Rafiq vs The State Of Nct Of Delhi
2011 Latest Caselaw 5606 Del

*                 IN THE HIGH COURT OF DELHI AT NEW DELHI

+                    CRL. A. No. 18/2007

                                 Date of Decision : 21.11.2011


RAFIQ                                        ...... Appellant
                               Through: Ms. Vidhi Gupta, Amicus
                                        Curiae

                               Versus

THE STATE OF NCT OF DELHI     ......      Respondent
                     Through: Ms. Ritu Gaba, APP

CORAM :
HON'BLE MR. JUSTICE V.K. SHALI

1.      Whether Reporters of local papers may be
        allowed to see the judgment?                       NO
2.      To be referred to the Reporter or not ?            NO
3.      Whether the judgment should be reported
        in the Digest ?                                    NO

V.K. SHALI, J.

1. There is no appearance on behalf of the appellant.

2. Ms. Vidhi Gupta, Advocate is incidentally present in the

Court and she is appointed as Amicus Curiae in the

matter and I proceed to hear and dispose of the matter.

3. It has attained only an academic interest. The appeal is

filed by the present appellant against the judgment dated

20.04.2006 and the order of sentence dated 26.04.2006

holding the appellant guilty for an offence under Section

363/366/376 IPC.

4. Briefly stated the facts of the case are that one Shweta

Mal is alleged to have been abducted by Rafiq the

present appellant on 22.10.2005. The appellant is

alleged to have taken the prosecutrix to his home which

was hired at Noida in a public transport and lived for one

month and seven days there. During this period, it

has been alleged that the appellant had made physical

relationship with Shweta Mal. The father of the

prosecutrix one Gau Prasad lodged initially a report

regarding missing of his daughter, and thereafter, made

a complaint that she has been kidnapped by one Rafiq

and he is threatening him. In the meantime, the

prosecutrix was recovered and her statement was

recorded under Section 164 Cr.P.C. wherein she had

admitted having sexual intercourse with Rafiq with her

own consent. The matter was investigated by the police

and thereafter a challan was filed against the appellant

under Section 363/366/376 IPC.

5. The prosecution in support of its case examined

prosecutrix/PW-1, Prem Shankar Sharma PW-2, Pramod

PW-3, Gau Prasad PW-4, Ashok Kumar, Constable PW-5,

Sumitra ASI PW-6 and Suman Kumar SI/PW-7 and

various documents were proved regarding the age of the

prosecutrix. After recording of the statement of the

appellant and hearing the arguments of the counsel for

the parties, it held the appellant guilty for an offence of

kidnapping a person under Section 363 IPC, kidnapping a

woman with an intention to seduce and have intercourse

under Section 366 IPC and subjecting her to rape. The

time of incident that the prosecutrix was 15 years 7

months and 27 days old, and she had stated that she

was competent enough to consent to have sexual

intercourse with the appellant/accused. After holding

the appellant guilty for an offence under Section under

Section 363/366/376 IPC, the learned Additional

Sessions Judging had taken a lenient view on account of

the young age and clean antecedents of the

appellant/accused and the fact that a consented sex was

performed by the prosecutrix. The appellant was

sentenced to 4 years of RI for an offence under Section

376 IPC apart from fines were also imposed.

6. I have heard Ms. Vidhi Gupta, the learned Amicus Curie

who has stated that the appellant was not guilty of

committing offence of rape in as much as the prosecutrix

has made a statement under Section 164 Cr.P.C. that

she had voluntarily established physical relationship with

the appellant. It has also been stated by her that the

prosecutrix on the date of incident was more than 15

years of age, and therefore, though she was less than 16

years of age but she was competent enough to take a

decision regarding her welfare and she had sex with the

appellant of her own freewill, no fault can be found with

the same.

7. The learned APP has contended that the consent of the

prosecutrix was immaterial in as much as admittedly she

was less than 16 years at the time when the incident is

purported to have been taken place, and therefore, the

establishment of physical relationship is of no

consequence.

8. I have gone through the judgment and the order of

sentence as well as the nominal roll of the convict.

9. The learned Additional Sessions Judge has rightly

convicted the appellant on the basis of evidence which

has been adduced by holding that the prosecutrix though

may be of 15 years 7 months and 27 days old but as she

was less than 16 years of age her consent was

immaterial, and therefore, the establishment of physical

relationship by the prosecutrix with the appellant was

prohibited by law and it constitutes rape within the

definition of Section 376 IPC. The learned Additional

Sessions Judge has rightly given concessions to the

appellant on account of these peculiar facts and

circumstances by observing that the appellant's sentence

should not be minimum of seven years for the good and

adequate reasons which in the instant case was the

consent of the prosecutrix for the physical relationship.

10. I do not find any infirmity and illegality both either in the

judgment and the order of sentence which calls for any

interference by this Court. Even otherwise the appellant

has already been under gone 4 years of sentence and he

is stated to have released from the Central Jail as given

in the nominal roll dated 26.01.2009 after completing his

sentence. If that be so the appeal of the appellant has

only become of an academic interest which has no

meaning.

11. For the reasons mentioned above, I feel that the appeal

of the appellant does not have any merit so as to warrant

any interference by this Court against the judgment

dated 20.04.2006 and the order of sentence dated

26.04.2006. Accordingly, the present appeal is

dismissed.

V.K. SHALI, J.

NOVEMBER 21, 2011 KP