Delhi District Court
State vs Guddu @ Dinesh on 27 August, 2012
S C No. 285/1/10 FIR No. 105/08 State Vs Guddu @ Dinesh Police Station Ashok Vihar Tried u/s 363, 366 and 376 IPC Convicted u/s 363 IPC 21.09.2012 Pre: Ld. APP for the state. Ld. counsel Sh. S K Sengar along with Sh. Santosh Singh for accused/ convict. Arguments on sentence heard at length. Vide separate order placed along side in the file, convict is sentenced to undergo Rigorous Imprisonment for 4 years for the offence u/s 363 IPC and to pay a fine of Rs.2000/ in default 6 months further R.I. Fine paid. Benefit of section 428 Cr. PC be given. File be consigned to record room. (RAJ KAPOOR) ASJ2/ West Tis Hazari Courts, Delhi 1 IN THE COURT OF SH. RAJ KAPOOR, LD. ADDITIONAL SESSIONS JUDGE - 2 : WEST/ TIS HAZARI COURTS: DELHI. S C No. 285/1/10 FIR No. 105/08 State Vs Guddu @ Dinesh Police Station Ashok Vihar Tried u/s 363, 366 and 376 IPC Convicted u/s 363 IPC ORDER ON THE POINT OF SENTENCE 21.09.2012 Pre: Ld. APP for the state. Ld. counsel Sh. S K Sengar along with Sh. Santosh Singh for accused/ convict. ld. APP submits that offence of such types are increasing day by day. He again argues and submits that accused persons have already been acquitted for the offence u/s 366/ 376 IPC by giving him benefit of doubt. He has been convicted for the offence punishable u/s 363 IPC. On these grounds ld. APP submits that convict deserve maximum punishment. Contrary to it, ld. Counsel for convict submits that convict is aged about 27 years old and he is a very poor person. He has also old parents to look after. He is the only bread earner in his family. He further submits that convict had already remained in judicial custody for about 8 months. Ld. counsel again submits that the convict is not a previous convict. On 2 these grounds ld. counsel for convict prays for release of convict on probation of good conduct taking lenient view at the time of awarding the sentence. I have heard the submissions of ld. counsel for the convict and ld. APP as well. Keeping in view of the facts and circumstances of the case and family background of accused I am of the view that ends of justice will be met if convict is sentenced to undergo Rigorous Imprisonment for 4 years for the offence u/s 363 IPC and to pay a fine of Rs.2000/ in default 6 months further R.I. Fine paid. Accordingly, convict is sentenced to undergo Rigorous Imprisonment for 4 years for the offence u/s 363 IPC and to pay a fine of Rs.2000/ in default 6 months further R.I. Fine paid. Benefit of section 428 Cr. PC be given. Copy of this order and judgment be given to the convict at free of cost forthwith. Orders accordingly. ANNOUNCED IN THE OPEN COURT ON THIS 21.09.2012 (RAJ KAPOOR) ASJ2/ West Tis Hazari Courts, Delhi 3 IN THE COURT OF SH. RAJ KAPOOR, LD. ADDITIONAL SESSIONS JUDGE - 2 : WEST/ TIS HAZARI COURTS: DELHI. Sessions Case No. 285/1/10 Assigned to Sessions. 08.08.2008 Arguments heard on 04.08.2012 Date of order. 27.08.2012 FIR No. 105/08 State Vs Guddu @ Dinesh s/o Nayak Yadav, r/o Village Mudaddar manihar, PS Madhuban, Distt. Mau, U.P. Police Station Ashok Vihar Under Section 363, 366 and 376 IPC JUDGEMENT
1.Briefly facts of the case as per prosecutrix PW8 are that on 31.01.2008 at around 2 p.m. when PW8 Pooja aged about (16 ½ years to 17 years) was coming back to her home from Shalimar Bagh, on the way accused Guddu @ Dinesh met her and stated that mother of Pooja was standing near Shochalya having ration items with her and she is calling Pooja and on saying so, Pooja accompanied accused Guddu @ Dinesh. On the way itself two other persons also met accused Guddu @ Dinesh and they also accompanied accused Guddu @ Dinesh and Pooja. Accused Guddu @ Dinesh was having one handkerchief / cloth at that time and he put the same on the face of Pooja as a result of which Pooja became unconscious. PW8 Pooja regained her consciousness inside a room, 4 on next day. She asked accused Guddu @ Dinesh to take her to her parents' house but he did not take her to her house. Accused Guddu @ Dinesh confined PW8 Pooja in that room and during that period accused Guddu @ Dinesh committed several times rape upon her against her consent. Accused Guddu @ Dinesh did not allow PW8 Pooja to come out from the room. Accused Guddu @ Dinesh used to lock the house from outside. She was saved by the police and her parents on 11.04.2008 after having reached there. She was brought to Delhi. On 16.05.08 accused Guddu @ Dinesh was arrested vide arrest memo and personal search memo vide Ex.PW6/A and B. The disclosure statement is Ex.PW6/C. Accused Guddu @ Dinesh was got medically examined by the doctor.
