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Rudal Mandal vs State Govt. Of Nct Of Delhi on 4 March, 2020

* IN THE HIGH COURT OF DELHI AT NEW DELHI

CRL. A. 75/2013

Reserved on : 17.02.2020
Decision on : 04.03.2020

IN THE MATTER OF:
RUDAL MANDAL ….. Appellant
Through: Mr. Shaad Anwar and Ms. Shabnam,
Advocates

versus

STATE GOVT. OF NCT OF DELHI ….. Respondent

Through: Ms. Manjeet Arya, APP for State

CORAM:

HON’BLE MR. JUSTICE MANOJ KUMAR OHRI

1. The present proceedings impugn judgment of conviction dated
30.11.2012 and order on sentence dated 15.12.2012 passed by Addl.
Sessions Judge in FIR No. 701/2007 registered under Sections
363/342/376/313/201/506/34 IPC at P.S. Punjabi Bagh.

2. The appellant was convicted under Sections 313/342/201 IPC read
with Section 109 IPC and sentenced to undergo RI for five years u/s 313
IPC read with Section 109 IPC along with fine of Rs. 3,000/-, in default
whereof he was directed to undergo SI for three months, RI for two years u/s
201 IPC read with Section 109 IPC along with fine of Rs. 1,000/- in default
whereof, he was directed to undergo SI for one month and RI for one year
u/s 342 IPC read with Section 109 IPC. Benefit of Section 428 Cr.P.C. was

CRL. A. 75/2013 Page 1 of 8
granted and all the sentences were directed to run concurrently.

3. The co-accused Kamlesh Kumar Gop @ Deepak preferred an appeal
bearing Criminal Appeal No. 826/2013 against the impugned judgment
passed by the trial court and the same was dismissed vide judgment dated
31.01.2014 wherein his conviction was upheld.

4. Briefly, the facts as noted by the trial court, are as follows:-

“1. The case of the prosecution, in brief, is that on 23-
10-2007, Prosecutrix “V” went to PS Punjabi Bagh and
gave her complaint regarding rape, in her complaint,
Prosecutrix disclosed that she is aged about 14 years
old and resident of village Butung, Post Bachrao, PS
Narayanpur. Distt. Jabhpur, Chattisgarh. On 01-07-
2007, she came to Delhi on being misguided by accused
Sangeeta and Kaleshwar @ Deepak both agents of Ritu
Placement Service, A-199, Lai Quarters, Delhi-63 and
the Agency was run by Rudal and Anima. Sangeeta told
her that it feels very good in Delhi and they both will
live in Delhi. The complainant was reluctant to come to
Delhi but Sangeeta and Kaleshwar told her that they
will leave her at Punjabi Bagh Convent. She spent the
night in placement Agency. In the morning, when
complainant asked to go to Convent, the door was
closed and her belongings were hide. Thereafter,
Prosecutrix spent the night in Placement Agency. On
06-07-2007 at about 10:30 pm, accused Kaleshwar was
drunk and he forcibly took prosecutrix to a small room
and raped her there. The clothes of Prosecutrix were
burnt. Whenever, Prosecutrix asked to go to her house,
she was beaten by Kaleshwar and threatened to burn the
family of Prosecutrix, Instead of sending Prosecutrix to
her house, she was sent to work forcibly. When
Prosecutrix came to know that she was carrying three
months pregnancy and disclosed this fact to the owner
of placement agency namely Rudal, he brought medicine
and gave it to Prosecutrix, On 23-09-2007, prosecutrix

CRL. A. 75/2013 Page 2 of 8
took the medicine. After four days, Prosecutrix was sent
to do work in Kirti Nagar. Accused Kaleshwar
threatened Prosecutrix that if she disclosed these things
to anyone, her family would be killed.’ On this
complaint, FIR was registered u/s 363/342/376/313/201/
506/34 IPC and investigation was entrusted to ASI
Urmil Sharma. During investigation, Prosecutrix was
got medically examined from Sanjay Gandhi Hospital,
Mangolpuri. Accused Kamlesh Kumar Gop @ Deepak,
Sangeeta Minz and, Rudal, Mandal were arrested.
Statement of Prosecutrix was got recorded on 27-10-
2007 and after completion of investigation, chargesheet
was filed in the court u/s 363/342/376/313/201/506/34
IPC.”

