Delhi High Court

Mukesh Kumar @ Sonu vs State on 17 August, 2015

Author: Indermeet Kaur

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                 Date of Judgment: 17.8.2015

Crl. Appeal No. 1631/2013

MUKESH KUMAR @ SONU            ......Appellant
           Through: Mr.Mohit Mathur, Sr. Adv. with
                    Mr.S.P.Kaushal, Mr.Rohit Kumar,
                    Mr.Praman    Narain    Mathur    and
                    Mr.Dhananjai Kaushal, Advocates.

                      Versus


STATE
                                                     .......Respondent
                      Through:   Mr.Akshai Malik, Advocate.

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J.

1. This appeal is directed against the impugned judgment and order

of sentence dated 14.8.2013 and 30.8.2013 wherein the appellant had

been convicted under Sections 376 read with Section 511 of the IPC as

also under sections 342/323/201/506 of the IPC. He had been awarded a

sentence of RI for a period of 5 years and to pay a fine of Rs.25,000/- in

default of payment of fine to undergo SI for 6 months his conviction

under Section 376 read with Section 511 of the IPC; he had been

sentenced to undergo RI for a period of 5 years and to pay a fine of

Rs.25000/- in default of payment of fine to undergo SI for a period of 6

months; for his conviction under Sections 323/342 of the IPC he has to

undergo RI for a period of 1 year each; for his conviction under Section

201 he had been sentenced to undergo SI for 3 years and to pay a fine of

Rs.10,000/- in default of payment of fine to under SI for 3 months; for

his conviction under Section 506 of the IPC he had been sentenced to

undergo RI for a period of 2 years and to pay a fine of Rs.10,000/- in

default of payment of fine to undergo SI for 3 months. Sentences were

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

granted.

2. The version of the prosecution is that the 12 year old daughter of

Smt.Surji Rawat (PW-4) had become the victim of lust of the appellant.

The victim "S" a minor aged 12 years was examined as PW-3. The FIR

was registered on the complaint of PW-4. Her version was that the

appellant was known to the victim and her family and was running a

medical store in front of their house. PW-4 and the appellant developed

a relationship and solemnized a marriage in the year 2008. They started

living together as husband and wife. PW-3 was a child born out of the

first marriage of PW-4. On 30.10.2011 the appellant had taken PW-3 on

his motor cycle on the pretext of dropping her at her hostel but he

instead took her to a two storeyed building where he attempted to

commit rape upon her. PW-4 was shocked when she learnt of this on

the narration given to her by PW-3. PW-3 disclosed to her mother that

the appellant who was to drop her to the hostel did not take her there but

instead had taken her to a room where he put his male organ in her

vagina and tried to insert the same into it. Since he could not insert it he

inserted his finger in order to widen her vagina. She described the

manner in which the appellant made her suffer the obscene act and

forced her to follow the scenes in the obscene pornographic film shown

to her. She was also threatened not to disclose the incident to any

person.

3. The victim was medically examined and her MLC Ex.PW-7/A

had noted injuries upon her cheeks besides bruises on various parts of

her body. Her hymen was found torn. Appellant was arrested from his

house vide memo Ex.PW-4/A.

4. On the basis of the aforenoted evidence oral and documentary

evidence adduced by the prosecution, the appellant was convicted and

sentenced as aforenoted.

5. On behalf of the appellant learned senior counsel for the appellant

submits that although admittedly the victim was a minor on the date of

the offence but even as per the version of the prosecution she was

more than 12 years; being 12 years and approximately 1 month which is

evident from Ex.PW-8/B, Ex.PW-8/C and Ex.PW-8/D which are her

school leaving certificates and record establishing the submission that

her date of birth has been noted to be 10.9.1999 and as such on the date

of the offence (30.10.2010) the victim would have been 12 years and 1

month old. Submission being that this would be a relevant

circumstance to consider the sentence which has to be awarded in case

the Court is of the view that the conviction of the appellant is not to be

interfered with. Submission being that this is the alternate argument of

the appellant.

6. On merits, it is pointed out that the technicality of the offence

under Section 363 of the IPC is not made out as the version of PW-4

clearly shows that the victim had been sent by PW-4 along with the

appellant voluntarily and by her own accord. This could not be a case of

kidnapping. Attention has been drawn to the defence raised by the

appellant and in particular his answer to Question 49; submission being

that all along the defence of the appellant was that he had been falsely

implicated in the present case because of his close personal relationship

with PW-4. She had made demands of money upon him. She was black

mailing him and in 2007 she had given an affidavit (Ex.PW-4/D2)

wherein she had admitted that she has no relationship or ties left with

the appellant; this document is admitted. The whole case has been

planted upon the accused only because the illegal demands continuously

being raised by PW-4 were not met by the appellant. The version of

PW-3 and PW-4 are not consistent and whether the incident had been

reported by PW-3 to PW-4 on the intervening night of 30.10.2011 or

31.10.2011 is not clear. PW-4 had stated that after the narration by

PW-4 she straightway had gone to the ISBT to board a bus to her

parents' home but thereafter she changed her mind and took her

daughter to the RML hospital. RML hospital is in front of ISBT.

