Rameshwar Giri vs State
2014 Latest Caselaw 2721 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                 Judgment reserved on :22.05.2014.
                                 Judgment delivered on :27.05.2014.

                           CRL.A. No.891/2002
RAMESHWAR GIRI
                                                          ......Appellant
                      Through:   Mr. Harshit Jain, Adv.

                      Versus

STATE
                                                     .......Respondent
                      Through:   Ms. Kusum Dhalla, Adv.


CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J.

1 This appeal is directed against the impugned judgment and order

of sentence dated 16.04.2001 and 23.04.2011 respectively wherein the

appellant has been convicted under Sections 376/366/363 of the IPC and

has been sentenced to undergo RI for a period of 7 years and to pay a

fine of Rs.2,000/- and in default of payment of fine, to undergo SI for 3

months for the offence under Section 376 of the IPC; for the offence

under Section 366 of the IPC, he has been sentenced to undergo RI for a

period of 3 years and to pay a fine of Rs.1,000/- and in default of

payment of fine, to undergo SI for 2 months; for the offence under

Section 363 of the IPC, he has been sentenced to undergo RI for a

period of 3 years and to pay a fine of Rs.1,000/- and in default of

payment of fine, to undergo SI for 2 months. The sentences were to run

concurrently. Benefit of Section 428 of the Cr.PC had been granted to

the appellant.

2 The nominal roll of the appellant has been requisitioned. It

reflects that as on the date, when he had been granted bail, he has

suffered incarceration of about 4- ½ years.

3 Version of the prosecution was unfolded in the statement of the

prosecutrix examined as PW-5. Admittedly the appellant was known to

her prior to the date of the incident. Her version is that on 17.02.1999 at

about 05:30 pm, she was standing at the public water tank near her

house when the appellant asked her to accompany him for sightseeing;

she went with him; he took her to the railway station; she was threatened

there; the appellant took her to his village in Bihar in a train. She stayed

there for 2-3 days pursuant to which she was recovered.

4 Her mother Madhu has been examined as PW-6. She has deposed

that her daughter was found missing and she suspected the appellant. So

also is the version of her father Satish Kumar examined as PW-7. He

also suspected the appellant when he learnt about the missing of his

daughter. The victim was recovered on 21.02.1999 when she was

medically examined by Dr. Suman Bala examined as PW-8. As per her

version, the findings are suggestive of sexual intercourse; no injury was

noted upon the victim but her hymen was torn.

5 The date of birth of the victim was established through the version

of Virender Jain (PW-4) who had brought the record of date of her birth

proved as Ex.PW-4/A as 25.05.1983 evidencing the fact that as on the

date of the offence (17.02.1999) she was aged 15 years and about 8-9

months.

6 In the statement of the accused recorded under Section 313 of the

Cr.PC, he has stated that he has been falsely implicated in the present

case due to enmity.

7      No evidence was led in defence.

8      On the basis of the aforenoted evidence both oral and

documentary, the accused has been convicted for the aforenoted

offences and sentenced accordingly.

9 On behalf of the appellant, arguments have been addressed in

detail. It is pointed out that the victim was at the age of discretion and

she fully understood and conscious of her act; she had accompanied the

accused voluntarily as she knew him. She has admitted that she stayed

with the accused 2-3 days in his village at Bihar; she was treated well; in

her cross-examination, PW-5 has admitted she had gone for sightseeing

with the accused. Submission being that the offence under Sections

363/366 & 376 of the IPC clearly not made out. Further submission

being that had it been a case of force, injuries would have been noted

upon her person but no such injury was noted in her MLC. In the

alternate, it is pointed out that keeping in view the fact that out of 7

years RI, the appellant has already undergone a sentence of about 4- ½

years, the proviso of Section 376 of the IPC be put into operation and in

this case, there are adequate and special reasons for reducing the

sentence of the appellant. To support this submission, learned counsel

for the appellant has placed reliance upon a judgment of this Court

reported as 2010 Crl. L.J 1756 Mohd. Imran Khan Vs. The State.

10 Arguments have been refuted. It is pointed out that on no count,

does the impugned judgment call for no interference as the statement of

the victim examined as PW-5 has been fully corroborative by the

version of her mother and father (PW-6 & PW-7) who had suspected the

appellant as having taking away their daughter; the victim being less

than 15 years was admittedly a minor and even presuming that the

victim had gone with the accused voluntarily, such a „consent‟ is no

„consent‟ in the eye of law. The MLC of the victim shows that her

hymen was torn.

11 Arguments have been heard. Record has been perused.

12 PW-5 „G‟ was the star witness of the prosecution. She has

deposed that she knew the accused prior to the incident as she used to

visit her house. On 17.02.1999 at about 05:30 pm, when she was

standing at a public water tank near her house, accused asked her to

accompany him for sightseeing; she accompanied him; he took her to

the railway station; she wanted to go to her house but accused threatened

her to kill her. The accused took her to Bihar in a train where he

committed bad act with her twice. After a few days, she was recovered;

she was medically examined. She admitted that when the accused took

her, they kept roaming in Delhi for one hour; they then went to the

railway station at 06:30 pm where the appellant purchased the tickets

from a rushed ticket counter; she had been taken to the railway station in

three wheeler scooter; several persons were also present at the Bihar

railway station. Police officials were also there; she remained in the

house with the appellant for 2-3 days where other persons were also

there; some ladies were also present; she was not threatened by any

person. She denied the suggestion that because of a money dispute, the

accused has been falsely implicated.

