Hori Lal vs State of U.P.

V.D. Chaturvedi, J.—This jail appeal has been filed against the judgment & order dated 13.11.2007, passed by Addl. Sessions Judge (F.T.C. No. 3), Sitapur whereby he has convicted the appellant Hori Lal for the offences punishable under Sections 363 366 & 376 I.P.C. and sentenced him to undergo 3 years'' R.I, 5 years'' R.I. and 7 years'' R.I., respectively. The fine of Rs. 1000/- was also imposed for each of the offences. The co-accused Kamlesh, Babu Ram and Ram Nath were acquitted by the trial judge. The factual matrix of the case are as under:

The complainant Bhagwan Bux son of Sri Sita Ram r/o village Lauli, police station Sandana, district Sitapur gave a written complaint dated 17.5.2004 to the Superintendent of Police, Sitapur. The complainant stated that his daughter Km. Gyanwati, born on 15.06.1989, was a student of class X; that In the intervening night of 3/4 .4.2004, the accused (appellant) Hori Lal, who was residing in a house in front of the complainant''s house, had on the instigation of and with the co-operation of Babu Ram, Kamlesh and Ram Nath, kidnapped Km Gyanwati by threatening her. The complainant stated that he gave its information at the police station Sandana on 05.4.2004 but no case was registered there nor any action was taken in the matter and nor the complainant''s daughter was recovered; that Babu Ram, Kamlesh and Ram Nath knew the places where Hori Lal stayed with the complainant''s daughter; that they were giving threats to the complainant and his family members; that he had no prospects to get justice from the police station Sandana. The complainant prayed that his daughter may be recovered after lodging the report. Consequent upon the order of the Superintendent of Police, Sitapur, a case under Sections 363 & 366 I. P.C. was registered at crime No. 120 of 2004 at police station Sandana on 21.5.2004 at 18.15 hours.

P.W.4, C.P. 360 Jagjeewan Yadav prepared Chick F.I.R. (Ext. Ka.4) and made necessary entries in G.D. same day at 18.15 hours. Copy of the said G.D. Is (Ext. Ka-5). The investigation of the case was conducted by S.I. Shiva Kant Tripathi (P.W.6). The Investigating Officer inspected the place of occurrence (house of the complainant) and prepared the Site Plan (Ext. Ka-7). On 14.6.2004 Km. Gyanwati, the prosecutrix, was recovered by the police but the accused Hori Lal who was with Gyanwati, succeeded in fleeing away. Ext. Ka-9 is memo of recovery of Km. Gyanwati. Dr. Deepa Shah (P.W.3) medically examined Km. Gyanwati and prepared Medical Report Ext. Ka-4. For Radiological examination Km. Gyanwati was produced before Dr. S. S. Trivedi, Radiologist (P.W.5) who on the basis of x-ray plates (Material Exts. 1 & 2) prepared the report Ext. Ka-5. After receiving the report of the Radiologist, Dr. Deepa Shah prepared Supplementary Report Ext.Ka-3.

After recording the statement of the witnesses and after the usual investigation the I. O. submitted the chargesheet Ext. Ka-8 against the appellant Hori Lal and others. After submission of the chargesheet (Ext. Ka-8) in court, the cognizance of the case was taken by the Magistrate concerned who, committed the case to the Court of Sessions. Sri S.N. Agnihotri, Addl. Sessions Judge (F.T.C. No,2) framed charges for the offences u/s 363 366 & 376 I.P.C. against the appellant Hori Lal and also against the co-accused Babu Ram, Kamlesh and Ram Babu to which the appellant and his companions denied.

The prosecution produced following witnesses of fact:

P.W.1, Bhagwan Bux is father of the victim girl who stated that the incident took place in the intervening night of 3/4 April, 2004; that his daughter Gyanwati, born on 15.8.1989, was a student of class X; that Hori Lal was residing in a house situated in front of the witness''s house; that co-accused Kamlesh is a relative and co-accused Babu Ram and Ram Nath are the friends of Hori Lal; that Hori Lal had, on the date of incident, taken away Gyanwati with him. ; that the victim did not know whether she was taken away forcibly or by her consent; that its information was given on 05.4.2004 at the police station but the report was not lodged there. Hence, he gave an application to the Superintendent of Police concerned whereupon the case was registered. The witness proved his application given to the Superintendent of Police as Ext. Ka-1. He further stated that he was present at the time when his daughter was recovered; that accused Hori Lal who was standing with his daughter at Hindora turn, fled away, hence he could not be arrested.

