Dilip Kumar vs State on 2 November, 2017

* IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment Reserved on: October 27, 2017
% Judgment Delivered on: November 02, 2017

+ CRL.A. 828/2017

DILIP KUMAR ….. Appellant
Through: Ms. Sonika Tyagi, Advocate

versus

STATE ….. Respondent
Through: Ms.Rajni Gupta, APP for the
State with SI Azad Singh PS
Ranhola

CORAM:
HON’BLE MS. JUSTICE PRATIBHA RANI

JUDGMENT

1. By way of this appeal filed under Section 374(2) Cr.P.C., the
appellant assails the judgment dated 29th November, 2016 and order
on sentence dated 5th December, 2016 whereby the appellant has been
convicted for committing the offence punishable under Section
363/366 of IPC Section 6 of POCSO Act and sentenced as under:-

(i) Under Section 363 IPC R.I. for a period of 3 years with fine
of ` 3,000/- and in default, to
undergo SI for fifteen days

(ii) Under Section 366 IPC R.I. for a period of 5 years with fine
of ` 3,000/- and in default, to
undergo SI for fifteen days

CRL.A. No.828/2017 Page 1 of 11

(iii) Under Section 6 of R.I. for a period of 10 years with
POCSO Act fine of ` 5,000/- and in default, to
undergo SI for one month

All the sentences were directed to run concurrently.

2. The facts which are relevant for adjudication of the present
appeal are that on 15th December, 2012 DD entry No.32-A was lodged
on the complaint of Sh.Yudhister Kumar, who personally visited
Police Station Ranhola and informed that his daughter ‘S’ (name
withheld to conceal the identity) aged about 16 years, who was a
student of class-X in a Government School, had been missing from
home since 12th December, 2012 from 2.00 AM. He was searching for
her at his own level but as he could not find her, he came to lodge the
report. On the basis of his complaint Ex.PW3/DA, case FIR
No.279/2012 under Section 363 IPC was registered at PS Ranhola.

3. On 10th January, 2013, the prosecutrix was recovered from the
house of the appellant. She was sent to DDU hospital for her medical
examination. Thereafter she was produced before the learned
Metropolitan Magistrate for getting her statement recorded under
Section 164 Cr.P.C. The appellant/accused was also arrested and sent
for medical examination. On the basis of statement made by the
prosecutrix ‘S’, Section 366/376 IPC and Section 4 of POCSO Act
were also added. After completion of the investigation, charge-sheet
was filed and on committal of the case to the Court of Sessions, the
accused was charged for committing the offence punishable under
Sections 363/366/376 of IPC Section 4 of POCSO Act.

CRL.A. No.828/2017 Page 2 of 11

4. The appellant on being charged for committing the offence
punishable under Section 363/366 IPC and under Section 4 of POCSO
Act, pleaded not guilty. The prosecution examined 14 witnesses in all
to prove its case. At the stage when the case was fixed for examination
of the accused under Section 313 Cr.P.C., on the application filed by
the State, the charge was amended to the extent that he was charged
for committing the offence punishable under Section 6 of POCSO Act.
An alternate charge for committing the offence punishable under
Section 376 IPC was also framed against the appellant.

5. After appreciating the testimony of the prosecutrix, her father
and the report of the medical examiner, the appellant was convicted
for committing the offence punishable under Section 363/366 IPC and
under Section 6 of POCSO Act and sentenced in the manner referred
to above.

6. At the outset, Ms.Sonika Tyagi, learned counsel for the
appellant, on instructions from the appellant who was produced from
custody on 24th October, 2017 pursuant to the productions warrants
issued, submitted that the appellant is not challenging his conviction
for committing the offence punishable under Section 363/366 IPC.
Learned counsel for the appellant submitted that the appellant is
questioning the legality of his conviction under Section 6 of POCSO
Act on the ground that the charge was amended at the stage of his
examination under Section 313 Cr.P.C without giving him an
opportunity to recall the material witnesses for cross examination.
Even the application filed by the appellant to recall material witnesses
for cross examination was dismissed by the learned Trial Court. It has

CRL.A. No.828/2017 Page 3 of 11
also been contended that the appellant is a psychiatric patient and he is
undergoing treatment at IHBAS which fact is clear even from the
examination of CW-1 Dr.Deepak Kumar and CW-2 Dr. Amit Garg
who were members of the Medical Board which examined the
appellant. As per the statement of CW-1 Dr.Deepak Kumar and CW-2
Dr.Amit Garg, the appellant is suffering from psychiatric illness in the
form of Moderate Depressive Episode, which in scientific term, is a
‘treatable’ and ‘not curable’ clinical condition subject to regular
treatment. Learned counsel for the appellant has further submitted
that it is a case where the prosecutrix was 16 years old and had left her
house to marry the appellant and was a consenting party. Since the
offence has taken place prior to amendment by the Criminal Law
(Amendment) Act, 2013 and clause sixthly to Section 375 IPC
provided the consenting age to be 16 years, the prosecutrix being 16
years of age on the date of occurrence, she had attained the consenting
age. It has also been contended that the appellant promised to marry
her as though married, the appellant was single as his wife eloped with
some other person. But when the prosecutrix came to know about he
having a son (aged about 6 years), she was not inclined to marry him.
Thereafter under the pressure of her family, the appellant has been
falsely implicated in this case.