13 The mother of the victim Madhu was examined as PW-6. She had

deposed that her daughter was missing and was recovered after 3-4 days.

Version of the father of the victim Satish Kumar (PW-7) is also to the

same effect. He had lodged the missing report (Ex.PW-7/A) when he

learnt that his daughter was missing. Both PW-6 and PW-7 have

admitted that the appellant was known to them prior to the incident.

14 Medical examination of the victim conducted through Dr. Suman

bal (PW-8) reveals her hymen was torn suggestive of sexual intercourse

but no injury was found on the body of the victim.

15 As noted supra, the victim was aged 15 years and 9 months on the

date of the offence meaning thereby that she was at the age of

discretion; she was studying in the 7th standard and as such it cannot be

said that she did not know the consequence of her act. More so, this is

not a case where there was any persuasion on the part of the accused

which can amount to a „taking‟ or „enticing‟ the victim as is the

language contained in Section 361 of the IPC. Version of PW-5 is

coherent in this regard. She has stated that while she was standing near

the public park, the accused invited her to accompany her for

sightseeing and she accordingly did so. In these circumstances, it cannot

be said that the accused was guilty of taking the victim out of the

keeping of her lawful guardianship; she was admittedly standing at the

public park when he invited her to join him for sightseeing. There was

no active persuasion on the part of the accused; it was an invitation

extended by him to the girl which was accepted by her.

16 As held by the Supreme Court in AIR 1965 SC 942 S.

Varadarajan Vs. State such an act would not tantamount to „taking‟. The

observations of the Apex Court in this context are as under:-

"The offence of "kidnapping from lawful guardianship" is defined thus in the first paragraph of s. 361 of the Indian Penal code :

"Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping

of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship."

8. It will thus be seen that taking or enticing away a minor out of the keeping of a lawful guardian is an essential ingredient of the offence of kidnapping......

...........11. It must, however, be borne in mind that there is a distinction between "taking : and allowing a minor to accompany a person. The two expression are not synonymous though we would like to guard ourselves from laying down that in no conceivable circumstance can the two be regarded as meaning the same thing for the purposes of s. 361 of the Indian Penal Code. We would limit ourselves to a case like the present where the minor alleged to have been taken by the accused person left her father's protection knowing and having capacity to know the full import of what she was doing voluntarily joins the accused person. In such a case we do not think that the accused can be said to have taken her away from the keeping of her lawful guardian. Something more has to be shown in a case of this kind and that is some kind of inducement held out by the accused person or an active participation by him in the formation of the intention of the minor to leave the house of the guardian.

12. It would, however, be sufficient if the prosecution establishes that though immediately prior to the minor leaving the father's protection no active part was played by the accused, he had at some earlier stage solicited or persuaded the minor to do so. In our opinion if evidence to establish one of those things is lacking it would not be legitimate to infer that the accused is guilty of taking the minor out of the keeping of the lawful guardian merely because after she has actually left her guardian's house or a house where her guardian had kept her, joined the accused and the accused helped her in her design not to return to her guardian's house by taking her along with him from place to place. No doubt, the part played by the accused could be regarded as facilitating the fulfillment of the intention of the girl.

That part, in our opinion, falls short of an inducement to the minor to slip out of the keeping of her lawful guardian and is, therefore, not tantamount to "taking". " 17 This version is further fortified by the fact that the victim was

admittedly known to the accused as he was residing in the same street

since the last 2 years. The fact that the accused was known to the victim

is also admitted by both PW-6 and PW-7 i.e. the mother and father of

the victim. PW-5 had accompanied the appellant for sightseeing; they

did sightseeing for one hour in Delhi; then by a TSR, the appellant took

her to the railway station; people were gathered there to purchase

tickets. Tickets were purchased by the appellant from the railway station

from where he took her to Bihar which would be a more than one day

journey. The victim stayed in the village of the appellant 2-3 days. She

was never threatened by the persons living in that house. 5-6 ladies were

also present. Other persons from the village also came to meet her. The

MLC of the victim also shows that there was no injury upon her person.

This corroborates the argument of the learned counsel for the appellant

that the victim was not subjected to any force.

18 This Court thus necessarily draws the conclusion that the victim

was a consenting party with the accused. The offence of rape as defined

under Section 375 of the IPC (unamended) is not made out as for the

purposes of rape to qualify as a minor, the victim should be less than 16

years. As noted supra, the victim was aged 15 years & 9 months on the

date of the offence i.e. just about three months short of the age of 16.

Being in the age of discretion; this Court is of the view that she was

conscious of her act in accompanying the accused and it cannot be said

to be an act of force. The accused is entitled to an acquittal for the

offence under Section 376 of the IPC. He is accordingly acquitted of the

said charge.

19 Even for the offence under Section 363/366 of the IPC since the

victim had accompanied the appellant for sightseeing on her own and

having met him at a public place, the ingredients of Sections 363 & 366

which necessarily entail a "taking" or "enticing from the lawful

guardianship" is not met.

20 The appellant is accordingly acquitted of all the charges leveled

against him.

21 Appeal allowed. His bail bonds are cancelled; surety discharged.

MAY 27, 2014/A                               INDERMEET KAUR, J