Submission being that this is a wholly incorrect narration as the RML

hospital is not in front of ISBT. PW-3 and PW-4 are confused. Benefit

of doubt is entitled to the appellant. Learned counsel for the appellant

has placed reliance upon a judgment reported as 2013[4] JCC 2962

Atender Yadav Vs. State of NCT of Delhi to support his submission that

there are ample cases of false implication and testimony of a child

witness has to be scrutinized with great caution. The appellant has been

falsely roped in.

7. Needless to state that the arguments raised by the appellant have

been wholly refuted.

8. Record has been perused.

9. The star witness of the prosecution was the prosecutrix herself.

She was examined as PW-3. She was aged 12 years on the date of

incident and after putting a preliminary round of questions to her she

had been put into the witness box. Her testimony was recorded without

oath. She detailed her version and delineated the incident in detail. She

has deposed that while she was studying in the 4 th standard and was

staying in the hostel attached to the school. On the fateful day she was

taken by the appellant who was her uncle and whom she knew. On the

way he asked her to go to his friend's house. He took her to a two

storeyed house. He went inside the house and bolted the door of the

room from inside. He took out his mobile phone and showed her an

obscene video clip from the phone and asked her to do whatever was

being done in that video clip. PW-3 started crying. She was slapped.

She was disclothed and was asked to see the obscene act. The appellant

put his male organ in her vagina and tried to insert the same into it. He

widened her vagina with his finger. She was bleeding. He made her to

do unnatural sex, which has been detailed in her version. The victim

started vomiting. They left the house. On the way she was threatened

not to disclose this incident to her mother. She returned home and

thereafter narrated the incident to her mother. She was taken to the

hospital on the following day. Her statement under Section 164 Cr.P.C.

was recorded.

10. In cross-examination, she stuck to her stand. She reiterated the

incident again and described it in the manner in which it had occurred.

She narrated the incident to her mother on her asking. Her mother had

accompanied her to the police station as also to the hospital. She had

denied the suggestion that she had falsely implicated the accused at the

asking of her mother. A suggestion was given to the effect that the

offence was occurred on 30.10.2010 (Sunday) and as such there was no

occasion for her to go to school. Relevant would it be note that that no

suggestion has been given to this witness on the lines in which the

defence sought to be set up by the appellant in his statement under

Section 313 Cr.P.C. on which heavy reliance has been placed upon by

the learned counsel for the appellant. In answer to Question 49 the

appellant had stated that he had been falsely implicated by the appellant

at the behest of her mother as he had stopped paying money to her

mother. PW-4 was employed in his shop in 2006. After that she

developed physical relations with the appellant which was the cause of

grudge which PW-4 had against the appellant for which she started

blackmailing. In 2006, she had sworn an affidavit to the said effect.

Relevant would it be note that the affidavit Ex.Ex.PW-4/D2. This

document is purportedly signed by PW-4 but as per the version of PW-

4, she had signed certain blank papers. This document also does not

speak of any sum of Rs.50,000/- having been paid by appellant to PW-4.

Further defence in the statement of the appellant under Section 313

Cr.P.C. was that before Deewali a sum of Rs.5 lakh had been demanded

by PW-4 from him and which was the reason for his false implication

but this defence did not emanate in the suggestions given to PW-3.

11. PW-4 is the mother of victim. She had on oath deposed that the

appellant was known to her since the year 2004. They started having

regular meetings. They solemnized a marriage in Haridwar. Her

daughter (PW-3) was born out from her first marriage. She has a son

born out from the marriage with the appellant. Her daughter was

studying in hostel. She used to come home during holidays. As the

appellant had promised to drop her at her hostel she sent her daughter

with the appellant. PW-3 had narrated the incident on the asking of her

mother, which completely out nerved PW-4. PW-4 decided to go to her

native village. She was afraid of the incident. PW-4 wrung up her

brother who advised her to take her daughter to RML Hospital where

PW-4 took her.

12. In this jumble of a situation which PW-4 was facing in her life if

PW-4 had stated that the RML Hospital is situated in front of ISBT and

was not able to give its right location, it would not throw out her

otherwise cogent and coherent testimony which was to the effect that the

narration of the incident as given by PW-3; i.e. the illegal act having

been committed by the appellant upon her 12 year old daughter when he

had taken her to drop her at school hostel is definitely not tarnished.