P.W. 2, Km. Gyanwati deposed that her date of birth is 15.8.1989; that on 3/4 April, 2004 at 1 or 2 A.M. she went out of her house to urinate. Meanwhile Hori Lal and his companion caught hold of her and took her forcibly to the house of Bachchu in village Vikrampur; that she was kept there for two days where Hori Lal forcibly had sexual intercourse with her without her consent; that from village Vikrampur she was taken to village Sandaspur where she was kept for seven days and where Hori Lal committed rapes several times upon her. Thereafter she was kept at a brick kiln for seven days. Thereafter she was kept in village Banthra ; that she was thereafter taken to Lalpur and was kept at the residence of Daya Shankar. She was thereafter taken to village Shivpuri. She stated that Hori Lal forcibly committed rape upon her at all of these places; that due to the rapes committed by Hori Lal she conceived. In cross-examination, the prosecutrix stated that there was no place in her house for the purposes of urination. She, therefore, used to go out for that purposes. In reply to a court-question the prosecutrix stated that she could not cry in the bus because she was threatened by the accused. In cross-examination she stated that in transits she was not left in a position to raise any cry; that in Sandaspur she told few woman that she was kidnapped.

The prosecution produced the following formal witnesses also:

P.W.3 Dr. Deepa Shah stated that she had examined Km. Gyanwati on 25.6.2004 at 5.45 P.M.; that Km. Gyanwati had foetus of 9 weeks in her womb; that on the basis of x-ray report the girl was about 17 years old; that no definite opinion can be given regarding sexual assault or regarding rape.

P.W.4 is Constable Jagjeewan Ram who prepared chick report and the G.D. P.W. 5 is Dr. S.S. Trivedi who proved X-ray Report as Ext. Ka-5 and the x-ray plates as Ext. 1 & 2.

P.W. 6 is S.I. Shiva Kant Tripathi, the Investigating Officer. He proved the Site Plan as Ext. Ka.-7 and the chargesheet Ext. Ka-8. He narrated the investigation made by him.

P.W.7 is Raj Bahadur Dwivedi, the then S.O. of Police Station Sandhana. He stated that Km. Gyanwati was recovered by him. He proved Recovery Memo as Ext. Ka. 9.

After the evidence of prosecution witnesses, the statements of appellant Hori Lal and other co-accused were recorded u/s 313(1)(b), Cr.P.C. in which they explained the circumstances appearing against them. The appellant Hori Lal pleaded that he sold his land to the complainant Bhagwan Bux who did not pay the entire amount of consideration and hence, he implicated the appellant falsely in the case.

The accused persons did not produce any evidence in defence. The trial judge, after hearing both the parties, convicted the appellant, as above. I have heard the arguments of the learned Amicus Curiae Kamal Khan as well as of the learned A.G.A. and have also perused the records of the case.

The learned Amicus Curiae argued that Km. Gyanwati was above the age of 18 years and she went with the appellant on her own accord and freewill. He argued that in medical examination her age was found 17 years which deserves to be relaxed by two year in upper side and, thus, she was 19 years of age on the date of the incident. He argued that if a major girl, above the age of 18 year goes with any person with her consent, the offences under Sections 363 & 366 I. P.C. are not made out. He argued that her consent may be inferred from the fact that she herself went out of her house in the dead of night on the pretext of making water and also from the fact that she never raised any hue and cry while accompanying Hori Lal during the period of alleged kidnapping.

