Delhi District Court
Sc No. 24/13 State vs Gurvinder Singh @ Tony Page No. 1 Of 20 on 22 August, 2014
IN THE COURT OF ADDITIONAL SESSIONS JUDGE : SE01
DESIGNATED JUDGE: TADA/POTA/MCOCA: SAKET COURTS:
NEW DELHI
PRESIDED BY : MS. RENU BHATNAGAR
IN THE MATTER OF
CASE ID NO. 02406R0124512011
SESSIONS CASE NO. 24/13
FIR NO. 326/10
POLICE STATION : SUNLIGHT COLONY
UNDER SECTION : 363/366/376 IPC
STATE
VERSUS
GURVINDER SINGH @ TONY,
S/O SH. PREET PAL SINGH,
R/O T86, SUBHASH KA MAKAN, SARAI KALE KHAN,
, NEW DELHI.
DATE OF INSTITUTION : 17.05.2011.
DATE OF RESERVING ORDER : 28.07.2014.
DATE OF DECISION : 22.08.2014.
J U D G M E N T
Case of Prosecution:
1. Brief facts of the prosecution case are that on 13.09.2010 complainant Nawab Khan went to police post Sarai Kale Khan and got his statement recorded wherein he stated that on 11.09.2010 at about 11 AM his daughter / prosecutrix 'G' (name withheld to keep her identity confidential) went from the house to distribute the Eid offerings and did SC No. 24/13 State Vs Gurvinder Singh @ Tony Page No. 1 of 20 not return home. He searched her but she could not be found. He then made suspicion upon some unknown person to have taken his daughter/prosecutrix 'G'. Complainant then made complaint before the police and on his statement case was registered. During investigation ASI Arvind flashed WT message in Delhi etc. Mother of prosecutrix Smt. Mehrana gave a written complaint to senior officers in which she named one boy Tony as suspect and also filed a Habeas Corpus in the Hon'ble High Court of Delhi. Thereafter, the investigation of the case was transferred to Inspector Jaipal Singh. During investigation of the case identity of Tony was revealed as Gurvinder Singh S/o Pritpal Singh R/o T 86, Sarai Kale Khan and it was also came in light that he has taken the prosecutrix 'G' to Jalandhar. Accused was apprehended from Jalandhar and prosecutrix was also recovered from there. Both were brought to Delhi and after interrogation, Gurvinder @ Tony was arrested in the case.
Prosecutrix 'G' was medically examined at AIIMS and her under garments were taken by the police in their possession. Prosecutrix 'G' was produced before the Hon'ble High Court where she stated that she wanted to reside with her parents and she was allowed to go with her parents. Statement of prosecutrix under Section 164 Cr.P.C was got recorded. Inspector Jaipal Singh collected the school leaving certificate of prosecutrix 'G' wherein her date of birth was mentioned as 01.04.1998. Exhibits were sent to FSL, Rohini for examination. Thereafter, statement of witnesses were got recorded by the Investigating officer and after completion of investigation, charge sheet under Section 376 IPC was filed against the accused in the court.
2. Since the offence under Section 376 IPC is exclusively triable SC No. 24/13 State Vs Gurvinder Singh @ Tony Page No. 2 of 20 by the court of Sessions, therefore, after supply of documents, Ld. Metropolitan Magistrate committed the case to the court of Sessions. Charge against the accused:
3. Prima facie case under section 363/366/376 IPC was made out against the accused. Charge under Section 363/366/376 IPC was framed upon the accused to which he pleaded not guilty and claimed trial. Witnesses Examined:
4. In support of its case, prosecution has examined fifteen witnesses in all. The brief summary of the deposition of the prosecution witnesses is as under: Material Witnesses:
5. PW3 is Sh. Nawab Khan, complainant of the case. He had deposed that he has been staying at his house for last about 12/13 years and is Barber by profession. He is having three children (two daughters and one son). On 11.09.2010 his younger daughter/prosecutrix 'G' aged about 13 years had gone to distribute the Eid offerings at about 11 AM and did not return home. He tried to find her but she could not be found and after two days on 13.09.2010 he made a complaint Ex.PW3/A to the police. His daughter was recovered by the police from Ludhiana, Punjab after about five months from the possession of the accused. His daughter/prosecutrix 'G' had told him that accused had forcefully taken her and married her and took her to Ludhiana where he had sexual intercourse with her.
