2022 (3) TMI 1628 - SC - Indian Laws

Conviction of accused of the offences punishable Under Sections 363 366-B 370(4) and 506 of the Indian Penal Code and Under Section 8 of the POCSO Act - satisfaction of requirements Under Section 188 of the Code of Criminal Procedure 1973 or not - no allurement which was extended by the Appellant and the victim had gone from Kathmandu to Atariya covering the distance of more than 650 kms. on her own - age of the victim beyond 18 years of age - offence would come Under Section 370(4) of the Indian Penal Code. Satisfaction of requirements Under Section 188 of the Code of Criminal Procedure 1973 or not - HELD THAT - In terms of Section 188 even if an offence is committed outside India (a) by a citizen whether on the high seas or anywhere else or (b) by a non-citizen on a ship or aircraft registered in India the offence can still be tried in India provided the conditions mentioned in said Section are satisfied. The Section gets attracted when the entirety of the offence is committed outside India; and the grant of sanction would enable such offence to be enquired into or tried in India. As the facts and circumstances of the case indicate a part of the offence was definitely committed on the soil of this country and as such going by the normal principles the offence could be looked into and tried by Indian courts. Since the offence was not committed in its entirety outside India the matter would not come within the scope of Section 188 of the Code and there was no necessity of any sanction as mandated by the proviso to Section 188. Travel by victim - HELD THAT - It is true that the victim had traveled on her own from Kathmandu to Atariya. However the evidence on record completely establishes that she was lured into coming to India. The offences alleged against the Appellant were thus rightly invoked and fully substantiated. Offence would come Under Section 370(4) of the Indian Penal Code due to age of the victim beyond 18 years of age - HELD THAT - The evidence on record is absolutely clear that the age of the victim was below 18 years of age. The medical board had not only done the radiological tests but had also undertaken dental test on the basis of which her age was found to be below 18 years - In the circumstances Sub-section 4 of Section 370 Indian Penal Code would definitely get attracted. Said Section 370(4) postulates minimum sentence of 10 years. Viewed thus the sentences awarded to the Appellant cannot be termed to be excessive on any count. Conclusion - i) Since the offence was not committed in its entirety outside India the matter would not come within the scope of Section 188 of the Code and there was no necessity of any sanction as mandated by the proviso to Section 188. ii) It is true that the victim had traveled on her own from Kathmandu to Atariya. However the evidence on record completely establishes that she was lured into coming to India. The offences alleged against the Appellant were thus rightly invoked and fully substantiated. iii) Said Section 370(4) postulates minimum sentence of 10 years. Viewed thus the sentences awarded to the Appellant cannot be termed to be excessive on any count. Affirming the view taken by the High Court the appeal is dismissed.

Summary

ISSUES PRESENTED and CONSIDERED:- Whether the requirements under Section 188 of the Code of Criminal Procedure were satisfied for the trial of the Appellant.- Whether the Appellant lured the victim into coming to India.- Whether the age of the victim was below 18 years and the offence falls under Section 370(4) of the Indian Penal Code.ISSUE-WISE DETAILED ANALYSIS:1. The Court analyzed the first issue regarding the requirements under Section 188 of the Code of Criminal Procedure. The Court clarified that Section 188 applies when an offence is committed entirely outside India by an Indian citizen or a non-citizen on an Indian registered ship or aircraft. Since part of the offence in this case occurred within India, the Court held that the provisions of Section 188 did not apply, and no sanction was required for the trial.2. The second issue revolved around whether the Appellant lured the victim into coming to India. The prosecution's case detailed how the victim was enticed by the Appellant with promises of shopping and a return trip to Nepal. The Court found the evidence established that the victim was indeed lured into coming to India, supporting the charges against the Appellant.3. The third issue concerned the age of the victim and whether the offence fell under Section 370(4) of the Indian Penal Code. The medical examination and reports confirmed that the victim was below 18 years of age. The Court determined that Section 370(4) applied, which mandates a minimum sentence of 10 years. The Court upheld the sentences imposed on the Appellant, considering them appropriate given the circumstances.SIGNIFICANT HOLDINGS:- The Court rejected the argument that the requirements under Section 188 of the Code of Criminal Procedure were not satisfied for the trial of the Appellant.- The Court affirmed that the victim was lured into coming to India, supporting the charges against the Appellant.- The Court confirmed that the victim's age was below 18 years, leading to the application of Section 370(4) of the Indian Penal Code and upholding the sentences imposed on the Appellant.In conclusion, the Court dismissed the appeal and upheld the conviction of the Appellant, affirming the decision of the High Court. The Appellant was ordered to serve the sentences awarded to him.