Guddu vs State (N.C.T. Of Delhi)
2010 Latest Caselaw 1544 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+                        Crl.A.No.229/2009
%                        Reserved on:      16th March, 2010
                         Date of Decision: 19th March, 2010

#     GUDDU                                  ..... Appellant
!                        Through:    Mr.A.J.Bhambhani, Adv.

                         versus

$     STATE (N.C.T. OF DELHI)           ..... Respondent
^                    Through:        Mr.Jaideep Malik, APP

*     CORAM:
      HON'BLE MR. JUSTICE V.K. JAIN


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

      2.     To be referred to the Reporter or not?                Yes

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


: V.K. JAIN, J.

1. This is an appeal against the judgment dated

25.10.2008 and order of sentence dated 31.10.2008, whereby

the appellant was convicted under Sections 363 and 376 of

IPC and was sentenced to undergo RI for seven years and to

pay fine of Rs.2,000/- or to undergo SI for two months in

default.

2. In the night intervening 7/8 November, 2005, Anand

Kumar Jha, father of the prosecutrix, came to PS Subzi

Mandi and lodged a report stating therein that his daughter

aged about 14 years, who was studying in VII Standard, had

on that day gone to hospital, along with her younger brother

Govind Jha, at about 9.00 a.m. She was standing in the

queue, waiting for her turn. The guard did not allow her

brother to go inside and, therefore, he was sitting outside.

She, however, did not come out and could not be found. At

about 6.00 p.m., she called his neighbour on his telephone

and asked as to whether her brother had reached home. The

neighbour told her that her brother had reached home.

Thereafter she disconnected the call.

3. The case of the prosecution is that in the night of 11th

November, 2005, the appellant Guddu rang up in the

neighbourhood and informed that he had taken the

prosecutrix with him. This is also the case of the prosecution

that on 12th November, 2005, the prosecutrix was recovered

in the company of the appellant from House NO.119 in Sector

22 of Noida. In her statement to the Magistrate, the

prosecutrix stated that when she came out of the hospital,

she could not find her brother. The appellant Guddu, who

used to reside in her neighbourhood met her at the gate of

the hospital. She sought his help in tracing her brother. The

appellant brought her to Nangia Park, from where he took her

in a bus on the pretext that her brother could be available in

Azad Pur. On the way, he made her get down at a deserted

place from where he hired a rickshaw and brought her to

ISBT. From ISBT, she was brought to Noida to the house of

the sister of the appellant Guddu. She also alleged that in

the night of 8th November, 2005, the appellant committed

sexual intercourse with her against her consent. She further

stated that on 12th November, 2005, she spoke to her mother

on telephone and disclosed the place where the appellant had

taken her. The police then recovered her from that place.

4. The prosecution examined 16 witnesses in support of

its case. No witness was examined in defence.

5. The prosecutrix came in the witness box as PW-2 and

stated that on the day of this incident she had gone to Hindu

Rao Hospital along with her brother. She went inside the

room for medical attention, whereas her brother stayed

outside. When she came out, she did not find her brother and

looked for him. The appellant Guddu, who was her

neighbour at that time, met her and assured to help her in

finding her brother. The appellant then took her to a park

and kept on assuring her that her brother would be found.

He, however, did not help her in searching her brother. In

the evening, the appellant suggested that probably her

brother may have returned home and, therefore, they should

go home. She thereupon boarded the bus suggested by the

appellant. At a deserted place, they got down from the bus

and the appellant hired a rickshaw which took them to ISBT.

From there, the appellant took her to Noida, by bus, and

kept her in the house her sister. The appellant applied

Vermillion on her head and then committed sexual

intercourse with her. She further stated that one day she

spoke affectionately to the appellant assuring him that she

wished to stay with him and requested him to allow her to

speak to her parents. The appellant then permitted her to

speak to her parents on telephone. Her sister spoke to the

appellant and obtained address of the place where they were

staying. Her sister Kalpana, along with her husband,

reached there on 12th November, 2005 and rescued her with

the help of the police.