7. Ms.Rajni Gupta, learned APP for the State has submitted that
from the statement of the prosecutrix ‘S’ it is proved beyond any
doubt that it is a case of repetitive aggravated penetrative sexual
assault hence the charge has rightly been amended and the Court was
empowered to amend the charge even at the stage of examination of

CRL.A. No.828/2017 Page 4 of 11
the accused under Section 313 Cr.P.C. Learned APP for the State has
further submitted that from the testimony of the prosecutrix, it is
proved that she had been raped by the appellant during the period of
28 days she stayed with him and this fact has also been proved from
her MLC, hence the appeal may be dismissed.

8. I have considered the rival contentions and carefully gone
through the evidence adduced by the prosecution and other record.

9. So far as the conviction of the appellant under Section 6 of
POCSO Act is concerned, the charge has been amended without
compliance of Section 217 Cr.P.C. Section 217 CrPC, which deals
with recall of witnesses when charge is altered, reads as under:-

“217. RECALL OF WITNESSES WHEN CHARGE ALTERED

Whenever a charge is altered or added to by the Court
after the commencement of the trial, the prosecutor and the
accused shall be allowed-

1. to recall or re-summon, and examine with reference to
such alteration or addition, any witness who may have been
examined, unless the Court, for reasons to be recorded in
writing, considers that the prosecutor or the accused, as the
case may be, desires to recall or re-examine such witness for
the purpose of vexation or delay or for defeating the ends of
justice;

2. also to call any further witness whom the Court may think
to be material.”

10. Compliance of Section 217 CrPC is mandatory and conviction
under Section 6 of POCSO Act without giving an opportunity to the
accused to cross examine prosecution witnesses or to produce further
evidence cannot be sustained.

CRL.A. No.828/2017 Page 5 of 11

11. Here in the instant case, perusal of the Trial Court Record
reveal that when the application filed by the prosecution to amend the
charge was allowed, the accused was not even questioned as to which
witness he wanted to recall for further cross examination after
amendment of the charge. Not only that, the appellant after
amendment of charge filed an application to recall the prosecutrix for
cross-examination but even the said application was also dismissed by
the Court being devoid of merits.

12. As the conviction of the appellant for the offence punishable
under Section 6 of POCSO Act has been after amendment of the
charge at the stage of recording statement of the accused but without
giving him an opportunity to recall the material witnesses for cross-
examination, the conviction of the appellant for the offence punishable
Section 6 of POCSO Act and the sentence awarded thereunder is set
aside.

13. Since the appellant, in the alternate, has also been charged for
committing the offence punishable under Section 376 IPC and plea of
the appellant is that of a consent and also that the prosecutrix had
already attained the consenting age, it is required to be examined
whether it is a case of consent or consent being given under
misconception of fact.

14. From the statement of PW-4 ‘S’ – the prosecutrix, it is evident
that she had left the house of her own after midnight (2.00 am) on 12 th
December, 2012 voluntarily which fact has been duly reported by her
father i.e. PW-3 Sh.Yudhister Kumar at the time of registration of
FIR.

CRL.A. No.828/2017 Page 6 of 11

15. PW-4 ‘S’ – the prosecutrix during her cross examination by
learned APP for the State has admitted the following suggestions to be
correct:-

‘It is correct that accused also made a false promise of
marriage to me. Vol. Accused has stated that he would
marry me in a Court but he did not fulfill his promise. I
have forgotten this fact earlier.’

16. During her cross examination by learned defence counsel, PW-4
‘S’ – the prosecutrix has admitted that at the time when accused asked
her to talk, she did not wake up any of her family member though they
were very much present in the house and that the main door is just
adjacent to the room where her father and brother were sleeping. She
also stated that the accused tried to establish physical relation with her
in the plot having a boundary adjacent to her house. She did not make
any complaint when her father woke up and she saw him
closing the main door of the house. She has also admitted that she did
not inform even the family member of the accused that he had
established physical relations with her forcefully. She also admitted
that during her stay of 28 days at the house of accused, she had been
moving freely and even going to the market but never informed
anyone that accused was having forcibly sexual intercourse with her.

17. In the MLC Ex.PW10/A of the prosecutrix also she has stated
that accused gave promise to marry her and had physical relations
with her. He also put ‘sindoor’ in her hair and told her for Court
marriage but did not marry.

CRL.A. No.828/2017 Page 7 of 11

18. From the statement of PW-4 ‘S’ – the prosecutrix, it has been
proved that she left her house of her own to marry the
appellant/accused and had physical relations with him on his promise
to marry her.

