Puran Singh vs The State Of Nct Of Delhi
2010 Latest Caselaw 3121 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                           Judgment delivered on: July 06, 2010

+      CRIMINAL APPEAL NO.300/2008

       PURAN SINGH                            ....APPELLANT
               Through: Mr. Rajesh Mahajan, Amicus Curiae


                       Versus

       THE STATE OF NCT OF DELHI            .....RESPONDENT

Through: Mr. Pawan Bahl, APP

CORAM:

HON'BLE MR. JUSTICE AJIT BHARIHOKE

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

2. To be referred to the Reporter or not ?

3. Whether the judgment should be reported in Digest ?

AJIT BHARIHOKE, J.(ORAL)

1. This appeal is preferred against the impugned judgment dated

17th August, 2007 and the consequent order on sentence dated 21st

August, 2007 whereby the appellant Puran Singh has been convicted

for the offence punishable under Section 376 and 363 IPC and

sentenced him accordingly.

2. Appellant Puran Singh was employed at a Water Pump near

Khajuri Khas. Prosecutrix (name withheld) was acquainted with him.

On 03.04.2005, appellant Puran Singh induced the prosecutrix to

Crl.A.No.300/2008 accompany him to Bareilly. Wazid, a young boy of 09 years and

nephew of prosecutrix was also present at that time and the

prosecutrix as well as Wazid agreed to go to Bareilly with the appellant.

However, Wazid could not adjust at Bareilly, so the appellant sent him

back to Delhi by making him board a bus from Bareilly to Delhi. On

reaching Delhi, Wazid informed Mustaqueem, father of the prosecutrix

about the incident.

3. Complaint Mustaqueem then approached P.S. Khajuri Khas and

lodged a complaint which was registered as FIR No.138/05 under

Section 363 IPC P.S. Khajuri Khas. On 07.04.2005, prosecutrix was

spotted at Railway Station Shahdara. She was taken in the protective

custody and sent to the hospital for medical examination. On medical

examination at GTB Hospital, her hymen was found ruptured (old

healed) and there were no marks of injury on her person. Her MLC is

Ex.PA. Statement of the prosecutrix under Section 164 Cr.P.C. was got

recorded wherein she stated that she was in love with the appellant

and the appellant took her to Bareilly by inducement and

misrepresentation. There she stayed with two sisters of the appellant

for one night each and on such one night, they indulged in physical

relationship as husband and wife. Said statement is Ex.PW1/A.

4. On 16.08.2005, appellant surrendered in the Court of

Metropolitan Magistrate. He was formally arrested after seeking

permission from the learned Magistrate and sent to hospital for

Crl.A.No.300/2008 medical examination. On conclusion of investigation, charge sheet

against the appellant was filed.

5. Appellant was charged for the offences punishable under

Sections 363/376 IPC. Appellant pleaded not guilty to the charge and

claimed to be tried.

6. In order to bring home the guilt of the appellant, prosecution

examined 14 witnesses in all. However, the case of the prosecution is

essentially based upon the testimony of the prosecutrix, who was

examined as PW1, besides the medical evidence and the evidence

relating to the age of the prosecutrix.

7. Prosecutrix has testified in the court that the appellant was

known to her as he was working as a Watchman at Water Pump, near

Khajuri Khas, Delhi. On 03.04.2005, appellant took her to Bareilly on

the pretext of getting her good clothes besides good food. She was

kept in a village near Bareilly for about four days where the appellant

raped her against her will and consent. She claimed that when she

accompanied the appellant to Bareilly, her nephew Wazid was with her.

On 07.04.2005, the appellant brought her to Delhi and she was

recovered by the police from Shahadra Railway Station. She was taken

to hospital for medical examination and her statement (Ex.PW1/A)

under Section 164 Cr.P.C. was recorded.

8. PW2 Mustaqueem has testified that the prosecutrix, his daughter,

went missing on 03rd April about two years prior to the recording of her

Crl.A.No.300/2008 testimony. His grandson Wazid also went missing with her. He

however, thought that she might have gone to visit some relations.

