Kali Pado vs The State
2009 Latest Caselaw 7 Del

*                 HIGH COURT OF DELHI : NEW DELHI


          Judgment reserved on : December 15, 2008
           Judgment delivered on : January 06, 2009

+                      Crl. A. No.215/2006
      Kali Pado                  ...        Appellant
                            Through: Ms. Purnima Sethi,Advocate

                                  versus

      The State                        ...        Respondent
                             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. Appellant is the brother-in-law (Jija) of the prosecutrix (PW-

6). He has been convicted by the trial court for committing the

offences under Section 363/366/376 of the Indian Penal Code and

vide order dated 30th August, 2005, he has been sentenced for

the offence under Section 376 of the Indian Penal Code, to RI for

seven years and to pay a fine of rupees ten thousand and in

default thereof, to undergo SI for one month.He has been also

sentenced for the offence under Section 363 of the IPC to RI for

two years and to a fine of rupees one thousand and in default

thereof, to undergo SI for one month. Rigorous imprisonment of

Crl.A. 215/2006 Page 1 three years has been awarded to the appellant for the offence

under Section 366 of the Indian Penal Code and a fine of rupees

one thousand has been also imposed upon him and in default

thereof, appellant has been directed to undergo SI for one month.

Aforesaid sentences have been ordered to run concurrently by

the trial court.

2. In this appeal, aforesaid conviction and sentence has been

assailed by the appellant.

3. The factual matrix of the prosecution case is as under :-

On 23.10.2003, Smt. Urmila Devi W/o Chalitra Paswan went

to PS Okhla Industrial Area and got recorded her statement

through SI Manoj Kumar vide Ex.PW3/A regarding kidnapping of

her daughter Sanju on which SI Manoj Kumar made endorsement

Ex.PW9/A and handed over the same to the Duty Officer for

registration of FIR and SI Manoj Kumar started search for the

appellant and prosecutrix but they could not be traced and SI

Manoj Kumar sent WT message to CBI office, Crime Branch Office

and the missing report was advertised in Doordarshan and the

fact was also advertised in newspapers but the prosecutrix could

not be traced. On 29.1.2004, SI Manoj Kumar received a secret

information about the presence of the prosecutrix and the

appellant near Machli Market, Gobind Puri and he immediately

went to the place of information alongwith Ct. Chattar Singh and

informer and as per the pointing out of the secret informer, and

Crl.A. 215/2006 Page 2 as per the photographs of the prosecutrix, apprehended the

prosecutrix and the appellant Kali Pado. SI Manoj Kumar then

prepared recovery memo Ex.PW2/C, brought the appellant as well

as prosecutrix to the police station and as per the directions of

senior officers, appellant and the prosecutrix were handed over

to W/SI Sangmitra alongwith the case for further investigation.

Appellant was arrested and his personal search was conducted

vide memo Ex.PW.2/A and he was interrogated and thereafter

prosecutrix and the accused were sent to AIIMS for their medical

examination in the custody of lady Ct Sunita and Ct. Chattar

Singh and after medical examination of the prosecutrix, lady Ct.

Sunita handed over one sealed pulanda and one sample seal

which SI Sangmitra seized vide memoEx.PW.1/A and after

medical examination of appellant, Ct. Chattaar Singh handed

over four sealed parcels and sample seal which SI Sangmitra

seized. Appellant was sent to lock up Kalka Ji and prosecutrix

remained in the police station under the supervision of SI

Sangmitra. Next day, accused and prosecutrix were produced

before the court from where the prosecutrix was sent to Nari

Niketan and appellant was sent to judicial custody. Investigating

Officer seized certificate from Girls Senior Secondary School,

Kalka Ji regarding the date of birth of the prosecutrix vide memo

Ex.PW.5/B, recorded the statement of witnesses and case

property was sent to CFSL. After completion of investigation,

Crl.A. 215/2006 Page 3 charge-sheet for the offence under Section 363/366/376 of Indian

Penal Code was filed against the appellant/accused.

4. Appellant was called upon by the trial court to face trial for

the offences under Section 363/366/376 of the Indian Penal Code

as he had not pleaded guilty to the aforesaid charges.

5. At trial, nine witnesses in all, have deposed. The star

witness is the prosecutrix (PW-6). Urmila (PW-3) is the mother of

the prosecutrix who is a witness to the kidnapping of the

prosecutrix by the appellant/accused. Smt. Vrinda (PW-5) proves

the school leaving certificate Ex.PW5/B of the prosecutrix, which

gives the date of birth of the prosecutrix as 26 th June, 1987. Dr.

Sumana (PW-7) has proved the MLC Ex.PW.7/A of the prosecutrix.

