Anil Kumar vs State
2009 Latest Caselaw 1240 Del

*               HIGH COURT OF DELHI : NEW DELHI
                Judgment reserved on : March 26, 2009

                 Judgment delivered on : April 08, 2009


+                        (1) Crl. A. No. 194/2006


%       Anil Kumar                           ... Appellant
                 Through: Mr. Rajesh Kumar, Advocates

                                            versus

        State                                          ... Respondent
                         Through: Mr. Amit Sharma, Additional Public
                                  Prosecutor for State


+                        (2) Crl. A. No. 1026/2006

%       Ramesh                                   ...  Appellant
                         Through: Mr. Vijay Singh Charak, Advocates

                                            versus

        The State of NCT of Delhi           ...  Respondents
                  Through: Mr. Amit Sharma, Additional Public
                            Prosecutor for State

CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR

1. Whether the Reporters of local papers may
   be allowed to see the judgment?

2. To be referred to Reporter or not?

3. Whether the judgment should be reported
   in the Digest?



SUNIL GAUR, J.

1. The above captioned two appeals arise out of a common

impugned order and so counsel representing both the

appellants/accused urged that they be heard together and

Crl. A.Nos. 1026 & 194 of 2006 Page 1 these two appeals be disposed of together. Appellant- Ramesh,

son of Sh. Surender Paswan and appellant- Anil Kumar, son of

Sh. Mahender Singh, have been convicted and sentenced by

the trial court for kidnapping and raping the prosecutrix (PW-2)

and in this appeal both the appellants are assailing their

conviction and the sentence imposed upon them for the

aforesaid offences.

2. The relevant facts, as noted by the trial court and

apparent from the record of this case are:-

Vijender Singh (PW-1) is the Complainant of this case and on 6th March, 2004, he lodged a complaint in police station Vivek Vihar that his daughter, aged about 13-14 years, while she left for school, had not returned to home since 3rd March, 2004, and he suspected that his neighbour Ramesh, had kidnapped her. DD No. 28-A, was recorded and investigation of this case was entrusted to ASI Charan Singh (PW-5), who along with Constable Uday Chand (PW-9), on coming to know that two boys, who had kidnapped the prosecutrix, were present near Vivekanand College, reached the spot, on the identification of Vijender Singh- father of the prosecutrix (PW-1), apprehended Ramesh and Anil.

In her statement, the prosecutrix (PW-2) deposed that on 3rd March, 2004, while she was in her school, at about 9:00 a.m. she went out of her class to drink water when both the appellants/accused- Ramesh and Anil, who were standing outside her school, called her outside and told that her father had met with an accident at Ghaziabad. She got nervous and on the pretext of taking her to her father, both the appellants/ accused first took a rickshaw to reach railway station and then boarded a train and took her to some other station. Appellant/accused- Anil, who happened to be her parental cousin (Tau's son), asked her not to worry and change the school dress. Then again both the appellants/accused, made her to board another train and bus along with them. On 4th March, 2004, they all reached the village

Crl. A.Nos. 1026 & 194 of 2006 Page 2 of appellant/accused- Ramesh, where the prosecutrix (PW-2) was first asked to sleep separately, but later appellant/accused- Ramesh lied down on her cot and raped her twice on that night. On the next morning, her clothes were got changed and she was brought to railway station. All three of them spent one night on the railway station and bus stand. Prosecutrix (PW-2) asked them to take her back to her house or else she would raise alarm and get them arrested by police. Both the appellants/accused, on reaching Delhi railway station, were arrested.

3. Aforesaid is the initial version of the prosecutrix (PW-2).

After their apprehension by the police, statement of prosecutrix

(PW-2) under Section 161 of the Code of Criminal Procedure,

was recorded and the prosecutrix as well as both the

appellants/ accused were got medically examined. Both the

appellants/ accused were challaned for the offences under

Sections 363/376 of the IPC. The trial court, framed Charges

against both the appellants/accused under Section 366 read

with Section 34 of the IPC and a separate Charge under Section

376 of the IPC, was framed against appellant/accused -

Ramesh, to which both the appellants/ accused did not plead

guilty and trial commenced.

4. Prosecution had got examined nine witnesses in all. Out

of them, the material evidence is of the prosecutrix (PW-2) and

her father (PW-1). Smt. Devi Rani (PW-7) has proved the age

(Exhibit PW-7/A) and date of birth of the prosecutrix. Doctor

Poonam Sharma (PW-6), who had medically examined the

prosecutrix, has proved the MLC as EX. PW-1/A. Assistant Sub

Crl. A.Nos. 1026 & 194 of 2006 Page 3 Inspector Charan Singh (PW-5) is the Investigating Officer of

this case

5. Both the appellants/accused in their statement, under

Section 313 of the Cr.P.C., had stated before the trial court that

they are innocent and have been falsely implicated in this case

and in their defence, both the appellants/accused got

themselves examined as DW-1 and DW-2 respectively.