The learned Amicus Curiae also argued that since the medical report revealed that the prosecutrix was 17 years old and since she was a consenting party in sexual intercourse, hence, offence u/s 376 I.P.C. is also not made out. To appreciate the crucial arguments of the learned Amicus Curiae, the perusal of Section 363 & 366 I. P. C. is expedient. These are being reproduced below:

Punishment for kidnapping- Whoever kidnaps any person from [India] or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

Kidnapping, abducting or inducing woman to compel her marriage, etc.- Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, 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, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; [and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable as aforesaid.

The offence of kidnapping from lawful guardianship is defined u/s 361 I.P.C. whereas the abduction is defined u/s 362 I.P.C. For the sake of convenience Sections 361 and 362 are also being reproduced below:

361- Kidnapping from lawful guardianship- Whoever takes or entices any minor under [sixteen] years of age if a male, or under [eighteen] years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship.

362- Abduction- Whoever by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct that person. The Court cannot turn a blind eye to the fact that the large number of the women, involved in prostitution or flesh trading, are those who were kidnapped or abducted, by enticement or inducement, during their tender age or age of immaturity. No girl or woman having rational understanding would like to engage herself in flesh trading. Thousands of girls are kidnapped and abducted each year and majority of such girls are placed thereafter in such a situation that they do not find themselves in a position to go back to their parental families and, thus, they are forced to lead an immoral life of prostitution or flesh trading.

The plea that the girl is above the age of 18 years and she went with the accused on her own consent, is a very common defence plea taken by the accused in cases under Sections 363 & 366 I.P.C.. Since such plea is commonly taken by the accused, hence, there is a need to pay honest and sincere attention to all the facts which may have relevance with the consent of the girls.

This Court considers it needful to discus (I) who is a "person of sound mind" or a "person of un-sound mind" for the purposes of Section 361 I.P.C.? (ii) who is a ''child''? (iii) whether a ''child'' may be considered as a person of mature and rational understanding ? (iv) whether the immature understanding of a child comes to an end at once when the child completes 18 years of age or it diminishes gradually after 18 years of age ? (v) whether the age between 18 years to 21 years is an age of attaining mature and rational understanding ? (vi) What is the age when a person may be easily enticed or induced ? (vii) what are the necessary and probable consequences which adversely affect the interest and welfare of the girl if and when she goes with the accused ? (viii) What is the touch stone to draw an inference that a girl between the age of 18 years to 21 years gave consent to go with the accused, without applying her mind ? (ix) In case where her such consent or decision adversely affects her interest and welfare, she may be termed or not as a person of ''sound mind'' ? and (x) whether the consent of a ''child'' or minor (below 18 years of age) may absolve the accused of his responsibility for the punishment u/s 376 I.P.C.

The word ''un-sound mind'' occurring in Section 361 I.P.C. is not defined in Indian Penal Code. Therefore, there is need to have the recourse to various dictionaries. According to Webster''s Dictionary, the word ''mind'' means desire, opinion, view and mood.''

According to Oxford Dictionary, word ''mind'' means thought, (Are you clear in your mind, change of one''s mind, have a mind of one''s own, have in mind, make up one''s mind etc.)

According to Chambers 21st Century Dictionary ''mind'' means opinion, judgment etc.

According to Thesaurus Dictionary ''mind'' means judgment, reason, thought, opinion and desire.

According to Collins Dictionary, the word ''mind'' means desire, thought etc.

In Collins Cobulid Advanced Learner''s English Dictionary the word "mind" is used in several sentences with different meanings. Few of such sentences are being reproduced here:

You refer to someone''s mind when talking about their thoughts. For example, if you say that some thing is in your mind, you mean that you are thinking about it.

If you change your mind, or if some one or something changes your mind, you change a decision you have made or an opinion that you had. For example, I was going to vote for him, but I changed my mind and voted for Reagan... It would be impossible to change his mind.

If you have a mind to do something, you want, intend, or choose to do it. For example, the captain of the guard looked as if he had mind to challenge them.

If a number of people are of one mind, of like mind, or of the same mind, they all agree about something. For example, contact with other disabled yachtsmen of like mind would be helpful... The food companies are not of one mind about these new regulations.

If you speak your mind, you say firmly and honestly what you think about a situation, even if this may offend or upset people. For example, Martina Navratilova has never been afraid to speak her mind.