6. PW4 is Smt. Mehrana, mother of prosecutrix 'G'. She deposed that her daughter 'G' aged about 13 years had gone to distribute Eid offerings at about 11 AM and did not return. Her daughter was SC No. 24/13 State Vs Gurvinder Singh @ Tony Page No. 3 of 20 recovered after about five months from the possession of accused by the police from Ludhiana. She came to know that accused Gurvinder Singh @ Tony had taken her daughter. Her daughter told her that accused forcefully married her and had sexual intercourse with her. She stated that when the police had recovered her daughter, she accompanied the police to the hospital where the medical examination of her daughter was conducted vide MLC Ex.PW4/A and IO had recorded her statement to this effect.
7. PW9 is the prosecutrix 'G' herself. She deposed that her father is a barber by profession and her mother used to work in a private company and now she also stays at home. She has one brother and one sister. Accused was correctly identified by the witness in the court. She stated that accused used to reside in their neighbourhood room along with his father and brother. She along with her family had come to stay as tenant there. Accused used to talk with her. Accused often used to ask her for marriage but she always used to refuse for the same. On 11.09.2010 on the occasion of Eid accused asked her to accompany him to Old Fort (Zoo) and took her there in an auto where he pressurized her to marry him in the auto. She refused the same. Therefrom accused took her to Bala Saheb Gurudwara where he got her bowed her head in the Gurudwara and said that he had now married her. She asked the accused to leave her at home but accused took her to a Gurudwara where they stayed for two days. Therefrom accused took her to Amritsar where they stayed in the Amritsar Gurudwara for about a week. After that accused took her to the house of his sister Soniya but she refused to give shelter to them. Thereafter accused took her to the house of his other sister in Ludhiana but she also refused to accommodate them. Accused then hired a room in Ludhiana SC No. 24/13 State Vs Gurvinder Singh @ Tony Page No. 4 of 20 and in the said room he had sexual intercourse with her without her consent and continued to have sexual intercourse with her during their stay in the said room. After about five months, police along with her father came there and apprehended the accused and recovered her from his possession. Police brought them to Delhi and got her medically examined vide MLC already Ex.PW4/A. She made statement before the magistrate which is already Ex.PW1/B.
8. PW15 is Inspector Jaipal Singh, Investigating Officer of the case who deposed that he got flashed wireless messages qua the missing of the prosecutrix, examined and recorded the statement of prosecutrix and arrested the accused, got the prosecutrix and accused medically examined, got recorded the statement of prosecutrix under Section 164 Cr.P.C, got released the prosecutrix to her parents, deposited the case property in Malkhana, procured the school records of the prosecutrix showing her date of birth, sent the exhibits for examination, recorded the statement of witnesses and thereafter he was transferred from PS Sunlight Colony and he deposited the case file to MHC(R).
Formal Witnesses:
9. PW1 Sh. Samar Vishal, Metropolitan Magistrate who deposed that he has recorded the statement under Section 164 Cr.P.C of prosecutrix 'G' and proved on record Ex.PW1/A to Ex.PW1/D.
10. PW5 is Ms. Kanta, Teacher from Nagar Nigam Prathmik Vidyalaya, Sarai Kale Khan who had deposed that as per record, prosecutrix 'G' was admitted in their school on 28.07.2003 in Ist class and her date of birth is 01.04.1998. She (prosecutrix) left the school on 30.08.2006. PW5 has duly proved Ex.PW5/A and Ex.PW5/B on record.
SC No. 24/13 State Vs Gurvinder Singh @ Tony Page No. 5 of 20 However this witness was partly examined in chief and her further examination in chief was deferred but she was not later on produced and as such her partly recorded testimony shall not be read in evidence.
11. PW6 is Lady Constable Meenakshi who deposed that on 16.02.2011 as per the instructions of IO she along with mother of prosecutrix took the prosecutrix 'G' aged about 13 years at AIIMS Hospital and got her medically examined. After medical examination of the prosecutrix, the doctor in the hospital handed over one sealed pullanda containing vaginal smears slide with the seal of hospital along with sample seal to her, which she produced before the IO, who seized the same vide memo Ex.PW6/A. On the instructions of IO, she took the prosecutrix to Prayas, NGO and got her lodged there. She further stated that IO recorded her statement to this effect.
