Surinder Kumar vs State
1996 Latest Caselaw 109 Del

JUDGMENT

Jaspal Singh, J.

(1) Guru Nanak Pura, Tilak Nagar is three kilometers away from Nihal Vihar, Nangloi. Raj Kumar lived in Guru Nanak Pura but was no stranger to Nihal Vihar where used to live his friend Surinder Kumar. In the neighbourhood of Surinder Kumar lived Narain Singh with his wife and a daughter by the name of Pushpa who had already crossed the age of minority. On April 17, 1988 at about I p.m. when Narain Singh came backhome he found Pushpa missing. Failing to locate her he went to the house of Raj Kumar at about 1.30 or 2 p.m. Raj Kumar said he knew nothing. He then lodged a report with the police. On the 23rd she was back home. The next day she was taken to the police authorities who got her medically examined and later produced her before a Metropolitan Magistrate who recorded her statement under Section 164 of the Code of Criminal Procedure.

(2) Where had she been? This is how Pushpa unfolds the story. On April 17, 1988 at about 11 a.m Kumar came to her on a two wheel scooter, took her to the Inter State Terminal and from there to Ghaziabad. This part of the journey was completed in a bus. From the bus stop she was taken to a Jhuggi where the other inmates served them lunch. And then exits Raj Kumar from the scene giving way to his friend Surinder Kumar to occupy the centre-stage. Surinder Kumar keeps her in the Jhuggi for three days, violates her body repeatedly and then lea her for good at the Inter State Bus Terminal, Delhi.

(3) The learned Additional Sessions Judge has accepted her version, without hesitation. As a result Raj Kumar stands convicted and sentenced under Section while Surinder Kumar has been convicted and sentenced under Section

(4) Surinder Kumar has appealed.

(5) By my separate judgment of today the appeal of Raj Kumar has accepted principally on the ground that Pushpa could not be considered worthy of reliance. I feel Surinder Kumar deserves acquittal on the same ground only for the reasons enumerated in the judgment dealing with Raj Kumar but yet for another significant reason.

(6) Undoubtedly, Pushpa does say in her statement before the Court that she was raped by Surinder Kumar. But significantly in her statement under Section 164 of the Code of Criminal Procedure she had not named Surinder Kumar and had no where stated that she had been raped and that too by Surinder Kumar. It may also be not out of place to mention that though Pushpa wants to make us believe that she was forcibly kept in a Jhuggi in Ghaziabad, it is in her own statement that she had visited the market alongwith Surinder Kumar and that on such an occasion Surinder Kumar had purchased gift items for her. It is thus difficult to believe that Pushpa was being detained against her wishes at Ghaziabad. Rather her statement read as a whole leaves no manner of doubt that there was no force or compulsion. In other words, even if she remained in the Jhuggi a t Ghaziabad, her stay cannot be taken to be against her wishes. Pushpa is not a minor and thus her consenting behaviour assumes importance.

(7) For what has been recorded by me above, I do feel that the charge of rape against Surinder Kumar is not proved beyond doubt. More so, when Pushpa is not a person worthy of reliance and her statement in Court regarding rape has to be taken as a somersault keeping in view her earlier statement made under Section 164 Cr.P.C.

(8) For the reasons recorded above, the appeal is accepted. The conviction and sentence of Surinder Kumar under Section 376 stand set aside. The appellant be released forthwith, if not wanted in any other case.