You say or write to my mind to indicate that the statement you are making is your own opinion. For example, there are scenes in this play which to my mind are incredibly violent.

If you are in two minds, you are uncertain about what to do, especially when you have to choose between two courses of action.

Thus, the word ''mind'' means thought, opinion or judgment.

The dictionary meaning of the word ''unsound'' are "not healthy", "not sound" or "not safe" etc.

Thus, a person whose thought, opinion or judgment is not sound or healthy or safe, is a person of unsound mind.

In Section 84 of I. P. C., the word "unsound mind" is used. For the convenience, Section 84 I. P. C, is being reproduced:

Act of a person of unsound mind- Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law.

The word ''sound mind'' is used in Section 12 of Indian Contract Act which is being reproduced below:

What is a sound mind for the purposes of contracting- A person is said to be of sound mind for the purpose of making a contract if, at the time when he makes it, he is capable of understanding it and of forming a rational judgment as to its effect upon his interests.

A person who is usually of unsound mind, but occasionally of sound mind, may make a contract when he is of sound mind.

A person, who is usually of sound mind, but occasionally of unsound mind, may not make a contract when he is of unsound mind.

It is, thus, manifest from the perusal of the words "at the time of doing it" occurring in Section 84 of I. P. C. and from the words "at the time when he makes it" occurring in Section 12 of Indian Contract Act that the soundness or unsoundness of mind, (thought, opinion or judgment) is to be judged which was prevailing at the time when such crucial decision was taken by the person (victim) concerned. Drawing the analogy from Section 12 of Indian Contract Act and from Section 84 of I.P.C., the following conclusions may be drawn:

If "at the time" of taking "decision" to go with another person, the victim girl is capable of knowing or understanding the nature of her act and of forming a rational judgment as to its effect upon her interest or welfare, she would be deemed a person of sound mind.

Contrarily, If at the time of taking decision to go with another person, the victim girl is not capable of knowing or understanding the nature of her act and of forming a rational decision as to its effect upon her interest and welfare, she cannot be termed as a person of sound mind.

In other words, if her such decision tends to have the adverse effect upon her own interest or welfare, she cannot be deemed capable of knowing or understanding the nature of her "decision" and of forming a rational judgment as to its effect upon her interest or welfare and, thus, she is not a person of sound mind for the purpose of Section 361 I.P.C.

A person below the age of 18 years is defined as a ''child'' or ''juvenile'' u/s 2(K) of Juvenile Justice (Care and Protection of Children) Act, 2000. u/s 2(a) of the Child Marriage Restraint Act, 1929 "child" means, in case of female, a person below 18 years of age. Under Indian Citizenship Act and under many other Acts, a person below 18 years, is considered as a minor or a child.

The age upto 18 years is the age of childish activities or childlike thinking and behaviour. Hence, a person below the age of 18 years is considered as a Child or minor. The person below 18 years has childish or immature understanding. Such persons easily rely upon the other, hence, they are very prone to inducement. Hence, the consent of such children is of no avail to the accused persons.

Now, the question is whether this childish or childlike understanding (immaturity of mind) ends immediately at the stroke of mid-night when such female victims complete 18 year of their age and they thereafter immediately become the persons of matured and rational understanding, capable to take rational decisions? The answer is "No".

In Section 3 of The Indian Majority Act, 1875 it has been provided that a person for whose person or property, or both, a guardian has been appointed, attains the age of majority when he completes 21 year of age and not before. u/s 22 of U. P. Excise Act (Act No. 4 of 1910) the sale or delivery of any liquor or intoxicating drugs is prohibited to any person who is below the age of 21 year . u/s 23 of U. P. Excise Act, there is prohibition on employment of persons below the age of twenty one year in any part of such premises in which such liquor or spirit is consumed by the public. u/s 3 of the Indian Christian Marriage Act, 1872, a person below 21 year is a minor.

A person is not considered eligible for appearing in the competitive examinations conducted by U.P.S.C. Or State Public Service Commissions if he or she has not completed the age of 21 year. He or she becomes eligible for competitive examinations only after he or she completes the age of 21 year. Even for clerks, the prescribed minimum age is 21 year.

