Rakesh vs The State (Govt. Of Nct) Of Delhi
2016 Latest Caselaw 1082 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                          RESERVED ON : 21st JANUARY, 2015
                           DECIDED ON : 11th FEBRUARY, 2016

+         CRL.A. 73/2014 & CRL.M.B. 145/2014
      RAKESH                                              ..... Appellant
                            Through :   Mr.Chetan Lokur, Advocate with
                                        Mr.Nitish Chaudhary, Advocate.
                            versus

      THE STATE (GOVT. OF NCT) OF DELHI                   ..... Respondent

                            Through :   Mr.Vinod Diwakar, APP with SI
                                        Amit Kumar, PS Anand Vihar.

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

S.P.GARG, J.

1. The appellant - Rakesh has preferred the instant appeal to

challenge the legality and correctness of a judgment dated 20.02.2013 of

learned Addl. Sessions Judge in Sessions Case No.06/2013 arising out of

FIR No.508/2006 PS Anand Vihar by which he was held guilty for

committing offences punishable under Sections 376/366 IPC. By an order

dated 22.02.2013, he was sentenced to undergo RI for eight years with

fine `12,000/- under Section 376 IPC and RI for seven years with fine

`8,000/- 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 23.09.2006 in between 09.00 a.m. to 06.30 p.m. the

appellant kidnapped / abducted the prosecutrix 'X' (changed name) aged

15 years from the lawful guardianship of her parents to compel her to

marry him. He took the prosecutrix far away to his village and from

23.09.2006 to 02.10.2006 committed rape upon her in village Lakeshwar,

District Jonpur. On 23.09.2006, 'X' left her parents' house in their

absence without informing them. Efforts were made to find her at various

places but to no avail. Finally, on 27.09.2006 victim's mother Sangeeta

lodged complaint with the police and suspected appellant's involvement

in the crime. The Investigating Officer lodged First Information Report

after recording Sangeeta's statement (Ex.PW-2/A). On 02.10.2006, 'X'

along with the appellant returned to Delhi and both were apprehended by

the police. 'X' was medically examined; she recorded her 164 Cr.P.C.

statement. Statements of the witnesses conversant with the facts were

recorded. The accused was arrested and medically examined. Upon

completion of the investigation, a charge-sheet was filed against him in

the Court. The prosecution examined twenty-one witnesses to prove its

case. In 313 Cr.P.C. statement, the appellant pleaded false implication

claiming that 'X' wanted to marry him but he was not agreeable to it.

DW-1 (Bansraj) appeared in defence. The trial resulted in his conviction

as mentioned previously. Being aggrieved and dissatisfied, the instant

appeal has been preferred.

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

examined the file minutely. Undisputedly, 'X' went missing from her

house on 23.09.2006; accompanied the appellant to his village Lakeshwar,

District Jonpur and remained in his company till 02.10.2006 when she

was finally brought back to Delhi by a train. In her 164 Cr.P.C. statement

(Ex.PW-17/C), she disclosed that on 23.09.2006, the appellant had visited

her in the absence of her parents who were away to their place of work.

On the pretext to marry her, the appellant took her to his village. She,

however, declined to marry him in the village. On her insistence, the

appellant brought her back to Delhi on 02.10.2006. She further claimed

that the accused had committed a 'wrong act' with her in the village. In

her Court statement as PW-1, shifting her stand, she disclosed that on

23.09.2006 the accused had asked her to accompany him to his village on

the pretext to take her to different places for outing. Thereafter, he took

her to village Lakeshwar, District Jonpur. In her deposition, she did not

state if the appellant had exerted any pressure or force to take her to his

village. She did not reveal if during her stay with the appellant for long

ten days, she ever complained her alleged kidnapping or abduction. In the

cross-examination, she admitted that at the time of occurrence, she was a

student of 9th standard and knew the accused since long. She admitted that

when she had accompanied the accused in a three-wheeler scooter at

about 02.00 p.m. to the railway-station, she did not raise alarm. She

denied if in the village, she had married the accused in a temple or had

gone to a Court for marriage. She denied that letters (Mark 'DX-1 to DX-

2') written to the appellant were in her handwriting. She, however, fairly

admitted that she had got herself photographed with the accused (Ex.D-1).

She admitted that she did not protest when the accused had taken her to

the railway-station and it was expected that she would be taken out of

Delhi. In the cross-examination, she disclosed that there were 4 - 5 family

members of the accused in the house where she was kept; they were his

mausi, two brothers and one sister and she used to have conversation with

them. She did not lodge any complaint with the appellant's 'mausi' or any

other family members for having physical relations against her wishes

with the appellant. Admittedly, she did not contact her parents during her

stay in the village. She denied that physical relations were maintained

with her own free will after the marriage.

