Delhi High Court
Ramvir vs State on 4 November, 2009
Author: V. K. Jain
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.A. 460/1999
Reserved on: October 23, 2009
Pronounced on: November 4, 2009
# RAMVIR ..... Appellant
! Through: Mr.Chander Mohan, Advocate
Versus
$ STATE
.....Respondent
^ Through: Mr. Amit Sharma, Addl.PP for the State.
CORAM:
HON'BLE MR. JUSTICE V.K. JAIN
1. Whether Reporters of Local newspapers may be allowed to see
the Judgment?
2. To be referred to the Reporter or not?
3. Whether the Judgment should be reported in the
Digest?
V.K.Jain, J.
1. This is an appeal against the judgment dated 3.8.1999 and
Order on Sentence dated 6.8.1999 whereby the appellant was convicted
under Sections 363/366/376 of IPC and was sentenced to undergo
rigorous imprisonment for ten years and to pay a fine of Rs.5,000/- or to
undergo simple imprisonment for three months in default under Section
376 IPC. He was also sentenced to undergo rigorous imprisonment for
six years and to pay a fine of Rs.2,000/- or to undergo simple
Crl.A.460/1999 Page 1
imprisonment for one month in default under Section 366 IPC and
rigorous imprisonment for three years and to pay a fine of Rs.2,000/- or
for one month in default under Section 363 IPC.
2. The case of the prosecution, as disclosed in the FIR lodged by
Shri Krishan Murari, father of the prosecutrix, on 20.5.1992 was that
about one month ago, he and his wife gone to his native place, leaving
their children at home. On 14.5.1992, his servant informed him that the
prosecutrix, who at that time aged about 13 years, had not come back
from the School on 13.5.1992. The complainant alleged that he had
come to know that the prosecutrix was taken by appellant Ramvir with
him. The appellant was arrested on 27.11.1992 at a bus stand in Delhi
and at that time, the prosecutrix was with him.
3. The prosecutrix came in the witness box as PW-3 and stated
that on 13.5.1992, at about 7:30 a.m., the appellant who belonged to her
village and was known to her, came there and informed her that her
father had met with an accident and, therefore, she should accompany
him to Kashmiri Gate. She accordingly accompanied the appellant to
Kashmiri Gate. Thereafter, the appellant told him that her father had not
sustained serious injuries and she should accompanied him to market for
purchasing some articles. Noticing the contradiction in the statements
made by the appellant, she asked him to tell what exactly the matter was.
When the appellant said that he would tell truth later on, she refused to
accompany him. Thereupon, the appellant threatened to kill her and her
brother in case she did not accompany him and being afraid, she
Crl.A.460/1999 Page 2
accompanied him. The appellant took him to Loni Border where he kept
her in a room which he had taken on rent and committed rape on her by
threatening her. Thereafter, he took her to Badayun to the house of her
sister. She accompanied the appellant due to threats. In Badayun, he
again committed rape on her. She also kept there for two days. He took
her to Ludhiana by force. There, also he took a room on rent and kept
her. At Ludhiana also, he committed rape against her consent and by
extending threats to her. She, however, stated that the appellant used to
keep a knife with him. On her repeated insistence and also for the
reasons that residents of that locality had become suspicious, the
appellant brought her to Delhi, where he was arrested by the Police from
a Police Station and she was rescued. The prosecutrix also identified her
underwear Ex.P-1 which she was wearing at the time she was rescued by
the Police.
4. According to the prosecutrix, on 13.5.1992, she first came
with the appellant to I.S.B.T. at Kashmiri Gate, Delhi, and noticing the
contradiction in the statement made by him to her, she refused to
accompany him whereupon he threatened to kill her and her brother in
case she did not accompany him. In her statement, the prosecutrix did
not allege any such threat on the part of the appellant. She simply stated
that from the School, she came to I.S.B.T. and from there, they took a bus
and she was taken by the appellant to the house of his sister in a Village
Muradabad. Had the appellant really threatened the prosecutrix and her
brother as stated by her during trial, she could not have missed this fact
while giving statement before the learned Magistrate under Section 164
Crl.A.460/1999 Page 3
of Cr.P.C. Therefore, the deposition of the prosecutrix, as regards the
threat alleged to have been given to her is an improvement on her
previous statement and appears to be an afterthought. Even otherwise,
it cannot be believed that at a busy and crowded place like Inter State
Bus Terminal, the prosecutrix would get afraid of the appellant and
would meekly accompany him without even knowing where he was
taking to her. In her deposition in the Court, the prosecutrix stated that
the appellant used to keep a knife with him. However, in her Statement
under Section 164 of Code of Criminal Procedure, she did not make any
such allegation. Had the appellant been having a knife with him, the
prosecutrix would definitely had stated so in her statement under Section
164 Cr.P.C. Admittedly, no knife was recovered from the appellant when
he was arrested. This is also not the case of the prosecutrix that the
knife, which the appellant used to keep with him, had been thrown away
by him before coming to Delhi or before he was arrested by the Police.
