Sushil Kumar vs The State
2015 Latest Caselaw 4829 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                   RESERVED ON : MAY 25, 2015
                                   DECIDED ON : JULY 09, 2015

+                            CRL.A. 159/2004
       SUSHIL KUMAR                                          ..... Appellant
                             Through :    Mr.Kamlesh Kumar, Advocate.

                             versus

       THE STATE                                           ..... Respondent
                             Through :    Ms.Kusum Dhalla, APP.
                                          SI Pramod Kumar, Patel Nagar.

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

S.P.GARG, J.

1. Challenge in this appeal is to a judgment dated 18.12.2003 of

learned Additional Sessions Judge in Sessions Case No.35/2000

emanating from FIR No.616/99 registered at Police Station Patel Nagar

whereby the appellant-Sushil Kumar was convicted under Sections

363/366/376 IPC. By an order dated 22.12.2003, he was sentenced to

undergo RI for three years with fine `1,000/- each under Sections 363/366

IPC and RI for seven years with fine `5,000/- under Section 376 IPC.

The sentences were to operate concurrently.

2. The prosecution case in brief is that on 28.08.1999 Ramdhari

Yadav lodged complaint in the police station, Patel Nagar, informing that

his daughter 'X' (assumed name), aged 15 years, who had gone at 07:00

a.m. to her school did not return. He suspected appellant's involvement in

her kidnapping. Efforts were made to find 'X' but in vain. Finally, on

30.08.1999, the instant FIR was lodged. During investigation, the accused

was apprehended and 'X' was recovered from his house on 17.09.1999.

She was medically examined; she recorded her statement under Section

164 Cr.P.C. Statements of witnesses conversant with facts were recorded.

After completion of investigation, a charge-sheet was laid before the

Court. The prosecution examined thirteen witnesses to prove its case. In

313 statement, the appellant denied his involvement in the crime. The trial

resulted in his conviction as aforesaid. Being aggrieved and dissatisfied,

the appeal has been filed by him.

3. I have heard the learned counsel for the parties and have

examined the file. Admitted position is that 'X' and the appellant were

acquainted with each other before the incident. The appellant used to

impart tuition to her since the date 'X' was in IVth standard; was her

teacher till VIIth standard and lived in her neighbourhood. It appears that

during that period intimacy developed between the two and they started

meeting each other. The appellant used to meet 'X' near her school and

ask her to marry him. When 'X's parents came to know about it, they

discontinued her tuition and the appellant shifted his residence to Prem

Nagar. The appellant and 'X', however, continued to meet 'X' disclosed

in her Court statement as PW-5 that on 28.08.99 at about 07:00 a.m. when

she had gone to school, the appellant met her outside the school-gate and

offered to accompany him to watch a movie. She accompanied him

leaving her school bag in the school. She was taken to Faridabad in a bus

where he had rented a room. 'X' informed that after reaching Faridabad,

during day time, the appellant forcibly established physical relations with

her; She bleeded from her private parts. She remained sick for four days.

Thereafter, she was confined in a room for twenty days and despite her

resistance, the appellant repeatedly established physical relations with her.

In the cross-examination, she elaborated that she had voluntarily

accompanied the appellant but was not aware of his intention. She just

believed him innocently and was not aware of his bad intention. She fairly

admitted that no complaint was lodged by her to anyone about her forcible

kidnapping.

The appellant has not denied his love and affection for 'X'.

In 313 statement, he fairly admitted that he and 'X' were having love

affairs and he wanted to marry her. He averred that on the date of

occurrence, 'X' came to his house and insisted him to take her somewhere

as she was being married to someone else against her wishes.

Subsequently, he was falsely implicated by 'X' in connivance with her

parents. Needless to say, 'X' had accompanied the appellant with her free

consent. She did not raise any alarm any time about her alleged

kidnapping despite having ample opportunity. She continued to stay with

the appellant for twenty-days and at no stage, raised hue and cry to attract

attention of the neighbours. She did not complain about the appellant's

conduct and behaviour during journey in the bus to Faridabad.

Apparently, 'X' was a consenting and willing partner in the entire

episode.

