Delhi High Court
Kaushal Kumar vs State on 31 January, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Decided on: 31st January, 2017
+ CRL.A. 273/2002.
KAUSHAL KUMAR
..... Appellant
Represented by: Mr. S.H. Ansari, Adv. with
appellant in person.
versus
STATE
..... Respondent
Represented by: Mr. Ravi Nayak, APP.
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
MUKTA GUPTA, J. (ORAL)
1. Non-bailable warrants have not been executed, however the appellant
is present in Court with counsel.
2. Arguments have been addressed in the appeal by learned counsel for
the appellant and learned APP for State.
3. Kaushal Kumar challenges the impugned judgment dated 9th October,
2001 convicting him for offences punishable under Section 366/376 IPC and
the order on sentence dated 12th October, 2001 directing him to undergo
rigorous imprisonment for a period of four years and to pay a fine of
`1,000/- for the offence punishable under Section 366 IPC and rigorous
imprisonment for a period of seven years and to pay a fine of `1,000/- for the
offence punishable under Section 376 IPC.
4. The prosecution case is solely based on the testimony of PW-4
prosecutrix who deposed as under-
"I studied in Ngr. Nigam School and passed 9th class. My father is
a generator mechanic. 3/4 persons used to work with them i.e.
Raju, another Raju also and Satish and one Kaushal accused
present in the court today. My father used to take liquor and my
mother and father used to quarrel with each other. My father
wanted separation from my mother. My mother did not give
divorce and went to my maternal uncle (Mama's) house. I used to
live in Kanjhawala Village with my mother at Mama's house. I
don't know my date of birth. I was in love with accused Kaushal.
On 14th Oct, 1999 I told him that I love him. On 30.9.99 I told
Kaushal atmosphere of my house because of quarrel between my
mother and father is not good. I went with Kaushal to Bihar at
Kaushal's house. There at my instance accused married with me.
On 4.10.99 we got married with each other in Bihar and then we
started living in Patna as husband and wife. I know what is
marriage and I am aware what happens after marriage. During
this period my relation with accd. Kaushal remained as husband
and wife. While returning back to Delhi on 12.2.2000 we were
apprehended by police. Police recorded my statement and
enquired from me. I told police that we had married with each
other and were living as husband and wife. After making statement
to the police I gave my statement u/s 164 Cr.P.C. to the police. In
that statement before court my age as 18 and half years. Perhaps
my statement before the court on 14.2.2000. After some time my
statement was again recorded by the Court in which I was asked
where I was want to go. Where I stated that I want to go with
accused Kaushal. At that time also I gave my age as 18 and half
years."
5. With respect to the offence punishable under Section 366 IPC, PW-4
prosecutrix has stated in her testimony that she had asked the appellant to
take her away and she wanted to go with the appellant. In the decision of
Supreme Court reported as AIR 1965 SC 942 S. Varadarajan v. State of
Madras, it was held that in a case where the prosecutrix voluntarily joins the
accused, the accused cannot be said to have taken her away from the keeping
of her lawful guardian. The relevant extract of the report are:
"9. It must, however, be borne in mind that there is a distinction
between "taking" and allowing a minor to accompany a
person. The two expressions are not synonymous though we
would like to guard ourselves from laying down that in no
conceivable circumstances can the two be regarded as meaning
the same thing for the purposes of Section 361 of the Indian
Penal Code. We would limit ourselves to a case like the present
where the minor alleged to have been taken by the accused
person left her father's protection knowing and having capacity
to know the full import of what she was doing voluntarily joins
the accused person. In such a case we do not think that the
accused can be said to have taken her away from the keeping of
her lawful guardian. Something more has to be shown in a case
of this kind and that is some kind of inducement held out by the
accused person or an active participation by him in the
formation of the intention of the minor to leave the house of the
guardian."
6. Thus, on the deposition of the prosecutrix who was fed up with the
atmosphere in the home where her parents were constantly quarrelling with
each other and on her insistence, the appellant took her to his village offence
punishable under Section 366 is not made out against the appellant.
7. Insofar as the offence of rape is concerned, as per the prosecutrix, the
relationship was with her consent, however if she was a minor at the time of
alleged incident, her consent was immaterial, Thus the relevant factor to be
looked into is the age of the prosecutrix at the time of the alleged incident.
To prove the age of the prosecutrix, the prosecution has placed on record
documents and also the report as per the ossification test. PW1 Sarla Devi
deposed that the prosecutrix was admitted in her school on 13th July 1999 in
8th Standard and as per Ex. PW-1/C which is the school leaving certificate of
the prosecutrix, the date of birth was 24th April, 1987. She further deposed
that the prosecutrix attended the school till 29 th September, 1999 and her
name was struck on 30th October, 1999. Thus this is neither the age of the
prosecutrix as per the school first attended nor the matriculation certificate.
Moreover it is also not clear on what basis the date of birth was recorded in
the school. Thus the said certificate cannot be relied upon to ascertain the
age of the prosecutrix. Therefore, the medical evidence for determining the
age of the prosecutrix has to be looked into. As per the testimony of PW-8
Dr. Sangeet Ghai, Senior Radiologist, Department Radio Diagnosis, AIIMS,
who examined the x-ray plate of the prosecutrix, the bone age was between
14.9 to 15.8 years. He further stated that there is a margin of plus and minus
two years and there is a possibility on either side. If the margin of two years
is taken into consideration, the bone age of the prosecutrix is 16.9 years.
Considering the age of the prosecutrix to be approximately 16.9 years at the
time of the incident, she could consent for the relationship. Since she had
deposed that the relationship between the appellant and her was consensual,
therefore, the offence punishable under Section 376 IPC is also not made out
against the appellant.
8. Consequently, the impugned order of conviction and order on sentence
are set aside. The appellant is acquitted of the offences punishable under
Section 366/376 IPC. Bail bond and surety bond of the appellant are
discharged.
9. Copy of this order be sent to Superintendent Central Jail Tihar for
updation of the Jail record.
10. Appeal is disposed of. TCR be returned.
(MUKTA GUPTA)
JUDGE
JANUARY 31, 2017/'ga/vkm'