Therefore, the allegation that the appellant used to carry a knife with him
cannot be accepted in the facts and circumstances of this case.
5. The prosecutrix did not raise any alarm when she was at
I.S.B.T. and the appellant insisted upon her accompanying him in a bus.
There is no explanation for the prosecutrix not raising an alarm at a busy
place like I.S.B.T. Had she raised an alarm, the appellant would have
immediately been caught either by Police officers who are always present
at such a place or by one of the thousands commuters who use this huge
bus terminals every day.
Crl.A.460/1999 Page 4
6. From Delhi up to the place where she was taken the
prosecutrix travelled in a bus, she did not raise any alarm while
travelling in the bus. Had she raised the alarm, the appellant could have
been caught by the fellow passengers/driver/conductor of the bus. On
account of presence of a number of passengers in the bus, it would not
have been possible for the appellant to cause any harm to the
prosecutrix. Failure of the prosecutrix to raise any alarm while travelling
in the bus is yet another indicator, there was no pressure on her to
accompany the appellant.
7. In her deposition in the Court, the prosecutrix stated that she
was first taken to Loni Border where she had kept in a rented
accommodation. In her statement under Section 164 Cr.P.C., she did not
say that she was taken to a rented accommodation in Loni Border. As
per her statement before the Magistrate, she was taken from I.S.B.T.
straight to the house of the sister of the appellant in a village of
Muradabad. Had the prosecutrix not willingly accompanied the
appellant, she had ample opportunity to raise alarm when she got down
at bus stand at Loni Border which otherwise is a very crowded place or
when she travelled from bus stand to the place where she was kept in a
rented accommodation. Moreover, had she not been a willing companion
of the appellant, she would have complained to the landlord or other
occupants of the house at Loni Border that she was being kept by the
appellant under threat and was not willingly living with him.
Crl.A.460/1999 Page 5
8. The prosecutrix has stated that from Loni Border, she was
taken to the house of the sister of the appellant in District Badayun. The
prosecutrix must have travelled either in a bus or in train from Loni
Border to Badayun. Had she not been willing to accompany the
appellant, she would have raised alarm at the bus stand or at the railway
station, depending upon whether she travelled on train or in bus. She
also had ample opportunity to raise alarm in the bus or in the train. The
failure of the prosecutrix to raise any alarm even at that time is a strong
indicator of her having willingly accompanied the appellant. In her
statement under Section 164 Cr.P.C., the prosecutrix stated that the
husband, mother-in-law and children of the sister of the appellant were
residing in the house in which she was kept. It is very difficult to believe
that the appellant kept the prosecutrix in the house of his sister, against
her consent, in the presence of not only his sister but her mother-in-law
and children. In normal course of human conduct, no one will force a girl
to live with them in the house of in-laws of her sister particularly when
there are also children in the household. Only a girl who willingly
accompanies the boy is likely to be taken to the house of relative and
kept in a family.
9. According to the prosecutrix, from the hosue of the sister of
the appellant, she was taken to Ludhiana where she was kept in a rented
accommodation. Again, she had ample opportunity to raise alarm while
travelling from Badayun to Ludhiana at bus stands/railway stations from
where the bus/train was taken by them for going to Ludhiana. No alarm
was raised despite the prosecutrix having umpteen opportunities to do
Crl.A.460/1999 Page 6
so. Though the prosecutrix was kept in a rented accommodation in
Ludhiana, she did not make any complaint to the landlord that she had
been brought forcibly to Ludhiana. In her statement under Section 164
Cr.P.C., she stated that the appellant had claimed before the landlord
that she was his sister-in-law. This shows that she had met the landlord
and thus had opportunity to share her plight with him. Even while
returning from Ludhiana to Delhi, the prosecutrix did not raise any
alarm. Had she done so, the appellant would have been caught either at
the bus stand or in the bus/train in which they travelled. All these facts
and circumstances lead to an irresistible conclusion that the prosecutrix
voluntarily accompanied the appellant, who was residing as a tenant in
the house of her father. The obvious inference is that she had become
friendly to the appellant and that is why, she accompanied him to these
places when her parents had gone to their native place.
