State vs Kapil
2015 Latest Caselaw 7322 Del

$~22
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

                          RESERVED ON : SEPTEMBER 16, 2015
                          DECIDED ON : SEPTEMBER 24, 2015

+                                CRL.A.1200/2013

       STATE
                                                       ..... Appellant
                          Through :    Mr.Ashok Kumar Garg, APP.
                          versus
       KAPIL
                                                          ..... Respondent
                          Through :    None.
        CORAM:
        HON'BLE MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. The instant appeal preferred by the State under Section 377

Cr.P.C. for enhancement of sentence awarded to the respondent has been

contested by him.

2. Briefly stated, the allegations against the respondent in the

charge-sheet were that on 16.08.2012 at around 8:30 p.m. after kidnapping

the prosecutrix 'X' (assumed name), aged around 16 years from the lawful

guardianship of her parents from House No.548, Naraina Village, New

Delhi, he committed rape upon her at Amritsar. On 16.08.2012, 'X' left

her house at 8.30 p.m. to return shortly but did not come back. Her

parents searched her at various places but in vain. Finally, her father

lodged complaint (Ex.PW-3/A) and the Investigating Officer registered

FIR under Section 363 IPC. After the prosecutrix and the appellant

returned to Delhi, 'X' was medically examined and her statement under

Section 164 Cr.P.C. was recorded. Section 366/376 IPC were added. The

accused was arrested. Statements of witnesses conversant with the facts

were recorded. Upon completion of investigation, a charge-sheet was

filed against the appellant in the court. The prosecution examined four

witnesses including the prosecutrix and her parents. Thereafter, the

appellant opted to plead guilty to the charge. After considering the

evidence on record and the plea of guilt, the Trial Court by the impugned

order convicted the appellant for commission of offences under Section

363/366/376 IPC in Sessions Case No.69/13, arising from the FIR

No.129/12 registered at Police Station Naraina. By an order dated

18.02.2013, the appellant was sentenced to undergo sentence for the

period already spent by him in custody. Aggrieved by the said orders,

State has filed the instant appeal for its enhancement.

3. In her Court statement as PW-2, the prosecutrix exonerated

the appellant completely for kidnapping her or to have established

physical relations with her against her wishes. She was categorical to say

that on 16.08.2012 at around 7/7:30 p.m. she had met the appellant. They

both wanted to marry. Thereafter, from the house of her friend Aditi, they

hired an auto-rikshaw and went to Bus Terminal. From there, they

boarded a bus to Amritsar and reached there the next day at around 11:00

a.m. or 11:30 a.m. They stayed in a hotel for two days where physical

relations were established with her consent. On 19.08.2012, she got a call

from her father who assured to perform their marriage. On return to Delhi

on 20.08.2012, she went to her mausi's house. Her father brought her back

and the appellant to the Police Station. In the cross-examination she

disclosed that the statement recorded before the Magistrate under Section

164 Cr.P.C. was under pressure from her parents. She further claimed that

she was aged around 18 years on the day of her examination i.e.

18.02.2013.

4. Apparently, it is a case of elopement with consent. Both the

appellant and the prosecutrix were in love and wanted to perform

marriage. For that purpose in mind, they had gone together to Amritsar

where physical relations took place. The prosecutrix was a student of X th

standard whereas the appellant aged around 20 years was a student of XI th

standard. The appellant suffered conviction as 'X' was below 16 years on

the day of incident and her consent for physical relations with the

appellant was of no relevance.

5. Conflicting versions about the exact age of the prosecutrix

have emerged on record. Her date of birth (22.02.97) in school record

was admittedly on the basis of an affidavit furnished by her father.

Admittedly, no birth certificate of the prosecutrix showing her exact age

was produced at the time of seeking her admission in the said school. In

the document (Ex.PW2/D1), 'X' claimed that she was of 18 years as she

had failed in VIIIth and Xth standards. PW-3 (Subodh Kumar), her father,

did not give her exact age in the complaint (Ex.PW-3/A). In his Court

statement, he disclosed her date of birth as 17.02.1997. The exact age of

the prosecutrix on the basis of cogent material has not been established to

conclude that she was definitely below 16 years on the day of incident.

6. The Trial Court while awarding lesser sentence has noted

adequate and special reasons. The appellant aged around 20 years had

remained in custody for about six months; he was a student of XIth

standard. His further detention in jail with other criminals was to affect

his career adversely. 'X' herself was a consenting party throughout. In

my view, considering the peculiar facts and circumstances of the instant

case, no illegality or material irregularity was committed by the Trial

Court to award sentence less than the one prescribed under Section 376

IPC. An 'affidavit' dated 18.02.2013 of the prosecutrix is on record

where she had claimed to have attained majority and expressed her

willingness to marry the appellant. The Trial Court apparently was of the

view that the appellant's release from custody would enable both lovers to

unite together. In Ravinder vs.State of Madhya Pradesh AIR 2015 SC

1369, the Supreme Court held that under proviso to Section 376 (2) IPC,

the legislature has empowered the Court to award lesser sentence where

'adequate and special reasons' exist. In the said case after taking into

consideration various circumstances whereby the prosecutrix and the

accused had entered into a compromise and the prosecutrix did not want

to proceed with the case against the accused and wanted it to close, lenient

view was taken and the sentence was reduced to the period already

undergone by the appellant therein.

7. In view of the above discussion, I find no merit in the appeal

filed by the State for enhancement of sentence awarded by the Trial Court.

The appeal is dismissed.

8. Trial Court record (if any) be sent back forthwith along with

the copy of the order. Intimation be sent to Superintendent Jail also.

(S.P.GARG) JUDGE SEPTEMBER 24, 2015/sa