IQBAL versus STATE OF KERALA

Citation: [2007] 11 S.C.R. 655 · Decided: 24-10-2007 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Case Partly allowed

Judgment (excerpt)

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IQBAL 
A 
v. 
STA TE OF KERALA 
OCTOBER 24, 2007 
[DR. ARIJIT PASAYAT AND P. SATHASIVAM, JJ.J 
B, 
Penal Code, 1860-ss. 366A, 375 and 376-Kidnapping and 
Rape-Of girl of less than 14 years of age-With her consent-
Conviction by courts below-On appeal, held: Accused liable to be c 
convicted u/s 3 7 6-Intercourse with woman of less than 16 years age, 
even if with consent, would amount to rape-However, he is liable to 
be acquitted u/s 366 A-Essential ingredient for attracting s. 3 66A not 
established 
Appellant-accused with a co-accused was charged u/ss 366A D 
and 376 r/w s. 34 IPC. Prosecution case was that both the accused 
in furtherance of their common intention of kidnapping, procured a 
girl ofless than 14 years of age (PW 2) and thereafter appellant-
accused committed rape on her. In trial, accused tried to prove that E 
she was in love with appellant-accused; that she went with the 
accused on her own will; and that intercourse was committed with 
consent. Trial court convicted both the accused under the offences 
charged. High court confirmed conviction of the appellant-accused, 
and acquitted the co-accused of all the charges. Hence the present 
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appeal. 
Partly allowing the appeal, the Court 
HELD: 1. Clause 'sixthly' of Section 375 IPC clearly stipulates 
that sexual intercourse with a woman with her or without her consent G 
when she is under 16 years of age, amounts to rape. The evidence 
on record clearly establishes that the victim was less than 16 years 
of age and, therefore, the conviction for offence punishable under 
Section 376 IPC cannot be faulted. [Para 8] [659-H; 660-A] 
655 
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656 
SUPREME COURT REPORTS 
(2007] 11 S.C.R. 
2. In order to attract Section 366A IPC, essential ingredients 
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are (1) that the accused induced a girl; (2) that the person induced 
was a girl under the age of eighteen years; (3) that the accused has 
induced her with intent that she may be or knowing that it is likely 
that she will be forced or seduced to illicit intercourse; (4) such 
B intercourse must be with a person other than the accused; (5) that 
the inducement caused the girl to go from any place or to do any 
act. In the instant case, the admitted case of the prosecution is that 
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girl had left in the company of the accused of her own will and that 
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she was not forced to sexual intercourse with any person other than 
c the accused. The admitted case is that she had sexual intercourse 
with the accused for which, considering her age, conviction under 
Section 376 IPC has been maintained. Since the essential ingredient 
that the intercourse must be with a person other than the accused 
has not been established, Section 366A has no application. 
D 
[Paras 9 and 10] [660-B-D] 
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 
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1463 of 2007. 
From the Judgment and final Order dated 27.09.2006 of the High 
E Court of Kerala at Emakulam in Crl. A. No. 708 of 1998. 
U.U. Lalit, M. Gireesh Kumar and Vijay Kumar for the Appellant. 
The Judgment of the Court was delivered by 
F 
DR. ARIJIT PASAYAT, J. 1. Leave granted. 
2. The challenge in this appeal is to the judgment of the learned Single 
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Judge of Kerala High Court dismissing the appeal filed by the appellant, 
while directing the acquittal of the co-accused. Both the accused were 
convicted by the learned IInd Additional Assistant Sessions Judge, 
G Thrissur for offences punishable under Sections 366A and 376 read with 
Section 34 of the Indian Penal Code, 1860 (in short 'IPC'). 
3. Custodial sentence of two years and fine of Rs.10,000/- with 
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default stipulation, sentences of three years and fine ofRs.3,000/-were 
with default stipulation for the offences punishable under Sections 376 and 
H 366A read with Section 34 IPC respectively. 
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IQBALv. STATE[PASAYAT,J.] 
657 
4. The background facts, as projected by prosecution in nutshell.are A 
as follows: 
On 18. l 0.1993 at 7 .00 a.m. both the accused, in furtherance of their 
common intention of kidnapping, induced and procured a minor teenage 
girl (P.W.2), who had not attained the age of 14 and seduced her to have B 
illicit intercourse with the first accused and first accused took her to 
Mahadevapuran1 in Coimbatore District and committed rape in the hou.Se 
of CW8 at Mahadevapuram. Since PW2 did not come back to her 
house, after making necessary enquiries, PWl, father of PW2, went to 
Cheruthuruthy Police Station and lodged first

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