2.This case was committed to the Sessions Court vide order dated 08.08.2008 for trial as it pertains to the heinous crime committed under sections 363, 366 and 367 IPC which is exclusively triable by court of Sessions. A prima facie charge for the offence punishable under sections 363, 366 and 367 IPC was framed against accused on 09.02.2009, to which accused did not plead guilty and claimed trial.
3.Thereafter, prosecution examined PW1 Lady Ct. Rajni - formal witness 5 who took the prosecutrix to BJRM hospital for medical examination; PW2 Rajinder Yadav - villager, public witness to the recovery of prosecutrix from the possession of accused; PW3 Shakuntala - mother of prosecutrix; PW4 Ms. Meena Kumar - Principal, Saraswati Sr. Sec. School, GT Road, Murthal, Distt. Sonepat, Haryana - she proved the date of birth of prosecutrix as 24.03.1991 by placing the photocopy of admission register of the school vide Ex.PW4/B; PW5 HC Vijay - formal witness being duty officer. He got exhibited the computerized copy of FIR as Ex.PW5/A and endorsement on rukka as Ex.PW5/B; PW6 Ct. Pyare Lal - he accompanied the IO ASI Ram Bhau at the time of formal arrest of accused on 16.05.2008; PW7 Dinesh Singh - father of prosecutrix; PW8 Pooja - prosecutrix; PW9 ASI Ram Bhau - I. O. of the case; PW10 Dr. Mamta - Sr. Resident, BJRM Hospital; PW11 HC Satpal - formal witness being MHCM at PS Ashok Vihar. He got exhibited the certain entries with regard to depositing of case property and parcels to him and sending to FSL, Rohini vide Ex.PW11/A to PW11/C; PW12 Raghubir Singh Ld. ACMM, Patiala House Courts, Delhi - he recorded the statement of prosecutrix u/s 164 Cr.P C vide proceedings Ex.PW12/A to PW12/C; and PW13 Dr. R. S. Mishra, CCMO, BJRM Hospital - formal witness - he just affirmed the fact that Dr. Manoj and Dr. Vikram in whose supervision MLC of Pooja was prepared by Dr. 6 Pooja, S R and Dr. Roopak, were working as CMO at the relevant point of time.
