Mukesh Kumar vs The State
2015 Latest Caselaw 894 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                      DECIDED ON : FEBRUARY 02, 2015

+                            CRL. A. 883/2004

       MUKESH KUMAR                                          ..... Appellant.

                             Through :    Mr. R.P. Shukla with
                                          Mr.R.K.Sonaki and Mr.Dhanajay
                                          Singh, Advocates along with
                                          appellant in person.

                             versus

       THE STATE                                ..... Respondent

                             Through :    Ms. Kusum Dhalla, APP for State.

CORAM:
HON'BLE MR. JUSTICE S.P.GARG

S.P.GARG, J. (ORAL)

1. The appellant-Mukesh Kumar impugns a judgment dated

16.10.2004 of learned Additional Sessions Judge in Sessions Case

No.24/2002 arising out of FIR No.11/2002 registered at Police Station

Vasant Kunj by which he was held guilty for committing offence under

Section 376 IPC. By an order dated 23.10.2004, he was awarded RI for

seven years with fine `4,000/-.

2. Allegations against the appellant as reflected in the charge-

sheet were that on 06.01.2002 he kidnapped the prosecutrix 'X' (assumed

name) aged about 16 years from the lawful guardianship of her parents

without their consent and sexually assaulted her thereafter. Daily Dairy

(DD) No.36/A (Ex.PW.13/A) came into existence on 06.01.2002 at Police

Station Vasant Kunj when intimation about 'X' missing from her house

was lodged. The investigation was assigned to SI Naubat Singh. On

07.01.2002 'X' was recovered and after recording her statement, the

investigating officer lodged first information report (Ex.PW-5/A). The

prosecutrix was medically examined. She recorded her statement under

Section 164 Cr.P.C. Statements of witnesses were recorded; the accused

was arrested; and exhibits were sent to forensic science laboratory for

examination. After completion of investigation, a charge-sheet was

submitted against the appellant for committing offence under Sections

363/366/376 IPC. The prosecution examined 14 witnesses to establish his

guilt. In 313 statement, the appellant denied his involvement in the crime

and pleaded false implication. The trial resulted in his conviction under

Section 376 IPC. It is relevant to note that he was acquitted of the charges

under Section 366/363 IPC. The State did not challenge the said acquittal.

Being aggrieved and dissatisfied, the appellant has preferred the present

appeal.

3. During the course of arguments, learned counsel for the

appellant, on instructions, stated at Bar that the appellant has opted not to

challenge the findings of the trial court on conviction under Section 376

PC. He, however, prayed to take lenient view as the appellant has

remained in custody for about two years. He has since been married and

has two small kids to take care of. Learned APP has no objection to take

lenient view considering the mitigating circumstances.

4. Since the appellant has voluntarily accepted the findings on

conviction, conviction under Section 376 IPC is affirmed. Besides

confession, the prosecutrix 'X' (PW-1) deposed that the appellant had

taken her in a three wheeler scooter when she had gone to ease in the

fields at 6:00 a.m. Thereafter, he committed rape on her person at a place

unknown to her. She identified her Salwar (Ex.P-1) and shirt (Ex.P-2)

seized by the police. In the cross-examination, she denied if she had love

affairs with the appellant and wanted to marry him. She denied that the

letters Mark A-1 to A-21 were in her hand-writing. Learned counsel for

the appellant urged that the physical relations (if any) were with the

consent of 'X' and she had accompanied the appellant on her own accord.

On perusal of the evidence on record, it transpires that the appellant lived

in the neighbourhood of the prosecutrix and both of them were known to

each other. The prosecutrix did not raise alarm when the appellant had

taken her at odd hours at 06:00 a.m. in a TSR. She had remained with the

appellant for one day and at no stage she raised any hue and cry about the

conduct and behaviour of the appellant. MLC (Ex.PW-9/A) does not

reflect any physical body injury on her private parts. The doctor was

unable to give definite opinion regarding rape. There was no specific

opinion that the hymen was torn. In the alleged history recorded in the

MLC (Ex.PW-9/A), the victim informed the doctor that she herself had

married with the appellant on the previous day. In her statement under

Section 164 Cr.P.C., the victim revealed that she had accompanied the

appellant with her consent but the physical relations were established

against her wishes. The very fact that the appellant was acquitted of the

charge under Section 363/366 IPC reveals that the prosecutrix was a

consenting party. There is no intention if any force was used by the

appellant to establish physical relations against her wishes. Even if the

consent of the prosecutrix is taken as a valid defence of the appellant, age

of the prosecutrix below 16 years at the time of incident does not

exonerate him of the crime under Section 376 IPC. Her date of birth has

been proved by PW-7 (Raj Kaur), Headmistress of MCD Primary Girls

School Rangpuri, New Delhi. As per their record the date of birth of the

prosecutrix was 01.11.1986 in the certificate (Ex.PW-7/A). Apparently,

the prosecutrix was below 16 years on the day of incident. Consent of the

prosecutrix to establish physical relations was immaterial and is of no

consequence.

5. Regarding modification of sentence, the order reveals that the

occurrence took place on 06.01.2002. The appellant has suffered agony of

trial/appeal for about 13 years. He remained in custody for one year six

months and twenty three days as on 25.07.2005. He also earned remission

for two months and five days. His jail conduct was satisfactory. He is not

involved in any criminal case and is not a previous convict. He was

released on bail on 25.07.2005 and there is nothing on record that he

indulged in any such activity thereafter. It has come on record that the

appellant has since been got married and has a wife and two small kids to

maintain them. The prosecutrix 'X' has also been married at the age of 16

years. She was on the verge of attaining the age of sixteen years on the

day of incident. The appellant was also aged about 21 years. It appears

that there were love affairs between the prosecutrix and the appellant and

they wanted to marry. Since the prosecutrix was below 16 years of age

and did not know the consequences of sexual relations, the appellant is

liable for committing offence under Section 376 IPC.

6. Considering all these mitigating circumstances, the sentence

order is modified and instead of awarding minimum sentence i.e. RI for

seven years under Section 376 IPC, the appellant is ordered to undergo RI

for three years with fine. Other terms and conditions of the sentence order

are left undisturbed.

7. The appeal stands disposed of in the above terms.

8. The appellant, who is present in Court, be taken in custody

to serve out the remaining period of sentence.

9. Copy of this order be sent to the concerned Jail

Superintendent for information and necessary action. Trial court record

be sent back along with a copy of this order.

10. Copy of the order be given dasti to the parties under the

signature of the Court Master.

(S.P.GARG) JUDGE

FEBRUARY 02, 2015 sa