12. PW7 is Constable Venugopal who deposed that on 16.03.2011 as per the instructions of IO he collected the exhibits duly sealed of the present case from the MHC(M) vide RC No. 29/21/11 and deposited the same with FSL, Rohini. So long the case property remained in his possession, the same was not tempered with. He deposed that IO had recorded his statement to this effect.
13. PW10 is HC Amit Kumar who deposed that he along with IO took the accused Gurvinder Singh @ Tony to AIIMS Hospital where accused was medically examined. After his medical examination, doctor handed over one pullanda sealed with the seal of hospital along with sample seal to him which he produced before the IO, who seized the same vide memo Ex.PW10/A. He stated that IO had recorded his statement to this effect.
SC No. 24/13 State Vs Gurvinder Singh @ Tony Page No. 6 of 20
14. PW11 is Tehseen Bano, Principal of MCD Primary Girls (Ist) School, Sarai Kale Khan, New Delhi who deposed that prosecutrix was studying in their school and as per school record her(prosecutrix) date of birth is 01.04.1998. Prosecutrix left their school in the year 2006. She has duly proved Ex.PW5/A i.e. original school leaving certificate, Ex.PW11/A i.e. original register and Ex.PW11/B1 i.e. admission form and Ex. PW11/B2(OSR) i.e. affidavit annexed with admission form on record.
15. PW12 HC Satpal Singh who deposed that he joined the investigation of the present case. He along with SI Nitin Kumar, ASI Arvind, Ct. Amit Kumar, complainant Nawab Khan and one Sukhdev @ Rana, friend of accused had gone to Amritsar in private vehicle in search of prosecutrix 'G' and suspect Tony. At the instance of suspect Sukhdev, they reached at the house of Gurpreet, sister of Tony i.e. H. No. 181, Govind Nagar, Sultanpur, Amritsar. IO also made the inquiries from Gurpreet Kaur and she also told that Tony had come with prosecutrix 'G' but they did not allow them and told that they may be found in Ludhiana at the house of another sister. Thereafter, they along with Satnam Singh, Jeth of Gurpreet Kaur, went to Ludhiana and at Samrana Chowk suspect Tony @ Gurvinder, prosecutrix 'G' and Tony's sister Satnam Kaur met them and complainant identified Gurvinder as well as the prosecutrix 'G'. Thereafter they brought accused as well as the prosecutrix 'G' to Delhi and handed over the custody of them to IO Inspector Jaipal Singh. IO recorded the statement of prosecutrix 'G' and also interrogated the accused and thereafter accused was arrested vide arrest memo Ex.PW12/A. His personal search was conducted vide personal search memo Ex.PW12/B and disclosure statement of accused was recorded vide memo Ex.PW12/C. SC No. 24/13 State Vs Gurvinder Singh @ Tony Page No. 7 of 20 Accused was correctly identified by the witness in the court. He stated that IO had recorded his statement to this effect.