4.Having gone through the testimonies of above prosecution witnesses it reveals that when Pooja did not return to her home, PW7 Dinesh Singh (father of Pooja) and PW3 Shakuntala (mother of Pooja) searched for their daughter in the nearby vicinity and also in their relations but Pooja could not be traced for about 1 ½ months. Thereafter, on 04.04.08 PW7 Dinesh Singh (Father of Pooja), went to PS Ashok Vihar and got registered the case. PW9 ASI Rambhao recorded statement of Dinesh Singh vide Ex.PW7/A, he made endorsement on the same vide Ex.PW9/A and accordingly FIR no.105/08 vide Ex.PW5/A was registered against accused Guddu @ Dinesh. On 09.04.08 PW9 ASI Rambhao along with Ct. Dashrath went at PS Mau, Bihar in search of accused Guddu @ Dinesh and prosecutrix Pooja. They reached there on 10.04.08, where parents of Pooja met at PS Mau. Thereafter, they along with local police officials went to village Karorimal where one villager namely PW2 Rajender Singh pointed towards the house of accused Guddu @ Dinesh. They reached in the house of accused and prosecutrix Pooja was found present there but accused was not present there. IO prepared recovery memo of prosecutrix Pooja vide Ex.PW2/A. 7 Thereafter, they came back to Delhi. On 12.04.08 prosecutrix Pooja was got medically examined at BJRM Hospital, in the presence of woman Ct. Rajni, by Dr. Pooja, vide MLC Ex.PW10/A. After medical examination, I.O. had taken one sealed parcel and one sample seal, which was given by the doctor into his possession vide seizure memo Ex.PW1/A. PW12 Sh. Raghbir Singh, the then ld. MM, THC, Delhi on 17.04.08 recorded statement of prosecutrix Pooja u/s 164 Cr. PC vide Ex.PW8/A. Application of the IO for recording statement and for giving the copy of statement u/s 164 Cr. PC are Ex.PW12/A and PW12/B. PW11 HC Satpal, MHCM of PS Ashok Vihar made entry in the store room register vide entry serial no.3836 and 3867 on dated 12.04.08 and 16.05.08 respectively vide Ex.PW11/A and PW11/B. On 27.06.08 PW11 HC Satpal sent two sealed parcels and two sample seals to FSL Rohini vide RC no.21/21/08 through Ct. Pyare Lal vide Ex.PW11/C. On 16.05.08 accused Guddu @ Dinesh was arrested formally vide arrest memo and personal search memo vide Ex.PW6/A and B. The disclosure statement is Ex.PW6/C. Accused Guddu @ Dinesh was medically examined by the doctor and after the medical examination, doctor gave one sealed parcel and one sample seal which were taken into possession by the IO, vide Ex.PW6/D. I have also gone through the crossexamination very carefully of all these 8 witnesses. I found some minor type of contradictions which are attributable due to the long duration of time and memory of a human being. However, no material contradiction has come on record which may affect the case of the prosecution. On minor type of contradictions the Hon'ble Supreme Court in case State of UP Vs Bhagwan AIR 1997 SC 3292: (1997) 1 SCC 19 made the following observations which are very relevant crucial and dominant in deciding the fate of the present case: "minor discrepancies in the evidence of the eyewitnesses are immaterial unless they demolished the basic case of the prosecution". Observations made in the aforesaid case by the Hon'ble Supreme Court are exfacie indicative of the fact that when contradictions are minor the truthfulness of the witness cannot be discredited in all.
5.In the case in hand, the star witness is PW8 Ms. Pooja - Prosecutrix. For the sake of brevity and convenience, relevant portions of her statement is being reproduced verbatim which is as under: "On 31.01.2008, I was coming back to my home from Shalimar Bagh as I used to work stitching work. It was after 2.00p.m. when I was coming back to my home, accused present before the court, whose name I do not remember even as on date today, met me and he stated to me that my mother is standing near sochnalaya having ration items with her and she is calling me. I identify the accused present before the court today. Thereafter I accompanied accused. On the way itself two other persons met the accused and they also accompanied him. Accused was having one handkerchief in his and he 9 kept that handkerchief type cloth in front of my face and due to the same I became unconscious. I regain consciousness on the next day morning and I found myself in one room but I cannot say as to in which locality the house was situated. I asked accused as to where he had brought me but he did not utter anything. I used to weep and used to ask accused to take me back to my parental house but I was not taken by accused to my parental house. On the next day morning when I regained consciousness I did not feel if anything untoward had taken place with me. Accused kept me in that house till 10.03.2008 and on 10.03.2008 my parents came there. Accused committed rape upon me several times during this period against my consent and forcefully. Two other persons also used to reside with the accused but those two other persons did not commit anything wrong with me. Accused used to confine me in that room itself and whenever he used to go outside from that room, he used to lock the room from outside and due to this reason I did not come out that room. Two police officials alongwith my father and mother came at that room. When my parents and police officials came accused present in the court was not present at that room. Thereafter, I was brought to Delhi. I was taken to hospital where I was medically examined. My clothes were not taken by the doctor in the hospital. My statement was also recorded by Ld. Magistrate in the court. I have seen document i.e. my recovery memo Ex.PW2/A which bears my signature at point A. I have studied upto 6 th standard at Sonepat. I know my date of birth. The same is 24.03.1991. I was medically examined at Delhi after 3/4 days when I was brought by police officials and my parents.
