Merely Abducting Woman Not An Offence U/S 366 IPC, Intention To Marry Or Force Intercourse Must Be Proved: Chhattisgarh High Court

The Chhattisgarh High Court has recently held that every abduction of a minor female cannot be regarded as an offence under Section 366 IPC [Kidnapping, abducting or inducing woman to compel her marriage, etc].

The Division Bench of Chief Justice Ramesh Sinha and Justice Ravindra Kumar Agrawal underscored that the ingredients of such an offence must be corroborated by the victim's statement, as well as medical and forensic evidence on record so that the intention of the accused is established.

“…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”, the division bench held by relying on Mohammed Yousuff alias Moula & Anr. v. State of Karnataka (2020).

“…The aforesaid section requires the prosecution not only to lead evidence to prove kidnapping simpliciter, but also requires them to lead evidence to portray the abovementioned specific intention of the kidnapper…”, the apex court had noted in Mohammed Yousuf.

In the case before it which involved the kidnapping of a 14-year-old minor multiple times, the High Court observed that the prosecution was unable to prove the offence of sexual assault as alleged, which could have satisfied the requirement under Section 366 IPC.

The accused was convicted in 2024 by the Special Judge (POCSO Act), Mahasamund for offences under Sections 363, 366, 506(ii) and Section 4(2) of the POCSO Act. The High Court has set aside the conviction partly in terms of Section 366 IPC and Section 4(2) of the POCSO Act.

The prosecution version states how the accused who is a distant relative of the minor, allegedly attempted to abduct her twice in November 2022. One such attempt towards the end of November was thwarted by the minor's mother and another person. Soon thereafter, police charge-sheeted the accused for giving death threats to force sexual relations and kidnapping, along with Sections 376 IPC and Section 6 of the POCSO Act.

The court, after looking at the trial court records, found out that the incident of rape was not mentioned by the victim in her S.164 CrPC statement given to the magistrate. She had only mentioned abduction by the accused. On the contrary, the victim's Section 161 CrPC statement given to the police contains an allegation of rape, the court noted.

In October 2022, the accused had allegedly established physical relations with the victim forcefully when she was alone, even before the two instances of abduction in November.

“…Even from perusal of the MLC report….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… as per opinion of the said Doctor, the victim may be virgin & no signs of sexual intercourse was seen in victims body…” the court added.

Moreover, there was no indication of semen stains or human sperm in the victim's slides or garments, the court remarked.

The court pointed out that even the victim's father (complainant) initially did not allege the commission of rape at the time of lodging the FIR though he knew about the sexual assault beforehand as per the prosecution version.

“…In para 17 of his cross-examination, when this witness was asked whether the victim had told that the accused had taken the victim with him to village Onki and had physical relationswith her, the witness said that the victim had told him that once the accused had established forceful physical relations with her…”, the court observed.

Based on these inconsistencies in the prosecution version, the court held that the accused had not committed rape on the minor.

Afterwards, the court also opined that the prosecution failed to prove that abduction under Section 363 IPC [Kidnapping from lawful guardianship] was done for one of the purposes encapsulated in Section 366 IPC.

“…the prosecution 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”, the court noted in the order while partly allowing the criminal appeal.

For Appellant : Advocates Gurudev I. Sharan a/w Shubham Dewangan and Seema Verma

For Respondent/State : Mr. Malay Jain, Panel Lawyer

Case Title: Thanda Ram Sidar v. The State of Chhattisgarh & Ors.

Case No: CRA No. 595 of 2024

Click Here To Read/Download Judgment