Delhi High Court
Ravinder Kumar vs The State (Nct Of Delhi) on 6 March, 2013
Author: S. P. Garg
* IN THE HIGH COURT OF DELHI AT NEW DELHI
RESERVED ON : 28th February, 2013
DECIDED ON : 6th March, 2013
+ CRL.A. 1450/2011
RAVINDER KUMAR ....Appellant
Through : Mr.Adit S.Pujari, Proxy Counsel for
Mr.Siddharth Aggarwal, Advocate.
versus
THE STATE (NCT OF DELHI) ....Respondent
Through : Ms.Fizani Husain, APP.
SI Tasbir, PS Saraswati Vihar.
CORAM:
HON'BLE MR. JUSTICE S.P.GARG
S.P.GARG, J.
1. The appellant- Ravinder Kumar challenges the correctness of
judgment and order on sentence dated 06.04.2011 in Sessions Case No.
255/2008 arising out of FIR No. 992/2007 PS Saraswati Vihar by which
he was convicted for committing offences punishable under Sections
363/366/376/342 IPC and sentenced to undergo RI for seven years with
total fine ` 6,000/-.
2. The prosecutrix 'X' (assumed name) aged 14 years went
missing on 04.10.2007. Smt.Basanti, her mother lodged missing person
report on 05.10.2007. Efforts were made to find out the whereabouts of
the prosecutrix but in vain. On 16.10.2007, complainant-Basanti suspected
Ravinder Kumar to have kidnapped 'X'. On 08.02.2008, Ravinder Kumar
and 'X' were apprehended when they were present at ISBT, Delhi.
Statements of witnesses conversant with the facts were recorded.
Statement of the prosecutrix under Section 164 Cr.P.C. was recorded. She
was medically examined. On completion of investigation, after a charge-
sheet was submitted, the accused was duly charged and brought to trial.
The prosecution examined fourteen witnesses. In his 313 Cr.P.C.
statement, the accused pleaded false implication and stated that 'X' was a
consenting party throughout. On appreciating the evidence and
considering the rival contentions of the parties, the Trial Court, by the
impugned judgment, convicted and sentenced the appellant. Being
aggrieved, he has preferred the appeal.
3. The prosecutrix remained in the company of the accused for
four months at various places i.e. Delhi, Panipat and Hardoi. They
established physical relations. The accused examined DW-1 (Ramgopal
Mishra), District Marriage Officer, Hardoi, UP who deposed that on
28.11.2007, Ravinder Kumar and 'X' had come in the office with their
photographs for registration of the marriage. They were duly identified by
Mr.S.C.Mishra, Advocate. He directed the parties to produce their proof
of age. 'X' moved an application stating that she was 21 years old and had
married Ravinder Kumar and was living as husband and wife. He proved
various documents filed in his office and further deposed that at the time
of moving the application, both were happy. Their counsel were with
them. At no stage, the prosecutrix raised hue and cry about her abduction.
Apparently, she had accompanied the accused with her free consent when
her parents were not present in the house. She did not bother to contact
them. In the MLC, no injuries were found on her body to ascertain that
she was forcibly subjected to rape. The accused had taken her at the house
of her relations. At no stage, the prosecutrix lodged any complaint with
them. She travelled freely in buses and trains with the accused but at no
stage raised alarm. The accused was acquainted with the prosecutrix.
From the evidence on record and circumstances, it can be inferred that the
prosecutrix was a consenting party throughout.
4. To determine the guilt of the accused age of the prosecutrix is
crucial. In the First Information Report (Ex.PW-1/A), complainant
Basanti disclosed age of the prosecutrix as 13 years. In the MLC (Ex.PW-
4/A), her age was recorded 13 years. PW-8 (Asha Sardana), Vice
Principal, Govt. Girls Senior Secondary School, Rani Bagh, Delhi brought
the admission record containing application form. She deposed that as per
application form 'X' was admitted in the school on 17.04.2003 in class 6-
B. In the application form, her father gave her date of birth as 12.04.1993.
X's father also annexed her school leaving certificate depicting date of
birth as 12.04.1993 issued by MCD Primary School, ED Block, Pitam
Pura, Delhi. As per record, 'X' was student of the school from 16.04.1998
till 31.03.2003. Photocopy of the admission form is Ex.PW-8/A.
Photocopy of school leaving certificate Ex.PW-8/B. She also proved the
attested photocopy of the register Ex.PW-8/C bearing entry at Sl. No.17
from point 'X' to 'X'. The genuineness of the documents was not
challenged in the cross-examination. PW-1 (Basanti), X's mother and
PW-3 (Nityanand), X's father claimed that the date of birth of the
prosecutrix was 12.04.1993. In the absence of any other proof, the date of
birth recorded in the school register cannot be doubted as these documents
were prepared much prior to the happening of the incident. The parents of
the prosecutrix could not anticipate that any such untoward incident would
happen in future to manipulate age of the prosecutrix. She was studying in
8th standard on the date of occurrence. These documents prove and
establish beyond doubt that the 'X' was below 16 years of age on the date
of incident. Her consent to accompany had no consequence and was
immaterial. Since the appellant, aged 20 years has allowed the minor girl
below 16 years of age to stay in his company and established physical
relations, he knew its consequence and was guilty for committing offences
under Sections 363/376 IPC. The conviction of the appellant is based
upon fair appraisal of the evidence and needs no interference.
5. This brings to the question of quantum of sentence. Counsel
for the appellant relied upon 'State of Chhattisgarh vs. Lekhram', AIR
2006 SC 1746, where in similar circumstances, the appellant therein was
sentenced to undergo imprisonment for the period already spent by him in
custody which was about one and a half year. Allegations against the
accused are serious whereby he exploited innocence of the child victim
who was unaware of the consequence of her act. She was of immature age
and did not understand ramification of having sex with the accused. The
accused did not inform X's parents for four months and both remained in
hiding during that period. Court can well understand trauma of parents
whose minor daughter went missing for four months.
6. Considering the facts and circumstances of the case and the
mitigating circumstance that the prosecutrix was a consenting party
throughout, and the fact that the appellant is not involved in any other
criminal case, lenient view is taken. Nominal roll reveals that the
appellant has remained in custody for four years, one month and twenty
nine days till 07.04.2012. He also earned remission for four months and
three days. The period has since increased to five years incarceration. His
overall jail conduct is satisfactory. Accordingly, order on sentence is
modified and the substantive sentence of the appellant is reduced to RI for
five years. Other sentences are left undisturbed.
7. The appeal stands disposed of in the above terms. The Trial
Court record be sent back forthwith.
(S.P.GARG)
JUDGE
MARCH 06, 2013
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