4. Age of the Prosecutrix is crucial to ascertain the appellant's

guilt. In missing person report lodged on 28.08.1999 vide Daily Diary

(DD) No.15A (Mark 'X'), 'X's age was disclosed 15 years. MLC

(Ex.PW-10/A) also records her age 15 years. PW-1 (Sita Devi), 'X's

mother, stated that she was 14 years old. Her father Ram Dhari Yadav

(PW-2) revealed her age 15 years and produced School Leaving

Certificate (Ex.PW2/G) seized vide seizure memo (Ex.PW-2/F). The

prosecution examined Mrs.Satya Bhatnagar, Principal of Govt. Girls Sec.

School, Prem Nagar, as PW-3 who brought the admission register of the

school. As per school record, 'X' was admitted there on 08.04.1997 in

VIth Standard. As per entry No.69, her date of birth recorded was

14.04.1985. School Leaving Certificate (Ex.PW2/G) was issued on

06.09.1999 when she was a student of VIIIth standard. She was, however,

unaware as to on what basis her date of birth was recorded in the MCD

school at the time of her admission. 'X' claimed her age at the time of

recording of her statement before the Court on 19.04.2001 more than 15

years but less than 16 years. Apparently, 'X' was below 16 years of age

on the day of occurrence. The date of birth recorded in the School

Leaving Certificate cannot be suspected as it was recorded much prior to

the incident. The genuineness and correctness of this certificate has not

been doubted in the cross-examination. 'X' and her parents had not

anticipated the incident to happen in near future to manipulate her date of

birth recorded in the school register way-back on 08.04.1997. In the

cross-examination, age described and proved by the prosecution witnesses

remained unchallenged. The appellant did not claim if 'X' was more than

16 years of age on the day of incident. During trial, he did not demand for

ossification test of the prosecutrix to ascertain her age. No sound reasons

exist to suspect the authenticity of School Leaving Certificate revealing

the exact date of birth of the prosecutrix. Since 'X' was below 16 years of

age, her consent to have physical relations with the appellant was

inconsequential. The appellant had no reasons to entice the innocent child

of immature age who had gone to attend her school as usual, on the

pretext to show her a movie without seeking her parents' prior

consent/permission. The appellant was assigned a pious duty to impart

tuition to the child. Instead of performing his duties, the appellant

developed intimacy with the child and allured her to take her out of the

keeping of lawful guardianship of her parents. Not only he kept the

prosecutrix at a place far away from her residence for long twenty-days,

he also established physical relations with her. 'X's consent for sexual

relations was irrelevant and immaterial as she was unable to form a

conscious decision based on the knowledge of the significance and moral

quality of the act due to her tender age. After taking 'X', no attempt was

made by the appellant to marry her legally. She was kept in isolation in a

rented room. The appellant did not bother to introduce her to his parents

showing inclination to marry her. As per MLC (Ex.PW-10/A), her hymen

was found torn. Needless to say, appellant's only motive was to satisfy

his lust otherwise he had no reasons to establish physical relations with a

child without having any intention to perform marriage. She was not of

ripe age even to give valid consent for marriage.

5. Appellant's conduct is unfair and unreasonable as while in

judicial custody, he had the audacity to send a threatening letter

(Ex.PW5/DB) to 'X's parents boasting that nothing would happen to him

and only 'X's life would be ruined. Apparently, 'X's father was

threatened not to make statement against him in the Court. This letter was

written on 21.12.2000 prior to the recording of the statement of the

prosecutrix and her father. She was in fear while recording her statement

in the Court.

6. Findings of the trial court convicting the appellant based

upon fair appraisal of the evidence, can't be faulted and the conviction for

the aforesaid offences is affirmed. Sentence Order requires no

modification as there was 10 years gap between the age of the appellant

and that of 'X' when he exploited her innocence and established sexual

relations betraying the trust of the parents who engaged him to impart

tuition to their little child. Court can well understand the trauma of

victim's parents who were unaware of her whereabouts for long twenty

days. The appellant deserves no leniency in the absence of adequate and

special reasons.

7. The appeal lacks merits and is dismissed. The appellant shall

surrender before the Trial Court on 20th July, 2015 to serve the remaining

period of sentence. The Registry shall transmit the Trial Court records

forthwith along with the copy of this order.

(S.P.GARG) JUDGE JULY 09, 2015/sa