Rakesh Ranjan Verma vs State Of Nct Of Delhi
2016 Latest Caselaw 1174 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                             RESERVED ON : 2nd FEBRUARY, 2016
                              DECIDED ON : 15th FEBRUARY, 2016

+                        CRL.A.700/2006
      RAKESH RANJAN VERMA                               ..... Appellant
                         Through :   Mr.Mohit K.Shah, Advocate.

                         versus
      STATE OF NCT OF DELHI                             ..... Respondent
                         Through :   Mr.Tarang Srivastava, APP.

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

S.P.GARG, J.

1. Aggrieved by a judgment dated 01.08.2006 of learned Addl.

Sessions Judge in Sessions Case No.24/2006 arising out of FIR

No.454/2001 PS Kamla Market by which the appellant - Rakesh Ranjan

Verma was convicted for committing offences under Sections 376/342

IPC, the present appeal has been filed by him. By an order dated

04.08.2006, he was sentenced to undergo RI for seven years with fine

`10,000/- under Section 376 IPC and RI for one year with fine `1,000/-

under Section 342 IPC. Both the sentences were to operate concurrently.

2. The case in brief as stated in the charge-sheet was that on the

night intervening 16/17.12.2001 at about 03.00 a.m. the appellant

committed rape upon the prosecutrix 'X' (changed name) after wrongfully

confining her at his jhuggi No.C-51/R-126, Thomson Road, Railway

Colony, Delhi. The police machinery was set in motion on 18.12.2001 and

the Investigating Officer lodged First Information Report after recording

victim's statement (Ex.PW-1/A). 'X' was medically examined; she

recorded her 164 Cr.P.C. statement. The accused was arrested. Statements

of the witnesses conversant with the facts were recorded. Exhibits

collected during investigation were sent to Forensic Science Laboratory

for examination. Upon completion of investigation, a charge-sheet was

filed against the appellant in the Court. The prosecution produced thirteen

witnesses to prove its case. In 313 Cr.P.C. statement, the appellant denied

his involvement in the crime and pleaded false implication. Sushil Kumar

Sahni appeared in defence as DW-1. The trial resulted in his conviction as

aforesaid. 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. Appellant's counsel urged that the Trial Court did not

appreciate the evidence in its true and proper perspective. Material

contradictions and infirmities in the statements of the witnesses were

overlooked without cogent reasons. Initially, in her complaint (Ex.PW-

1/A), the victim had not alleged if she was subjected to rape. Later on, she

deviated from her earlier version and Section 376 IPC was added in the

FIR. 'X' even had attempted to implicate CRPF officials to have ravished

her and the victim's father had taken her to the 'camp' where she was

asked to identify the perpetrator of crime. The FSL report (Ex.PW-3/A)

does not implicate the appellant as no sperms were seen in vaginal smear.

It was emphasized that 'X' was above 16 year of age on the day of

incident and as per the ossification report her age was in between 17 - 18

years. 'X' had alleged that at the time of commission of rape, string of her

salwar was broken. However, when the 'salwar' was produced before the

Court, the string was found intact. 'X' did not suffer any injury on her

private organs. The appellant had got no opportunity to make submissions

before the Trial Court at the time of final disposal due to absence of his

lawyer. Learned Addl. Public Prosecutor urged that 'X' was below 16

years of age as her date of birth was 12.10.1986 as proved by PW-10

(Harish Chander). 'X' had no ulterior considerations to falsely implicate

the appellant.

4. Admitted position is that 'X' and the appellant were

acquainted with each other before the occurrence. The appellant lived in

the neighbouring jhuggi in the same locality. The occurrence took place

on the night intervening 16/17.12.2001 after 'X' had gone at around 03.00

a.m. to answer call of nature outside her jhuggi. It is alleged that the

appellant dragged her to his jhuggi and after wrongfully confining her

committed rape upon her against her wishes. On perusal of the statements

of the various witnesses examined by the prosecution, it can be inferred

with certainty that the physical relations between 'X' and the appellant (if

any) in the jhuggi were consensual. After 'X' had left her jhuggi at around

03.00 a.m. purportedly to answer the call of nature, she did not return till

05.00 a.m. Her family members finding her missing from the jhuggi went

here and there to search her. At around 05.00 a.m., she was seen coming

from the appellant's jhuggi. At that time, she did not exhibit any abnormal

behaviour. She even did not divulge true facts to her parents. She

attempted to mislead them and accused CRPF officials to be the

perpetrators of the crime of rape. Her father even took her to the CRPF

camp and apprised the senior officers. 'X' was asked to identify the

culprit but she could not do so. Later on, she revealed that she had misled

her family members due to fear and because of the threats extended by the

appellant. It has further come on record that for her visit to the appellant's

jhuggi and have physical relations with him, she was even beaten by her

family members. At the time of her medical examination, she had

informed the examining doctor about the beatings given by her father by

an iron road after the rape incident. This fact finds mention in the alleged

history recorded in MLC (Ex.PW-5/A). Abrasions and bruises were

present on interior aspect of left leg, right elbow and left arm. In her initial

version (Ex.PW-1/A), the victim tried to save the appellant and did not

level allegations of commission of rape. She merely informed that the

appellant had attempted to outrage her modesty and attempted to commit

rape upon her by opening string of her salwar which she did not allow.