10. The deposition of the prosecutrix shows that she was
subjected to sexual intercourse by the appellant firstly on 14.5.1992 and
thereafter a number of times during the period she remained in his
company. I see no reason to disbelieve the testimony of the prosecutrix
as regards sexual intercourse with her. It is unlikely that a young
unmarried girl will falsely allege sexual intercourse, since, by making
such an accusation, she sacrifices what is dearest to her. In our tradition
bound non-permissive society, a girl or a women would be extremely
reluctant even to admit such an incident, conscious as she would be of
being ostracised by the society including her own family members,
relatives and neighbours. Even the parents of an unmarried girl would
Crl.A.460/1999 Page 7
be reluctant to report such an incident to the Police unless they are
absolutely sure of its truthfulness. They would be aware of the risk that
comes to be associated with the marriage of an unmarried girl who is
subjected to sexual intercourse. They would be knowing it very well that
it would be difficult for them to find a suitable match, from a respectable
family, if it becomes public that the girl had been subjected to such an
indignity. In fact, their natural inclination would be to avoid giving
publicity to an incident of such nature lest the family name and family
honour is brought into controversy. Therefore, I have no hesitation in
accepting the testimony of the prosecutrix to the effect that she was
repeatedly subjected, by the appellant to sexual intercourse. A perusal of
the report of the Forensic Science Laboratory shows that semen was
found on the underwear of the prosecutrix as well as of the appellant
when examined in the Laboratory. These are the same underwears
which the prosecutrix and the appellant were wearing when the police
caught up with them on 27.11.1992. The appellant was arrested while in
the company of the prosecutrix. This is not the case of the appellant that
though he kept the prosecutrix in his company for more than 6 months,
he did not establish physical relations with her. All these facts prove that
though the prosecutrix voluntarily accompanied the appellant from her
School, he had sexual intercourse with her a number of times starting
from 14.5.1992.
11. According to PW-4 Krishan Murari, father of the prosecutrix,
his daughter was born in the year 1979, though he had got her date of
birth recorded as 11.10.1976 in her School record, Ex.PW-6/A is a Family
Crl.A.460/1999 Page 8
Register of the villagers maintained by Village Pipri Raghunath Pur.
PW-4 Ashok Babu Panchayat Adhikari has stated that this register is
maintained by Panchayat Secretary in the ordinary course of his duty and
entries in the register are made on the basis of births and deaths in the
family. He has further stated that it is mandatory that the family should
inform the authority regarding births and deaths in the family. This
register was prepared on 14.10.1972 and thereafter entries were made
in it on 16.11.1981. The register was found duly page marked and
authenticated by concerned authorities. As per the register of the
Village Panchayat, which is a public document, the prosecutrix was born
sometime in the year 1978. Computed from the first date of the year
1978, the prosecutrix was less than fifteen years of age on 14.5.1992
when the appellant had sexual intercourse with her for the first time.
Even if the date of birth of the prosecutrix is taken as 11.10.1976 which
according to her father is the date in the School record, she was about
fifteen years, seven months and three days on 14.5.1992, when the
appellant for the first time had sexual intercourse with her. Assuming
that the appellant had sexual intercourse with the prosecutrix with her
consent, he would nevertheless by guilty of offence punishable under
Section 376 of Indian Penal Code, since Section 375 (fifthly) of the Code
provides that rape includes sex with the consent of a woman, where at
the time of giving such consent, she is under sixteen years of age. Since
the prosecutrix was less than sixteen years of age on 14.5.1992, the
appellant is guilty of rape irrespective of whether he had sex with or
Crl.A.460/1999 Page 9
without her consent. Therefore, the appellant has righty been convicted
under Section 376 of Indian Penal Code.