At this stage, one sealed envelope with the seal of RS is taken out from judicial file. The envelope is got opened and the proceeding under section 164 CrPC is taken out from there. I have seen my statement recorded by Ld. M.M. The same is Ex.PW8/A which bears my signature at point A. I had stated in my statement recorded by Ld. M.M. that on that day accused was having something in his hand and offered me to eat and stated that it was 'prasad' and after eating the same I became unconscious. After my statements were recorded by Ld. M.M. I was given in the custody of my parents vide memo Ex.PW3/A which bears my signature at point B. At this stage, Ld. APP requested to put a leading question to the witness. Heard. Permission granted. 10
My parents alongwith police officials came at the room where I was kept and I was brought from there on 11.04.2008 to Delhi and then only on the next day I was medically examined.
xxxx by Sh. S.K. Sengar, counsel for accused.
I have studied upto 6th standard. I can read and write Hindi very well. The room in which I was kept was not located in Delhi and it was somewhere outside Delhi. I was something countryside. I used to come out from the room for the purpose of natural call. Whenever I was used to go for natural call inside sochnalayna accused used to stand outside the sochnalaya. It is correct that on the date of occurrence I used to reside alongwith my father in the area of Wazirpur. I do not know as to where Guddu used to reside.
Police officials made enquiries from me at that time when they alongwith my parents went to the room where I was kept. My statement was also recorded by the police officials. It is correct that I had stated in my statement recorded by the police officials that prior to three months from the date of occurrence, accused Guddu used to reside in front of our jhuggi or that we used to talk to each other or that we used to meet each other occasionally or that love developed between us. I had also stated in my statement that one day accused Guddu asked me to marry and I had stated to him that my parents would not agree to the same. I had also stated in my statement that on 31.01.2008 accused Guddu met me, we both had talks or that accused Guddu threatened me, induced me and had taken me to a room situated in Punjab. I could not state in my statement recorded by the police that accused Guddu gave me something to eat or that I became unconscious. Vol. I could not state so due to fear as I was afraid at that time. I also could not state regarding other two person who accompanied accused Guddu. I had also stated in my statement recorded by police that from room situated at Punjab accused Guddu had taken me to the residence of his 'mama' but I cannot say if the name of that village was Garodi Narayan, Distt. Mau, PS Maduban, U.P. I had also stated in my statement recorded by police that on 07.03.2008, accused had taken me forcefully to a court situated in Mau or that he married with me there itself. I have seen the document i.e. declaration of marriage. It bears my signature at point A at Ex.PW8/DA. Vol. at that time two other persons were also standing beside me who were companion of accused Guddu and I 11 forcefully asked to put my signature and due to fear I put my signature. I was quite afraid at the time when my statement was recorded by police and I could not state the same in my statement. I had stated in my statement that after the marriage we both started living as husband and wife. Vol. I stated so due to extreme fear.
Accused had taken me from Punjab to Mau by train. I could not state before any passenger in the train to the effect that accused was taking me forcefully. Vol. I myself was afraid at that time. I also could not state the same to Panditji who performed our marriage due to the aforesaid reasons. I have seen the photographs placed in the judicial file. These are my photographs but the same were taken 'jabarjasti.
I do not know if accused Guddu used to reside near our jhuggi on 30.01.2008. I have seen 7 letters placed on file. These 7 letters are in my hand. Vol. accused got these letters written by me under threat and pressure. It is wrong to suggest that I was in love with accused Guddu or that I myself had written these letters with my free will and consent. I could not state before Ld. M.M. regarding these letters. I never gave any greeting card to accused. It is correct that my statement was recorded by Ld. M.M. on 17.04.2008. It is correct that before 17.04.2008, I lived with my parents. It is wrong to suggest that my parents tutored me or that at their instance I had given my statement before Ld. M.M. It is wrong to suggest that accused did not commit rape upon me or that the sexual intercourse was committed by the accused on my person with my free consent and will. As on date today, I am married. It is wrong to suggest that since my married I am deposing falsely against the accused. It is wrong to suggest that marriage which was performed between me and accused Guddu, was with my own consent. It is further wrong to suggest that I am deposing falsely. It is further wrong to suggest that from Mau, I myself made a call to my parents and stated that I had married with accused Guddu myself."
