1. Illam Din, accused appellant, has been convicted under Sections 363 and 376, R.P.C. by the learned Sessions Judge Jammu. Under Section 363, R.P.C. he has been sentenced to undergo, three years' rigorous imprisonment and under Section 376 to five years' rigorous imprisonment. Both the sentences have been ordered to run concurrently.
2. The charge against Illam Din has been that he kidnapped a minor girl by name Atri and committed rape on her. The accused has denied the charge.
3. The case of the prosecution is that Mst. Atri was kidnapped by Illam Din accused on 15th Jeth 2007. It is further alleged that he kept Atri with himself for two nights when Atri, taking advantage of the fact that the accused had fallen fast asleep, gave him a slip and ran away. The F.I.R. was lodged on 18th Jeth 2007. Mst. Atri was examined by Dr. Bodh Raj who stated that in his opinion she was between 10-13 years of age and that rape had been committed on her some time a week before she was examined by him. Besides Dr. Bodh Raj, the prosecution has produced the following witnesses:
4. Mst. Atri, Puro, Somraj, Jalalud-Din and Amarchand.
5. Atri describes as to how she had gone to a water mill on the evening of 15th Jeth. 2007, when she was accosted by the accused and carried away. She also states that later on he committed rape on her.
6. Puro P. W. 3 who is the owner of the water mill states that Atri came to his mill one day in the month of Jeth 2007 along with the accused. The mill was at that time closed and Atri left some grain there to be ground later on. Thereafter both the accused and Atri went away.
7. Somraj states that both Atri and Illam Din came to his shop one day in the month of Jeth and purchased some cigarettes and matches from him.
8. Jalal-ud-Din simply states that the mother of Atri had told him that her daughter was lost somewhere. According to this witness Atri's mother had suggested to him that she was taken by Illamdin.
9. Amar Chand states that in the month of Jeth 2007 the accused and Mst. Atri came near his shop and busied themselves in preparing fire for cooking their meals, on the vacant site lying before his shop. Atri approached the shopkeeper Amar Chand for some Gur and while she was in the act of purchasing Gur from him, she told him that she was decoyed by the accused and further requested him to conceal her in his shop. The shopkeeper told her to wait and he himself went to call the Chowkidar who, however, was not to be found in the village. When he came back, he found both the accused and Atri gone.
10. Prom the evidence - a synopsis of which has been recorded above - it becomes abundantly clear that the accused and Atri were together for a number of days and were seen going from one place to another. This also is proved by the statements of both Atri and the doctor that sexual intercourse was committed by the accused with Atri just a week before her medical examination had been conducted by the doctor.
11. The learned Sessions Judge, has after discussing the evidence come to the conclusion that Atri was not an unwilling agent in having gone with the accused. He is also of the opinion which he formed after considering the evidence and the various circumstances of the case that even sexual intercourse was not had with Atri against her will. Such being the finding of the trial Court which has not been challenged by the learned Asst. Advocate General, the question of settling the age of the girl in definite terms became really very imperative. We were not at all satisfied with the statement of the doctor who had given quite a vague sort of statement when he had stated that the age of the girl was probably between 10-13 years. We therefore thought it proper to get this girl (Atri) examined by an X-Ray expert. She was examined by Dr. Ranjit Singh who is of the opinion that the age of the girl on the day when he conducted her examination was between 16 and 17. The X-Ray examination of the girl had taken place on 30th Assuj 2009 and the offence is said to have been committed on 15th Jeth 2007. If we take the average of the two age limits given by the Radiologist we might take the age of the girl as 17 on the day she was examined by him. Judging from all this, the age of the girl would be a trifle less than 15 years on the day when she is alleged to have been kidnapped. Even if we take her age at the lowest limit given by the Radiologist, i.e. 16 years on the date of her examination, even then she would be more than 14 years on the day when rape is alleged to have been committed on her. Taking into consideration the finding of the learned Sessions Judge with which we are in agreement, we find that the offence of rape cannot be brought home to the accused. It is only in such cases where the age limit is less than 14 years that sexual intercourse will be rape even though it was with the consent of the girl. But if sexual intercourse takes place with a willing girl who is of more than 14 years of age, such sexual intercourse cannot come within the definition of rape. If, however, the girl is an unwilling agent, sexual intercourse will become rape irrespective of the age of the girl. The accused is therefore acquitted of the charge under Section 376 and the sentence passed on him under this section is set aside.
12. But that the girl Atri was less than 16 years on the date of the alleged offence is amply proved. As such we are of the opinion that the offence of kidnapping under Section 363, R.P.C. is proved against the accused. We therefore maintain his conviction and sentence of three years under Section 363, R.P.C.
13. The result is that the conviction and sentence of the accused under Section 376, R.P.C. are set aside, while his conviction and sentence of three years' rigorous imprisonment under Section 363, R.P.C. are maintained.
14. The appeal is accepted to the extent indicated above.