She further disclosed that after great difficulty, she was able to save

herself and come back running to her jhuggi. She did not disclose

anything to her parents due to shame. This version is in contradiction to

the one given by her father PW-9 (Mishri Lal) wherein he stated that

when they were searching 'X' after finding her missing at home, she was

seen coming from the appellant's jhuggi. In her 164 Cr.P.C. statement

recorded on 20.12.2001, the victim gave detailed account as to how and

under what circumstances, rape was committed upon her. FIR was lodged

on 18.12.2001. The delay in lodging the FIR has remained unexplained.

5. 'X' remained in the appellant's company in his jhuggi from

03.00 a.m. to 05.00 a.m. At no stage, she raised alarm to protest her

alleged kidnapping and rape. Even after she exited from the jhuggi after

the incident, she did not raise hue and cry. She maintained silence and

attempted to divert the blame on CRPF officials on being caught hold by

her parents. She was aware that her family members were in the jhuggi

and would wait for her arrival after answering the call of nature,

particularly when before going to answer the call of nature, she had

informed her mother. 'X' had left the house at odd hours during winter

night. It is highly unbelievable that without any prior information, the

appellant would anticipate her arrival outside the jhuggi to carry-out his

plan. Physical relations took place between the two in the appellant's

jhuggi. Nothing has emerged if any resistance was offered by the victim at

that time. She did not suffer any struggle / violence marks on her body.

No external injuries were found on her body including private parts to

infer forcible rape. Under these circumstances, 'X' was seemingly a

consenting party to the coitus.

6. The victim's age becomes crucial to ascertain the appellant's

guilt. From the very inception, it was the prosecution case that 'X' was

around 15 years of age on the day of incident. Complaint (Ex.PW-13/A);

164 Cr.P.C. statement (Ex.PW-1/2) and MLC (Ex.PW-7/A), all described

her age as 15 years. PW-9 (Mishri Lal), victim's father in his deposition

before the Court claimed that her daughter was aged around 15 years on

the day of occurrence. He produced original birth certificate issued by

Sub-Registrar of Births and Deaths, City Zone, MCD (Mark 'A'). PW-10

(Harish Chander), Sub-Registrar, Births and Deaths, MCD, Minto Road,

Delhi, brought the summoned record as per which at Sl.No.3403 birth of a

female child at Girdhari Lal Memorial Hospital (GLM) was recorded on

12.10.1986. It bears the father's name of the female child as Mishri Lal

and mother's name as Radha, both resident of H-112/F, Railway Quarters,

Thomson Road, Delhi. He also proved the photocopy of the entry

(Ex.PW-10/A) and the certificate of birth (Ex.PW-10/B) issued on the said

basis. His testimony remained unchallenged. The authenticity and

genuineness of these documents was not suspected in the cross-

examination. These documents came into existence much before the

occurrence. At that time, the victim's parents had not anticipated such an

unfortunate incident to happen to manipulate her date of birth. It is true

that in ossification report (Ex.PW-8/A), her age has been determined to be

in between 17 - 18 years. However, in view of the availability of the

cogent document i.e. birth certificate, the opinion recorded in the

ossification test which is an estimate cannot prevail. The appellant did not

examine any witness to prove if the prosecutrix was above 16 years of age

on the day of incident. Since 'X' was below 16 years of age on the day

when physical relations took place between the two, her 'consent' was of

no relevance.

7. Minor discrepancies and contradictions highlighted by the

appellant's counsel are inconsequential. The appellant did not deny his

presence in the jhuggi at the relevant time; he did not specifically

contradict the victim's statement of her visit to the jhuggi at that time.

Contrary to that, suggestion was put to 'X' in the cross-examination that

she had removed her clothes on her own before the appellant in the jhuggi.

'X' had no valid reasons to falsely implicate the appellant to have physical

relations with her. She rather attempted to save him and suffered injuries

at the hands of her parents. It shows how immature and innocent she was.

Conviction under Section 376 IPC can't be faulted and is affirmed.

Conviction and sentence recorded under Section 342 IPC is set aside as

'X' was a willing party and was not confined forcibly inside the jhuggi.

She had voluntarily gone there on the pretext to answer the call of nature

at around 03.00 a.m.

8. Prayer has been made to modify the sentence order as the

appellant has already suffered custody for about two years and is not a

previous convict; he was aged around 21 years on the day of incident.

Perusal of the file reveals that the appellant was sentenced to undergo RI

for seven years under Section 376 IPC. After he remained in custody for

around two years, his substantive sentence was suspended by this Court

on 26.03.2008. Nothing has emerged if after release on bail, he ever

indulged in any such criminal activity or misused the liberty. He has

suffered the ordeal of trial / appeal for about fifteen years. 'X', as

observed, was a consenting party and physical relations between the two

were with consent. Considering all these circumstances, there exist

adequate and sufficient reasons to take lenient view and Sentence Order is

modified to the extent that the substantive sentence shall be three years

instead of seven years under Section 376 IPC. The appellant shall,

however, pay `40,000/- as compensation to the prosecutrix which shall be

deposited before the Trial Court within two weeks. It shall be released to

the prosecutrix after due notice.

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

appellant shall surrender on 22.02.2016 before the Trial Court to serve out

the remaining period of substantive sentence.

10. 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 FEBRUARY 15, 2016 / tr