6. PW-4, Smt.Shobna Suresh is the person in whose

house the appellant had kept the prosecutrix. She has stated

that the appellant used to treat her as his sister and that in

the morning of 8th November, 2005 at about 6.00 a.m. he

came to her house along with the prosecutrix. Both of them

told her that they were coming from the village. The appellant

told her that they wanted to stay there for 2/3 days he will

arrange another room in Noida. She further stated that

thereafter she left her house at about 8.30 a.m. for going to

her office. Her husband also went for his work. The

appellant had also left for his work at 7.30 a.m. Both her

sons had gone to the school. She returned to her house at

about 7.00 p.m. whereas the appellant returned at 9.00 p.m.

On enquiry, the prosecutrix told her that their luggage was

lying in the house of the appellant in Azad Pur. She further

stated that on 10th November, 2005, the prosecutrix told her

that she had gone to hospital with her brother and from there

she had accompanied the appellant. Thereupon, she got

suspicious and enquired from the prosecutrix as to whether

her parents were aware about her or not. The prosecutrix

told her that her mother was aware of her being with the

appellant. The prosecutrix also told her that her parents

would not acknowledge her marriage. According to her, the

appellant and prosecutrix left her house on Sunday. In

cross-examination, she stated that her house comprised two

rooms besides toilet, bathroom and kitchen.

7. PW-13, Santosh Jha has stated that in the night of

11th November, 2005 he received a telephone call from the

appellant Guddu on his mobile phone. He wanted to speak to

Kalpana, sister of the prosecutrix, who earlier used to reside

in a room opposite his room in the same house. He called

Kalpana and handed over his mobile phone to her. After

about 5-7 minutes, he received a call from the prosecutrix on

his mobile. She also spoke to Kalpana on his mobile.

8. PW-14 Kalpana is the sister of the prosecutrix. She has

stated that appellant Guddu made a telephone call on the

mobile of her neighbour. When she spoke to the appellant,

he told her that the prosecutrix was with her at Noida and he

would be marrying her. Thereafter, the prosecutrix also

spoke to her and informed her that she had been kidnapped

by the appellant and had been kept at a house near bus

stand in Noida. They informed the police and reached the

house in Noida where the appellant was arrested and her

sister was recovered.

9. PW-15 SI Vijay Kumar is the IO of this case which he

has stated that on 12th November, 2005, he along with

Constable Pradeep and Kalpana, the sister of the prosecutrix,

went to house No.H-119, Sector 22, Noida, where

Ms.Shobhna Suresh was residing with her family. There,

they met the prosecutrix and the appellant Guddu who were

present in the house.

10. Only part of the deposition of PW-9 Babloo Kumar is

available on the judicial file. It appears from the record that

he was examined in pre-lunch as well as post lunch session

on 13th February, 2007. His deposition recorded before

lunch on that day is not available on the file. However, his

deposition available on the file shows that, according to him,

he had gone to the house of Smt.Shobhna along with IO and

the appellant as well as the prosecutrix were found there. He

stated that the prosecutrix and the appellant had run to that

house from the bus stop and were found under a cart.

11. PW-1, Ram Kishan is an official of Government Girls

Secondary School, Model Town. He has stated that as per

school record, the date of birth of the prosecutrix was 15th

January, 1993. The copy of admission and withdrawal

Register of the school produced before this court is Ex.PW-

1/A, whereas copies of the application Form and School

Leaving Certificate are PW-1/B & PW-1/C. He has also

identified the signature of Vice-Principal of the School on the

certificate Ex.PW-1/D.

12. PW-7, Dr.Priyanka examined the prosecutrix in the

hospital on 13th February, 2005 and found that her hymen

was torn, though no mark of external injury was found by

her. The underwear of the prosecutrix Ex.P-1 was handed

over by her to the police. PW-8 Dr.S.Natrajan examined the

appellant Guddu in the hospital on 13th November, 2005 and

handed over his underwear Ex.P-2 to the police. PW-12,

Ms.Anita Chhari, Sr.Scientific Assistant (Biology) Forensic

Scientific Laboratory, examined the articles sent to the

laboratory by the police. She proved her report Ex.PW-12/A

& Ex.PW-12/B and identified the underwear of the appellant

Ex.P-2 and underwear of the prosecutrix Ex.P-1, which she

had analysed in the laboratory.