16. PW13 is ASI Arvind Kumar who deposed that on 13.09.2010 at about 5 PM complainant Sh. Nawab Khan came to police post and reported about the kidnapping/missing of his daughter 'G'. He recorded his statement and prepared rukka Ex.PW13/A and handed over the same to Ct. Veer Khan. Thereafter, he along with complainant reached at the house of complainant i.e. T86, Sarai Kale Khan. Ct. Veer Khan came back at the spot and handed over the rukka and copy of FIR to him and also handed over one copy of FIR to the complainant. He made efforts to locate the prosecutrix and to apprehend the accused but could not do so. He got flashed the WT messages in this regard on all India basis. He procured the photographs of the prosecutrix and sent the same to Missing Person Squad, NCR etc. Further investigation of the case was then handed over to Inspector Jaipal and accordingly, he deposited the file to MHC(R). On 12.02.2011 as per the instructions of the IO he along with HC Satpal and Ct. Amit had gone to Alwar, Rajasthan where they met Sukhdev @ Rana, associate of accused Gurvinder. Sukhdev told them that the sister of accused Gurvinder resides in Amritsar and accordingly as per the instructions of IO, he served a notice under Section 160 Cr.P.C upon Sukhdev asking him to join investigation for 14.02.2011. On 14.02.2011, he along with IO/Inspector Jaipal, SI Nitin, HC Satpal, Ct. Amit, Sukhdev Singh @ Rana and the complainant Nawab Khan had gone to Amritsar in a private car and reached there on the morning of 15.02.2011. In Amritsar, they went to the house of accused i.e. H.No. 181, Govind Nagar, Sultan Singh Road where Ms. Gurpreet Kaur, sister of the accused met them who SC No. 24/13 State Vs Gurvinder Singh @ Tony Page No. 8 of 20 told that the accused along with prosecutrix had visited her but she refused to accommodate them. She further told that the accused can be found at the house of another sister Satnam Kaur residing in Ludhiana. He along with brother in law (jeth) of Gurpreet Kaur namely Sh. Satnam Singh went to Ludhiana. When they reached at Simrana Chowk, Ludhiana, Sh. Satnam Singh pointed out towards Satnam Kaur who along with accused Gurvinder Singh and the prosecutrix 'G' were passing through the chowk. They stopped Satnam Kaur and by that time, complainant also identified his daughter 'G' and the accused. IO apprehended the accused and thereafter, they along with accused and prosecutrix 'G' came back to police post Sarai Kale Khan. Accused Gurvinder Singh @ Tony is correctly identified by the witness in the court.
17. PW14 is HC Lakhan Singh who deposed that upon receipt of rukka Ex.PW13/A through Ct. Veer Bhan, he recorded the formal FIR. The computerized print out of the FIR on record is Ex.PW14/A. After the registration of case, he handed over the rukka and copy of FIR back to Ct. Veer Bhan with the instructions to take the same to IO/ASI Arvind. His endorsement on rukka is Ex.PW14/B on record.
Medical Witnesses:
18. PW2 is Dr. Kamlesh Kumar who deposed that he had medically examined the accused and prepared the MLC Ex.PW2/A and opined that there was nothing to suggest that accused was incapable of performing sexual intercourse under ordinary circumstances. Blood in gauze and underwear of accused were sealed and handed over to police along with sample seal.
19. PW8 is Dr. Momita Naha who deposed that she had SC No. 24/13 State Vs Gurvinder Singh @ Tony Page No. 9 of 20 medically examined the prosecutrix 'G' and prepared detailed MLC already Ex.PW4/A and after examination she opined that the hymen of the prosecutrix was torn. The prosecutrix had told her age as 13 years so, she had also advised for her bony age Xray.
Statement and Defence of accused :
20. Statement of accused under Section 313 Cr.P.C was recorded wherein the accused denied the case of the prosecution and stated that it is a false case made by the complainant. Accused stated that he and prosecutrix were having love affairs. They had talked to the family members of the prosecutrix to perform their marriage but they declined. Due to this reason, the prosecutrix insisted upon him to take her along with him. On her asking, he took the house of his friend at Sarai Kale Khan on 11.09.2010 where they stayed till 11 PM. Thereafter, he went to his house and took his clothes and they both went to Bangla Saheb Gurudwara where they both stayed for one week and thereafter, they both went to Sheeshganj Gurudwara where they stayed for four days. Thereafter, they went to Amritsar at the house of his sister, who refused to provide accommodation to them. At Amritsar, they stayed for one day in a room on rent. On the next day, they went to Simrana, Ludhiana where they went to the house of his elder sister who also refused to accommodate them. In Ludhiana, they took one room on rent and stayed as husband and wife. He started working at Ludhiana in a shoe market. At Ludhiana they stayed as husband and wife for five months and 16 days. When he used to go for work, the prosecutrix was alone at the house. During their stay at Ludhiana, the prosecutrix was even visiting at the house of his sister. The prosecutrix stayed with him voluntarily and made relations with him with SC No. 24/13 State Vs Gurvinder Singh @ Tony Page No. 10 of 20 her own willingness. He never threatened her. He stated that they stayed as husband and wife voluntarily which fact can be verified from the landlord. Accused stated that when he was having love affair with the prosecutrix she projected herself to be of 18 years of age. Accused further stated that he wish to lead evidence in his defence evidence but no witness was produced by him and after recording his statement, defence evidence was closed.