12. As regards charge under Section 363 and 366 of IPC, in order
to prove kidnapping the prosecution was required to prove that the
appellant had taken or enticed the appellant out of the keeping of her
lawful guardian. The object behind Section 361 of Indian Penal Code,
which defines kidnapping, is to protect the minor children from being
seduced for improper purposes and to protect the rights and privileges of
guardians having lawful charge or custody of their minor wards. What is
necessary is either taking or enticement, of the minor. Taking would
include causing to go or getting into possession whereas enticement
involves an idea of inducement, by igniting hopes or desire in the other.
One does not entice other unless the latter attempted to do a thing which
he or she would not otherwise have done. In order to bring home
conviction for kidnapping, there must be proof of the accused having
done something which led to the girl going out of the keeping of her
guardian. The words 'takes' and 'entices' as used in Section 361 of
Indian Penal Code need to be read together so as to take colour and
content from each other.
13. If the minor leaves her parental home without any promise,
offer or inducement from the accused, it cannot be said that an offence of
kidnapping is made out. Of course, if the accused lays a foundation by
inducement, allurement etc. and that influences the minor or weighs with
her in leaving her guardian's custody and keeping and going with the
Crl.A.460/1999 Page 10
accused then it is difficult to accept that the minor had voluntarily come
to the accused.
14. In the present case, there is no evidence of the appellant
having extended any promise or allurement to the prosecutix. There is
no evidence that the appellant induced the prosecutrix by promising to
marry her or by holding out any other promise. According to the
prosecutrix, the appellant had threatened her and being afraid of him,
she accompanied him to the places visited by her with him. This part of
the deposition of the prosecutrix has been found to be false. The
prosecutrix has returned home after spending more than six months with
the appellant. Though, she has been found to be less than sixteen years
old, it cannot be said that she was not capable of knowing what she was
doing and was not of such an age so as to be enable to decide what was
good and was bad for her. In fact, had she been older by six months even
the offence of rape would not have been made out against the appellant
in the facts and circumstances of this case. The facts and circumstances
of the case clearly indicate that the prosecutrix willingly accompanied
the appellant to a number of places and stayed with him till they were
caught by the police on 27.11.1992. The facts and circumstances of the
case indicate that the prosecutrix knowing and having capacity to know
the full import of what she was being voluntarily joined the accused. It
would, therefore, be difficult to say that offence of kidnapping punishable
under Section 363 is made out against the appellant in the facts and
circumstances of this case.
Crl.A.460/1999 Page 11
15. As regards charge under Section 366 of I.P.C., the same
cannot stand when no kidnapping is made out against the appellant.
Moreover, in order to succeed in a charge under Section 366 of I.P.C.,
the prosecution is also required to prove that the kidnapping was
(a) with intent that she may be compelled or knowing it to be likely
that she will be compelled to marry any person against her will;
or
(b) in order that she may be forced or seduced to illicit intercourse
or knowing it to be likely that she will be forced or seduced to
illicit intercourse.
In the present case, there is no evidence of the appellant having
even made an attempt to compel the prosecutrix to marry him. The
deposition of the prosecutrix that she was forced to have intercourse
with the appellant does not stand proved in the facts and circumstances
of this case. It cannot be said that the appellant took the prosecutrix
with her so as to force or seduce her to illicit intercourse or knowing it to
be likely that she would be forced or seduced to illicit intercourse.
16. In Shyam and Another versus State of Maharashtra , 1995
Criminal Law General 3974, the prosecutrix had put blame on the
appellants and had deposed that she was threatened right from the
beginning while being kidnapped and was kept till police recovered her.
It was found by the Hon'ble Supreme Court that she was not truthful as
regards the manner of the so-called taking. The prosecutrix in that case
was a grown up girl, though she had not touched 18 years of age but was
Crl.A.460/1999 Page 12
still in the age of discretion. She was found going on the bicycle of the
appellant. The Hon'ble Supreme Court noted that it was not unknown to
her with whom she was going and therefore, it was expected of her then
to jump down from the bicycle or put up the struggle and in any case
raise an alarm to protect herself. As no such steps were taken by her,
the Hon'ble Supreme Court felt that she was a willing party to go with
the appellants of her own and, therefore, there was no taking out of the
guardianship. The appellants were acquitted of the charge under Section
366 of IPC.
17. In State of Karnataka vs. Sureshbabu, 1994 Crl.L.J.1216(1), it
was found that the girl went with the accused voluntarily. It was held by
the Hon'ble Supreme Court that the requirement of Section 366 of IPC is
that taking or enticing away a minor out of the keeping of the lawful
guardianship was an essential ingredient of the offence of kidnapping. It
was held that in such a case, it is difficult to held that the accused had
taken her away from the keeping of her lawful guardian and something
more has to be shown in a case of this nature, like inducement.