13. In his statement under Section 313 Cr.P.C., the

appellant admitted that he was the neighbour of the

prosecutrix. He claimed that on 7th November, 2005, the

prosecutrix had called her to the hospital and that he had

taken her to Noida and kept her in the house of PW-4

Shobhna Suresh. He also admitted that the police had

arrested him and recovered the prosecutrix from Noida. He,

however, denied having committed sexual intercourse with

the prosecutrix.

14. The first question which comes up for consideration in

this case is as to whether the prosecutrix was raped by the

appellant or not. In her deposition in the court, the

prosecutrix has specifically stated that the appellant had

committed sexual intercourse with her in the house of PW-14

in Noida. When the prosecutrix was examined in hospital

after she was recovered in the company of the appellant, her

hymen was found torn. I see no reason to disbelieve the

testimony of the prosecutrix as regards the sexual intercourse

with her. It is extremely unlikely that a young unmarried girl

will falsely allege sexual intercourse with her, since she

knows that by making such an accusation, she would be

sacrificing what is most dear to her. In a tradition bound

non-permissive society like ours, a young girl would be

reluctant even to admit an incident of sexual intercourse with

her, conscious as she would be of being criticized not only by

the society but also by her own family members, relatives and

neighbors who may somehow or the other hold her at least

partly responsible for the incident which happened with her.

Even the parents of an unmarried girl would not report such

an incident to the police unless they are absolutely sure of its

truthfulness. The parents of an unmarried girl would always

be aware of the risk that comes to be associated with the

marriage of an unmarried girl who is subjected to sexual

intercourse. They know that if such an incident becomes

public it would be difficult for them to find a suitable match

for their daughter from a respectable family. Their natural

inclination would be to avoid giving publicity to such an

incident lest their family name and family honour is brought

under disrepute on account of an adverse publicity.

Therefore, I find no good ground to reject the testimony of the

prosecutrix to the effect that she was subjected to sexual

intercourse by the appellant.

15. Even if I must look for the corroboration of the

testimony of the prosecutrix as regards sexual intercourse

with her, I find that corroboration is available in the form of

the medical examination of the prosecutrix, chemical analysis

of underwear of the appellant and the statement made by the

prosecutrix under Section 164 of Cr.P.C. As noted earlier,

the hymen of the prosecutrix was found torn. It was

contended by the learned counsel for the appellant that

hymen could be found torn for various reasons and does not

necessarily establish sexual intercourse with her. No doubt

there could be reasons other than sexual intercourse for the

hymen being found torn, but, when the prosecutrix claims

that she was subjected to sexual intercourse and her hymen

is found torn, the court in the absence of compelling reasons

taking a contrary view, must accept the deposition of the

prosecutrix in this regard and must believe that she was

subjected to sexual intercourse, as claimed by her. A perusal

of the report of FSL shows that human semen was found on

the underwear of the appellant when it was analysed in the

laboratory. The appellant has not given any explanation for

semen being found on his underwear. This is the same

underwear which the appellant was wearing at the time he

was arrested by the appellant. Admittedly, the prosecutrix

remained in the company of the appellant for a number of

days. In the absence of any explanation from the appellant,

the court must necessarily infer that the semen on the

underwear of the appellant came on account of having

committed sexual intercourse with the prosecutrix.

Therefore, presence of semen on the underwear of the

appellant was one more corroboration of the deposition of the

prosecutrix as regards sexual intercourse with her.

16. In her statement to the Magistrate under Section 164

Cr.P.C. soon after her recovery by the police, the proecutrix

claimed sexual intercourse with her. This is yet another

corroboration of her deposition in the court. I, therefore, has

no hesitation in holding that the prosecutrix was subjected to

sexual intercourse by the appellant.

17. The testimony of PW-1, coupled with School Leaving

Certificate of the prosecutrix, Ex.PW-1/C and the record of

the School Ex.PW-1/A & Ex.PW-1/B, shows that the date of

birth of the prosecutrix was 15th January, 1993. In his

statement under Section 313 Cr.P.C. the appellant did not

claim that the prosecutrix was not born on 15 th January,

1993. Therefore, there is absolutely no reason for not relying

upon the record of the School for the purpose of ascertaining

the age of the prosecutrix.

