confiscated. The accused was arrested and his medical examination was also done. A visual map of the incident site was prepared by the Police and Patwari. The slides and underwear seized in the case were sent to the Forensic Science Laboratory for testing. Thereafter, after recording the statements of the witnesses and completing the investigation process, the charge sheet was presented in the Court of Special Judge (POCSO Act), Mahasamund, District – Mahasamund for trial.”

As it turned out, the Division Bench enunciates in para 3 that, “So as to prove the complicity of the accused/appellant in the crime in question, prosecution has examined as many as 10 witnesses and exhibited 29 documents in support of its case. Statement of the accused/appellant under Section 313 Cr.PC was also recorded in which he pleaded his innocence and false implication in the case. None has been examined by the accused/appellant in his defence.”

As we see, the Division Bench then discloses in para 4 that, “The trial Court after completion of trial and after appreciating oral and documentary evidences available on record, by the impugned judgment dated 28.02.2024 convicted and sentenced the appellant in the manner mentioned in the opening paragraph of this judgment, against which this appeal under Section 374(2) of the CrPC has been preferred by them calling in question the impugned judgment.”

To be sure, the Division Bench stipulates in para 8 that, “The first question for consideration before this Court would be, whether the trial Court has rightly held that on the date of incident, the victim was minor?”

Do note, the Division Bench notes in para 9 that, “When a person is charged for the offence punishable under the POCSO Act, or for rape punishable in the Indian Penal Code, the age of the victim is significant and essential ingredient to prove such charge and the gravity of the offence gets changed when the child is below 18 years, 12 years and more than 18 years. Section 2(d) of the POCSO Act defines the “child” which means any person below the age of eighteen years.”

Be it noted, the Division Bench notes in para 11 that, “In the present case, the prosecution has presented a certified copy of the Dakhil Kharij Register (Ex.P-11C) of the Government Primary School, Choteloram and in this regard, the Headmaster of the concerned school, Dayalal Patel (PW-4), appeared in the Court and displayed the original Dakhil Kharij Register, in which the date of birth of the victim is mentioned as 08.08.2008. The defence has not presented any oral or documentary evidence to refuse the said date of birth, therefore, there is no reason to disbelieve the date of birth of the victim, as 08.10.2008 hence, we are of the considered opinion that the trial Court has rightly held that the date of birth of the victim is 08.10.2008 and her age was about 14 years.”

Going ahead, the Division Bench stipulates in para 12 that, “The next question for consideration would be, whether the trial Court is justified in convicting the appellant for offence under Section 363 of the IPC?”

It is worth noting that the Division Bench notes in para 16 that, “Reverting to the facts of the present case, in light of ingredients of offence under Section 361 of the IPC which is punishable under Section 363 of the IPC & as well as principles of law laid down by the Supreme Court in the matter of S.Varadarajan (supra), it is evident that as per the statement of complainant, who is father of the victim, on the night of 17.11.2022, accused – Thandaram Sidar, who is his distant relative, after alluring his minor daughter, aged 14 years, took her away on his motorcycle and after searching for the victim, he went to his house, pacified his daughter and brought her back home. After a few days, on 28.11.2022, when the accused again abducted his daughter and was fleeing away, he was stopped by his wife and Dhaneshwar Pareshwar, then the accused threatened them to kill by saying that he would abduct his daughter and take her away. As such, we are of the considered view that the trial Court is absolutely justified in convicting the appellant for offence under Section 363 of the IPC.”

Most significantly, what constitutes the cornerstone of this notable judgment is that the Division Bench then encapsulates in para 23 mandating that, “In order to constitute offence under Section 366 of the IPC, it is necessary for the prosecution to prove that the accused induced the complainant woman or compelled by force to go from any place, that such inducement was by deceitful means, that such abduction took place with the intent that the complainant may be seduced to illicit intercourse and/or that the accused knew it to be likely that the complainant may be seduced to illicit intercourse as a result of her abduction. Mere abduction does not bring an accused under the ambit of this penal provision. So far as charge under Section 366 of the IPC is concerned, mere finding that a woman was abducted is not enough, it must further be proved that the accused abducted the woman with the intent that she may be compelled, or knowing it to be likely that she will be compelled to marry any person or in order that she may be forced or seduced to illicit intercourse or knowing it to be likely that she will be forced or seduced to illicit intercourse.”

Briefly stated, the Division Bench enjoins in para 24 stating that, “Their Lordships of the Supreme Court in the matter of Mohammed Yousuff alias Moula and another v. State of Karnataka 2020 SCC OnLine SC 1118 pointing out the essential ingredients required to be proved by the prosecution for bringing a case under Section 366 of the IPC, relying upon the decision rendered in the matter of Kavita Chandrakant Lakhani v. State of Maharashtra (2018) 6 SCC 664 , has clearly held that in order to constitute an offence under Section 366 of the IPC, besides proving the factum of abduction, the prosecution has to prove that the said abduction was for one of the purposes mentioned in Section 366 of the IPC.”

It cannot be lost on us that the Division Bench holds in para 25 that, “In the instant case, as the offence of sexual assault has not been found proved by the prosecution which satisfies the requirement of Section 366 of the IPC, we are of the considered view that the trial Court is absolutely unjustified in convicting the appellant for offence under Section 366 of the IPC.”

As a corollary, the Division Bench then further holds in para 26 that, “From the above analysis, we are of the considered opinion that the prosecution has proved its case beyond reasonable doubt so far as it relates to offence punishable under Section 363 of IPC that the appellant has kidnapped the victim from the lawful guardianship of her parents without their consent and kept her with him for the whole night, but has failed to prove its case beyond reasonable doubt so far as it relations to offence punishable under Sections 366 of IPC and Section 4(2) of the POCSO Act that the appellant has kidnapped the victim and committed penetrative sexual assault on the pretext of marriage with the victim.”

Needless to point out, the Division Bench then directs in para 27 that, “Accordingly, we affirm the conviction and sentence awarded by the learned trial Court so far as it relates to offence punishable under Section 363 and 506-II of IPC is concerned and set aside the conviction and sentence awarded by the learned trial Court so far as it relates to offence punishable under Section 366 of IPC and Section 4(2) of the POCSO Act is concerned.”

Further, the Division Bench directs in para 28 that, “Accordingly, the appeal is partly allowed to the extent indicated herein-above.”

In addition, the Division Bench directs in para 29 that, “The appellant/convict is stated to be in jail. He shall serve out the remaining sentence as modified by this Court.”

Finally, the Division Bench then concludes by directing aptly in para 30 that, “Let a certified copy of this order alongwith the original record be transmitted to trial Court concerned forthwith for necessary information and action, if any.”

Sanjeev Sirohi, Advocate,

s/o Col (Retd) BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.