18. In Mahabir vs. State 55(1994)DLT 428, the appellant and the
prosecutrix were known to each other. The appellant took the
prosecutrix to a place outside Delhi where they stayed for about fifteen
days and had sexual intercourse with each other. The appellant was
convicted under Sections 366 and 376 of I.P.C. A learned Single Judge of
this Court noticed that she had gone to Railway Station, had stood there
with the appellant who also went to purchase tickets and then she had
Crl.A.460/1999 Page 13
travelled with him in a compartment shared by other persons. She had
then gone to a house in a tonga and yet she did not lodge any protest and
made no attempt to flee despite having ample time and opportunity. The
learned Single Judge noted that on the day of reckoning, she surely had
crossed mark of sixteen years and since she was all along a willing party,
the appellant was acquitted of both the charges against him. Thus,
despite the prosecutrix being less than eighteen years of age, the
appellant was acquitted not only of charge under Section 376 but also of
the charge under Section 366 of I.P.C.
19. In Piara Singh vs. State of Punjab, 1998(3) Crimes 570, the High
Court found that the prosecutrix was more than sixteen years of age at
the time of this incident, though, the case of the prosecution was that she
was forteen years of old at that time. Since the High Court came into
conclusion that no force was used in having sexual intercourse with him,
the appellant was acquitted not only of charge under Section 376 but
also of charge under Section 366 and 366-A of Indian Penal Code. In this
case also, the prosecutrix was not found to be more than eighteen years
of age.
20. In Bala Saheb vs. State of Maharashtra, 1994 Criminal Law
General 3044, it was found that the prosecutrix accompanied the
appellant/accused from her village and stayed with him for two to three
days. It was held that these circumstances clearly show that offence
under Section 363 or 366 of I.P.C. was not made out.
Crl.A.460/1999 Page 14
21. In Chida Ram vs. State, 1992 Criminal Law General 4073, the
prosecutrix went to the P.S. and lodged report that she had gone with the
petitioner/accused, of her own accord. However, during trial, she
deposed that she was forced by the accused/petitioner to go to the police
station. She had also given statement before a Magistrate after lodging
report with the police and in that statement she did not say that she was
forced by the accused/petitioner to go to the Police Post and lodged the
report. A learned Single Judge of this Court observed that she had ample
opportunity to say before the Magistrate, before whom she was produced
at the first instance, that she was forced by the accused to go to the
Police Station and lodged report. The story set up by her during trial
was considered to be an afterthought and was not believed. It was found
that she was a consenting party in eloping from her house with the
accused/petitioner. It was held that it could not also be called a case of
kidnapping.
22. In view of the reasons stated in the preceding paragraph,
conviction of the appellant under Section 376 of I.P.C. is maintained
whereas he is acquitted of the charges under Section 363 and 366 of
I.P.C. As regards sentence, though the minimum prescribed punishment
is imprisonment for seven years coupled with fine, the Court may for
adequate and special reasons to be mentioned in the judgment, impose a
sentence of imprisonment for a term of less than seven years. The
incident in this case took place in the year 1992. More than seventeen
years have passed since then. This appeal itself is pending for last more
than ten years. The evidence that has come on record clearly shows that
Crl.A.460/1999 Page 15
the prosecutrix had willingly accompanied the appellant to the places
visited by them and spent more than six months in his Company. The
prosecutrix was more than fifteen and a half years old when she eloped
with the appellant. The appellant was a young man of about 23 years
when this incident took place. The main circumstance which persuades
me to take a lenient view in the matter of sentence and awarding less
than the minimum prescribed sentence of seven years is the consent on
the part of the prosecutrix, which is more than evident from the facts of
the case.
23. Keeping in view all the facts and circumstances indicated
above, the appellant is sentenced to undergo rigorous imprisonment for
five years and to pay a fine of Rs.10,000/- or to undergo simple
imprisonment for three months in default under Section 376 of I.P.C.
The appellant will be entitled to benefit of Section 428 of Cr.P.C. One
copy of this order be sent to trial court.
(V.K. JAIN)
JUDGE
November 4, 2009
'sn'
Crl.A.460/1999 Page 16