18. In Madan Gopal Kakkad vs. Naval Dubey & Anr. (1992)

3 SCC 204 the Supreme Court, inter alia, observed as under:

"34. A medical witness called in as an expert to assist the Court is not a witness of fact and the evidence given by the medical officer is really of an advisory character given on the basis of symptoms found on examination. The expert witness is expected to put before the Court all materials inclusive of the data which induced him to come to the conclusion and enlighten the Court on the technical aspect of the case by explaining the terms of science so that the Court although, not an expert may form its own judgment on those materials after giving due regard to the expert's opinion because once the expert's opinion is accepted, it is not the opinion of the medical officer but of the Court."

19. In Vishnu vs. State of Maharashtra AIR 2006 SC 508,

the Birth Certificate of Municipal Corporation and register of

the hospital where the prosecutrix was born showed that she

was less than 16 years of age. On the other hand as per the

Ossification Test her age was 18-19 years with error of

margin of six months on either side. It was contended before

the Supreme Court that determination of the age of the

prosecutrix having been scientifically proved by conducting

Ossification Test, should be accepted. Rejecting the

contention, the Supreme Court, inter alia, held as under:-

24. In the case of determination of date of birth of the child, the best evidence is of the father and the mother. In the present case, the father and the mother - PW-1 and PW-13 categorically stated that PW-4 the prosecutrix was born on 29.11.64, which is supported by the unimpeachable documents, as referred to above in all material particulars. These are the statements of facts. If the statements of facts are pitted against the so called expert opinion of the doctor with regard to the determination of age based on ossification test scientifically conducted, the evidence of facts of the former will prevail over the expert opinion based on the basis of ossification test. Even as per the doctor's opinion in the ossification test for determination of age, the age varies. In the present case, therefore, the ossification test cannot form the basis for determination of the age of the prosecutrix on the face of witness effects tendered by PW-1 and PW-13, supported by unimpeachable documents.

20. The judgment in the case of Vishnu (supra) was

followed by the Hon'ble Supreme Court in Arjun Singh vs.

State of H.P. AIR 2009 SC 1568.

21. I, therefore, hold that the prosecutrix was born on 1 5th

January, 1993. Since the prosecutrix was less than 16 years

of age at the time she was subjected to sexual intercourse the

appellant is clearly guilty of rape even if it is presumed that

the prosecutrix had consented to sexual intercourse with her.

22. The age of the prosecutrix was less than 13 years at

the time appellant took her with him. Considering the

tender age of the prosecutrix, she was not really capable of

understanding the true import of what she was doing and,

therefore, despite her having voluntarily accompanied the

appellant, on the facts and circumstances, it cannot be said

that appellant will not be guilty of offence punishable under

Section 363 of IP. Had the prosecutrix been of a mature age,

though less than 18 years, it could have been contended that

she having abandoned the guardianship of her parents and

having joined accused without any coercion or influence from

him, offence under Section 363 IPC was not made out. But if

a person takes a girl aged less than 13 years with him, to the

house of a person related or known to him, and keeps her for

days together, it is difficult to say that he is not guilty of

kidnapping as defined in Section 363 IPC. Such a person

would clearly be guilty of taking the minor away from the

lawful custody of her parent.

23. For the reasons given the preceding paragraphs, I hold

that the appellant has rightly been convicted under Sections

376 and 363 IPC.

24. 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. At the time of commission of the

