State vs Rani
2011 Latest Caselaw 4268 Del

$~9
*   IN THE HIGH COURT OF DELHI AT NEW DELHI

%                    Judgment Delivered on : September 1, 2011


+      CRL.REV.P. 65/2011


       STATE                                           ..... Petitioner
                             Through : Ms.Rajdipa Behura, APP

                     versus

       RANI                                        ..... Respondent
                             Through : Mr. R S Juneja, Adv.

CORAM:
HON'BLE MR. JUSTICE SURESH KAIT

     1. Whether the 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.

SURESH KAIT, J. (Oral)

Crl.M.A.1466/2011 (Delay)

For the reasons stated in the application, the delay of

199 days in filing the revision petition is condoned.

CRL.REV.P. 65/2011

1. Vide this petition, the State has challenged the impugned

order dated 22.04.2010, whereby, the respondent/accused

Rani has been discharged from the case.

2. As per prosecution story in the intervening night of

13/14.09.2007, the prosecutrix Anita was kidnapped from the

lawful guardianship and has been taken by the accused Rani

with the purpose of marrying her with one Neeraj who was

known to her. The co-accused Neeraj had committed rape

upon her.

3. In the statement of prosecutrix it is stated that she had

gone to her sister's residence, as her sister had to deliver the

child. Accordingly, her sister got admitted in the hospital on

13.09.2007. Her landlady Rani was with her. She was alone at

her house. Respondent/accused Rani had asked her by calling

her on telephone to come in the evening along with the food

for her sister.

4. Accordingly, she had prepared the food and went to the

hospital along with one Neeru, the friend of her sister. They

both had reached at the hospital. There, Rani and her brother

in law had taken the food. Neeru had gone to his house. Rani

had asked them to go the person who is known to her and

residing nearby.

5. In the evening, at about 10.00 p.m. Rani had taken her in

the Auto and at about 11.00 p.m. had got stopped the TSR at

one place and went to tea stall. One boy was already present

there. Rani had introduced him stating that he was the boy of

her friend. There, prosecutrix and Rani had taken the tea. She

felt drowsy and became unconscious. When, she regained her

consciousness on the next day i.e.14.09.2007, she found

herself in the room and her clothes were removed. In the

meantime, Rani had come and got wore the clothes.

Thereafter, they came to the hospital. In the night, her sister

had delivered the child. She along with sister and brother and

Rani had come to Kaushik Gali. On 15.09.2007 she disclosed

all the facts to her sister.

6. Ld. trial Judge, while passing this impugned order found

that the police could not trace the person namely Neeraj, who

was alleged to have committed the rape of the prosecutrix.

Police had not even noted down physic and features of Neeraj

nor the prosecutrix has been asked to disclose the name.

7. SHO and both the two women Sub-Inspectors who were

entrusted the investigation, have been called by the court but

no one has given the reason, as to why they had not noted

down the physical feature of Neeraj. They further had not

given any answer as to why Rani was not asked to give the

particulars of Neeraj, in spite of the fact, his name has been

figured in the MLC of Anita.

8. Further ld. trial Judge has perused the record and found

the statement of Priyanka, Neeru, Anita and Rajesh Kumar.

None of the witness had ever said to the police about the age

of the prosecutrix. The police had also not collected the age

proof of the prosecutrix, whether, she was of 17, 18, 19 or 20

at the time of incident.

9. As is recorded by the ld. trial Judge that ld. APP had

conceded that the charge under Section 376 cannot be framed

against the respondent/accused Rani. According to ld. APP,

Rani has committed an offence under Section 328/366 Indian

Penal Code, 1860.

10. As per the statement of the complainant, she has been

administered the intoxicating substance in the tea at a hotel

by Neeraj, in furtherance of their common intention she had

been kidnapped/abducted with intent to prosecutrix may be

compelled or knowing it to be likely that she will be compelled

to marry any person against her will, or in order that she may

be forced or seduced to illicit intercourse. As was submitted

by ld. APP, from the statement of the prosecutrix, prima facie

case has been made out against the accused under Section

366/328 Indian Penal Code, 1860.