There are several other statutes which also indicates that a person attains the age of matured understanding or rational understanding only after he or she completes 21 years of age.

This distinction in age suggests that the age between 18 year to 21 year is such an age when the immaturity of mind diminishes gradually and the maturity of mind (thought) and the capability of taking rational decisions develops gradually in a normal person.

Hence, it may be construed and concluded that during the age between 18 year to 21 year, the immaturity of mind diminishes gradually and the maturity of mind (thoughts) and the capability of taking rational decisions develops gradually. A child below 18 years of age is not expected to take a sound decision, hence, the consent of a female below the age of 18 year is of no avail to the accused of the offence u/s 363 & 366 I.P.C. The decision taken by a person during the age below 18 to 21 years may be sound or unsound. If the decision taken during such age is a sound decision, it would mean that at the time of taking such decision, the person was of sound mind. If, on the other hand, the decision taken during such age is an unsound decision, it would only mean that at the time of taking such decision either the victim was not of sound mind or her consent was obtained by inducement, threat or promise.

If any decision taken by a person between 18 year to 21 year is injurious to his or her welfare or interest, it must be deemed that such decision was either taken by a person of unsound mind (unhealthy thought) or he or she was induced by the accused to take such a decision.

The evidence about the ''inducement'' is generally not available. It is because the accused induces such girls by different devices at different intervals and also in the absence of her parents and other well wishers. The girls of tender age (below 21 years) often fails to understand that they are being induced. Some time, due to lack of courage, they fail to resist or to communicate the unwanted act of accused, to her parents. And, later, they are blackmailed by the accused persons taking advantage of the lack of the girls'' courage. The girls, for want of matured understanding, remain unmindful of such inducement practised by accused and, therefore, they are not capable of narrating the said inducement.

When an unmarried girl goes with a man, few of the following consequences necessarily follow, and remaining consequences may also follow:

(I) her such action necessarily injures her own reputation in society and she suffers humiliation.;

(II) The reputation of her parental family is also injured and the parental family necessarily suffers humiliation in society;

(III) it creates great hindrance in the marriage of her brothers and sisters;

(IV) she, thus, withdraws herself from the assured protection of her parents and goes in the hands of a person who owes no responsibility to protect her from the hazards of the life;

(V) The parents of an unmarried girl, whether Hindu or Muslim, owes the responsibility to maintain unmarried girls. When such unmarried girls deserts her parents and goes with an accused, such accused owes no responsibility to maintain her.

(VI) She throws herself in the risk of being sold to other person.

(VII) She deprives herself from a "healthy atmosphere" available under her parents and throws herself in a atmosphere where moral values, traditional values and social values have no meaning.

(VIII) Sex exploitation of such girls by the accused and also by other persons cannot be ruled out.

(IX) Even if the person with whom she goes and marries with her, the society does not recognise or respect such marriage.

(X) Even if the accused marries such victim girl, the longevity of such marriage is not guaranteed because the accused who has no regard for the social norm and social traditions may break it at any time.

(XI) No respectable family likes to keep any social touch with such girls.

(XII) The probability of contacting venereal disease is not ruled out.

(XIII) Even if the accused marries such victim girl, such marriage may create a hindrance in the marriage of their children.

(XIV) The victim girl may suffer other consequences also.

If despite the above mentioned disadvantages, any unmarried girl takes a decision to go with a man without any justifying reason, her such decision is against her own interest and welfare. Hence, it must be deemed that she was not a person of sound mind at the time of taking such decision which is against her own interest and welfare.

Her such "consent" may get justification if the accused, in comparison of the girl, is an educated man and is having a respectable life and is earning an amount which is capable of maintaining her with the standard of her parental family and such accused also agrees to marry her and the circumstances of girls'' parental family are not such so as to arrange her marriage with the person of the status of the accused. The girl''s consent may also get justification when it is, otherwise, in the interest and for the welfare of the girl to marry with such a person rather than to live in the atmosphere of her parental family.