19. From the testimony of the prosecutrix and her father it is proved
beyond any doubt that the appellant was a regular visitor to their house
and even used to have dinner with them on regular basis. The
prosecutrix had gone missing from her house on 12 th December, 2012
at 2.00 A.M. It is nowhere stated by her father PW-3 Sh.Yudhister that
somebody knocked the door on that night at that odd hour i.e. 2.00
A.M. and she was sent or she went out to open the door in response to
the knocking of door and then kidnapped by the appellant. Had there
been any knocking of door, the brother and father of the prosecutrix
who were sleeping in a room near the main door, would have
responded the call. In a chilly winter night in mid December, the
prosecutrix had left the house of her own which fact is even proved
from the first information report lodged by her father. It is necessary
to mention here that in her statement under Section 164 Cr.P.C. Ex.
PW4/A she has stated that after the sexual act which was done in the
close vicinity of her house, she saw her father closing the door but
instead of rushing towards her house or calling her father she preferred
to go by the advice of the appellant that after the physical relations
with the appellant, her family might not accept her.

20. The prosecutrix has lived with the appellant for about 28 days.
She was willing to marry him and was not ready to wait for a period of
one month when she was asked to wait for one month before

CRL.A. No.828/2017 Page 8 of 11
solemnization of the marriage. From her testimony it appears that the
factum of the appellant being father of a child was something which
could not be accepted by her hence she preferred to return to her
family. It has come in her statement Ex.PW4/A that when her sister
came to meet her, the appellant was not at home but she refused to
accompany them as she wanted her parents to take her back.

21. It is apparent from the record that the appellant played fraud
with the prosecutrix and took her alongwith him by luring her and
telling her that he would marry her without disclosing that he was
already married and also having a son aged about 6 years. He could
not legally conduct a second marriage. It is settled that consent
obtained by deceit is no consent and in the present case it is apparent
that the consent of the prosecutrix, was obtained by fraud and deceit.
The Hon’ble Supreme Court in the case Yedla Srinivasa Rao vs. State
of Andhra Pradesh 2007 (1) CC (Crl.) 557 observed as under:-

‘9. The question in the present case is whether this
conduct of the accused apparently falls under any of the
six descriptions of Section 375 IPC as mentioned above.
It is clear that the prosecutrix had sexual intercourse
with the accused on the representation made by the
accused that he would marry her. This was a false
promise held out by the accused. Had this promise not
been given perhaps, she would not have permitted the
accused to have sexual intercourse. Therefore, whether
this amounts to a consent or the accused obtained a
consent by playing fraud on her. Section 90- of the penal
code says that if the consent has been given under fear f
injury or a misconception of fact, such consent obtained,
cannot be construed to be a valid consent. Section 90
reads as under:-

CRL.A. No.828/2017 Page 9 of 11

90. Consent known to be given under fear or
misconception. – A consent is not such a
consent as is intended by any section of this
Code, if the consent is given by a person under
fear of injury, or under a misconception of fact,
and if the person doing the act knows, or has
reason to believe, that the consent was given in
consequence of such fear or misconception; or
[Consent of insane person] if the consent is
given by a person, who from unsoundness of
mind, or intoxication, is unable to understand
the nature and consequence of that to which he
gives his consent; or [Consent of child] unless
the contrary appears from the context, if the
consent is given by a person who is under
twelve years of age.’

22. It is a case of consent being given by the prosecutrix on promise
to marry. The appellant despite being already married though his wife
left him, concealed this fact from the prosecutrix. Thus, the consent
given by the prosecutrix to have physical relations was under
misconception of fact that appellant was a bachelor and was going to
marry her.

23. Learned counsel for the appellant does not dispute that the
appellant was already married at the time when the prosecutrix
accompanied him to marry her and that he did not disclose the factum
of being already married and having a son. In these circumstances
though the prosecutrix who had attained the consenting age was
consenting party but the consent was given under misconception of
fact, the appellant is convicted for committing the offence punishable
under Section 376 IPC.

CRL.A. No.828/2017 Page 10 of 11

24. The appellant has been in custody since the date of his arrest.
As per the report of Medical Board Ex.CW1/A the appellant is
suffering from psychiatric illness in the form of Moderate Depressive
Episode, which in scientific term, is a ‘treatable’ and ‘not curable’
clinical condition subject to regular treatment.

25. In the given facts and circumstances, it would meet the ends of
justice if the appellant is sentenced to the minimum sentence of seven
years for committing the offence punishable under Section 376 IPC.

26. Accordingly, the appellant is sentenced to undergo RI for seven
years with fine of ₹5000/- for committing the offence punishable
under Section 376 IPC and in default of payment of fine, he shall
undergo SI for one week.

27. The conviction and sentenced awarded to the appellant for
committing the offence punishable under Sections 363/366 IPC is
maintained.

28. The appeal stands disposed of in above terms.

29. LCR be sent back alongwith copy of this order.

30. Copy of this order be sent to the concerned Jail Superintendent
for information.

31. Appellant be also informed through the concerned Jail
Superintendent.

PRATIBHA RANI
(JUDGE)
NOVEMBER 02, 2017
‘pg’

CRL.A. No.828/2017 Page 11 of 11

Leave a Comment

Your email address will not be published. Required fields are marked *