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Rahul Dev Mandal @ Rahul vs State on 2 December, 2019

* IN THE HIGH COURT OF DELHI AT NEW DELHI

CRL.A. 1117/2015

Judgment Reserved : 18.11.2019

Date of Decision : 02.12.2019

IN THE MATTER OF

RAHUL DEV MANDAL @ RAHUL ….. Appellant
Through: Mr.Aditya Vikram and
Mr.Avinash, Advocates.

Versus

STATE ….. Respondent
Through: Ms.Radhika Kolluru, APP for
State.
CORAM:
HON’BLE MR. JUSTICE MANOJ KUMAR OHRI

1. The appellant has instituted the present appeal assailing the
judgment of conviction dated 01.06.2015 and order on sentence dated
06.06.2015, passed by Addl. Sessions Judge in FIR No. 201/2013,
registered under Sections 363/Section366/Section376 IPC and 4 POCSO Act, 2012 P.S.
Chankyapuri whereby the appellant was convicted for the offence under
Section 376 IPC and Section 4 POCSO Act, 2012 and was sentenced to
undergo RI 10 years and to pay a fine of Rs. 10,000/- under Section 376
IPC, in default whereof to undergo SI for 8 months.

2. The brief facts as noted by the trial court are reproduced herein
below:-

CRL.A. 1117/2015 Page 1 of 9

“2. The facts in brief are that Sh. Hari Kishan, father of the
prosecutrix reported on 12.11.2013 that his younger daughter
(prosecutrix) aged about 13 years had gone to a shop on the
said day at about 12:30 p.m. for making some purchase, but
had failed to return. He also expressed a suspicion that the
accused Rahul had enticed and taken her away. On his
complaint, FIR under Section 363 IPC was registered.
Investigations were done by SI Shyam Lal Dagar, who flashed
messages for tracing the prosecutrix and also filled up the
missing person form. Father of the prosecutrix handed over
the report card, according to which the date of birth of the
prosecutrix was 05.02.2001.

3. SI Shyam Lal Dagar along with Ct. Dharmender, went to
District Godda, Jharkhand on 19.11.2013 in search of the
accused and the prosecutrix. On 20.11.2013, Rameshwar,
brother of the prosecutrix produced her in PS before SHO and
SI Prem Lata conducted the investigations. She took the
prosecutrix to RML Hospital and for her medical examination
to be conducted. She refused to return to her house and she
was sent to Bapnu ghar, Bhagwan Dass Road, New Delhi. On
21.11.2013, SI Prem Lata produced the prosecutrix before
CWC, Mayur Vihar. The statement of prosecutrix and her
brother Rameshwar were recorded. Prosecutrix stated that she
had met the accused Rahul two years back when he had come
to live in their Jhuggi, as a tenant. She started talking to him.
Her parents got the jhuggi vacated from the accused. He then
took another jhuggi on rent in the vicinity where, he lived for
about four months. During this period, they used to meet and
at times even in the night. About one month before the date of
incident, the accused shifted to a jhuggi in Sector 21, Dwarka,
but they continued to talk to each other. The accused then told
her on 12.11.2013 at about 12:00 noon, that she would have to
accompany him. Accordingly, he came near Gopi Ka Dhaba,
Vivekanand Camp and contacted the prosecutrix. She left her
house on the pretext of going to a shop and met the accused
who took her to Dwarka in an auto. She remained with the
accused in his Jhuggi till 19.11.2013 as his wife and he also
did “Dushkarm” with her. During this period, accused took
her to Sai Baba Mandir and forcibly married, for which she
had no proof. On 19.11.2013, the accused left her near Bapu

CRL.A. 1117/2015 Page 2 of 9
Dham and fled away. She walked back to her house. On the
next date i.e. on 20.11.2013, she was produced before SHO,
PS Chanakya Puri by her brother Rameshwar and her medical
examination was got done.”

3. Initially, the appellant could not be traced and later came to be
arrested on 15.01.2014 from his native village. After completing the
investigation, the charge-sheet was filed under Sections 363/Section366A/Section376
IPC and Sections 4 6 POCSO Act, 2012. The trial court framed the
charges under Sections 363/Section366/Section376 IPC and Section 4 POCSO Act,
2012, to which appellant pleaded not guilty and claimed trial. In support
of its case, the prosecution examined total of 10 witnesses during trial.

4. I have heard Mr. Aditya Vikram, learned counsel for the appellant
and Ms. Radhika Kolluru, learned APP for the State and I have also gone
through the records of the case. The trial court has acquitted the
appellant under Sections 363 Section366 of IPC and the same has attained
finality as the same was not challenged by the State.

