Bunty vs State (G.N.C.T.) Of Delhi
2011 Latest Caselaw 1512 Del

             IN THE HIGH COURT OF DELHI: NEW DELHI

+              CRL. APPEAL NO. 846/2009

%              Judgment decided on: 16th March, 2011

BUNTY                                                   .....APPELLANT

                            Through:   Mr. Sumit        Verma,     Amicus
                                       Curiae

                            Versus

STATE (G.N.C.T.) OF DELHI                           .......RESPONDENT

                            Through:   Mr. M.P. Singh, APP


Coram:
HON'BLE MR. JUSTICE A.K. PATHAK

       1. Whether the Reporters of local papers                   No
          may be allowed to see the judgment?

       2. To be referred to Reporter or not?                      No

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

A.K. PATHAK, J. (Oral)

1. Vide judgment dated 8th April, 2009, appellant has been

convicted under Sections 363/366/376 IPC; sentenced to

undergo rigorous imprisonment for three years with fine of `500

and in default of payment of fine to undergo simple

imprisonment for three months under Section 363 IPC;

sentenced to undergo rigorous imprisonment for five years with

fine of `1000/- and in default of payment of fine to undergo

simple imprisonment for five months under Section 366 IPC;

sentenced to undergo rigorous imprisonment for seven years

with fine of `5000/- and in default of payment of fine to

undergo simple imprisonment for six months under Section 376

IPC. All the sentences have been directed to run concurrently.

Benefit of Section 428 Cr.P.C. has also been given.

2. It is this judgment which is under challenge in this

Appeal.

3. As per the prosecution, on 25th February, 2005 appellant

had taken away with him the prosecutrix aged about 13 years.

He kept her with him for about four and a half months at

different places. Initially they stayed at Etta in U.P., thereafter

they lived for some time at Rajkot in Gujrat and lastly they

stayed at Aligarh in U.P. During this period, he had sexual

intercourse with the prosecutrix without her consent and

despite her resistance. Appellant brought the prosecutrix back

to Delhi on 8th July, 2005 when he was arrested at Sarai Rohilla

Railway Station. She was medically examined in Din Dayal

Upadhyay Hospital. No injuries were found on her person;

hymen was found torn; doctor opined that no definite opinion

about rape could be given since victim was habitual to sexual

intercourse. Statement of prosecutrix under Section 161

Cr.P.C. was recorded. Later her statement under 164 Cr.P.C.

was recorded by a Metropolitan Magistrate. Appellant was also

medically examined. Doctor opined that there was nothing to

suggest that he was incapable of performing sexual intercourse.

5. Prosecutrix has been examined as PW5. She has

supported the prosecution story. However, careful examination

of her testimony shows that she had willingly accompanied the

appellant from one place to the other and stayed with him for

about four and half months without lodging any protest. She

has deposed that on 25th February, 2005 she left her house for

going to school at about 7:30 AM; when she reached near the

crossing, appellant asked her to join him for a joy ride on Metro

Rail. Thereafter, they boarded a Metro train at Shastri Nagar

and went to Shahdara Station. Thereafter, he took her with

him to Etta in some other train; he kept her there at his jija's

house. Thereafter, appellant and his jija took her to Rajkot in

Gujrat. In Rajkot, appellant took up a job in a factory on

monthly remuneration of `2,000/-. There he had sexual

intercourse with her against her wishes and when she opposed

it saying that they were unmarried, appellant had put

vermillion on her head. They stayed in Rajkot for about three

days. Thereafter, they went to Aligarh in U.P. Appellant kept

her there for about two and a half months. During this period

he raped her. Father of the appellant came to Aligarh in search

of appellant and he informed them that police had been looking

for them. Thereafter, they came back to Delhi. Her father was

present at Sarai Rohilla Railway Station along with the police

officials. Appellant was apprehended. In her cross-

examination, she has admitted that all this while she did not

raise alarm nor made any effort to escape; she did not complain

to any fellow passenger that appellant had been taking her by

force and against her wishes. She has stated that she did not

raise any alarm since appellant had been assuring her that he

would take her back to Delhi. From her testimony it is also

evident that appellant had not been keeping surveillance on the

prosecutrix round the clock. She has admitted that appellant

had taken up a job in a factory. This shows that he had been

going out for work leaving behind prosecutrix. She had

sufficient opportunity to escape. She had also ample

opportunity to raise alarm to attract the attention of co-

passengers, neighbours etc. It is not the case that appellant

was armed with any weapon and had threatened to kill her by

using such weapon. Overall testimony of the prosecutrix clearly

shows that she had accompanied the appellant voluntarily and

at her own free will and was a consenting party.

