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Sunil Khan @ Guddu @ Niyaj vs State on 20 December, 2017

$~R-13
* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Date of Decision : December 20, 2017

+ CRL.A. 88/2011

SUNIL KHAN @ GUDDU @ NIYAJ ….. Appellant
Through: Mr.Jitender Mehta, Advocate
with appellant in person

versus

STATE ….. Respondent
Through: Mr.Kewal Singh Ahuja, APP
for the State

PRATIBHA RANI, J. (Oral)

1. The appellant has preferred this appeal assailing the judgment
dated 18th August, 2010 and order on sentence dated 23rd August,
2010 whereby he has been convicted for committing the offence
punishable under Sections 363/366/376 IPC and sentenced as under:-

(i) U/S 363 IPC : to undergo RI for three years
with fine of ₹ 500/- and in
default of payment of fine, to
undergo SI for fifteen days.

(ii) U/S 366 IPC : to undergo RI for four years
with fine of ₹500/- and in
default of payment of fine, to
undergo SI for fifteen days.

(iii) U/S 376 IPC : to undergo RI for seven years

CRL.A. No.88/2011 Page 1 of 11
with fine of ₹1000/- and in
default of payment of fine, to
undergo SI for one month.

2. The case FIR No.397/2008 was registered on the basis of the
complaint made by Sh.Chander Prakash, father of the prosecutrix. In
the complaint Ex.PW-1/A he reported that he was residing at Krishan
Vihar, Delhi along with his family consisting of one son and three
daughters. His youngest daughter ‘K’ (name withheld to conceal her
identity) aged 13 years had left the house on 13th June, 2008 at 6:30
AM without informing anyone and had not returned thereafter. He
tried to search for her with his relatives but on not being able to find
her, he reported the matter to the police. After giving the description
of ‘K’ the prosecutrix, he also expressed suspicion on the
appellant/convict Guddu @ Sunil Khan @ Niyaj to be the person who
might have enticed away/kidnapped his daughter and that Guddu was
also missing from his house.

3. After registration of the case, efforts were made to search ‘K’
and Guddu. On 5th February, 2009, both ‘K’ and the convict were
located at railway station Lucknow. When the convict was
apprehended and ‘K’ was recovered, they disclosed their relationship
to be as husband and wife. They also produced the proof of marriage
i.e. Nikahnama and marriage agreement. Both of them were sent for
medical examination. Thereafter, ‘K’ was produced for getting her
statement recorded under Section 164 Cr.P.C. Since ‘K’ refused to
accompany her parents and insisted to live with her husband (convict),
being minor, she was sent to Nari Niketan. After completion of

CRL.A. No.88/2011 Page 2 of 11
investigation chargesheet was filed. Since the age of ‘K’, as per
school record, was below the consenting age, the convict was charged
for committing offence punishable under Section 363/366/376 IPC.

4. Prosecution examined 11 witnesses to prove the guilt of the
convict. The convict during his examination under Section 313
Cr.P.C. denied the prosecution case to the extent that ‘K’ was
kidnapped by him. He stated that both of them were in love but being
from different religion, the family of the prosecutrix was not willing to
accept this matrimonial alliance. Hence, ‘K’ left the house of on her
own and compelled him to marry her. She embraced Islam and they
performed Nikah. The physical relation between the two was with her
consent as husband and wife.

5. Taking into consideration, the age of the prosecutrix to be 13
years i.e. below the consenting age of 16 years, the appellant herein
was convicted for committing the offence punishable under Section
363/366/376 IPC and sentenced in the manner stated as above.

6. On behalf of the appellant it has been contended by Sh.Jitender
Mehta, Advocate that right from the stage the prosecutrix and the
convict were apprehended from Lucknow, they claimed their
relationship to be that of husband and wife which was proved from
Nikahnama. It is admitted case of the prosecution that Nikahnama and
marriage agreement have been seized from the prosecutrix and the
convict at the time of their apprehension. Attention of this Court has
also been drawn to the statement of the prosecutrix during her medical
examination vide MLC Ex.PW-5/B as well under Section 164 Cr.P.C.
and also before this Court wherein she specifically stated that she left

CRL.A. No.88/2011 Page 3 of 11
the house of her own as she fell in love with the convict and they
performed Nikah. The physical relation between the two was as
husband and wife. Hence, no offence under SectionS 363/366/376
IPC can be said to have been proved against the convict and he may be
acquitted.

7. Per contra, learned APP for the State has submitted that as per
school certificate the date of birth of the prosecutrix is 29th September,
1996. She left the house on 13th June, 2008 and on that date she was a
minor. Prosecutrix ‘K’ was Hindu and the convict is Muslim. She
had not attained the age of majority so as to marry the convict or to
give consent for physical relationship as wife, hence, the impugned
judgment calls for no interference and the appeal may be dismissed.