AGE OF THE CHILD VICTIM

5. To prove the age of the child victim, the prosecution has examined
the father of the child victim as PW-1. The father of the child victim
proved the age of the child victim through a Report Card (Ex. PW1/C).
The prosecution has also examined Mohd. Shoaib, the Assistant Teacher
as PW-6. He produced and exhibited the admission/withdrawal Register
(Ex. PW6/A), the admission form (Ex. PW6/B), the affidavit submitted
by the father at the time of the admission, (Ex. PW6/C) and the letter
issued by the Head Master of the School (Ex. PW6/D). As per the
School records, the child victim was admitted in 1st Class on 13.07.2006

CRL.A. 1117/2015 Page 3 of 9
vide admission No. 869G and her date of birth was mentioned as
05.02.2001. The child victim had also mentioned the same date of birth
during her testimony. The incident in the present case is dated
12.11.2013. As such, on the date of the incident, the child victim was
less than 13 years of age. Learned counsel for the appellant has
contended that the child victim has mentioned her age as 16 years in the
MLC as well as at the time of recording of her statement under Section
164 Cr.P.C. It is relevant that no question/suggestion was put to the
child victim during her cross-examination with respect to her age.

6. The child victim appeared as PW-2, she deposed that earlier the
appellant used to reside in the Jhuggi for about one and half year, where
they developed their friendship. When her parents came to know about
this, the appellant was made to vacate the house. The appellant
thereafter shifted to a room opposite their Jhuggi and subsequently
shifted to Dwarka. The child victim remained in touch with the accused
on phone. On 12.11.2013, the appellant asked the child victim to meet at
Dhaba of Gopi, Vivekanand Camp at 12:00 noon. After roaming around
for some time the, appellant took her to his Jhuggi at Dwarka, where she
remained with him for one week. It has come in the testimony of the
child victim that during the aforesaid one week, they had sexual
intercourse every day. It was stated that the physical relationship was
established against her will and consent.

7. Learned counsel for the appellant contended that there are apparent
contradictions in the statement of the child victim recorded during the
investigations and her testimony before the Court. He has referred to the
history of assault recorded in the MLC of the child victim as well as her

CRL.A. 1117/2015 Page 4 of 9
statement recorded under Section 164 Cr.P.C., where it has been stated
that the sexual relations of the child victim with the appellant were made
with her consent and it was stated by the child victim that she also
married the appellant. He thus urged that the present case being a case of
consensual sex, no offence punishable under Section 376 IPC is made
out. He has also referred to the noting in the MLC of the child victim
where she and her mother had refused the internal medical examination
of the child victim. He also pointed out that no FSL examination has
taken place in the present case.

8. During trial, the appellant denied the case of the prosecution. It
was suggested during the cross-examination of the child victim that the
appellant had not committed any rape on her. He further denied the
factum of meeting the child victim on 12.11.2013 or having any sexual
relations with her. At the time of recording of his statement under
Section 313 Cr.P.C., the appellant admitted that he was arrested from
village Gudha, Jharkhand, in the presence of Vakil Yadav and Laxman
Mandal (both examined as PW-8 during the trial).

ANALYSIS

9. As per the prosecution case, a missing complaint was lodged by
Hari Kishan with respect to missing of his daughter i.e., the child victim
herein on 12.11.2013, which was registered as DD No. 16A (Ex.
PW10/A). In the aforesaid complaint itself, the name of the appellant was
mentioned.

10. In terms of evidence which has come on record, the age of the
child victim has been proved to be little over 12 years 09 months at the
time of the incident. It is seen that at the time of recording of her
CRL.A. 1117/2015 Page 5 of 9
statement under Section 164 Cr.P.C. as well as while giving history of
assault given at the time of recording of her MLC, the child victim had
stated that sexual relations were established between her and the
appellant albeit on the basis of her consent. During her testimony before
the court, she deposed that on 12.11.2013, the appellant asked her to
meet near ‘Dhaba of Gopi’ whereafter the appellant took her to his room
in Dwarka, Sector-21. The appellant used to have sexual relations with
her every day against her will and consent. On 19.11.2013, the appellant
left her at Bapu Dham Road and went away. The appellant during trial
did not even contest the age of the child victim .No such question or
suggestion was given during the cross examination of the child victim.

11. In all her statements made either during the time of investigation
or before the court, the child victim had stated that the appellant had
sexual relations with her during the time she remained with him. The
moot question is whether the consent of a minor aged about less than 13
years can take the case out of the purview of the Section 376 IPC.

12. The appellant was charged under Section 363, Section366, Section376 IPC and
Section 4 of POCSO Act, 2012. The charge under Section 363 and Section366
IPC were held to be not made out and the appellant was convicted only
under Section 376 and Section 4 POCSO Act.