6. Since prosecutrix was less than 16 years of age as on the

date of incident her consent is meaningless. Trial Court has

returned a definite finding that prosecutrix was less than 16

years of age on the basis of evidence adduced by the

prosecution in this regard. Prosecutrix had given her age as 13

years to the doctor, Metropolitan Magistrate and also while

deposing in court. As per her father also she was about 13

years of age at the time of incident. School leaving certificate of

the prosecutrix issued by the Principal, Primary School,

Municipal Corporation of Delhi was proved as Ex. PW6/B. As

per this document, prosecutrix was about 10 years of age at the

time of incident. However, the fact remains that age as given by

the prosecutrix and her father during the investigation as also

while deposing in court is approximate to the age as can be

deduced from the school leaving certificate Ex. PW6/B. Age of

the prosecutrix was not got determined during the investigation

by radiological examination. No other evidence is available on

record except ocular version of the prosecutrix and her father

coupled with the documentary evidence in the shape of school

leaving certificate. In absence of any other evidence to the

contrary, the age of the prosecutrix can be taken as less than

16 years in view of the ocular version of the witnesses coupled

with Ex. PW6/B. In State of Chattisgarh vs. Lekhram, AIR

2006 SC 1746, Supreme Court has held that it may be true

that an entry in the school register is not conclusive but it has

evidentiary value. Such evidentiary value of a school register is

corroborated by oral evidence as the same was recorded on the

basis of statement of the mother of the prosecutrix. Supreme

Court on the basis of ocular testimonies of the witnesses

coupled with entry in the school register concluded that

prosecutrix was less than 16 years of age. In my view, Trial

Court was right in holding that prosecutrix was less than 16

years of age.

7. Section 375 IPC reads as under:-

"A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions: -

First: - Against her will.

Secondly: -without her consent.

Thirdly: - With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.

Fourthly: -With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

Fifthly: - With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

Sixthly: - With or without her consent, when she is under sixteen years of age."

8. Clause Sixthly of Section 375 IPC clearly envisages that

consent by a girl who is less than 16 years of age is immaterial.

In other words, even if a person has sexual intercourse with a

woman below the age of sixteen years with her consent he

would be liable for punishment under Section 376 IPC. Thus,

prosecutrix in this case being consenting party does not extend

any benefit to the appellant. Conviction of the appellant under

Section 376 IPC is maintained.

9. In this case, prosecutrix had accompanied the appellant

voluntarily without any use of force exercised by him. It is not

a case wherein he had taken the prosecutrix after enticing her.

Prosecutrix had travelled with the accused to different places

outside Delhi without raising any alarm or complaining to fellow

passengers that she had been taken away by force. If a minor

accompanies accused voluntarily without any offer or

allurement then offence under Section 363 IPC is not made out.

In S. Varadarajan vs. State of Madras, AIR 1965 SC 942,

Supreme Court has held that there is a distinction between

"taking" and allowing a minor to accompany a person. The two

expressions are not synonymous though it cannot be laid down

that in no conceivable circumstances can the two be regarded

as meaning the same thing for the purposes of Section 361.

Where the minor leaves her father's protection knowing and

having capacity to know the full import of what she is doing,

voluntarily joins the accused person, the accused cannot be

said to have taken her away from the keeping of her lawful

guardian. Something more has to be shown in a case of this

kind and that is some kind of inducement held out by the

accused person or an active participation by him in the

formation of the intention of the minor to leave the house of the

guardian. Accordingly, in my view Trial Court was not right in

convicting the appellant under Section 363 IPC. Thus,

conviction of the appellant under Section 363 IPC is set aside.

10. Learned Amicus Curiae has not assailed conviction of the

appellant under Section 366 IPC. Therefore, I need not to delve

on this point. The result of the above discussion is that

conviction of the appellant under Sections 376/366 IPC is

upheld.

11. Learned Amicus Curiae has next contended that

prosecutrix had willingly accompanied the appellant and had

stayed with him for about four and a half months. At the time

of incident, appellant was also a young man of 24 years of age;

he has no previous criminal record; appellant and prosecutrix

were young in age at the time of incident; both of them were in

love; appellant has remained in incarceration for more than six

years; his old parents are solely dependent upon him. Thus, he

may be released on the period already undergone by him.

12. In Babloo vs. The State, reported in 2011 (1) JCC 359,

a Single Judge of this Court keeping in view the conduct of

prosecutrix that she had willingly accompanied the appellant

and stayed with him, has taken a lenient view while awarding

the sentence less than the minimum prescribed under Section

376 IPC to the appellant. Keeping in mind that appellant had

remained in incarceration for about five years and eight

months, accused was handed down sentence equivalent to the

period he had remained in jail. It was also observed that

quantum of sentence has to be decided after giving due

consideration to the facts and circumstances of each case. For

deciding just and appropriate sentence to be awarded for an

offence, the aggravating and mitigating factors and

circumstances in which a crime has been committed are to be

delicately balanced on the basis of relevant circumstances in a

dispassionate manner by the court. In order to exercise the

discretion of reducing the sentence below the statutory

minimum, the requirement is that the court has to record

"adequate and special reasons". The fact that prosecutrix had

voluntarily accompanied the appellant was taken as "adequate

and special reasons" for reducing the sentence less than the

sentence minimum prescribed. Similar view has been taken by

a Single Judge of this court in Mohd. Imran Khan and Jamal

Ahmed vs. State. 2010 CrLJ 1756 wherein the main

circumstance to take lenient view in the matter of sentence and

awarding less than the minimum prescribed sentence was the

consent on the part of the prosecutrix to accompany the

appellants which was more than evident from the facts and

circumstances of the case.

13. In the peculiar facts of this case, sentence of the appellant

under Section 376 IPC is reduced to the period already

undergone by him. As regards sentence under Section 366 IPC

is concerned, appellant has already served the same. Appellant

be released forthwith if not required in any other case.

14. Appeal is disposed of in the above terms. A copy of this

order be sent to Superintendent Jail for serving it on the

appellant as also for due compliance.

A.K. PATHAK, J.

MARCH 16, 2011 rb