11. Ld. counsel for the respondent has urged before the ld.

trial Judge that, firstly, no age proof has been collected by IO,

by which it can be said that the prosecutrix was minor.

According to him, requirement of Section 366 Indian Penal

Code, 1860 is the abduction or kidnapping. So far so, the

kidnapping or abduction is concerned, the person should be

below the age of 18 years. So far as, the offence under

Section 328 Indian Penal Code, 1860 is concerned, according

to him Neeraj has not been caught, nor, his whereabouts has

been known, nor his physic has come in appearance before the

Court. Moreover, police was not able to seize the glass or

trace the shop keeper, where, as has been alleged that she

had been administered any intoxicating substance, nor,

medical reports say so.

12. Ld. trial Judge has also observed that Neeru is allegedly

the girl to whom the prosecutrix has accompanied to the

hospital along with the food. Neeru had said nothing except

going with the prosecutrix. The witnesses Priyanka and Rajesh

Kumar had also not said anything regarding the age of the

prosecutrix. There is only the statement of Anita, whereby,

she alleged that Rani had taken her. So far so, the Section 328

Indian Penal Code, 1860 is concerned, requirement is

administering of intoxicating substance. The evidence

available with the prosecution does not disclose, whether, any

intoxicating substance has been administered. There is no

medical evidence by which it suggests that intoxicating

substance had been administered to the prosecutrix. The

glass in which the tea has been served or the shop, where, the

intoxicated substance in tea has been administered, has also

not been traced or located during the course of investigation.

Moreover, in the instant case, the alleged Neeraj, who is king

pin of the offence has not been traced. Neither his

whereabouts are known.

13. Ld. trial Judge had also called all the three investigating

officers in the present case and revealed none of them had

ever asked from the accused Rani about the physical features

of Neeraj who had committed the offence of rape. IO had just

completed his job, therefore, the evidence available on

record, not found sufficient to attract the Section 328 Indian

Penal Code.

14. As the offence under Section 366 Indian Penal Code is

concerned, ld. APP for State had vehemently argued that from

the statement of prosecutrix, prima facie case has been

disclosed because of the intention, the prosecutrix was taken

with intent to compel her to marry with another person or

seduced her.

15. Ld. APP submits that ld. trial Judge has discharged the

respondent Rani merely on the basis that the IO has neither

investigated the case properly nor the age of the prosecutrix

has been ascertained, nor the whereabouts of co-accused

Neeraj has been verified or established during the

investigation. She submits that for the lacunae of the

investigating authority, the respondent/accused Rani should

not have been allowed to be discharged. However, the case is

made out against the respondent under Section 366A and 328

Indian Penal Code.

16. In my opinion, as per the requirement of Section 366A

Indian Penal Code, the first requirement is, whoever induces

any minor girl under the age of eighteen years and second is

to be abducted from any place or to do any act with intent that

such girl may be, or knowing that it is likely that she will be,

forced or seduced to illicit intercourse with another person."

17. However, in the present case, it is not established

whether the prosecutrix was minor or major. Therefore, ld.

trial judge has rightly discharged the respondent Rani from the

charges against her.

18. As far as Section 328 is concerned, i.e. by causing hurt

by means of poison, etc., with intent to commit and offence.

Therefore, to establish the offence under the aforesaid Section,

at least it is to established that a person who administers to or

causes to be taken by any person any poison or any

stupefying, intoxicating or unwholesome drug, or other thing

with intent to cause hurt to such person, or with intent to

commit or to facilitate the commission of an offence or

knowing it to be likely that he will thereby cause hurt.

19. In the present case, neither the prosecutrix has been

examined nor the IO could trace any of the substance by which

it could be proved that offences have been committed under

above two Sections.

20. I find no discrepancy in the order, therefore, I concur

with the same. Accordingly, CRL.REV.P. 65/2011 is dismissed.

21. No order as to costs.

SURESH KAIT, J

SEPTEMBER 01, 2011 Vld/RS