If no such justification, as aforesaid, is brought on record then it must be deemed that either the girl was of unsound mind or her consent was obtained by inducement. Thus, where the accused takes the plea of consent of a girl undergoing the age between 18 to 21 years, it is for the accused to prove that the consent was given by the person who was of sound mind at the time of giving consent and the decision of giving consent was a rational decision and that the consent was not obtained by inducement.

In majority of cases, the future of the girl is spoiled and she suffers for the whole life. If a girl, below the age of 21 years, gives consent for any immoral act or to an act which is against her own interest or welfare, the chances are very high that such consent was obtained by inducement or by enticement.

Hence, the only criteria, to ascertain whether the girl was of sound mind or of unsound mind at the time of giving such consent, is to see whether the consent was in the interest of and for the welfare of the girl.

If the "consent" tends to lead her to an unknown and dark future, or to a hazardous future or tends to cause harm to her body, mind or reputation, such "consent" is not by a person of sound mind or sound thought.

There is no justifying circumstance in this case which may show that the consent, if any, was of unsound mind in light of the discussions, made above.

In the case in hand, the victim girl was examined as .P.W.2. She stated on oath that there was no place for urination in her house; that when she went out of her house to urinate, accused Hori Lal and his companion forcibly caught her and took her with them. In cross-examination, she stated that her mouth was caught tightly, hence, she could not cry. In reply to a question put by the court, she stated that due to the threat given by the accused she did not cry in the bus. She also stated that in transit, she was not let to cry. Thus, it is apparent from the statement of the victim girl that she was taken away by the accused without her consent. She was forcibly taken away by the accused and his companion.

The date of birth of the victim girl was 16.8.1989 and, thus, she was below the age of 15 years at the time of the commission of the offence. Hence, her consent, if any, is of no avail to the accused.

Learned Amicus Curiae also argued that according to the medical report the victim girl was of the age of 17 year and the sexual intercourse with a girl above the age of sixteen years, was made on her consent, hence, his conviction u/s 376 I.P.C. was unwarranted.

It is true that the perusal of Section 375 I.P.C. shows that if the sexual intercourse is committed by the accused with a girl, above the age of 16 years, with her consent, it is not an offence within the definition of Section 375 I. P. C.

Here few legitimate questions arise. These are:

(I) Whether the girls, below 18 years, may be deemed aware of all the consequences of her sexual intercourse during such age, which may adversely effect her person (which includes her body, mind and reputation) ?

(II) Whether the girls below 18 years, are deemed capable of taking care of her person (which includes body, mind and reputation) ?

(III) Whether the consent of a "minor" or "child" (below 18 years of age) is a valid consent ?

"Indian Penal Code" was enacted by the Britishers in 1860, about 149 years back. It was enacted keeping in view the interest of the Britishers, who came to India to rule it. The large number of Britishers did not bring their families with them. The consent of a girl of 16 years, for sexual intercourse, was made a "valid consent" u/s 375 I.P.C., probably to protect such Britishers, if any of them had any sex with a girl below 18 years.

Now I take into account some other statutes which may throw light on the subject matter, in hand.

u/s 2(e) of (The) Children Act, 1960 the word ''Child'' (in relation to a girl) is defined as under:

Section 2.(e): "child" means...a girl who has not attained the age of eighteen years.

Under Section 2(e) of (The) Citizenship Act, 1955 the word "minor" is defined as under:

Section 2(e): "minor" means a person who has not attained the age of eighteen years.

A person below the age of eighteen years is not given a right to cast even his vote. It is probably because a person below eighteen year of age, is not deemed to have matured understanding enabling him to exercise his right to vote.

A person below the age of eighteen year is not competent to get even class IV service in Government.

