Delhi High Court
Sudhir Paswan vs The State (Govt. Of Nct), Delhi on 11 March, 2015
Author: S. P. Garg
* IN THE HIGH COURT OF DELHI AT NEW DELHI
RESERVED ON : 5th MARCH, 2015
DECIDED ON : 11th MARCH, 2015
+ CRL.A. 1451/2014
SUDHIR PASWAN ..... Appellant
Through : Mr.Chetan Lokur, Advocate.
VERSUS
THE STATE (GOVT. OF NCT), DELHI ..... Respondent
Through : Ms.Kusum Dhalla, APP.
CORAM:
HON'BLE MR. JUSTICE S.P.GARG
S.P.GARG, J.
1. Aggrieved by a judgment dated 02.07.2014 in Sessions Case
No. 22/2012 emanating from FIR No. 346/2011 PS Burari by which the
appellant - Sudhir Paswan was held guilty for committing offences under
Sections 363/366/376 IPC, the instant appeal has been preferred by him
By an order dated 02.07.2014, the appellant was awarded RI for ten years
with fine ` 5,000/- under Section 376 IPC and RI for seven years with fine
`5,000/- under Section 366 IPC. Both the sentences were to operate
concurrently.
2. Briefly stated, the prosecution case as reflected in the charge-
sheet was that on 05.11.2011 at about 03.00 P.M., the appellant kidnapped
prosecutrix 'X' (assumed name) from the lawful guardianship of her
parents with an intention to forcibly marry her. He took 'X' to various
places and committed sexual assault upon her. Missing person report was
lodged vide Daily Diary (DD) No.19A (Ex.PW-18/A) at 13.45 hours on
12.11.2011 at PS Burari. Efforts were made to find out 'X'. Finally, she
was recovered in the company of the appellant at Mujjafarpur on
17.11.2011. Statement of the prosecutrix was recorded under Section 164
Cr.P.C. and she was medically examined. Statements of the witnesses
conversant with the facts were recorded. Exhibits were sent to Forensic
Science Laboratory for examination. After completion of investigation, a
charge-sheet was filed against the appellant in the Court. The prosecution
examined eighteen witnesses to establish the appellant's guilt. In 313
Cr.P.C. statement, the appellant denied his involvement in the crime and
pleaded that 'X' had accompanied him with free consent and they were in
love. No evidence in defence was adduced. The trial resulted in his
conviction. Being aggrieved and dissatisfied, the appeal has been
preferred.
3. I have heard the learned counsel for the parties and have
examined the file. Findings of the Trial Court reveal that 'X' was a
consenting party throughout. However, her consent was inconsequential
she being below sixteen years of age. On perusal of the evidence of the
relevant witnesses including that of 'X', it stands established that 'X' and
the appellant were acquainted with each other prior to the incident.
Admitted position is that the appellant used to have frequent visits to X's
house along with her cousin. The appellant lived in the vicinity of the
prosecutrix and used to call her parents as 'Mausi' / 'Mausa'. 'X'
accompanied the appellant on 05.11.2011 in a car and was taken to
various places. As per her testimony, she was first taken to the appellant's
sister's house. After that, they both went to a temple and the appellant
married her in the presence of a Pandit. The accused took her to village
Karjolia in a vehicle at the residence of his uncle. Thereafter, she was
taken to a village at the residence of her Mausi's daughter. 'X' stayed with
the appellant for about 4 / 5 days in all. At no stage, she raised any hue
and cry regarding her forcible abduction or kidnapping. Physical relations
were established during this period. At the time of medical examination,
'X' was found pregnant and the pregnancy was terminated subsequently.
No injury on her body was noticed in the MLC. The accused was not
armed with any weapon to cause apprehension in her mind or to scare her.
From all these circumstances, it can safely been inferred that 'X' was a
consenting party throughout and the findings of the Trial Court on that
score cannot be faulted.
4. To infer appellant's guilt, age of the prosecutrix is relevant.
Prosecution case from the very inception is that 'X' was aged about
twelve and half years at the time of incident. In her deposition as PW-1,
she disclosed her age as twelve and half years on the day of incident. She
denied that she was above eighteen years of age. The prosecution
examined PW-8 (Ms.Anita Sharma), Teacher, Nigam Pratibha School,
Sant Nagar, Delhi, where 'X' was admitted in class 1(C) on 04.08.2005
vide admission No. 7808 and her date of birth recorded was 15.02.2000.
Photocopy of the relevant entry of admission register is Ex.PW-8/A;
Photocopy of the admission form is Ex.PW-8/B and that of affidavit of the
X's mother is Ex.PW-8/C. There are no valid reasons to disbelieve the age
of the prosecutrix as recorded in the school certificate. X's parents had not
anticipated the incident to occur and to manipulate her date of birth in
2005. The appellant did not furnish any document to prove his claim that
'X' was above eighteen years of age. Being a student of 7 th Class Standard
she was not expected to be of more than eighteen years of age. PW-2
(Vinod Dass), X's father disclosed her date of birth as 15.02.2000. He
deposed that his marriage took place in the year 1997. 'X' was born after
about two years of the marriage and she is the eldest child. Similar is the
testimony of PW-3 (Smt.Kamla), X's mother. Apparently, 'X' was below
fifteen years of age on the day of incident and her consent to accompany
the appellant and to have physical relations with him was immaterial. It
was no consent in the eyes of law. 'X' being a child was unable to
understand the consequences of her consent to accompany the appellant
without informing her parents at far away places. Not only that, during her
stay with the appellant, he established physical relations with her on
various occasions. The appellant did not bother to inform X's parents
about her whereabouts. No sound reasons exist to disbelieve or suspect the
testimony of the prosecutrix whose deposition is consistent throughout.
Obviously, it is a case of elopement with consent but consent by a child
aged below fifteen years is of no relevance and the appellant cannot
escape his guilt on that score.
5. The impugned judgment based upon fair appreciation of the
evidence requires no interference. Since the child below twelve years was
sexually assaulted and was made pregnant, the appellant deserves no
leniency except that the default sentence for non-payment of fine
`10,000/- shall be Simple Imprisonment for ten days in all.
6. The appeal stands disposed of in the above terms. Trial Court
record be sent back forthwith with the copy of the order. A copy of the
order be sent to the Superintendent Jail for information.
(S.P.GARG)
JUDGE
MARCH 11, 2015 / tr