SI Sangmitra (PW-8) and SI Manoj Kumar (PW-9) have conducted

the investigation of this case. Appellant alleges his false

implication in this case at the instance of the parents of the

prosecutrix. Upon conclusion of the trial, appellant stands

convicted and sentenced as already noticed above.

6. Both the sides have been heard and the evidence on record

has been perused.

7. It has been urged on behalf of the appellant that the

prosecutrix was a consenting party and, therefore, she did not

raise any alarm when she was allegedly abducted from the

crowded area of Govind Puri. It has been also argued on behalf

of the appellant that when the police came to Ashram alongwith

Crl.A. 215/2006 Page 4 her father, even then she did not raise any alarm and thereafter

the police had gone back. On the aspect of the age of the

prosecutrix, it has been contended that she was a major and a

consenting party. It has been pointed out that as per the bone

age report of the prosecutrix, she was aged between fourteen to

sixteen years and by giving benefit of margin of two years on

either side, her age comes to eighteen years. According to the

defence, there is unexplained delay of about two and a half

months in lodging of the FIR of this case and it supports the plea

of the appellant of prosecutrix being a consenting party to the

whole affair. Thus, it has been contended on behalf of the

appellant that the appellant has been wrongly convicted by the

trial court and he deserves to be acquitted.

8. On behalf of the State, learned Addl. Public Prosecutor for

the State urges that the testimony of the prosecutrix is consistent

and reliable and the appellant has been rightly convicted and

sentenced on the basis of the evidence on record and there is no

merit in this appeal.

9. After having heard both the sides and upon perusal of the

record of this case, I find that as per the school leaving certificate

of the prosecutrix Ex.PW5/A, her date of birth is 25th June, 1987

and this incident is of 25th August, 2003. Thus, it is clear that the

prosecutrix was aged slightly above sixteen years at the time of

this incident. Her MLC Ex. PW.7/A corroborates it as her age

Crl.A. 215/2006 Page 5 reflected therein is sixteen years and seven months. As per the

bone age report of the prosecutrix, as noticed in the impugned

judgment, her age was between fourteen to sixteen years, at the

relevant time. The benefit of two years as claimed by the

appellant is already given in the bone age report, while opining

her age to be between fourteen to sixteen years and additional

benefit of two years cannot be given by adding two years to the

outer age of the prosecutrix as given in her bone age report.

Therefore, it stands firmly established that the prosecutrix was

aged more than sixteen years but was less then eighteen years

on the day of this incident.

10. According to the appellant, prosecutrix was a consenting

party. Although the prosecutrix has stated in her evidence that

when she had tried to raise alarm, her mouth was shut by the

appellant with his hand while she was being raped. However, she

stands contradicted from the alleged history given by her to the

doctor as contained in her MLC Ex.PW.7/A which reads as under :-

"Alleged to be kidnapped by brother in law. Acc. To the girl, she had married her brother in law 7 months back (in temple) and is continuously living with him at her own will."

11. In the face of the aforesaid "alleged history" as given by the

prosecutrix to the doctor at the time of her medical examination,

the plea of the appellant of prosecutrix being a consenting party

to the sexual intercourse merits acceptance and thereby

Crl.A. 215/2006 Page 6 absolves the appellant of the charge of rape. Trial court has over

looked the aforesaid vital evidence which favours the

appellant/accused and permits him to earn an acquittal for the

offence of rape. However, there is clinching evidence of Urmila

(PW-3), mother of the prosecutrix who has stated in her evidence

that after they had got down from auto rikshaw, appellant had

fled away with the prosecutrix. Since the prosecutrix has been

found to be aged below eighteen years, therefore, in the light of

the evidence of the prosecutrix and her mother, the charge under

Section 363/366 of the Indian Penal Code stands duly proved

against the appellant who has been rightly convicted by the trial

court for the aforesaid offences.

12. Resultantly, the conviction and the sentence imposed upon

the appellant for the offence under Section 376 of the Indian

Penal Code is set aside. However, the conviction of the appellant

for the offence under Section 363/366 of the Indian Penal Code is

hereby maintained. For the aforesaid offences, appellant has

been convicted by the trial court to rigorous imprisonment for

three years and two years respectively and both the sentences

have been ordered to run concurrently. As per the nominal roll of

the appellant, he has already undergone the sentence of three

years, two months and twenty three days as on 17 th December,

2008. Appellant is in judicial custody. He be released, if not

wanted in any other case. He be informed of this order through

concerned Jail Superintendent.

Crl.A. 215/2006 Page 7

13. With aforesaid modification, this appeal stands partly

allowed.

                                        SUNIL GAUR, J
January 06, 2009
dkg




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