Vijay Kumar vs State Of Nct Of Delhi
2015 Latest Caselaw 5935 Del

$~R-58
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                   Judgment reserved on :11.8.2015
                                   Judgment delivered on :14.8.2015

+      CRL.A. 325/2013
       VIJAY KUMAR                            ..... Appellant
                          Through       Mr.Deepak Vohra and Mr.Vipin
                                        Malik, Advocates.
                          versus
       STATE OF NCT OF DELHI                  ..... Respondent
                          Through       Mr.Kewal      Singh             Ahuja,
                                        Advocate, APP
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J.

1 This appeal is directed against the impugned judgment and order

on sentence dated 08.6.2012 and 06.7.2012 respectively wherein the

appellant had been convicted under Sections 363/366/376 of the IPC.

The sentence awarded to him is RI 5 years and a fine of Rs.2000/- in

default of payment of fine to undergo SI for 3 months for his conviction

under Section 363; for his conviction under Section 366 of the IPC he

has to undergo RI for a period of 5 years and to pay a fine of Rs.2000/-

in default of payment of fine to undergo SI for 3 months; for his

conviction under Section 376 of the IPC he had been sentenced to

undergo RI for a period of 7 years and to pay a fine of Rs.2000/- in

default of payment of fine to undergo SI for 6 months. Sentences were

to run concurrently. Benefit of Section 428 of the Cr.P.C. had also been

granted to the appellant.

2 Version of the prosecution was unfolded in the testimony of the

prosecutrix "S" examined as PW-8. The prosecutrix was reported

missing from her house since 08.5.2010. Her mother was examined as

PW-7 who had lodged the missing report. She had given her statement

Ex.PW-7/A. Her version was to the effect that her daughter aged 15

years of age, student of Swami Dayanad Adarsh Vidyala had gone to

school but had not returned home. It was alleged that the accused Vijay

had also gone missing from the shop and she suspected that Vijay had

enticed "S" away. The prosecutrix was recovered 8-9 days later from

Bhatinda. She had reach Delhi. Ms.Rekha, learned M.M. (PW-10) had

recorded statement of the prosecutrix under Section 164 Cr.P.C. It was

proved as Ex.PW-10/A. The version of the prosecutrix was that the

accused had enticed her and taken her away to Bhatinda. She was

confined for 8-9 days in a room by the accused where he committed the

forceful act of rape upon her which was against her wishes. The

prosecutrix was medically examined. Dr.Namita Gupta (PW-5) had

given her detailed report Ex.PW-5/A. Hymen of the prosecutrix was

found torn. Her vaginal slides and undergarments were taken, sealed

and handed over to the police. Accused was also medically examined.

His MLC was proved as Ex.PW-6/A. There was nothing to suggest that

he could not perform the sexual act. The father of the victim had also

been examined as PW-11. Further version of the prosecution is that

PW-11 along with Head Constable Satish and Contable Sajjan had gone

to Bhatinda and had brought the victim and the accused from there to

Delhi. This has come in the version of the Investigating Officer

(PW-13). On the basis of the aforenoted evidence collected by the

prosecution oral and documentary the accused was convicted and

sentenced as aforenoted.

3 In the statement of the accused recorded under Section 313

Cr.P.C. he had stated that this is a case of false implication.

4 On behalf of the learned Amicus Curiae it has been argued that

this is a clear case of consent. The victim was known to the accused and

she had stayed with the accused for 8-9 days. The victim had ample

opportunity to run away or to make a complaint but she did not do so.

She was a willing and consenting party. The place of arrest of the

accused has been shown to be in Delhi. The case of the prosecution is

that the victim and the accused had been recovered from Bhatinda. The

arrest is also doubtful. As per the prosecutrix she was aged 15 years on

the date of commission of offence. She was at the age of discretion and

she knew the repercussions of her acts. The accused is entitled to a

benefit of doubt and a consequent acquittal.

5 Needless to state that these arguments have been refuted.

6 The star witness of the prosecution was Pw-8. She was the

prosecutrix herself. She had been examined on oath on 29.3.2011 i.e.

less than 1 year from the date of offence. She had on oath stated that her

age is 16-17 years. She had deposed that in May, 2010 she had gone to

her school and she was standing outside her school when the appellant

who was working in her father‟s shop took her to the shop where no one

else was present and thereafter he made her sit in a bus. Thereafter the

accused changed 3-4 buses, then she was taken in a auto-rickshaw and

then they boarded a train from a station to Bhatinda where the accused

bought new clothes and bangles for her. The accused had also put

sindoor in her „maang‟ and thereafter did „ganda kaam‟ with her. She

explained the „ganda kaam‟ by stating that sexual act had been done

upon her. She stated that the accused did this act 3-4 times. He

threatened her not to disclose this incident to anyone. While the

accused was taking her away he promised to marry her. She was

brought to Delhi by her father along with police officials after 8-9 days.