Having gone through the testimony of this star witness PW8 Ms. Pooja it appears that she was kidnapped, confined and raped by the accused without her consent. However, some contradictions have come on 12 record, which are attributable due to the long duration of time and memory of a human being. Besides, having gone through the cross examination of PW8 Pooja, it also appears that she was in love with accused but at the same time it has also come on record that she was under threat and pressure of accused.
6.After completing the prosecution evidence statement of accused u/s 313 Cr. PC was recorded in which the defence of accused was of denial in simplicitor. Accused pleaded that he is innocent and he has been falsely implicated in the case. He pleaded that neither he had taken Pooja along with him nor he committed any rape upon her. He further pleaded that Pooja was in love with him and she at her own left her house being major and she from her free consent married with him, and started living with him as his wife. Even Pooja made a call to her parents and stated that she had married with him and living happily.
7.Arguments were heard at length. It is argued by the defence counsel that prosecutrix is major. She had married with accused on her own free will as revealed in her crossexamination. However, she under the pressure of her parents is trying to falsely implicate in the present case. ld. Counsel again argued and submitted that in the crossexamination of PW8 it has specifically come on record that whenever she was used to go 13 for natural call inside sochnalayna accused used to stand outside the sochnalaya. She admitted that on the date of occurrence she used to reside alongwith her father in the area of Wazirpur. She further admitted in the crossexamination that she had stated in her statement recorded by the police officials that prior to three months from the date of occurrence, accused Guddu used to reside in front of our jhuggi and they used to talk to each other used to meet each other occasionally and love developed between them. ld. Counsel again submitted that PW8 prosecutrix further stated that one day accused Guddu asked her to marry and she had stated to him that her parents would not agree to the same. Ld. Counsel for accused again submitted that she had also stated in her statement recorded by police that on 07.03.2008, accused had taken her forcefully to a court situated in Mau or that he married with her there itself. Ld. Counsel for the accused again submitted and drew the attention of this court to the fact that prosecutrix PW8 on seeing the document i.e. declaration of marriage, bearing her signature at point A at Ex.PW8/DA. Vol. stated that at that time two other persons were also standing beside her who were companion of accused Guddu and forcefully asked to put her signature and due to fear she put signature on the same. Accused had taken her from Punjab to Mau by train. She could not state before any passenger in the train to the effect that accused was taking her forcefully. Vol. She stated that she herself was 14 afraid at that time. She also could not state the same to Panditji who performed their marriage due to the aforesaid reasons. Ld. Counsel again submitted that she on seen the photographs placed in the judicial file stated that these are her photographs but the same were taken 'jabarjasti. Ld. Counsel again submitted that on seeing 7 letters placed on file she submitted that 7 letters are in her hand. Vol. She stated that accused got these letters written by her under threat and pressure. On these grounds ld. Counsel for the accused submitted that accused is innocent and he has been falsely implicated in this case since testimony of the prosecutrix indicates that she was in love with accused and no kidnapping or rape has been committed upon her. However, she had married with accused and the fact of the same has been proved on record through her crossexamination.
8.Contrary to it, ld. APP argued and submitted that proseuctrix has correctly identified the accused and she has clearly deposed that she has been raped by accused against her will and consent after confining her. Ld. APP further argued and submitted that alone statement of prosecutrix is sufficient to hold the accused guilty in rape cases. In support of his contentions he has stated that it has been held on the point of sexual assault that:
"The testimony of victim in cases of sexual offences is 15 vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the Courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict and accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who complains of rape of sexual molestation, be viewed with doubt, disbelief or suspicion? The court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge leveled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost at par with the evidence on an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding. Corroborative evidence is not an imperative component of judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. It must not be overlooked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person's lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice.
Inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not dead uniformity lest that type of rigidity I the shape of rule of law is introduced through a new form of testimonial tyranny making justice a causality. Courts cannot cling to a fossil formula and insist upon corroboration even if, taken as a whole, the case spoken of by the victim of sex crime strikes the judicial mind as probable."
