Delhi High Court
Vinod Kumar vs State on 5 March, 2013
Author: S. P. Garg
* IN THE HIGH COURT OF DELHI AT NEW DELHI
RESERVED ON : 1st March, 2013
DECIDED ON : 5th March, 2013
+ CRL.A. 761/2000
VINOD KUMAR ....Appellant
Through : Mr.Yogesh Swaroop, Advocate with
Mr.Vijay Kumar, Advocate.
versus
STATE ....Respondent
Through : Mr.M.N.Dudeja, APP with Mr.Hemant
Kumar, Advocate.
SI Vikrant Sharma, PS GTB Enclave.
CORAM:
HON'BLE MR. JUSTICE S.P.GARG
S.P.GARG, J.
1. The appellant- Vinod Kuamr impugns judgment dated
13.11.2000 and order on sentence dated 14.11.2000 in Sessions Case
No.33/2000 arising out of FIR No.55/1999 PS M.S.Park by which he was
held guilty for committing offences punishable under Sections
363/366/376 IPC and sentenced to undergo SI for seven years with total
fine ` 3,000/-.
2. Allegations against the accused were that on 04.03.1999 at
about 12.15 P.M. he kidnapped prosecutrix 'X' (assumed name), age 16
years when she was alone at her House No.4/8, Gali No.4, Jagjeevan
Nagar, Shahdara, Delhi. He committed rape upon her till she remained in
his custody at Delhi and Meerut. During the course of investigation,
statement of the prosecutrix was recorded under Section 164 Cr.P.C. She
was medically examined. Birth certificate showing her date of birth as
15.03.1983 was collected. Statements of the witnesses conversant with the
facts were recorded. On completion of investigation, a charge-sheet was
submitted against the accused. The prosecution examined sixteen
witnesses. In his 313 Cr.P.C. statement, the accused pleaded false
implication. DW-1 (Dr.Sunil Kumar Dhawan), DW-2 (Sudhir Kumar) and
DW-3 (Kamla) stepped in his defence. On appreciating the evidence and
taking into consideration contentions of the parties, the Trial Court, by the
impugned judgment convicted and sentenced the appellant as mentioned
above. Being aggrieved, he has preferred the appeal.
3. On scrutinising the Trial Court record and the evidence
produced before it, it reveals that the prosecutrix was known to the
accused for about one year prior to the incident and they were acquainted
with each other. The accused used to visit her home. On the day of
incident, the prosecutrix was alone accompanied the accused. From the
circumstances brought on record, it appears that the accused and the
prosecutrix were in deep love and she accompanied him with her free
consent without informing her parents. The prosecutrix remained in the
company of the accused for four days and at no stage, she raised hue and
cry. She did not resist sex with her. She was not alone in the place where
she remained with the accused. She did not complain kidnapping and
sexual assault. When her father lodged complaint with the police the
accused's father brought both of them to Delhi and produced before the
police. In her medical examination, no injuries were found on her body to
show if physical relationship was established without her consent. The
accused produced number of documents on record to show that the
prosecutrix had voluntarily performed marriage with him. DW-2 (Sudhir
Kumar) proved petition No.22/1999 filed by the prosecutrix against the
accused under Section 125 Cr.P.C. on 28.02.1999, wherein she admitted
her marriage with the accused. In her cross-examination, she admitted that
petition (Ex.PW-2/DA) contains her signatures at point A. She signed the
said documents twenty days prior to the incident. She had travelled with
the accused to Meerut but at no stage, raised any alarm complaining her
forcible abduction. Apparently, the prosecutrix was a consenting party
throughout.
4. To infer the guilt of the accused, age of the prosecutrix is
very crucial. The prosecutrix and her parents claimed that 'X' was below
sixteen years on the date of incident and her date of birth as recorded in
MCD was 15.02.1983. PW-9 (Sewak Ram Sharma), Sub Registrar, Birth
& Death, Shahdara, Delhi was examined who deposed that vide Sl.No.144
birth of a female baby was reported where the date of birth was recorded
as 15.02.1983. The entry did not contain the name of the child. He
admitted in the cross-examination that the entries at Sl.No.141 to 143
were made on the same day and name of the child was mentioned under
each entry. It is not very clear as to which female baby the entry pertains.
The parents of the prosecutrix admitted that they were having two other
daughters namely Pooja and Bharti who were younger to 'X'. She was
eldest in the family. There was gap of about two years in the birth of each
daughter. The prosecution did not collect birth certificates of the other two
daughters Pooja and Bharti to compare the age of the prosecutrix with
them. Counsel for the appellant has good reasons to doubt the birth
certificate if it really pertains to the prosecutrix 'X'.
5. Admitted position is that 'X' had studied in a school. 'X'
admitted that she studied up to 6th standard. However, the date of birth
recorded in the school record was not collected for the reasons unknown.
The accused specifically claimed that the 'X' has attended a school at
Ghonda. PW-2 'X' admitted this assertion in the cross-examination
though her parents denied it. The accused examined DW-3 (Smt.Kamla),
Head Mistress MCD Primary School Arvind Nagar-I, Delhi. She brought
admission register containing entry No. 3070 dated 12.08.1987 pertaining
to the prosecutrix 'X', where her date of birth was recorded as 01.08.1982.
It also contained her father's name as Rajender Kumar. She further stated
that on 28.09.1988, her name was struck of when she was student of 1 st
class. The relevant certificate issued by the school is Ex.DW-3/A. PW-4
(Rajender Kumar) in the cross-examination also admitted that date of birth
of her daughter was 01.08.1982. Apparently, the prosecution witnesses
falsely claimed that the actual date of birth of prosecutrix was 15.03.1983.
The accused even examined DW-1 (Dr.Sunil Kumar Dhawan) who on the
basis of ossification report opined in Ex.DW-1/A that the prosecutrix was
more than eighteen years on 04.03.1999. From these cogent statements, it
can safely be ascertained that the prosecutrix was above sixteen years of
age on the date of incident.
6. The prosecutrix had accompanied the accused with her free
consent and the prosecution measurably failed to establish that she was
enticed by the accused or that she was made to smell any intoxicating
substance. The prosecutrix was on the verge of attaining majority and was
well aware of the consequence of her acts.
7. In the light of above discussion and considering the facts and
circumstances of the case, conviction and the sentence of the appellant
cannot be sustained. The appeal is allowed and the conviction and
sentence of the appellant are set aside. The bail bond and surety bond of
the appellant stand discharged.
8. The Trial Court record be sent back forthwith.
(S.P.GARG)
JUDGE
MARCH 05, 2013
tr
