Sandeep vs State
2012 Latest Caselaw 4689 Del

$~R-7
*IN THE HIGH COURT OF DELHI AT NEW DELHI

+      CRL. A. 438/2011

                                        Decided on 8th August, 2012

       SANDEEP                                     ..... Appellant
                             Through:   Mr. Deepak Vohra, Adv.
                    versus

       STATE                                  ..... Respondent
                             Through:   Mr. Mukesh Gupta, APP

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

A.K.PATHAJ, J. (ORAL)

1. Trial court has convicted the appellant under Sections 376/363

IPC; sentenced to undergo rigorous imprisonment for 7 years with

fine of Rs.2,000/- and in default of payment of fine to face simple

imprisonment of 6 months under Section 363 IPC; rigorous

imprisonment of 5 years with fine of Rs.1,000/- and in default of

payment of fine to undergo simple imprisonment for 3 months under

Section 363 IPC. Both the sentences have been directed to run

concurrently, inasmuch as, benefit of Section 428 Cr.P.C. has been

accorded to the appellant.

2. Aggrieved by his conviction as also the quantum of sentence,

appellant has preferred this appeal.

3. Prosecution case, as emerges from the record, is that the

appellant had kidnapped the prosecutrix aged about 13 years on 7 th

July, 2007, kept her with him for about 11 days and committed rape

on her during this period. Prosecutrix and the appellant were

apprehended from Sarai Kale Khan, Bus Stand on 8th August, 2007 by

the police officials on the pointing of the father of prosecutrix.

4. During the course of hearing, conviction of the appellant has

not been challenged on merits. However, learned counsel has prayed

for leniency in the sentence on the ground that the appellant was

himself young in age and bachelor at the time of incident; he was

neighbour of the prosecutrix; prosecutrix was in love with the

appellant and had accompanied him of her own volition; he has no

previous criminal record, inasmuch as, has to support his aged and

ailing parents living in the village.

5. Though, conviction has not been challenged on merits but still

to satisfy myself with the correctness of the impugned judgment I

have perused the same as well as the Trial Court Record carefully and

find that the prosecutrix was less than 16 years of age at the time of

incident. In her statement under Section 164 Cr.P.C. prosecutrix had

given her age as 15 years. In the FIR, father of prosecutrix has given

her age as 13 years. As per the birth certificate Ex.P-1 issued by Sub

Registrar (Birth & Death) Shahdara Zone, Delhi, the date of birth of

prosecutrix is 2nd March, 1997; meaning thereby she was about 11

years of age at the time of incident. As per the ossification report,

prosecutrix was between 13 to 14 years of age. Documentary evidence

in the form of her birth certificate which has been duly proved by

producing witness from the Sub Registrars' office, has to be preferred

as against the ocular and medical evidence. From the evidence

adduced on record, it is clear that prosecutrix was less than 16 years

of age as on the date of incident.

6. In her statement under Section 164 Cr.P.C., prosecutrix has

stated that she was in love with the appellant. She had accompanied

him on 7th July, 2007 of her own free will and volition. She stayed

with him in the village Firozadabd, Uttar Pradesh of her own free will.

On 18th August, 2007 she came to Delhi along with the appellant and

was present at the bus stand when her father, who was there along

with the police officials, saw them and on his pointing police officials

apprehended the appellant. Her father was forcing her to marry with a

man aged about 45 years, thus, she went away with the appellant of

her own free will. Though, in her subsequent statement as also in her

deposition, she has changed her this version by saying that the

statement under Section 164 Cr.P.C. was made by her under the

influence of appellant as also on account of threats given by his

brother but still the overall reading of her deposition makes it clear

that she was a consenting party. Inspite of the fact that the appellant

was unarmed during the period of 11 days when she stayed with him

she neither raised any alarm nor made any effort to escape or

complain anyone that the appellant had brought her forcibly and was

keeping her with him against her wishes. She had accompanied the

appellant in crowded buses and was found roaming with him in a

crowded place when she was apprehended but inspite of this she did

not raise any alarm, which also indicates that she was a consenting

party.

7. However, her consent is immaterial as regard to the offence

under Section 376 IPC is concerned, in view of the Clause Sixthly of

Section 375 IPC which envisages that a man is said to commit 'rape'

who has sexual intercourse with a woman with or without her consent,

when she is under sixteen years of age. Even exception to Section 375

IPC envisages that sexual intercourse by a man with his own wife

who is less than 15 years of age is 'rape'. From whichever angle the

matter is viewed, the act of appellant, in view of the age of the

prosecutrix would amount to rape. Accordingly, conviction of

appellant under Section 376 IPC otherwise, cannot be interfered with,

in the facts of this case and is maintained.

8. As regards offence under Section 363 IPC is concerned, the

same is not made out in view of the fact that the prosecutrix was a

consenting party. In her statement under Section 164 Cr.P.C.

prosecutrix has categorically stated that she had accompanied the

appellant of her own free volition. No allegations of inducement,

enticement or using force by the appellant have been levelled therein.

Her deposition also makes it clear that she was a consenting party. It

shows that she had herself accompanied the appellant. If a minor

accompanies the accused of her own free will and without any undue

force, pressure or inducement, then the act would not fall within the

ambit and scope of 'kidnapping' as defined under Section 361 IPC. In

S. Varadarajan versus State of Madras AIR 1965 Supreme Court

942, it has been held that taking or enticing away a minor out of the

keeping of a lawful guardian is an essential ingredient of the offence

of kidnapping. In the said case, a minor girl had accompanied the

accused to the Sub Registrar Office for registering marriage

agreement of her own volition and in this context, it was held that

offence under Section 363 IPC was not made out against the accused.

Thus, appellant cannot be said to have committed offence under

Section 363 IPC and he is acquitted of the charge under Section 376

IPC.

9. Section 376 IPC envisages minimum sentence of 7 years.

However, proviso to Sub Section 1 of Section 376 IPC vests power in

the Court to impose sentence of imprisonment for the term of less

than 7 years for adequate and special reasons to be recorded. In this

case, appellant himself was young in age at the time of incident; he

has no past criminal record; aged parents of appellant, are dependent

upon him; Appellant is in continuous incarceration for the last five

years. Keeping in mind all these factors and while upholding the

conviction of appellant under Section 376 IPC his sentence is reduced

to five years from seven years. As regards sentence of six months in

default of payment of fine, same is reduced to 1 month. Needless to

add that appellant shall be entitled to the benefit of Section 428

Cr.P.C.

10. Appeal is disposed of in the above terms.

A.K. PATHAK, J.

AUGUST 08, 2012 ga