She was medically examined. In her cross-examination she had stated

that on the fateful day she was dropped by the school van near the shop

where the accused met her. She stated that the accused had met her

outside the school before she boarded the school van. She boarded her

school van and when it reached near her shop it was stopped by the

accused and she stepped down and then went to the shop of her father.

They had stayed outside the shop for two hours and thereafter she sat in

a bus. The accused had told her to accompany him to Punjab to which

she refused and told him that she would go to her house. On this the

accused gave her 2-3 slaps and told her to accompany him. She had

been taken away against her wishes. She did not raise an alarm in the

bus though there were numerous passengers present. She denied the

suggestion that she did not raise any alarm as she was a willing and

consenting party. In another part of her cross-examination she admitted

that for 9 days she stayed in Bhatinda with the accused. His sister used

to live there. She never told the sister of the accused that the accused

had forcibly taken her away. The accused had shown her the room

which he wanted to take on rent so that they could stay there. They had

also gone to the market to purchase bangles etc. She did not take the

articles which included bangles, clothes and sindoor. She admitted that

her mother used to beat her. She voluntarily stated that the door of the

room in Punjab used to remain open. She did not make any complaint

to police or any other person.

7 This version of the prosecutrix has been highlighted by the

learned counsel for the appellant to substantiate the submission that this

is a clear case of willingness and consent on the part of the victim to

have accompanied the accused. This submission shall be examined on

the touchstone of the other evidence which has come on record.

8 The mother of the victim has been examined as PW-7. She had

reiterated about the missing of her daughter and lodged a complaint.

She admitted that the accused used to work in the shop of her husband.

The father of the victim was examined as PW-11. He has also deposed

that at the time when his daughter went missing from the house she was

aged 15-16 years. The appellant had lured her away. In his cross-

examination, he admitted that he had accompanied the police to get his

daughter recovered from Bhatinda. He admitted that this information

about the prosecutrix being in Bhatinda was received from some

unknown person. The medical evidence i.e. MLC of the victim Ex.PW-

5/A shows that her hymen was torn. There was a history of sexual

intercourse in this intervening period of 8-9 days. No physical trauma

was noted on the patient. She was conscious, well oriented and

cooperative.

9 The evidence adduced so far does persuade this court to hold that

the victim had gone with the accused after taking a conscious decision.

She was studying in a school. On the fateful day she boarded the school

van but the school van was stopped by the accused; she de-boarded the

van and accompanied the accused to the shop of her father which was

closed at that time. They waited outside the shop for about two hours

and they then boarded a bus; thereafter they changed 3-4 buses and then

took a rickshaw and then boarded a train to Bhatinda. She had awaited

outside the shop for two hours. Several persons were available to her to

raise her voice or to complain to any person outside the shop; she could

also have made efforts to run away from the alleged clutches of the

appellant but she did not do so. She voluntarily accompanied the

appellant to Bhatinda. Nothing prevented her from running away or

making a phone call or even shouting to the passersby as it was a public

place where they were sitting. It has also come in the version of the

victim that the accused had promised to marry her. He purchased

bangles, clothes and sindoor for her while they were in Bhatinda. He

also committed sexual act with her. It has further come in her version

that during the 8-9 days stay in Bhatinda the doors of the room used to

remain open and thus there was ample opportunity available to her to

run away from the place where they were residing or even make a phone

call but she did not do so. It was 8-9 days later that on an information

(not given by the victim but by an unknown person) to PW-11 that the

parents of the victim learnt about the whereabouts of their daughter.

Even when PW-8 was living in Bhatinda, the sister of the appellant was

there; she did not disclose to her either about any forceful act/pressure

being put by the appellant upon her.

10 These facts are evident from the deposition of PW-8, lead to the

inevitable conclusion that this is a case of willingness and consent and

the victim had voluntarily accompanied the accused. There was no force

in the contention that she was kidnapped.

11 The next question to be answered by this Court is whether the

victim was an adult or a minor on the date of offence. If it is held that

she was a minor and below the age of 16 years; the act of the accused

would amount to rape; in such a situation the consent of a minor would

be no consent in the eyes of law.