8. MLC of the prosecutrix shows that not only the doctor who
prepared the MLC but also the S.R. Gynecologist advised for medical
examination to ascertain the bony age of the prosecutrix. Despite
being recommended by two doctors, for the reasons which remained
unexplained, her ossification test was either got not done or the report
was not placed on record. In the FIR itself, which was registered on
the basis of the complaint Ex.PW-1/A by father of ‘K’, it is clearly
mentioned that ‘K’ had left the house of her own without informing
her family members. She has been recovered after about eight months
and till then she was residing with the convict as his wife and had also
performed Nikah with him. For performing Nikah age of puberty is
required to be considered which as per her MLC she had attained. Her
LMP is mentioned in the MLC Ex.PW5/B. PW-8 Sh.Ram Nivas,
Vice-Principal from MCD School, Krishan Vihar has specifically

CRL.A. No.88/2011 Page 4 of 11
stated that at the time of admission of ‘K’ no birth certificate was
produced and date of birth was registered on the basis of the affidavit
of her mother. At that time she undertook to file the date of birth
certificate issued from MCD which she failed to file.

9. It is the statement of the prosecutrix ‘K’ (PW-2) and her father
(PW-1) which holds the key.

10. PW-1 Sh.Chander Prakash, father of the prosecutrix ‘K’ had
stated the following facts:

(i) The convict Sunil Khan @ Guddu used to reside as tenant in his
neighbourhood.

(ii) When his daughter left home on 13th June, 2008, he suspected
Guddu to be behind her missing and lodged the report Ex.PW-1/A.

(iii) He did not remember the date of birth of any of his children
including the eldest son.

(iv) Date of birth of his daughter was disclosed and got recorded in
the school on the basis of estimation.

(v) His daughter ‘K’ was born in the house and no mid-wife or
doctor was called.

(vi) He was not having knowledge of the love affair between his
daughter and the convict.

11. PW-2 ‘K’ the prosecutrix has stated as under:

(i) She fell in love with the convict and the affair was going on for
a period of about one year prior to her leaving the house.

(ii) She informed her parents to either get her married with the
convict or she would run away from the house but she was given
beating.

CRL.A. No.88/2011 Page 5 of 11

(iii) One day she ran away from her house and called the convict
Sunil Khan @ Guddu through telephone and thereafter they got
married and stayed at different placed for different period.

(iv) The convict Sunil Khan @ Guddu cohabited with her as his
wife and with her consent.

12. In her statement under Section 164 Cr.P.C. also she expressed
her desire to stay with her husband but was sent to Nari Niketan.

13. After staying in Nari Niketan she agreed to return to her parents
home only on their assurance that no action would be taken against her
husband/convict.

14. The photographs of the prosecutrix ‘K’ which was handed over
to the police by her parents shows that she is a grown up girl.

15. Her Nikahnama shows that she resided with the convict as his
wife and was performing her matrimonial obligations.

16. Her photograph on the marriage agreement also shows her to be
a grown up girl.

17. At the time of her examination before the Court on
22nd October, 2009 she had given her age to be eighteen years and
stated that on the day of leaving the house on 13 th June, 2008 she was
about 17 years and few months old.

18. As regards the charges under Section 363/366 of the Indian
Penal Code, the prosecution was required to prove that the convict had
taken away or enticed the prosecutrix out of the keeping of the lawful
guardian. If the minor leaves the parental home without any promise,
offer or enticement from the accused, it cannot be said that offence of
kidnapping is proved.

CRL.A. No.88/2011 Page 6 of 11

19. Section 366 IPC reads as under:

Kidnapping, abducting or inducing woman to compel her
marriage, etc.–Whoever kidnaps or abducts any woman
with intent that she may be compelled, or knowing it to
be likely that she will be compelled, to marry any person
against her will, or in order that she may be forced or
seduced to illicit intercourse, or knowing it to be likely
that she will be forced or seduced to illicit intercourse,
shall be punished with imprisonment of either description
for a term which may extend to ten years, and shall also
be liable to fine; 1[and whoever, by means of criminal
intimidation as defined in this Code or of abuse of
authority or any other method of compulsion, induces
any woman to go from any place with intent that she may
be, or knowing that it is likely that she will be, forced or
seduced to illicit intercourse with another person shall be
punishable as aforesaid].

20. In order to succeed in a charge under Section 366 IPC
prosecution was required to prove that the kidnapping of the
prosecutrix was with the intent that she may be compelled, or knowing
it to be likely that she will be compelled, to marry any person against
her will, or in order that she may be forced or seduced to illicit
intercourse, or knowing it to be likely that she will be forced or
seduced to illicit intercourse.

21. In Bala Saheb vs. State of Maharashtra, 1994 Criminal Law
General 3044, it was found that the prosecutrix, who as per school
record was below 16 years of age, accompanied the appellant/accused
from her village and stayed with him for two to three days. It was held
that these circumstances clearly show that offence under Section 363
or 366 of I.P.C. was not made out.