5. The Trial Court, vide order dated 20.03.2008, framed the following
charge against the appellant:-

“That you on or before the date of kidnapping of
prosecutrix you being Convener of Ritu Placement
Services, had conspired with your co-accused to abet an
illegal act i.e. to facilitate the offence of miscarriage of
the pregnancy of prosecutrix and offence of rape
committed by your co-accused Kaleshwar @ Kamlesh
@ Deepak. In pursuance of this abetment your co
accused Kaleshwar committed rape upon the
prosecutrix in a room of placement agency and you
were present near the room. You also gave some
medicines to prosecutrix due to which a miscarriage of
her pregnancy had taken place and you thereby
committed an offence punishable under section
376/342/313/201 IPC r/w section 109 IPC and within
my cognizance.”

6. In support of its case, the prosecution examined total of 11 witnesses.

CRL. A. 75/2013 Page 3 of 8

MATERIAL WITNESSES

7. The prosecutrix was examined as PW1. She deposed that she was 14
years of age and that co-accused Kamlesh Kumar was already known to her
as his house was situated at a distance of about 3-4 kms from her village.
The co-accused Sangeeta Minz (declared PO) was her cousin sister. She
was brought to Delhi from Chhattisgarh by the aforesaid two persons
without the consent of her parents on the pretext of providing her a job. In
Delhi, she was taken to the office of Ritu Placement, Punjabi Bagh run by
the appellant where she was kept for a week. During this period, on
06.07.2007 at about 10:30 pm, co-accused Kamlesh Kumar committed rape
upon her by putting his urinating portion in her urinating portion inside the
room of the placement agency. After committing rape, Kamlesh Kumar
burnt the clothes worn by her. Thereafter, she was forcibly sent to work at a
house in Kirti Nagar by the appellant and Kamlesh Kumar. After 3 months
of the incident of rape, she came to know about her pregnancy on account of
rape committed by Kamlesh and told the appellant about the same. The
appellant brought some medicines from the market and gave the same to her
by assuring her that she would get well. The prosecutrix deposed that she
was not aware that the medicines given by the appellant were meant for
abortion. After consuming the same, she felt severe pain in her stomach and
started bleeding mixed with pieces of flesh. She further deposed that co-
accused Kamlesh had threatened to kill her and her family due to which she
did not disclose the incident of rape and abortion to anyone. When her
cousin brother and sister came to the placement agency, they rescued her
and took her to P.S. Punjabi Bagh where she had given a handwritten

CRL. A. 75/2013 Page 4 of 8
complaint (Ex. PW1/A). She also deposed that she had studied upto 6th class
at AA.JA.KA. Poorv Madhyamik Shala in Chhattisgarh and exhibited the
copy of school transfer certificate as Ex. PW1/C and a certificate issued by
the Sarpanch of Gram Panchayat as Ex. PW1/D. The date of birth of the
prosecutrix recorded in the aforesaid certificate is 29.06.1994. The
prosecutrix also identified the appellant in Court.

8. Mr. ‘VP’, father of the prosecutrix was examined as PW2. He stated
that the prosecutrix was his second child and her date of birth is 29.06.1994
and she went missing from the house on 01.07.2007. On 16.10.2007, he
received a call from his nephew who told him that the prosecutrix was in
Chetanalya Sanstha, Delhi. He came to Delhi and the prosecutrix told him
about the incident of rape as well as the role of the accused persons
including the appellant.

9. Ms. Phenomena Tirkey was examined as PW3. She deposed that on
01.10.2007, the prosecutrix was rescued from the office of Ritu Placement
and taken to West Punjabi Bagh Convent. The prosecutrix told her about the
incident and the role of the accused persons including the present appellant.
MLC

10. The prosecution examined Dr. Binay Kumar, CMO, SGM Hospital,
Delhi as PW4. He deposed that on 24.10.2004, the prosecutrix was admitted
in the hospital with the history of kidnapping and alleged sexual assault
three months back. After examination, he referred the prosecutrix for gynae
opinion and the medical board for bone age determination. He exhibited the
endorsement in this regard at point A on the MLC of the prosecutrix (Ex.
PW4/A).