12 The date of birth of the victim has been sought to be established

through the version of Principal of the school where the victim was

studying. Smt.Sudesh (PW-12) principal of Swami Dayanand Adarsh

Vidyalaya had brought the certificate regarding the date of birth of the

victim. As per the school record her date of birth was 22.12.1994. This

was also her date of birth as per the birth certificate issued by the MCD

(Ex. PX). Thus the date of birth of the victim being 22.12.1994 and the

date of offence being 07.5.2011, on that date she was 15 years and 6

months old.

13 Learned counsel for the appellant submits that the victim was of

the age of discretion and was well within the knowhow of her acts. She

knew the repercussions which would follow. She was a fully grown girl

and just short of a few months of the age of 16 (which was the age of an

adult for the purpose of rape under the pre-amended law i.e. prior to the

Criminal Amendment Act of 2013). She was sensible and aware of the

intention of the accused. She stayed with the accused for 8-9 days. This

was a voluntary stay. It is also not as if she called her parents to inform

them about their whereabouts. Her father had received an unknown call

pursuant to which the whereabouts of the couple were traced. No

injuries have also been noted upon the victim. Had it been a case of

force or pressure, some injuries would have emanated on the body of

victim; none were found.

14 In a judgment of the Apex Court in AIR 1995 SC 2169 Shyam

and another Vs State of Maharashtra, while dealing with the offence

under Section 366 of the IPC and noting that the victim had not touched

the age of 18 years (18 years being the adult age for the offence under

Section 366 of the IPC), the Apex Court in this context noting that the

victim was at the age of discretion being sensible and aware of the

intention of the appellant and having gone with him on her own,

notwithstanding the fact that she was technically a minor, the Court had

thought it fit to acquit the appellant for the offence under Section 366 of

the IPC. Relevant extract of the aforenoted judgment reads herein as

under:

" In her statement in Court, the prosecutrix has put blame on the appellants. She has deposed that she was threatened right from the beginning when being kidnapped and she was kept under threat till the police ultimately recovered her. Normally, her statement in that regard would be difficult to dislodge, but having regard to her conduct, as also the manner of the so-called "taking", it does not seem that the prosecutrix was truthful in that regard. In the first place, it is too much of a coincidence that the prosecutrix on her visit to a common tap, catering to many, would be found alone, or that her whereabouts would be under check by both the appellants/ accused and that they would emerge at the scene abruptly to commit the offence of kidnapping by " "taking" her out of the lawful guardianship of her mother. Secondly, it is difficult to believe that to the strata of society to which the parties belong, they would have gone unnoticed while proceeding to the house of that other. The prosecutrix cannot be said to have been tied to the bicycle as if a load while sitting on the carrier thereof. She could have easily jumped off. She was a fully grown up girl may be one who had yet not touched 18 years of age, but, still she was in the age of discretion, sensible and aware of the intention of the accused Shyam, That he was taking her away for a purpose. It was not unknown to her with whom she was going in view of his earlier proposal. It was expected of her then to jump down from the bicycle, or put up a struggle and, in any case, raise an alarm to protect herself. No such steps were taken by her. It seems she was a willing party to go with Shyam the appellant on her own and in that sense there was no "taking" out of the guardianship of her mother. The culpability of neither

Shyam, A-1 nor that of Suresh, A-2, in these circumstances, appears to us established. The charge against the appellants/ accused under Section 366, I.P.C. would thus fail. Accordingly, the appellants deserve acquittal. The appeal is, therefore, allowed acquitting the appellants"

15 This Court is inclined to apply the ratio of the aforenoted

judgment in the context of age of discretion which according to this

Court the victim in this case had also reached. She was just short of a

few months of becoming an adult. She was at the age of discretion and

at the cost of repetition fully aware of the outcome and the consequences

of her act. The fact that the accused had proposed marriage to her on the

way has also come in her testimony. She had also disclosed the manner

in which the accused had brought bangles and sindoor for her which he

had put in her „maang‟. In the factual matrix of the instant case, this

Court thinks that the victim having accompanied the appellant willfully

and voluntarily and being at the age of discretion, her consent is deemed

to be a valid consent; as such the offences for which the appellant has

been convicted are not made out. The word "taking" which is the

essential ingredient to make out the offence under Sections 363/366 of

the IPC is also absent. The conviction of the appellant under Sections

363/366/376 of the IPC is unfounded. Appellant is entitled to an

acquittal. He is accordingly acquitted. He be released forthwith, if not

required in any other case.

16     Appeal is allowed.



                                      INDERMEET KAUR, J


AUGUST 14, 2015
ndn