13. Section 375 IPC defines rape and reads as under:-

“375. Rape. – A man is said to commit “rape” if he –

(a) penetrates his penis, to any extent, into the vagina, mouth,
urethra or anus of a woman or makes her to do so with him or
any other person; or
xxx

CRL.A. 1117/2015 Page 6 of 9
Sixthly. – With or without her consent, when she is under
eighteen years of age.”

14. Section 2(d) of POCSO Act defines ‘child’ as any person below
the age of 18 years.

15. SectionIn State of Punjab v. Rakesh Kumar, reported as (2008) 12 SCC
33, it was held as under:-

“6. Undisputedly, the victim was less than 16 years of age at
the time of occurrence. Evidence also shows that the victim
and the accused were in love and the victim admitted that she
had sexual intercourse with the accused because of that. That
of course has no relevance because of her age being less than
sixteen years.”

16. Similarly, in Satish Kumar Jayanti Lal Dabgar Vs. State of Gujarat
reported as (2015) 7 SCC 359, it was held as under:-

“15. The legislature has introduced the aforesaid provision
with sound rationale and there is an important objective
behind such a provision. It is considered that a minor is
incapable of thinking rationally and giving any consent. For
this reason, whether it is civil law or criminal law, the consent
of a minor is not treated as valid consent. Here the provision is
concerning a girl child who is not only minor but less than 16
years of age. A minor girl can be easily lured into giving
consent for such an act without understanding the implications
thereof. Such a consent, therefore, is treated as not an
informed consent given after understanding the pros and cons
as well as consequences of the intended action. Therefore, as a
necessary corollary, duty is cast on the other person in not
taking advantage of the so-called consent given by a girl who
is less than 16 years of age. Even when there is a consent of a
girl below 16 years, the other partner in the sexual act is
treated as criminal who has committed the offence of rape. The
law leaves no choice to him and he cannot plead that the act
was consensual. A fortiori, the so-called consent of the
prosecutrix below 16 years of age cannot be treated as
mitigating circumstance.

CRL.A. 1117/2015 Page 7 of 9

16. Once we put the things in right perspective in the manner
stated above, we have to treat it as a case where the appellant
has committed rape of a minor girl which is regarded as a
heinous crime. Such an act of sexual assault has to be
abhorred. If the consent of minor is treated as a mitigating
circumstance, it may lead to disastrous consequences. This
view of ours gets strengthened when we keep in mind the letter
and spirit behind the Protection of Children from Sexual
Offences Act, 2012.”

17. The prosecution has proved that the child victim was less than 13
years of age and in view of the settled position of law, the consent of
such a child is immaterial.

18. In so far as contention of the learned counsel for the appellant
regarding absence of corroboration in terms of MLC or FSL examination
report is concerned, it is noted that the child victim while giving history
of incident at the time of recording of her MLC, stated that she had
changed her clothes, took a bath as well as passed stools since the last
episode of sexual intercourse which had occurred two days prior. Even
otherwise, it has been repeatedly held that the sole testimony of the
prosecutrix if inspires confidence and found to be believable and
creditworthy can be the basis for conviction. Reference in this regard is
made to the decision of the Supreme Court rendered in The State of
Himachal Pradesh Vs. Manga Singh reported as 2018 SCC Online SC
2886, as under:-

“11. The conviction can be sustained on the sole testimony of
the prosecutrix, if it inspires confidence. The conviction can be
based solely on the solitary evidence of the prosecutrix and no
corroboration be required unless there are compelling reasons
which necessitate the courts to insist for corroboration of her
statement. Corroboration of the testimony of the prosecutrix is
not a requirement of law; but a guidance of prudence under
CRL.A. 1117/2015 Page 8 of 9
the given facts and circumstances. Minor contradictions or
small discrepancies should not a be a ground for throwing the
evidence of the prosecutrix.

12. It is well settled by a catena of decisions of the Supreme
Court that corroboration is not a sine qua non for conviction
in a rape case. If the evidence of the victim does not suffer
from any basic infirmity and the ‘probabilities factor’ does not
render it unworthy of credence. As a general rule, there is no
reasons to insist on corroboration except from medical
evidence. However, having regard to the circumstances of the
case, medical evidence may not be available. In such cases,
solitary testimony of the prosecutrix would be sufficient to
base the conviction, if it inspires the confidence of the court.”

CONCLUSION

19. In view of the consistent statements of the child victim that the
appellant had sexual relations with her and the age of the child victim
was found to be below 13 years, I find no illegality, perversity or
infirmity in the judgment of the trial court. The conviction and order on
sentence under Section 376 IPC passed by the trial court are upheld.
Accordingly, the appeal is dismissed.

20. Copy of this judgement be sent to the trial court as well as to the
concerned Jail Superintendent for information and necessary
compliance.

(MANOJ KUMAR OHRI)
JUDGE
DECEMBER 02, 2019
p’ma

CRL.A. 1117/2015 Page 9 of 9

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