11. Dr. Kapila Sodhi, Sr. Resident, Gynae, SGM Hospital, Delhi was

CRL. A. 75/2013 Page 5 of 8
examined as PW5. She deposed that on 24.10.2007, she examined the
prosecutrix who gave history of sexual assault three months back. The
patient’s LMP was on 01.10.2007. The prosecutrix gave history of one
abortion after three months of Amenorrhea (13 weeks of pregnancy). The
prosecutrix also gave history of taking pills on 27.09.2007. On examination,
her hymen was found torn. On PV examination, introitus lax admitted two
fingers easily. She further deposed that she had opined that it could not be
said conclusively that the patient had undergone abortion and it could be
assumed by a local examination that penetration had taken place.

12. The prosecution also examined police witnesses associated with the
investigation as well as the Metropolitan Magistrate who recorded the
statement of the appellant under Section 164 Cr.P.C.

13. Learned counsel for the appellant has contended that as per the bone
age report, the age of the prosecutrix has been opined to be 16-18 years. He
further contended that except the oral testimony of the appellant, no
evidence has come on record to establish the factum of abortion. He has also
referred to the opinion in the MLC of the prosecutrix where it was stated
that it could not be said conclusively that the prosecutrix had undergone
abortion. Lastly, it was contended that the testimony of the prosecutrix is
not creditworthy as the complaint was filed after a period of one month.

14. Per contra, learned APP has supported the impugned judgement. It
was submitted that the testimony of the prosecutrix has been consistent and
reliable.

15. I have heard learned counsels for the parties and gone through the
case records.

16. The prosecutrix has stated her date of birth as 29.06.1994. She has

CRL. A. 75/2013 Page 6 of 8
proved on record the certificates with respect to her age which show that she
was 14 years of age at the time of the incident. Although, as per the bone
age report, it was opined that the age of the prosecutrix could be in the range
of 16-18 years but in view of the school certificate, which was proved on
record, the same shall have precedence over the bone age report. As such, I
concur with the finding of the trial court that the prosecutrix at the time of
the incident was 14 years of age.

17. The prosecutrix had sent a handwritten complaint dated 23.10.2007
exhibited as Ex.PW1/A where she had levelled allegations of confinement
and being given medicine by the appellant. At the time of recording of her
MLC on 24.10.2007 she gave history of medical abortion and pills taken on
27.09.2007.

18. Although, learned counsel for the appellant also contended that the
appellant was not running the placement agency, however, a perusal of the
appellant’s statement recorded under Section 313 Cr.P.C. shows that while
answering Question No. 2, he admitted that the prosecutrix was brought to
his placement agency and immediately after her enrolment, she was sent to
another placement agency. A perusal of the cross-examination of the
prosecutrix would show that a suggestion was given to her that she had
falsely implicated the appellant as he had not given her the dues. In fact, she
denied the suggestions that a settlement was arrived at wherein it was agreed
that the appellant would pay her the dues within 10-15 days.

19. It is trite law that the sole testimony of a prosecutrix can be the basis
for conviction provided the same is trustworthy and credible. [Refer: State
of Punjab v. Gurmit Singh and Ors reported as 1996 (2) SCC 384; State of
Himachal Pradesh v. Manga Singh reported as 2018 SCC OnLine SC 2886]

CRL. A. 75/2013 Page 7 of 8

20. It has come in the testimony of the prosecutrix that she was brought to
the office of Ritu Placement run by the present appellant where she was
locked inside the room by the co-accused Kamlesh. It has further come in
the testimony that during this period of confinement, the co-accused
committed rape upon her and when she came to know about her pregnancy,
she confided the same to the appellant. She also told the appellant that she
was not feeling well. The appellant gave some medicines to her without
telling the consequence of the same. It has come in her testimony that the
medicine was given by the appellant without telling her that the same was
meant for abortion. After taking the medicine, she suffered severe stomach
pain and blood loss, which resulted in abortion. The prosecutrix has been
consistent in all her statements whether recorded during the investigation or
the trial. This court is of the view that the testimony of the prosecutrix is
both trustworthy and credible.

21. For the reasons discussed above, the appeal has no merit. The same is
dismissed accordingly. The appellant’s bail bonds are cancelled and sureties
are discharged. He shall surrender before the concerned trial court within
four weeks from the passing of the present judgement to serve the remaining
sentence.

22. Copy of this judgement be sent to the trial court for compliance.

(MANOJ KUMAR OHRI)
JUDGE
MARCH 04, 2020
ga

CRL. A. 75/2013 Page 8 of 8

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