* IN THE HIGH COURT OF DELHI AT NEW DELHI
RESERVED ON : JUNE 02, 2017
DECIDED ON : JUNE 05, 2017
+ CRL.A. 322/2016
Through : Ms.Aishwarya Rao, Advocate.
Through : Ms.Meenakshi Dahiya, APP.
HON’BLE MR. JUSTICE S.P.GARG
1. Challenge in this appeal is a judgment 26.11.2015 of learned
Additional Sessions Judge in Sessions Case No.211/2013 arising out of FIR
No.55/09 at Police Station Vivek Vihar by which the appellant Vikas was
held guilty for committing offences punishable under Sections 376/174A
IPC. By an order dated 5.12.2015, he was sentenced to undergo Rigorous
Imprisonment for seven years with fine `5,000/- under Section 376 IPC and
Rigorous Imprisonment for one year with fine `1,000/- under Section 174A
IPC. Both the sentences were to run concurrently.
2. Briefly stated the prosecution case as reflected in the charge-
sheet was that on 1.4.2009 at about 9.00 a.m. the appellant in a vehicle in
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front of Reliance Fresh, committed rape upon the prosecutrix ‘X'(assumed
name), aged around 14 years. The incident was reported to the police on
4.4.2009. After recording statement of victim’s mother Rekha (Ex.PW-
3/A), the Investigating Officer lodged First Information Report. ‘X’ was
medically examined; she recorded her 164 Cr.P.C. statement. The exhibits
collected during investigation were sent for Forensic Science Laboratory for
examination. Efforts were made to arrest the appellant but he could not be
found. Finally, he was declared ‘Proclaimed Offender’ on 16.12.2010. A
charge-sheet was filed on 3.6.2011 and after recording statements of the
witnesses under Section 299 Cr.P.C., the file was consigned to the record
room. On 15.4.2013, the appellant was arrested at Sawai Madhopur in
Rajasthan. He was brought to Delhi on 16.4.2013. On completion of
investigation, a supplementary charge-sheet was filed against him in the
court. In order to establish its case, the prosecution examined nineteen
witnesses. In 313 statement, the appellant denied his involvement in the
crime and pleaded false implication. He did not examine any witness in
defence. The trial resulted in 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 prosecutrix and the
appellant had affairs which were not liked by the victim’s parents. They
have falsely implicated the appellant for commission of rape though no such
incident had taken place. The prosecutrix used to write love letters to him.
She further urged that ‘X’was more than 18 years of age on the day of
occurrence. Learned Additional Public Prosecutor urged that no valid
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reasons exist to disbelieve the statement of the prosecutrix who was aged
around 14 years on the day of occurrence.
4. Admitted position is that the prosecutrix and the appellant were
acquainted with each other prior to the incident. The prosecutrix in cross-
examination admitted that she was familiar with the appellant for the last
more than a year. PW-12 (Raj Kumar), victim’s father has also talked about
his acquaintance with the appellant. The occurrence took place on 1.4.2009
when the prosecutrix ‘X’, studying in 6th class, at Avinash Chaddha Rajkiya
Kanya Vidhlaya, Jhilmil Colony, had gone to collect her result at around
8.00 a.m. Allegedly, the appellant met her on the way and offered her lift in
his tempo/Vikram. It is alleged that subsequently, the appellant took the
prosecutrix in the said tempo in front of Reliance Fresh and committed
forcible rape upon her in the back portion of the vehicle covered from all
sides. The prosecutrix, thereafter, went to her school to collect her result.
She came to know that her father had already collected the result. She came
back to her home but did not narrate the incident to her parents. The
information about the occurrence was conveyed to the police by the victim’s
mother on 3.4.2009 and DD No.43B (Ex.PW-6/A) came to be recorded at
9.05 p.m. at Police Station Vivek Vihar. In her complaint (Ex.PW-3/A)
Rekha, victim’s mother implicated the appellant for the commission of rape
upon her daughter when she had gone to collect her result. The FIR was
lodged on 4.4.2009. Apparently, there was considerable delay in lodging the
FIR which has remained unexplained. There is contradictory statements by
the victim’s parents as to when they had come to know about the crime.
PW-3 (Rekha) disclosed that after collecting her result, ‘X’ came to home;
she used to remain mum. When she enquired as to why she was avoiding
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talks, she apprised her about the commission of rape by the appellant after
two days of the incident. PW-12 (Raj Kumar), victim’s father in the cross-
examination informed that he had already collected victim’s result from the
school. When the prosecutrix returned to home, he enquired as to why she
was late. Then she narrated the entire incident to him. The FIR was lodged
after due consultation when the victim’s parents came to know about
appellant being the author of the crime.
5. In 164 Cr.P.C. statement (Ex.PW-7/B), ‘X’ informed the
learned Presiding Officer that on 1.4.2009, she had gone to collect her result.
At Kasturba Nagar Chowk the appellant to whom she knew before met and
asked her to sit in his vehicle. He, thereafter, took her to Reliance Fresh and
parked the vehicle in front of park. He committed rape upon her forcibly on
the back portion of the vehicle. He asked her not to disclose the incident to
anyone. Thereafter, she was brought back at Kasturba Nagar Chowk and
from there she went to her school to collect result. When her father inquired
as to why she was late, she did not disclose him anything due to fear. When
he forced her to tell, she divulged the incident to him. She further disclosed
that it was on 3.4.2009.