6. After the trial, both the appellants/accused have been

convicted and sentenced by the trial court vide impugned

judgment and order on sentence of 10th February, 2006, to

undergo RI for ten years each and also to pay fine of Rupees

five thousand and in default of payment of fine, to suffer SI for

one year for committing offence under Section 366/34 of the

IPC. Appellant/accused- Ramesh has been convicted and

sentenced to undergo RI for ten year and to pay a fine of

Rupees five thousand and in default of payment of fine, to

suffer SI for one year, for commission of offence under Section

376 of the IPC. However, both these sentences of appellant

Ramesh have been ordered by the Trial Court to run

concurrently.

7. Both the sides have advanced their submissions and with

their assistance, the evidence on record has been scrutinised.

8. The first and foremost crucial aspect of this case, which is

touched upon by the defence is the testimony of the

Crl. A.Nos. 1026 & 194 of 2006 Page 4 prosecutrix (PW-2). It is pointed out that the alleged history

given in MLC (Ex.PW-6/A) is of „running away from home‟. Thus,

it has been contended that the prosecutrix (PW-2) was a

consenting party and she had pressurized Appellant - Ramesh

to marry her, otherwise she would consumed poison. In

defence, Appellant - Ramesh has deposed as DW-1 that he had

told the prosecutrix (PW-2) that they are minors but on the

insistence of the prosecutrix, they had married at his native

place, in Patna, and he has placed on record his photographs

with prosecutrix (PW-2) as Ex. D-1. Appellant - Anil Kumar had

also deposed as DW-2 and has stated that he had come to

know that the prosecutrix (PW-2) had eloped with Appellant -

Ramesh and he had also gone to Bihar to search for the

prosecutrix (PW-2) who is her cousin sister and he was also

apprehended by the police and was falsely implicated in this

case. Appellant - Anil claimed that he had falsely implicated in

this case due to inimical relations between his family and the

family of the prosecutrix (PW-2).

9. The infirmity pointed out in the evidence of the

prosecutrix (PW-2) by the counsel for the Appellants is that the

assertion of the prosecutrix (PW-2) of having taken permission

from the teacher for taking water in the school is an

improvement made by her in her evidence. It is pointed out

that prosecutrix (PW-2) has admitted in her evidence that her

father had asked Appellant - Ramesh to vacate the tenanted

Crl. A.Nos. 1026 & 194 of 2006 Page 5 portion of the house, which was with him and Appellant -

Ramesh had refused to vacate it. What has been suggested to

the prosecutrix (PW-2) in her cross-examination by the defence

is that she has been tutored by her father to falsely depose

against the Appellants. Lastly, it is contended on behalf of the

Appellants that the conviction and the sentence imposed upon

the Appellants is bad in law and deserves to be set aside and

benefit of doubt ought to accrue to the Appellants. Nothing else

has been urged on behalf of these two Appellants/accused.

10. On behalf of the Respondent - State, learned Additional

Public Prosecutor submits that from the school leaving

certificate, Ex.PW-7/A of the prosecutrix (PW-2), which is

supported by the relevant entry in the school register Ex.PW-

7/B, it stands proved that the prosecutrix (PW-2) was aged little

more than 12 years at the time of this incident and even if it is

taken that she was a consenting party, still her consent is of no

avail to the defence as she was minor at the time of this

incident. Thus, it is submitted that the conviction and sentence

imposed upon the Appellants is well deserved and there is no

substance in this appeal.

11. From the evidence of the school head-mistress (PW-7), it

stands conclusively proved that the prosecutrix (PW-2) was

aged a little above twelve years at the time of this incident. The

age of the prosecutrix (PW-2) as stated by her and her father

(PW-1) was thirteen years at the time of this incident. There is

Crl. A.Nos. 1026 & 194 of 2006 Page 6 no worthwhile challenge to the evidence regarding the age of

the prosecutrix (PW-2) from the side of the defence.

12. The testimony of prosecutrix (PW-2) has to be appreciated

in the light of the observations made by the Apex Court in the

case of "State of Himachal Pradesh vs. Asha Ram" AIR 2006

SC 381, which are as follows:-

"It is now well settled principle of law that conviction can be founded on the testimony of the prosecutrix alone unless there are compelling reasons for seeking corroboration. The evidence of a prosecutrix is more reliable than that of an injured witness. The testimony of the victim of sexual assault is vital unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty in acting on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliance. It is also well settled principle of law that corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. The evidence of the prosecutrix is more reliable than that of an injured witness. Even minor contradictions or insignificant discrepancies in the statement of the prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case."