It may be inferred from the above mentioned laws and statutes that a person below eighteen year of age is not deemed to have a matured understanding, hence, a person below eighteen year of age is defined either as a "child" or as a "minor". u/s 2(k) of The Juvenile Justice (Care and Protection of Children) Act, 2000 the word "Juvenile" and "child" are defined as under:

Section 2(k).: "juvenile" or "child" means a person who has not completed eighteenth year of age;

A "child" is not deemed to have the matured understanding. The children are known for their childish attitude and childlike behaviour. They may do anything without knowing the pros and cons of their acts. It is due to the immaturity of their mind or thoughts that even if they (children) commit any offence, they are given protection under the The Juvenile Justice (Care and Protection of Children) Act, 2000. It is strange that under The Juvenile Justice (Care and Protection of Children) Act, 2000 if a child below eighteen years commits any offence, it is deemed that he committed the offence due to his immature understanding and he is given protection under The Juvenile Justice (Care and Protection of Children) Act, 2000. But, on the other hand, a girl aged only 16 years is considered as a girl of mature mind and her consent for sexual intercourse is deemed valid.

u/s 2(a) of (The) Child Marriage Restraint Act, 1929 the word "child" is defined as under:

Section 2(a) "child" means person who, if a male, has not completed twenty one years of age, and if a female, has not completed eighteen years of age. u/s 2(d) of the same Act, the word "minor" is defined as under:

Section 2(d): "minor" means a person of either sex who is under eighteen years of age.

Under Section 2(b) of the same Act the word "child marriage" is defined as under:

Section 2(b) "child marriage" means a marriage to which either of the contracting parties is a child.

A person who performs or conduct any child marriage, commits an offence u/s 5 of the Child Marriage Restraint Act, 1929. Where a minor contracts a child marriage and the parents or the guardians of such child who permits the child marriage or who fails to prevent such child marriage are punished u/s 6 of the said Act. Section 6 of ''The Child Marriage Act, 1929'' is reproduced below:

Punishment for parent or guardian concerned in a child marriage-(1) Where a minor contracts a child marriage, any person having charge of the minor, whether as parent or guardian or in any other capacity, lawful or unlawful, who does any act to promote the marriage or permits it to be solemnised , or negligently fails to prevent it from being solemnised, shall be punishable with simple imprisonment which may extend to three months and shall also be liable to fine Provided that no woman shall be punishable with imprisonment.

(2) For the purposes of this section, it shall be presumed, unless and until the contrary is proved, that where a minor has contracted a child marriage, the person having charge of such minor has negligently failed to prevent the marriage from being solemnised .

The provisions of the Child Marriage Restraint Act, 1929 indicate that the sexual intercourse by a female child below eighteen years of age is injurious to the health of the child. India is a Welfare State. Its legislature enacts the law for the welfare of the public at large. Keeping in view the health of the children below eighteen year of age and keeping in view the adverse effect of the sexual intercourse by a child,the "Child Marriage" is restrained and it is made punishable under The Child Marriage Restraint Act, 1929.

It is strange that on one hand, the Indian Legislature is so conscious of the adverse effect of the sexual intercourse by a child that the child marriage is made punishable under The Child Marriage Restraint Act, 1929. But, on the other hand, the Indian Parliament and the State Legislature has turned its blind eye to Section 375 of IPC, which permits the girl of 16 years to give consent for sexual intercourse and her consent is deemed "valid". It is strange that the person responsible for such sexual intercourse (accused) cannot be punished.

In Indian Majority Act,1875 a person is deemed minor unless he attains the age of eighteen years. In case where a guardian has been appointed by a Court before the minor attains the age of eighteen years, he attains the majority at the age of twenty one years and not before.

u/s 4(a) of the Hindu Minority & Guardianship Act, 1956, the "minor" means a person, who has not completed the age of 18 years. Under the said Act, a person below eighteen years of age is not deemed capable to take care of his own "person" or "property", hence, it is provided that their natural guardians or the guardians appointed by the Court, shall have the responsibility to take care of the "person" and the "property" of the minor.

The word "Person" of a minor means the "body", "mind" and the "reputation" of the minor. The natural guardian or the guardian appointed by the Court is, thus, entrusted with the responsibility to take care of the body, mind and reputation of the minor. The sexual intercourse by a minor adversely affect not only the health or body of the minor but also the mind and reputation of the minor.

When the guardians are entrusted with the responsibility to take care of the "person" of the minor, the consent of the minor for any act (which may adversely affect his or her "person"), is immaterial and such consent cannot absolve the accused of his responsibility.