Two days later, Wazid returned and he told them that prosecutrix was

with a boy named Puran. Thus, he went to the police station and

lodged a report Ex.PW2/A. Two days later, prosecutrix met him and the

police party at Railway Station, Shahdra but the appellant was not

along with her. He further stated that he produced birth certificate of

the prosecutrix before the investigating officer SI Saleem, who seized it

vide memo Ex.PW2/B. He stated that photocopy of the birth certificate

is Mark PX.

9. PW10 Somesh Kumar, Sub-Registrar, Births and Deaths,

Shahadra, North Zone, Delhi testified on the basis of the birth register

pertaining to the Karawal Nagar Centre of MCD for the year 1990. He

deposed that as per the entry at serial No. 741 of the register,

prosecutrix was born to Satara Begum, Wife of Mustaqueem and he

proved the copy of relevant entry as Ex.PW10/A.

10. PW11 SI Mohd. Saleem is the Investigating Officer. He stated

that on 05.04.2005, investigation of this case was entrusted to him.

On that day, complainant Mustaqueem produced before him copy of

birth certificate of the prosecutrix Ex.PX, which he took into possession

vide memo Ex.PW2/B. He stated that on 07.04.2005, he received

information that the prosecutrix was expected to reach Railway

Station, Shahdra. Accordingly, he along with the complainant and the

Crl.A.No.300/2008 police officials reached there. At about 09:00 or 09:30 am, on the

pointing of the complainant, he recovered the prosecutrix. Her

statement was recorded and she was sent for medical examination to

GTB Hospital along with Lady Constable Geeta. On return, Constable

Geeta handed over him the MLC (Ex.PA) and sample seal to him, which

were seized vide memo Ex.PW5/A. On 12.04.2005, he got recorded

statement of the prosecutrix under Section 164 Cr.P.C. He stated that

on 16.8.2005, appellant surrendered before learned Magistrate, who

was formally arrested and sent to GTB Hospital for medical

examination.

11. Statement of appellant under Section 313 Cr.P.C. was recorded.

Appellant denied the allegation of rape. He, however admitted that the

prosecutrix had accompanied him to Bareilly and stayed with him for

one night. According to him, she went on her own and he had no sex

with her and that he has been falsely implicated.

12. Learned Sh. Rajesh Mahajan, Amicus Curiae appearing for the

appellant has submitted that the learned Trial Court has committed a

grave error in relying upon the testimony of the prosecutrix (PW1)

pertaining to her forced sexual violation by the appellant. He

submitted that the prosecutrix had voluntarily accompanied the

appellant to Bareilly and the appellant did not have any sex with her.

Therefore, neither the charge of kidnapping under Section 363 IPC nor

charge under Section 376 IPC is made out.

Crl.A.No.300/2008

13. Learned counsel for the State, on the other hand, has argued in

support of the impugned judgment. He submitted that the prosecutrix,

in her testimony, is categoric that she was induced by the appellant to

accompany him to Bareilly where she was forced to indulge in sexual

act with the appellant against her wishes. Learned counsel for the

State submitted that aforesaid version of the prosecutrix finds

corroboration from her MLC Ex.PA wherein it is recorded that her

hymen was ruptured, which is generally possible because of sexual

penetration. He submitted that otherwise also, there is no reason why

the prosecutrix would depose falsely against the appellant at the cost

of her honour. Thus, it is argued that learned Trial Court has rightly

relied upon the prosecution evidence to hold the appellant guilty of

charges under Sections 363 IPC as well as 376 IPC.