13. In the instant case, it transpires from the evidence of the

prosecutrix (PW-2) that she was in the school on the day of this

incident and when she had come out from her class to take

water, Appellant - Anil signaled her to come out and both the

Appellants told the prosecutrix that her father had met with an

Crl. A.Nos. 1026 & 194 of 2006 Page 7 accident at Ghaziabad and since she knew both the Appellants,

as one of them was her father's tenant and the other one was

her cousin, therefore, she accompanied them. Prosecutrix (PW-

2) has stated in her evidence that she did not raise any alarm

while she was taken in the train because her cousin brother

was with her. It has come in her evidence that she had left her

bag in the school. Had she been a consenting party, then she

would have carried her bag with her. In any case, nothing turns

on this aspect or upon the so called improvement made by her

in her evidence regarding taking of permission from teacher for

going out for taking water, because even if it is taken that she

was a consenting party, still her consent is immaterial, as she

was minor at the time of this incident. Trial court has rightly

relied upon the two decisions of the Apex Court, i.e., „Vishnu

Undrya vs. State of Maharashtra‟ (AIR 2006 SC 508) and

„State of Himachal Pradesh vs. Shree Kant Shekari‟, (2004 IX

AD SC 5), to hold that the consent of the prosecutrix is really

of no consequence as she was a minor.

14. Although it has been asserted on behalf of the Appellants

that the prosecutrix (PW-2) has been tutored by her father (PW-

1) to depose against the Appellants/accused, but it has neither

been so suggested to her father (PW-1) nor it can be so made

out from the evidence of the prosecutrix (PW-2). Nothing

worthwhile has come on record, as to why the prosecutrix (PW-

2)     or     her       father   (PW-1)   would   falsely   implicate    the

Crl. A.Nos. 1026 & 194 of 2006                                          Page 8

Appellants/accused in this case. As already observed above,

the theory of consent is of no avail to the case of the

Appellants/accused.

15. Looked from any angle, I find that the evidence on record

clearly implicates both the Appellants/accused and therefore,

their conviction by the trial court is well merited and it calls for

no interference by this court in this appeal. So far as the

sentence awarded to the Appellants/accused is concerned, it

appears that for the offence of rape, Appellant - Ramesh has

been convicted and it carries a minimum sentence of seven

years with a proviso to the effect that for adequate and special

reason, the sentence imposed can be for a term less than the

minimum provided. It is true that the Appellant - Ramesh was

aged twenty years at the time of this incident and he has a

blind mother and a younger brother to support as his father is

no longer alive, but this, to my mind, would not be sufficient to

award lesser sentence than the minimum prescribed. Though

trial court has awarded rigorous imprisonment for ten years for

the offence of rape to the Appellant Ramesh but I find that in

view of the clean antecedents of the Appellant - Ramesh and

his family background, as noticed above, his substantive

sentence for the offence of rape deserves to be reduced to the

minimum as provided under the law. Resultantly, the

substantive sentence imposed upon the Appellant - Ramesh for

the offence of rape, is reduced from rigorous imprisonment for

Crl. A.Nos. 1026 & 194 of 2006 Page 9 ten years to rigorous imprisonment for seven years. However,

the sentence of fine is maintained.

16. For the offence under Section 366/34 of the Indian Penal

Code, both the Appellants have been sentenced to undergo

rigorous imprisonment for ten years each. Appellant - Anil was

aged about 22 years at the time of this incident and he is said

to be the only son of his parents and that he is having clean

antecedents, and as per his nominal roll, he has remained

behind bars in this case for a period of three years, eleven

months and three days as on 16th February, 2008 and his

sentence was suspended in this appeal on 19th February, 2008.

His conduct in jail during the aforesaid period has been found

to be satisfactory. Appellant - Anil has faced the agony of trial

and appeal proceedings since March, 2004. The offence under

Section 366 of the Indian Penal Code which does not carry any

minimum punishment.

17. In the facts and circumstances of this case, the

substantive sentence imposed upon both the Appellants for the

offence punishable under Section 366/34 of Indian Penal Code

is reduced from rigorous imprisonment for a period of ten years

to rigorous imprisonment for seven years in the case of

Appellant - Ramesh and to rigorous imprisonment for four

years and eight months in the case of Appellant - Anil

Kumar, i.e., to the period already undergone by him. However,

the sentence of fine of both the Appellants for this offence is

Crl. A.Nos. 1026 & 194 of 2006 Page 10 maintained.

18. Appellant - Ramesh is in custody and he be informed

about this order regarding the fate of his appeal through the

concerned jail superintendant. Appellant - Anil Kumar is

granted three weeks time to deposit the fine imposed upon

him, if not already deposited.

19. Both the these appeals stand partly allowed in the terms

as aforesaid. Trial court be apprised of this order, to ensure its

compliance.

20. Both these appeals stand disposed of.

SUNIL GAUR, J.

April 08, 2009
Rs/pkb




Crl. A.Nos. 1026 & 194 of 2006                              Page 11