The guardian of a minor also has the responsibility to take care of the property of the minor. It is for this reason that u/s 11 of the Indian Contract Act, 1872 the minor is not competent to make any contract regarding his property. It is on the same analogy that when a guardian is entrusted with the responsibility to take care of the person of the minor, the minor has no right to give consent for any act which may adversely affect the body, mind or reputation of the minor.

When a person below 18 years is minor under Hindu Minority & Guardianship Act,1956 and is not considered capable of taking care of his own "person", how he or she can be deemed capable of giving consent to others to injure her "person" for the purpose of Section 361 and 375 IPC ? How a child below 18 years is considered capable to foresee the adverse effects of his or her consent over his or her own "person" ?

It is irony of law that, on one hand, a person below 18 years of age is treated as a child or a minor and is considered incapable to take care of his or her own "person"; is not considered fit for marriage, but, on the other hand, a female child of 16 years is considered mentally and physically fit to give consent to any person to have sexual intercourse with her ( u/s 375 IPC) and a male child of 16 years of age is deemed mentally matured to give consent to go with another (under Section 361 IPC).

This Court sees no reason in support of the provisions contained in Section 375 I.P.C. prescribing the age of 16 years (for female child) to give consent for sexual intercourse.

Further, this Court sees no reason which may support the provisions contained in Section 361 IPC, prescribing the age of 16 years (in case of male) for giving consent to go with another person.

The provisions contained in Sections 361 and 375 I.P.C. (regarding victim''s age of 16 years) tend to adversely effect the health of the children and tend to promote the abuse of the children of tender age. Such provisions regarding age of 16 years create an hindrance in the development of the children, tend to injure their dignity and pollute their morality. It encourages their exploitation. Hence, these provisions are rival to the directive principles of State Policy, contained in Article 39 of the Constitution of India. Hence, it is the constitutional duty of the State to enhance the age of these victims from 16 years to 18 years in the relevant provisions of Section 361 and 375 I.P.C.

In the opinion of this Court, the law prescribing the age of 16 years in Section 375 & 361 I.P.C., needs to be raised to 18 years to bring these provisions in harmony with the other laws, referred above.

In this regard, it is expedient to give a notice to the Attorney General of India and also to the Advocate General of U.P. to submit their respective explanations containing the reasons, if, any, in support of the Section 361 and 375 IPC prescribing the age to 16 years instead of 18 years.

Now, I revert back to the evidence of P.W.-2 Gyanwati (prosecutrix). She has stated on oath, in examination-in-chief and also in her cross-examination, that the accused Hori Lal has raped her several times and all the times he had forcible sexual intercourse with her against her consent.

Hence, in view of the evidence of the prosecutrix , it is manifest that the accused Hori Lal had committed rape several times upon Km. Gyanwati. The said sexual intercourse were forcible and against the consent of the prosecutrix. Hence, the appellant Hori Lal is not entitled to get the benefit of his plea of the alleged consent, if any.

No other argument has been raised. The impugned judgement and order is sound and well reasoned and it warrants no interference.

The appeal is dismissed and the order of the conviction and sentence, passed by the court below, is upheld. The appellant is in jail. He will serve out his sentence. The Amicus Curiae, Sri Kamaal Khan, Advocate will get Rs. 7000/- as his fees. 31.7.2009/Ashok The Registrar of this Bench of Allahabad High Court is directed to issue notices to the Attorney General of India and to the Advocate General of U.P. to submit their respective explanations, assigning reasons why the age of male child in Section 361 IPC and the age of female child in Section 375 IPC has not been raised to the age of 18 years especially when these provisions are in breach of the directive principles of the State Policy contained in Article 39 of the Constitution of India. They may also apprise this Court about the steps taken by their respective Governments in this behalf. They may also explain as to whether their respective Governments intend or not to raise such age to 18 years. If their respective Governments do not intend to raise such age, they may assign reasons for the same.

The notice of Attorney General of India, may be served on Additional Solicitor General of India , for its immediate communication to the Attorney General of India. List it as Criminal Miscellaneous Case on 31st August, 2009 for their respective explanations.