Bhagwan Dass @ Kallu vs State Of Nct Of Delhi
2013 Latest Caselaw 1850 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI


+    CRL.A. No. 706/2010

%                                          Reserved on: 20th February, 2013
                                           Decided on: 25th April, 2013

        BHAGWAN DASS @ KALLU                   ..... Appellant
                   Through: Mr. S.B. Dandapani, Adv.

                    versus

        STATE OF NCT OF DELHI                            ..... Respondent

                      Through:            Mr. Mukesh Gupta, APP.

Coram:
HON'BLE MS. JUSTICE MUKTA GUPTA

1. By the present appeal the Appellant challenges the judgment dated 9 th April, 2010 whereby he was convicted for offences punishable under Section 363 and 376 IPC and the order on sentence dated 15 th April, 2010 whereby he was directed to undergo rigorous imprisonment for 7 years and a fine of Rs. 5000/- for offence punishable under Section 376 IPC and in case of default of payment of fine to undergo simple imprisonment for 3 months and further sentenced to undergo rigorous imprisonment for one month for offence punishable under Section 363 IPC.

2. Learned counsel for the Appellant contends that the allegations against the Appellant are for kidnapping the prosecutrix from a busy place like Kotla Mubarakpur by giving laddoo due to which she became unconscious. However the very foundation of the case is demolished as the Appellant has been acquitted for offence under Section 328 IPC and the State having not

challenged the said acquittal, the same has become final. The Appellant and the prosecutrix knew each other for long and they had eloped with consent and on the asking of the prosecutrix. They married and lived as husband and wife in a rented accommodation for 22 days where the prosecutrix was free to live her life. Appellant has examined the landlord and his wife as DW1 and DW2 who have categorically stated that there was no quarrel in the house when the Appellant was living with the prosecutrix. Hence the finding that the prosecutrix was made to live or raped contrary to her wishes is incorrect. The father and uncle of the prosecutrix took her from the rented house and produced her after two days to the Police. Thus, there was sufficient tutoring of the prosecutrix before her statement was recorded by the Police. Further when the medical examination was conducted on 1 st October, 2007 no injury was found. The statement of the prosecutrix under Section 164 Cr.P.C. was recorded even later on 4th October, 2007 after sufficient time of her being under the influence of her parents. The Appellant has been falsely implicated and thus he be acquitted of the charges framed, or in the alternative the Appellant has undergone more than 5 and a half years of imprisonment and thus he be released on the period already undergone.

3. Learned APP on the other hand contends that the prosecutrix PW1 has supported the case of the prosecution. Prosecution version is also corroborated by PW2 her father, PW3 her mother and PW4 her uncle. The date of birth of the prosecutrix has been duly proved by PW10 the teacher who brought the school record. As on the date of alleged offence i.e. 8 th September, 2007 the prosecutrix was a minor and her consent was thus

immaterial. Though the Appellant in his statement under Section 313 Cr.P.C. has stated that the prosecutrix and the Appellant were in love with each other and the family of the prosecutrix demanded money and since he could not pay the same this case was foisted on him, however no such suggestion has been given to the witnesses. As the medical examination was conducted after 22 days, the absence of injuries on the body of the prosecutrix will not negate her cogent evidence. No case for acquittal is made out. This Court has already issued a notice of enhancement to the Appellant. Thus the appeal be dismissed and the sentence awarded to the Appellant be enhanced.

4. I have heard learned counsel for the parties. On 12th September, 2007 FIR No. 301/2007 under Section 363 IPC was registered on the complaint of PW2 who alleged that his daughter had gone from the house on 8 th September, 2007 at about 12.30 PM stating that she had gone to Kotla Mubarakpur market to get the knitting needles and has not turned back. He suspected that Bhagwan Dass @ Kallu who was doing the work of catering with a neighbourer Manoj Kumar had taken away his daughter. The search of the prosecutrix was conducted and on 1st October, 2007 PW2 produced the prosecutrix in the Police station where her statement under Section 161 Cr.P.C. was recorded and she was medically examined. Pursuant thereto her statement under Section 164 Cr.P.C. was recorded on 4th October, 2007. After recording the statement of the prosecutrix, offences under Sections 376 IPC and 328 IPC were added.