13. In her cross-examination PW-4 did not shift her stand. Most of

the questions put to the witness were irrelevant. They did not in any

manner detract from the gist of the version of PW-4. No improvement

has also been pointed out in her version.

14. Testimony of PW-3 and PW-4 about the manner in which the

incident had occurred was fully corroborated by the medical evidence of

the victim which was carried out at RML Hospital. Her MLC was

proved as Ex.PW-7/A. Bruises and multiple abrasions were noted on

her cheeks. She was referred to the Gynecologist. The Gynecologist

vide her report Ex.PW-17A noted the bruises on the internal parts of the

body of PW-3 i.e. scratch marks on her breast and shoulder and nail

injuries as also human bite on her face and cheeks. Hymen of the victim

was also found torn. There was bleeding from her vulva and swelling

and readness on her labia majora which were the private parts of the

victim. The medical evidence is thus fully corroborative of the narration

given by PW-3 to her mother PW-4.

15. The defence of the appellant that this is a case of false implication

because PW-4 was trying to extort money from him also did not find

mention in the cross-examination of PW-4. The defence of the appellant

was wholly false and that is why a shifting stand was taken by him

during cross-examination of PW-3 qua his statement recorded under

Section 313 Cr.P.C. The defence of the appellant is wholly improbable.

The submission of the learned senior counsel for the appellant that an

offence under Section 363 is not made out and the word "taking" which

is the essential ingredient of the aforenoted offence means a voluntary

taking. PW-4 had handed over the custody of her daughter to the

appellant negatives the conviction of the appellant under Section 363 of

the IPC is a wholly misplace argument. The word "kidnap" as is

contained in Section 363, means taking which is voluntary but it should

be with the valid voluntary and legal consent of the lawful guardian. It

should not be based on misconception of fact as was so in the instant

case. The appellant had taken the custody of PW-3 from PW-4 on the

pretext that he would drop her to the hostel. He, however,

misrepresented her and took PW-3 inside a room where he had

committed an illegal act upon her. This in no manner can be said to be

a permission having been accorded by the lawful guardian to the

appellant to take her to the place where he had committed act of rape

upon her. Apex Court while considering such an eventuality in the

judgment reported as AIR 2007 SC 3059 Pradeep Kumar @ Pradeep

Kumar Verma Vs. State of Bihar and Anr. had noted as under:

The second accused in that case obtained the consent of the Girl's guardian by falsely representing that the object of taking her was for participating in a festival. However, after the festival was over, the 2 nd accused took her to a temple in another village and married her to the 1st accused against her will. The question arose whether the guardian gave under a misconception of fact. While holding that there was no consent, Sundara Ayyar, J. speaking for the bench observed thus: We are of the opinion that the expression under a misconception of fact is broad enough to include all cases where the consent is obtained by misrepresentation; the misrepresentation should be regarded as leading to a misconception of the facts with reference to which the consent is given. In Section 3 of the Evidence Act Illustration (d) that a person has a certain intention is treated as a fact. So, here the fact about which the second and third prosecution witnesses were made to entertain a misconception was the fact that the second accused intended to get the girl married. In considering a similar statute, it was held in England in R.V. Hopkins (1842) Car & M 254 that a consent obtained by fraud would not be sufficient to justify the taking of a minor. See also Halsbury's Laws of England, Vol. 9 p. 623. In Stephen's Digest of the Criminal Law of England (6th Edn., p.217) the learned author says with

reference to the law relating to abduction of girls under sixteen thus..... if the consent of the person from whose possession the girls is taken is obtained by fraud, the taking is deemed to be against the will of such a person. Although in cases of contracts a consent obtained by coercion or fraud is only voidable by the party affected by it, the effect of Section 90 IPC is that such consent cannot, under the criminal law, be availed of to justify what would otherwise be an offence."

16. Thus this argument of the learned senior counsel for the appellant

that the conviction of the appellant under Section 363 of the IPC is

unfounded is an argument without force. No interference is called for in

the judgment qua this conviction of the appellant.

17. The only submission of the learned senior counsel for the

appellant which requires consideration is that the victim was aged about

12 years and 1 month on the date of offence. Under the un-amended

IPC (prior the Criminal Law Amendment Act, 2013) for the offence of

rape of a child below 12 years the minimum sentence was 10 years

extending up to life. In this case admittedly the victim was more than

12 years of age on the date of the incident. The Trial Court was guided

by the fact that the sentence for an attempt to commit an offence would