CRL.A. No.88/2011 Page 7 of 11

22. In the instant case there is no evidence that the convict herein
had either kidnapped PW-2 ‘K’ or made an attempt to compel her to
marry him. The deposition of the prosecutrix PW-2 ‘K’ right from
the stage of recovery till her deposition before the Court was
consistent i.e. she left her house on her own to marry the convict,
performed Nikah with him and lived with him as his wife till she was
recovered by the police. Her categorical admission that she was in
deep love with the convict is also reflected in the letter sent by her to
the convict from Nari Niketan, expressing her love and full support to
him in the situation in which they were placed. She even informed him
that she had been medically examined to ascertain her bony age,
which was estimated to be 18 years. Unfortunately, the Investigating
Officer has preferred not to clarify the situation in this regard. From
the statement of the prosecutrix it cannot be said that the convict took
her with him from the lawful guardianship of her parents so as to force
her or seduce her to illicit intercourse. The entire facts and
circumstances of the case and the documentary evidence i.e. her
marriage certificate, Nikahnama, the history given by her on MLC, her
statement before the learned MM recorded under Section 164 Cr.P.C.,
her refusal to accompany her parents and preference to live in
detention in Nari Niketan, communication from Nari Niketan to the
Court in this regard and ultimately her agreeing to accompany her
parents only on the condition that no harm would be caused to her
husband/convict proved beyond reasonable doubt that it is a case of
runaway marriage wherein she was yet to attain the age of majority

CRL.A. No.88/2011 Page 8 of 11
but left the house of her own, married the convict and lived with him
as his wife and had physical relations with him as his wife.

23. Accordingly, Trial Court was not justified in convicting the
appellant under Section 363/366 IPC. Thus, his conviction for the
aforesaid offence is set aside.

24. Next comes the question as to whether the conviction of the
appellant for the offence punishable under Section 376 is justified.
The occurrence pertains to the year 2008. Section 376 IPC prior to the
amendment carried out w.e.f. February 03, 2013, provided that the
offence of rape of a woman under 16 years of age with or without her
consent was punishable with imprisonment of not less than seven
years but which may extend for life or for a term which may extend to
ten years and payment of fine, provided, the Court may, for adequate
and special reasons to be mentioned in the judgment, impose a
sentence of imprisonment for a term of less than seven years.

25. Exception 2 to Section 375 reads as under:

Exception 2 – Sexual intercourse or sexual acts by a man
with his own wife, the wife not being under fifteen years
of age, is not rape.

26. Section 376 of Indian Penal Code provided punishment for
rape. Section 376 (1) IPC reads as under:-

‘Whoever, except in the cases provided for in sub-section
(2), commits rape shall be punished with imprisonment of
either description for a term which shall not be less than
seven years but which may be for life or for a term which
may extend to ten years and shall also be liable to fine
unless the women raped is his own wife and is not under
twelve years of age, in which cases, he shall be punished

CRL.A. No.88/2011 Page 9 of 11
with imprisonment of either description for a term which
may extend to two years or with fine or with both.’

27. In the instant case, it is the case of the prosecution that on the
date of leaving the house she was aged about 13 year. Thus, at best,
prosecution’s case can be that the convict had physical relations with
his wife who was below 15 years of age. For that he could have been
held guilty under Section 376 IPC for committing rape on his wife
who was below 15 years of age and the sentence provided for the said
offence was imprisonment for a period of two years or with fine or
with both.

28. For the reasons given in the preceding paragraphs, while
acquitting the appellant Sunil Khan of the charges under Section
363/366 IPC, his conviction for committing the offence punishable
under Section 376 IPC is maintained. However, in view of the fact that
he had physical relations with his wife who was under 15 years of age,
for which he could have been sentenced to a maximum period of two
years, the substantive sentence of the appellant for committing the
offence punishable under Section 376 IPC is modified to the extent
that he is sentenced to undergo RI for two years. The sentence of fine
awarded to the appellant for the offence punishable under Section 376
IPC is maintained.

29. As per the nominal roll received, as on 5 th September, 2011 the
appellant has undergone 2 years, 6 months and 23 days of sentence
and has also earned the total remission of 4 months and 6 days. Thus,
he has already undergone the modified sentence of two years awarded

CRL.A. No.88/2011 Page 10 of 11
to the appellant for committing the offence punishable under Section
376 IPC.

30. The appellant is on bail. His bail bond stands discharged.

31. The appeal stands allowed to the above extent.

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

33. A copy of the order be given dasti to learned counsel for the
appellant and be also sent to the Jail Superintendent for information
and updation of the record.

PRATIBHA RANI
(JUDGE)
DECEMBER 20, 2017
‘hkaur’

CRL.A. No.88/2011 Page 11 of 11

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