21. I have heard the Ld. Defence counsel for the accused and Ld. APP for state and have carefully perused the record. Arguments of Ld. APP for state:
22. It is argued by the Ld. APP for the state that prosecutrix was minor around 13 years of age when the offence was committed which is proved by the school record duly proved by the Principal of the school. As per the statement of PW4 mother of the prosecutrix she is the youngest child and as such there is nothing to doubt the minority of the prosecutrix. It is stated that the testimony of the prosecutrix as stated to the police or to the magistrate under Section 164 Cr.P.C or in the history given to the doctor, remains intact and supports the case of the prosecution. Her statement is also corroborated by the MLC and hence, accused is liable to be convicted.
Arguments of Ld. Defence Counsel for accused:
23. It is argued by the Ld. Counsel for the accused that in the history given to the doctor, prosecutrix has not given any history of physical assault. It is stated that doctor has advised for the bony age examination of the prosecutrix but the IO did not get it done. It is stated that the parents of the prosecutrix could not tell the age of the prosecutrix.
SC No. 24/13 State Vs Gurvinder Singh @ Tony Page No. 11 of 20 It is also stated that infact the prosecutrix was major and she had given statement to the doctor that the physical relations were made with her consent and hence, it is stated that as the prosecutrix was major and made relations with her consent and no offence is made out, accused is liable to be acquitted.
Conclusion:
24. Before appreciating the facts of this case, it is necessary to know the ingredients of the offence by resorting to the provisions of Sec.375 read with Sec.376 IPC. Section 375 Rape provides: " A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions: First Against her will.
Secondly Without her consent.
Thirdly With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
Fourthly With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
Sixthly With or without her consent, when she under sixteen SC No. 24/13 State Vs Gurvinder Singh @ Tony Page No. 12 of 20 years of age.
Explanation Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
Exception Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.
25. "Rape" is the act of physically forcing a woman to have sexual intercourse: an act of sexual intercourse that is forced upon a woman against her will. "Statutory rape" is a sexual intercourse with a girl under the age of consent, which age varies in different States from ten to eighteen years.
26. The offence of rape in its simplest term is 'the ravishment of a woman, without her consent, by force, fear or fraud', or as 'the carnal knowledge of a woman by force against her will? 'Rape' or 'Raptus' is when a man hath carnal knowledge of a woman by force and against her will (Co. lett. 123b); or as expressed more fully, 'rape' is the carnal knowledge of any woman, above the age of particular years, against her will; or of a woman child, under that age, with or against her will. Section 375 IPC defines rape. This Section requires the essentials:
1. Sexual intercourse by a man with woman.
2. The sexual intercourse must be under circumstances falling under any of the six clauses in Section 375 IPC.
27. In MANU/SC/7825/2008 Moti Lal vs. State of M.P., the Apex Court had observed that : "a rapist not only violates the victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process.
SC No. 24/13 State Vs Gurvinder Singh @ Tony Page No. 13 of 20 Rape is not merely a physical assault it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The court, therefore, shoulders a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity."
28. The two issues to be determined on the basis of evidence adduced by the prosecution are the age of the prosecutrix and whether she was a consenting party to the incident or not.