4. On scanning the testimony in entirety, it stands established

that the prosecutrix had accompanied the appellant on her own without

any demur; she was a willing and consenting party throughout. At no

stage, she protested or complained about the appellant's conduct and

attitude. She remained in appellant's company for about ten days and at

no stage bothered to raise hue and cry. During this period, physical

relations took place between the two. Nothing has emerged to infer if any

alarm was raised by the prosecutrix at that time or she suffered any

physical injuries on her body including private parts to give indication of

forcible rape against her wishes. She was brought back to Delhi by the

appellant without having any inkling about their apprehension at the

railway-station. Apparently, it was a case of elopement with consent.

Photograph (Ex.D-1) confirms it. 'X' did not explain as to when and

under what circumstances, she photographed along with the appellant.

Undisputedly, the petitioner and the prosecutrix were acquainted with

each other since long and the appellant had visiting terms at her residence.

5. Victim's age becomes relevant and crucial to ascertain the

appellant's guilt (if any). On scanning the evidence on record, I am of the

view that the prosecution has failed to establish if the victim was below 16

years of age on the day of incident. In the complaint (Ex.PW-2/A),

Sangeeta did not disclose as to what was the victim's age on the day she

went missing. In the 164 Cr.P.C. statement (Ex.PW-17/C) and in MLC

(Ex.PW-3/A), her age was recorded as 16 years. PW-2 (Sangeeta) in the

cross-examination admitted that she had told victim's age to the doctor as

16 ½ years. As per ossification report (Ex.PW-4/A), her age was

estimated to be above 14 years and below 16 years as on 30.10.2006.

Despite the victim to have studied till 9th standard, the Investigating

Officer did not collect school record to ascertain as to what date of birth of

the prosecutrix was recorded therein. PW-2 (Sangeeta) admitted in the

cross-examination that 'X's age was wrongly given as five years as it was

the minimum age for getting admission in a school and for that purpose, a

'janampatri' in which her age was reflected as 5 years was got prepared.

No such 'janampatri' has been produced on record. PW-9 (Rajesh Kumar)

in the cross-examination admitted that he had not produced birth

certificate (of Safdarjung Hospital) or school certificate of the prosecutrix.

It is emphasized that the date of birth of the prosecutrix is 28.11.1990 as

recorded in the document (Ex.PW-15/A) proved by PW-15 (S.S.Rawat)

from Safdarjung Hospital. This document shows birth of a female child on

28.11.1990 at 09.20 p.m. at Sl.No.1122. The mother's name of the infant

has been shown Smt.Laxmi w/o Sh.Rajesh R/o A-76, Amrit Puri, New

Delhi. PW-15 (S.S.Rawat) admitted in the cross-examination that the

documents relating to the admission and discharge of Smt.Laxmi have

been disposed of as per rules and are not available in the record. The

certificate to that effect is Ex.PW-15/D1. PW-16 (Sh.Pawan Kumar), Sub

Registrar, Death and Birth, NDMC, proved document (Ex.PW-16/A); a

photocopy of entry No.12066 dated 11.02.1990 showing that Smt.Laxmi

had given birth to a female child on 28.11.1990 in Safdarjung Hospital.

Again, this witness admitted that he had not brought the original

certificate; he was not the author of the entry. It is urged that the victim's

mother's name was Laxmi before her marriage and after that, it was

changed to 'Sangeeta'. However, no worthwhile evidence has surfaced to

prove if Laxmi and Sangeeta are one and the same individuals. The

documents (Ex.PW-15/A and Ex.PW-16/A) are not cogent and authentic

documents to establish with certainty that 'X' was the child who was born

to Sangeeta and Rajesh on 28.11.1990. Again, it has not been established

that both Sangeeta and Rajesh lived at A-76, Amrit Puri, New Delhi, for

any particular duration. Even if this age is taken into consideration,

apparently, the victim was on the verge of attaining the age of 16 years.

She was a student of 9th standard and admittedly had failed twice in 8th

standard. Considering these circumstances, it cannot be said firmly that

the victim was below 16 years of age on the day of incident. The appellant

deserves benefit of doubt on that score.

6. Since the prosecution has failed to establish that the victim

was below 16 years of age on the day of incident, conviction and sentence

awarded by the Trial Court under Section 376 IPC cannot be sustained as

seemingly the prosecutrix was a consenting party throughout.

7. In the light of above discussion, the appeal is allowed.

Conviction and sentence awarded by the Trial Court are set aside. The

appellant shall be released forthwith if not required to be detained in any

other case. Pending application also stands disposed of.

8. 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 / compliance.

(S.P.GARG) JUDGE FEBRUARY 11, 2016 / tr