6. In her court statement, she reiterated the version given to the
learned Presiding Officer and implicated the appellant to have committed
rape upon her against her wishes. In the cross-examination, she admitted
that she had not sustained any injury on her body. She did not make noise
when she was dropped after the crime at Kasturba Chowk. She denied to
have written any love letters to the appellant.
On perusal of the statements of the prosecution witnesses
including that of the prosecutrix, it can clearly be inferred that physical
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relationship (if any) between the two was with consent. Both the appellant
and the victim were acquainted with each other. On the day of occurrence,
the prosecutrix had gone alone to collect her result. She did not reach the
school. On the way, the appellant met and took her in his vehicle to the spot
where physical relations between the two took place. At no stage, the
prosecutrix raised any alarm. Even after the physical relations, the
prosecutrix conveniently went to her school to collect her result without
raising any hue and cry. After return to home, when she was enquired as to
why she was late, she did not divulge the incident to her parents. She
maintained complete silence for three days. Only on 3.4.2009, the matter
was reported to the police where the appellant was named to be the
perpetrator of the crime. On that very day, the prosecutrix was medically
examined vide MLC (Ex.PW9/A). No injuries, whatsoever, were found on
her body to infer forcible rape. Seemingly, the prosecutrix was afraid of her
parents to disclose about the occurrence. It appears that when the victim’s
parents came to know about it, the FIR was lodged.
7. There is no substance in the appellant’s plea that no such
incident had taken place or that his false implication was due to previous
quarrels with victim’s parents over his love affairs with the prosecutrix. The
prosecutrix has given graphic detail as to how and under what circumstances
she met the appellant and how he took her in his tempo to Reliance Fresh
and there established physical relations with her in the vehicle. The
prosecutrix, aged around 14 years is not expected to tell a lie about physical
relations to bring herself in disrepute. It can, thus, be inferred that physical
relationship with the prosecutrix (if any) was with her free consent.
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8. ‘X’s age is relevant to find out the appellant’s guilt.
Throughout, the prosecution case is that the victim was below 16 years of
age on the day of occurrence. The victim’s age as 14 years finds reflection in
the Rukka (Ex.PW-10/B); statement under Section 164 Cr.P.C. (Ex.PW-
7/B); and MLC (Ex.PW-9/A). In her statement as PW-1, the prosecutrix
claimed that she was aged around 14 years on the day of occurrence; her
date of birth being 12.8.1995; she had passed 6th class on that day. In the
cross-examination, no other date of birth was suggested to her. PW-3
(Rekha), victim’s mother corroborated her version saying that ‘X’ was of 18
years on the day of her examination on 22.7.2014. PW-12 (Raj Kumar) also
informed that the victim was studying in class 6th on the day of occurrence.
Crucial testimony is that of PW-11 (Devender Singh Bhandari), Sub-
Registrar, Birth and Death, Shahdara South Zone, EDMC, who proved the
record Ex.PW-11/A and Ex.PW-11/B. He deposed that as per record, birth
certificate No.3144992 dated 1.8.2008 was issued to the prosecutrix
(Ex.PW-11/A) vide order dated 30.07.2208 (Ex.PW-11/B) showing her date
of birth as 12.8.1997. The occurrence took place on 1.4.2009. Victim’s
parents did not anticipate any such unfortunate incident to take place in
future to manipulate her date of birth in the official record in July, 2008.
Thus, date of birth recorded in the birth certificate cannot be suspected or
doubted despite there being minor discrepancies in the statements of the
prosecution witnesses. It is relevant to note that that appellant has not
suggested any other specific date of birth of the prosecutrix. He has also not
produced on record any document to show if she was above 16 years of age
on the day of occurrence. He did not ask for ossification test of the
prosecutrix during investigation.
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9. Since the prosecutrix was below 16 years of age on the day of
occurrence, her consent for physical relationship was of no consequence.
‘X’ aged around 14 years was unable to understand the consequences of the
act for which consent for physical relationship was given by her. She was
unable to take any informed decision due to immature age. The consent,
thus, given was vitiated and is of no relevance in the eyes of law.
10. There is ample evidence on record that after the commission of
crime, the appellant could not be arrested and finally he was declared
‘Proclaimed Offender’ after completing due procedure. He has been rightly
convicted under Section 174 A IPC.
11. Conviction recorded under Sections 376/174 A IPC based upon
fair appreciation of evidence cannot be faulted; the conviction is upheld.
Nominal roll dated 28.6.2016 shows that the appellant has undergone three
years, two months and seven days incarceration besides remission for twenty
five days as on 24.6.2016. The appellant has clean antecedents; he is a first
time offender. He is not involved in any other crime case. His overall
conduct in jail is satisfactory.
12. Since the prosecutrix was aged around 14 years on the day of
occurrence and physical relationship was with her consent, there are
sufficient reasons to award sentence less than seven years which is minimum
13. Sentence Order is modified to the extent that the appellant shall
undergo RI for five years under Section 376 IPC. Other terms and
conditions of the sentence order are left undisturbed.
14. The appeal stands disposed of in the above terms. Pending
application also stands disposed of. Trial Court record be sent back
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forthwith with the copy of the order. Intimation be sent to the
JUNE 05, 2017/sa
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