Age of the prosecutrix:
29. For proving the age of the prosecutrix, the prosecution has relied upon the school record of the prosecutrix. The school record is produced by PW5 Smt. Kanta whose examination was deferred for want of complete record however, this witness was not again examined and as such her statement cannot be read in evidence. However, the prosecution has proved the school records by producing PW11 Teshseen Bano, Principal of MCD Primary School (1st) School, Sarai Kale Khan, New Delhi. As per the school record produced by PW11 the date of birth of prosecutrix is 01.04.1998. As per the record she was admitted in the said school on 28.07.2013 in Ist class and left the school on 30.08.2006. No cross examination of PW11 is conducted by the accused leading to the conclusion that accused does not contest the authenticity of the school record produced by PW11. The accused has put suggestion to the parents of the prosecutrix PW3 Sh. Nawab Khan and PW4 Ms. Mehrana with regard to the age of the prosecutrix that she was more than 18 years at the SC No. 24/13 State Vs Gurvinder Singh @ Tony Page No. 14 of 20 time of incident but the said suggestion is denied by both PW3 and PW4, parents of the prosecutrix. Nothing significant has come in the cross examination of PW3 and PW4. The accused could not extract any contradictory statement from PW3 and PW4 on the point of age of the prosecutrix so as to doubt the authenticity of the school record produced by PW11. Accordingly from the school records of the first school attended by the prosecutrix, her date of birth is 01.04.1998. The incident had happened on 11.09.2010 and as such, the prosecutrix was around 12 years 05 months at the time of incident and was a minor. Consent of the prosecutrix:
30. To prove the offence of rape and kidnapping the most material witness is the prosecutrix PW9. I have seen the testimony of the prosecutrix 'G' PW9 wherein she has stated that the accused used to stay in their neighbourhood along with her father and brother. He often used to talk to her and used to ask her to marry him but she always refused. She further stated that on the occasion of Eid on 11.09.2010 the accused had asked her to accompany him to Old Fort (Zoo). He took her to Zoo in an auto and in the auto he pressurized her to marry him which was refused by the prosecutrix. Then the accused took her to Bala Saheb Gurudwara and stated that he had now married her. Thereafter the prosecutrix asked the accused to leave her at her home but instead the accused took her to Gurudwara where they stayed for two days. Thereafter, from there the accused took her to Amritsar where they stayed in Amritsar Gurudwara for a week. Then the accused took her to her sister Sonia's house in Amritsar but she refused to provide shelter to them. Then accused again took the prosecutrix to his another sister in Ludhiana, who also refused to SC No. 24/13 State Vs Gurvinder Singh @ Tony Page No. 15 of 20 accommodate them. After that accused hired a room in Ludhiana in which he had sexual intercourse with the prosecutrix without her consent and continued to have sexual intercourse with her during their stay in the said room. After about five months in February the police along with father of prosecutrix came to Ludhiana and recovered the prosecutrix from the possession of the accused. In the cross examination it is deposed by prosecutrix that number of persons were present in the Gurudwara where the accused had taken her and married her. She has also stated that at Gurudwara in Amritsar they stayed together for a week and used to eat Langars in Gurudwara and during that time also number of other devotees were also present there. She has also stated that during her stay in Gurudwara at Amritsar she did not change her wearing apparel however when they took a room on rent at the place of sister of accused, the neighbours had arranged clothes for her but she did not try to inform the neighbours that accused has forcibly brought her. She has also admitted that during day time the accused used to go out for working purpose from the room they were staying in Ludhiana and he used to leave for work at 10 AM and used to return in the night. She has also stated that the accused used to bring food from outside. She has also admitted that the room in which they were staying was surrounded by other residential houses. However, she volunteered that the accused used to apply locks from outside while leaving the room.
31. The entire testimony of the prosecutrix in her examination in chief as well as in her cross examination reveals that she had stayed with the accused for around five months. She was recovered by the police on 15.02.2011 at Ludhiana from Samrana Chowk where she was present SC No. 24/13 State Vs Gurvinder Singh @ Tony Page No. 16 of 20 along with accused and the sister of the accused Smt. Satnam Kaur. During this period of five months she visited Gurudwara at Delhi, Gurudwara at Amritsar and to house of sister of accused, to Ludhiana at the house of other sister of the accused, stayed on rent with the accused for several days, had eaten langers in Gurudwara for a week at Amritsar amidst the crowd, she was provided clothes by the neighbours. It is not believable that during this entire period of five months the prosecutrix could not get the occasion to raise hue and cry after she was forcibly taken by the accused or after accused had made forcible physical relations with her. If during day time the accused was not present at the house, the prosecutrix could have tried to raise alarm and call the neighbours of the surroundings houses for her help. She was recovered from the Samrana Chowk at Ludhiana by the police where she was found in the comfortable company of the accused and his sister amidst lot of people. She could have also raised noise there but she did not do so. In view of this conduct of the prosecutrix it does not appear to be a case of forcible rape upon the prosecutrix. It seems that the prosecutrix had herself gone with the accused and made relations with him with her own consent.