14. I have carefully considered the rival contentions. Prosecutrix who

appeared as PW1 has claimed that on 03.04.2005, the appellant had

taken her to Bareilly on the pretext of getting her good clothes as well

as good food to eat. He kept her in a village near Bareilly for four days

and during said period, he committed rape upon her against her will

and consent. Aforesaid version of the prosecutrix, particularly

regarding the rape against her consent, is not reliable because as per

the prosecutrix, statement of the prosecutrix under Section 164 Cr.P.C.

was recorded as early as on 12.04.2005. In the aforesaid statement

Ex.PW1/A, prosecutrix has nowhere stated that she was subjected to

sexual intercourse with the appellant against her wishes, though she

Crl.A.No.300/2008 had stated that on one night, she and appellant indulged in physical

relationship as husband and wife. From this version of the prosecutrix,

it is apparent that she is not stating the truth so far as rape without her

consent is concerned. However, the fact remains that sexual

intercourse did take place between the appellant and the prosecutrix,

which fact is also corroborated to some extent by the medical evidence

i.e. MLC Ex.PA, which indicates that on medical examination conducted

on 07.04.2005, hymen of the prosecutrix was found ruptured, which is

an indication of the sexual intercourse. However, as per the medical

evidence, no injury was found on the person of the prosecutrix, which

also negatives the possibility of forced rape committed upon the

prosecutrix.

15. Learned counsel for the State has submitted that even if it is

assumed that it was an act of consensual sex with the prosecutrix, then

also, his act in indulging in sex with the prosecutrix falls within the

definition of rape as provided in Section 275 of the Indian Penal Code.

Perusal of Section 275 IPC reveals that sexual intercourse with a girl

below the age of 16 years, even with consent, amounts to rape. In the

instant case, as per the testimony of PW10 Somesh Kumar, Sub-

Registrar, which is based upon the birth register of year 1990

maintained at Karawal Nagar Centre of MCD, prosecutrix was born on

25.04.1990 to Satara Begum Wife of Mustaqueem, who are the parents

of the prosecutrix. From this, it is evident that at the relevant time i.e.

03.04.2005 to 07.04.2005, the prosecutrix was aged 15 years and few

Crl.A.No.300/2008 days. Thus, the sexual act committed by the appellant with the

prosecutrix during said period falls within the definition of rape. As

such, I find no infirmity in the finding of the learned Trial Judge holding

the appellant guilty of kidnapping of prosecutrix from legal

guardianship of her parents and rape punishable under Sections 363

and 376 IPC. Thus, there is no reason to interfere with the conviction

of the appellant.

16. Learned amicus curiae has also challenged the impugned

judgment on the point of sentence. He submitted that RI of seven

years for the offence under Section 376 IPC awarded to the appellant is

too harsh, particularly when, the prosecutrix herself was the

consenting party to the sexual act. He submitted that the prosecutrix

was physically mature and from her appearance, one could not have

anticipated that she was below 16 years of age. Learned amicus curiae

further submitted that the appellant was a young man of 21 years at

the relevant time without any criminal antecedents. He belongs to a

poor family which is dependent upon his earning. Thus, in view of the

aforesaid circumstances, he has strongly urged for reduction of the

sentence.

17. The proviso to Section 376 (1) of Indian Penal Code provides that

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 7 years. In the instant case, admittedly, prosecutrix indulged in

Crl.A.No.300/2008 sexual activity with the appellant of her own volition without any

pressure or threat. She, as per her statement under Section 164

Cr.P.C. did not resist or raise any hue or cry and she also, as per her

testimony in court did not tell the other persons living in the house at

Bareilly, though she used to talk with those persons. The appellant has

been in incarceration, as per the nominal roll, for a period of more than

4 years. In view of the aforesaid mitigating factors coupled with the

fact that the appellant is a young man belonging to a poor strata of

society, having no previous criminal antecedents, I hereby reduce the

sentence awarded to the appellant under Section 376 IPC from 07

years to 05 years while maintaining the fine and also maintaining the

sentence awarded to the appellant under Section 363 IPC. Both the

sentence shall run concurrently. Needless to say that appellant shall

get benefit of Section 428 Cr.P.C.

18. Appeal is disposed of accordingly.

(AJIT BHARIHOKE) JUDGE JULY 06, 2010 pst

Crl.A.No.300/2008