5. PW1, the prosecutrix in her statement before Court stated that on 8 th September, 2007 she went to Kotla Mubarakpur, where the Appellant gave

her sweets in celebration of his new job. She took the laddoo, felt giddy and became unconscious. When she gained consciousness she found herself in a room with the Appellant. When she tried to run away the Appellant threatened her and gave her beatings. He tied her hands and legs. She was locked in the room by the Appellant who went away. Next day he came along with a van and took her to Ghaziabad to an unknown place to his cousin sister. There also the Appellant tied and locked her in a room, committed rape on her and told his cousin sister to keep a watch on the prosecutrix. The Appellant had put her in a van, took her to marry at a Mandir where the marriage was photographed. After marriage the prosecutrix was brought back to the room and kept there for 18-19 days on the threats of killing the father and by giving beatings. She stated that nothing happened with her consent. One day she found the room of the house was not locked from outside and she asked one child to open the bolt. She went to the STD booth from where she made a telephone call to her house. The phone was picked up by her sister. She told her that she should telephone her on number from which she made a call, as she had no address. Thereafter her father and her uncle came to that place and took her back. Her father went to the Police station on the same day and subsequently her statement was recorded and medical examination was done. In the cross- examination though the prosecutrix does not dispute having known the Appellant prior to the alleged incident, however she states that she had no love affair with him. In her cross-examination she denied that she went of her own free will or that whatever happened was with her consent and not forcibly. This witness was suggested that the family of the prosecutrix

demanded the money and when the Appellant refused to give the money a false case has been lodged against him, which she denied.

6. PW2 the father of the prosecutrix stated that he was running a rehri of tea and on 8th September, 2007 when he visited his house he came to know that his daughter had not come back from the market. He searched for her for about 5-6 days on his own and then lodged a missing report at PS Lodhi Colony. After a few days he came to know that his daughter had been taken away by the Appellant and thus he lodged the complaint Ex.PW2/A on which the FIR was registered. A call was received from his daughter from STD booth and when they reached the STD booth, the operator took them to the house where his daughter was confined. From there they brought back the prosecutrix to Delhi and subsequently her statement was recorded. Same is the version of PW3 the mother of the prosecutrix and PW4 the uncle of the prosecutrix. Further PW2 has not been suggested that money was demanded from the accused and when he refused, this story was cooked up, though this suggestion has been given to PW3, the mother. PW10 the teacher of Nigam Pratmik Vidhalaya, Bapu Park, Kotla appeared in the witness box and proved the date of birth of the prosecutrix as 1 st October, 1989. Thus on the date of alleged incident, the prosecutrix was a few days less than 18 years of age. The Appellant has examined two defence witnesses i.e. Satender and his wife Kavita who stated that on September, 2007 the Appellant came with a lady and took the room on rent in their house for Rs. 800/- and started living there as husband and wife. They resided there for 20-25 days. No quarrel took place in between Bhagwan Dass and that lady in their presence and they were residing as husband and wife. DW2 states that the lady never

disclosed to her that she was made to run away by the accused from her house and she stated that they were married one year back, however they started living together now and that is why they had no children. In the cross-examination this witness clarified that the prosecutrix used to go outside alone for purchasing bangles and other daily items from the vendors.

7. From the evidence on record it is established that the prosecutrix was a minor though a few days less than 18 years at the time of the alleged incident. Thus her consent which is sought to be invoked by the Appellant for going with him is immaterial. The prosecutrix has specifically stated that she was raped by the Appellant while in confinement which fact is corroborated by the MLC where her hymen has been found to be ruptured. The learned Trial Court has acquitted the Appellant for offence under Section 328 IPC for the reason that besides the deposition of victim that she was given a laddoo to eat there is no other corroborating material. In the present case there could have been no corroboration of this fact and once the testimony of the prosecutrix is to be believed this Court fails to understand how her testimony regarding giving of the laddoo can be disbelieved. Be that as it may, the issue before this Court is not whether the acquittal under Section 328 IPC is justified or not in view of the fact that no appeal against the said acquittal has been filed. The fact remains that there is no material on record to disbelieve the testimony of the prosecutrix besides the suggestion that she was a consenting party. Further the testimony of DW1 and DW2 goes against the Appellant to the extent that the Appellant had taken the prosecutrix to the house where they lived as husband and wife, only to show that there was consent. DW1 and DW2 have stated that there

was no quarrel between the parties. It is not even the case of the prosecutrix that both quarreled. The allegation is that the Appellant initially beat her, threatened her and thereafter performed sexual intercourse on her. In view thereof reliance cannot be placed on the testimonies of DW1 and DW2. In view of the testimony of prosecutrix and their being no material on record to show that she was a consenting party, I do not find any infirmity in the judgment of the learned Trial Court convicting the Appellant for offences under Section 376/363 IPC.

8. Since this Court has already issued a notice of enhancement and the conviction has been upheld by this Court, List this matter for hearing on the order on sentence on 8th May 2013 when the Appellant will be present in Court. Appellant will be produced by Superintendent Tihar Jail.

(MUKTA GUPTA) APRIL 25, 2013 'ga'