32. I am supported by the judgment of Naresh Kumar Vs The State (Govt of NCT) Delhi Crl. A. No. 313/2010 decided on 04.07.2012. The facts of the said case are somewhat similar to this case. In the said case also the prosecutrix was taken to several places by accused but she never raised any hue and cry. The observation of Hon'ble Justice A.K. Pathak are worthwhile to mention here. It is observed in that case that: "the conduct of the prosecutrix that she travelled in two buses and thereafter in a train before they reached the village , remained in the SC No. 24/13 State Vs Gurvinder Singh @ Tony Page No. 17 of 20 train for three nights, introduced by the accused to his father and sister as his wife, her admission in the cross examination that she did not tell the taxi driver or fellow passengers in the buses and train in which they travelled and as also the family members of the accused that she was kidnapped and forced by the accused to accompany him, her admission in the cross examination the parents of the accused had taken her for getting the prosecutrix and the accused to get married, her act of not raising alarm or any attempt to draw the attention of the lawyers , police or court staff or litigants present there that she has been kidnapped, her recovery from the hotel from where she was residing with the accused and during this stay also her act not raising the alarm or making complaint to any one in the hotel indicates that she will fully accompany the applicant and stayed with him of her own will and was a consenting party. In this case, the court had referred to the judgment of Mahabir Vs state, 55 (1994) DLT 428 wherein the prosecutrix had travelled with the accused for long hours in a compartment shared by other passengers, they went to a house on a tonga which was hired from a railway station and shared by other passengers. All this while, she did not make any protest or raise any alarm or made any attempt to flee. In these facts, it was concluded that she was a consenting party.
33. In this case, the court has also referred to the case of Mohd. Imteaz Khan @ Sunnu Vs The State of Haryana, 1994 (2) RCR 456 wherein the prosecutrix remained with the accused for a number of days, travelled in the buses and passed through crowded places without raising any protest. In these facts it was held that the prosecutrix was a consenting party."
SC No. 24/13 State Vs Gurvinder Singh @ Tony Page No. 18 of 20
34. Accordingly in view of the above discussion, seeing the conduct of prosecutrix during her stay of five months with accused, this case also appears to be a case of consensual sex and not a forcible rape. However, since the prosecutrix was minor at the time of incident and as is a settled law her consent is not material, prosecution has proved the case against the accused under Section 376 IPC.
Offence of Kidnapping:
35. For the offence under section 363 of IPC, the prosecution has to prove the ingredients of the offence as mentioned in section 361 of IPC i.e.:
i) taking or enticing a minor girl under 18 years of age,
ii) Out of the keeping of lawful guardian of such minor,
iii) without their consent.
Offence under section 366 IPC:
36. For proving the offence under section 366 IPC the prosecution has to prove the following ingredients.
The essential ingredients of section 366 of IPC are :
(a) A person kidnaps or abducts any woman.
(b) The act is done
(i) with intent that she may be compelled to marry any person against her will, or
(ii) knowing it to be likely that she will be so compelled, or
(iii) in order that she may be forced or seduced to illicit intercourse, or
(iv) knowing it to be likely that she will be so forced or seduced.
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37. As per the statement of the father of prosecutrix/PW3, he has stated that her daughter / prosecutrix 'G' had gone to distribute Eid offerings at around 11 AM on 11.09.2010 and did not return home and as such he lodged the missing report with the police Ex.PW3/A whereafter the prosecutrix was recovered from the possession of the accused after about five months. Though, I have observed that it appears that the prosecutrix has herself left with the accused but since prosecutrix was minor on the date of incident and since her consent is not material, it is proved that she was kidnapped for the purpose of marriage by the accused and illicit intercourse with the accused. Hence, section 363/366 IPC is duly proved by the prosecution against the accused.
38. In view of the above said discussion, prosecution has been fully able to prove its case against the accused beyond the shadow of doubt. Accused is therefore held guilty and convicted for the offence under Section 363/366/376 IPC.
ANNOUNCED IN THE OPEN COURT ON 22.08.2014.
( RENU BHATNAGAR ) DESIGNATED JUDGE TADA/POTA/MCOCA ASJ SE01/NEW DELHI SC No. 24/13 State Vs Gurvinder Singh @ Tony Page No. 20 of 20