State vs Anil Kumar
2012 Latest Caselaw 4030 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI

                     +        Crl.A.No.47/2002

%                                 Date of decision: 10th July, 2012

       STATE                                  ..... Appellant
                         Through : Ms. Ritu Gauba, APP.

                   versus


       ANIL KUMAR                                ..... Respondent
                         Through : None.

        CORAM:
        HON'BLE MS. JUSTICE GITA MITTAL
        HON'BLE MR. JUSTICE J.R. MIDHA

                         JUDGMENT (ORAL)

1. The present appeal has been filed by the State assailing

the judgment dated 31st October, 1998 passed in Sessions

Case No.511/1996 by the Additional Sessions Judge, New Delhi

arising out of FIR No.143/88 (Ex.PW6/A) Police Station, Krishna

Nagar under Sections 366/376 of IPC. After detailed

consideration of the evidence brought on record, the learned

trial court found that the prosecution had failed to make out

the culpability of the respondent for commission of offence

with which he was charged and by the judgment dated 31 st

October, 1998 acquitted the respondent from the same.

2. Aggrieved thereby, the State preferred the present

appeal which was admitted for hearing on 10 th January, 2002

and notice was issued to the respondent. The respondent was

granted bail by this court by the order of even date and

bailable warrants were issued for appearance and furnishing

the bail bonds and surety. The bail bonds and surety

submitted by the respondent was duly accepted by the Joint

Registrar of this Court by the order dated 2nd March, 2002.

3. The case of the prosecution in the trial was that the

respondent was guilty of enticing PW-4, a minor child, aged

about 13 years from the lawful custody of her mother on the

intervening night of 12th/13th June, 1988 and having committed

rape upon her. It was the case of the prosecution that the

respondent's house was in front of the house of PW-4 who was

sleeping on a cot along with her mother outside her house. At

about 1:00 am of 13th June, 1988, the respondent allegedly

enticed her to his room and committed offence against her

wishes.

4. The prosecution examined 13 witnesses in order to prove

its case against the accused which included the mother of the

victim, Smt. Husno as PW-1 and grandfather of the victim, Shri

Kishori Lal as PW-2.

5. The respondent as well as PW-4 were medically

examined. The MLC of the respondent was proved on record

by PW-3, Dr. B.D. Singh and exhibited on record as Ex.PW3/A.

The MLC of PW-4 was exhibited on record as Ex.PW10/A by Shri

Om Prakash, the Record Clerk from J.P.N. Hospital.

6. The learned trial judge has considered the evidence led

by the prosecution at length as against the ingredients

necessary for proving the charge under Sections 363 and 376

of Indian Penal Code as alleged by the prosecution. It has

been rightly observed that to bring home the charge under

Section 363 of IPC, the ingredients of Section 361 of IPC are

required to be satisfied. The court has carefully observed that

the prosecution was required to establish that a female under

18 years of age or a male under 16 years of age had been

enticed out of the custody of lawful guardian without the

consent of such guardian. The court has considered the

evidence led by the prosecution on the age of PW-4 at great

length and given a categorical finding to the fact that age of

PW-4 was between 15 to 17 years on the relevant date and

concluded that it was 16 years at the relevant time. The court

has however found that the prosecution had not led any

positive evidence that the accused was instrumental in the

victim leaving her house and, therefore, disbelieved the

prosecution that the respondent had allured or induced PW-4

to leave her house or come to his custody on the fateful night.

It has thus been concluded that PW-4 was below 18 years of

age however she was above 16 years and the prosecution had

failed to prove that it was the respondent who had enticed her

or kidnapped her out of the custody of her guardian.

7. So far as charge under Section 376 is concerned, the

court has relied on the definition of rape as defined under

Section 375 of IPC. It has been found that it was the case of

the prosecution that PW-4 went to the house of the respondent

at about 1:00 am and remained there till about 5:00 am to

5:30 am when she claimed to have escaped. During this

period, there was no evidence of any protest by PW-4 or of her

having raised any kind of alarm or objection. No evidence of

any injury on the person of PW-4 was led by the prosecution.

On the contrary, as per Ex.PW3/A, the MLC of PW-4 recorded

on 13th June, 1988 at 2:00 pm at Lok Narayan Jai Prakash

Hospital, upon her medical examination, the doctor has

specifically recorded that there was no evidence of any

external injury anywhere on the body. The MLC notices that

the hymen of PW-4 was torn in the 5:00 o'clock position.

However, the doctor has failed to note as to whether it was a

new tear.

8. We may note that police has seized the underwear of the

respondent as well as PW-4 which they were wearing on the

fateful night. Our attention has been drawn to the report of the

Central Forensic Laboratory, Lodhi Road, New Delhi which was

proved on record as Ex.PW12/C dated 26th August. The report

has specifically reported that no semen was detected on the

underwear which was sent for analysis to the laboratory.

9. The record also shows that PW-2, Kishori Lal has deposed

that his daughter-in-law, Smt. Husno - PW-1 woke up at about

1:30 am and informed him that PW-4 was not sleeping on the

cot. They were alleged to have raised the alarm and searched

for her but failed to trace PW-4. PW-2, Kishori Lal (grandfather

of PW-4) and her mother PW-1, Smt. Husno remained sitting till

5:00 am whereafter they saw a glimpse of PW-4 from a grill

(jangla) in the house of the respondent. PW-4 came out from

his house only thereafter.

10. On a construction of the entire evidence, the learned trial

judge has found that there was no evidence at all of rape. It

has been held that the conduct of PW-4 suggests that she was

a consenting party to all the acts with the respondent. It has

been suggested that it was because her actions were

discovered, she accused the respondent of having committed

the said offence.

11. In view of the above discussion, we find that the

prosecution has failed to make out any ground for interference

with the judgment dated 31st October, 1998. The appeal is

dismissed as being devoid of any legal merit.

GITA MITTAL, J

J.R. MIDHA, J JULY 10, 2012 mk