offence the appellant was aged about 20 years and, therefore,

was very young. The facts and circumstance of the case leave

no reasonable doubt that the prosecutrix had willingly

accompanied the appellant first to the park, then to ISBT and

then to Noida. Admittedly, the appellant was not working in

the hospital where he met the prosecutrix. Therefore, he

could not have come to know about the prosecutrix going to

the hospital on that day unless the prosecutrix herself chose

to inform her. Therefore, the plea of the appellant that he was

called to the hospital by the prosecutrix herself appears to be

quite plausible and acceptable. According to the prosecutrix,

appellant had taken her first to Nangia Park where they were

sitting till evening. Had the prosecutrix not been a

consenting party to accompany the appellant, she would not

have gone to the Nangia Park with him if she was looking for

her brother. She definitely could not have expected her

brother to be found in NangiaPark. After remaining in the

company of the appellant in Nangia Park for many hours, the

prosecutrix accompanied him in a bus and then in a

rickshaw. Admittedly, she did not raise any alarm and

willingly accompanied the appellant in the bus as well as in

the rickshaw. There could have been no reason for her to

accompany the appellant late in the evening, unless she was

a consenting party to accompany him. According to the

prosecutrix, from ISBT they gone to Noida in a bus. The

prosecutrix does not claim that she was any kind of threat or

coercion from the appellant. Neither in the bus while going to

Noida nor after getting down from the bus in Noida the

prosecutrix resisted accompanying the appellant.

Everywhere she was a ready and willing companion of the

appellant. From the bus stand in Noida, she went up to the

house of PW-4 without any resistance or protest. There

could have been no reason for the prosecutrix to willingly

accompany the appellant up to the place of PW-4 in Noida

unless she was a willing companion. Even after reaching the

house of PW-4, Shobhna Suresh, the prosecutrix did not

register any protest. She did not complain to PW-4 that she

had been brought to her house against her consent. As

stated by PW-4, next day in the morning she as well as her

husband and the appellant had gone for their respective

work and their children had gone to school. Therefore, the

prosecutrix was all alone in her house. Had she not been a

consenting party, she had ample opportunity to leave the

house of PW-4 or at least to inform her parents or relatives

that she was being kept in a Noida in a house against her

wish.

25. The deposition of PW-14 Kalpana Jha shows that it

was the appellant who called up PW-14 Kalpna Jha and

informed her that the prosecutrix was with him and had also

given correct address of the place where they were staying.

Had the appellant taken the prosecutrix without her consent,

he would not have called up the sister of the prosecutrix and

in any case would not have given his correct address to her.

The appellant knew it very well that once he gave his correct

address to the sister of the prosecutrix, she was bound to

inform the police, he was bound to be arrested and the

prosecutrix was bound to be recovered by the police.

Therefore, the conduct of the appellant in speaking to the

sister of the prosecutrix and then making the prosecutrix also

speak to her is a strong indicator that the prosecutrix had

willingly accompanied her and that is why he had no

hesitation in disclosing his correct address to the sister of the

prosecutrix. In any case, had the prosecutrix not being a

willing and consenting party to accompany him to Noida, the

appellant would after speaking to the sister of the prosecutrix

definitely have left the house where they were living in Noida

and the appellant would not have been found there. This is

one more circumstance which shows that the prosecutrix had

willingly accompanied the appellant presumably on account

of friendship which she had developed with the appellant

while he was her neighbour.

26. According to PW-9, Babloo Kumar, the prosecutrix

was found, when they ran from bus stand, under a cart,

along with the appellant. This circumstance leaves no

reasonable doubt that the prosecutrix had willingly gone with

the appellant to Noida and that is why on seeing the parents

and family members, she tried to evade them by hiding under

cart. All these facts and circumstances leave no reasonable

doubt that the prosecutrix though of a very tender age at that

time had willingly accompanied the appellant and had

willingly stayed with him. Taking into consideration all the

facts and circumstances of the case, including the age of the

appellant, who on account of his indigency was not even able

to engage counsel of his choice and was to be provided legal

assistance by Delhi High Court Legal Services Committee,

and the contributory role of the prosecutrix, I am inclined to

take a lenient view in the matter on sentence by awarding

less than minimum prescribed sentence, to the appellant.

Taking into consideration all the facts and circumstances of

the case, the appellant is sentenced to undergo RI for five

years and to pay fine of Rs.10,000/- or to undergo SI for

three months in default under Section 376 IPC. He is also

sentenced to RI for one year under Section 363. Both the

sentence shall run concurrently.

27. The appeal stands disposed of.

28. The record of the trial court be sent back and one copy

of this order be sent to the appellant through Jail

Superintendent.

(V.K.JAIN) JUDGE March 19, 2010 RS/