In another case of S. Ramakrishna Vs. The State 2008 (11) JT 635, the Apex Court while delivering this judgment also observed: 16
"10. A prosecutrix of a sex offence cannot be put on a par with an accomplice. She is in fact a victim of the crime. The Indian Evidence Act, 1872 (In short "the Evidence Act") nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence "
The contentions of ld. Counsel that having not found any injury on the private part of the prosecutrix exfacie indicates that no rape could have been committed. Ld. APP opposing the aforesaid contentions of the ld. Counsel and contended that in case 'B.C. Deva Vs. State of Karnataka 2007 VII AD (S.C.) 143= 2007 12 SCC 122, it has been held that merely because no injury was found on the private parts of the prosecutrix would not negate her testimony about the rape committed on her.
"18. The plea that no marks of injuries were found either on the person of the accused or the person of the prosecutrix, does not lead to any inference that the accused has not committed forcible sexual intercourse on the prosecutrix. Though the report of the gynaecologist pertaining to the medical examination of the prosecutrix does not disclose any evidence of sexual intercourse, yet even in the absence of any corroboration of medical evidence, the oral testimony of the prosecutrix, which is found to be cogent, reliable, convincing and trustworthy has to be accepted."
9.Let section 90 of IPC on the point of consent is reproduced verbatim which is as under: "90. Consent known to be given under fear or misconception.A consent is not such a consent as it intended by any section of this Code, if the consent is given by a person under fear of injury, or under a 17 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."
10.It is the fundamental principle of criminal law that in case of conviction of accused the prosecution is required to prove the guilt of accused beyond reasonable doubt. Hon'ble Supreme Court on this point has observed in a case titled as 'Vijayee Singh Vs State of UP AIR 1990 SC 1459' that:
"Reasonable doubt' is one which occurs to a prudent and reasonable man The 'reasonable doubt' is one which occurs to a prudent and reasonable man. Section 3 while explaining the meaning of the words 'proof', disproved' and 'not proved' lays down the standard of proof, namely about the existence or nonexistence of the circumstances from the point of view of a prudent man. The section is so worded as to provide for two conditions of mind, first, that in which a man feels absolutely certain of a fact, in other words, 'believe it to exist' and secondly in which, though he may not feel absolutely certain of a fact, he thinks it so extremely probable that a prudent man would under the circumstances act on the assumption of its existence. The act while adopting the requirement of the prudent man as an appropriate concrete standard by which to measure proof at the same time contemplates of giving full effect to be given to circumstances or condition of probability or improbability. It is this degree of certainty to be arrived where the circumstances before a fact can be said to be proved. A fact is said to be disproved when the court believes that it does not exist or considers its nonexistence so probable in the view of a prudent man the fact is not proved, i.e. neither proved nor disproved. It is this doubt which occurs to a 18 reasonable man, has legal recognition in the field of criminal disputes. It is something different from moral conviction and it is also different from a suspicion. It is the result of a process of keen examination of the entire material on record by 'a prudent man'."
11.In the case in hand, it has categorically come on record in the testimony of prosecutrix PW8 Pooja that she was aged about 16 ½ to 17 years old at the time of incident when accused kidnapped her and took her to his village and committed sexual intercourse forcibly, vide depositions of PW4 Ms. Meena Kumari, Principal and Ex.PW4/B regarding date of birth of prosecutrix, PW8 Pooja and her statement recorded u/s 164 Cr. PC vide Ex.PW8/A. Before reaching at any conclusion let the definition of rape be discussed which has been described in section 375 of IPC, which is as under: "[375. Rape.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 pulling 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 mat 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 19 to which she gives consent.
Sixthly. With or without her consent, when she is under sixteen years of age."
12.Besides, in case titled as 'Dunger and others Vs State of Rajasthan, 2002 CRI. L.J. 386' wherein it has been observed that :
"20. In my considered opinion, looking to the statement of PW1 1 Savita, no case of rape or abduction or kidnapping is made out as she had remained there for three months. She is a major lady as per medical evidence and in her examination as PW1 in the Court, she does not know her exact date of birth. Therefore, in these circumstances, it appears that she was consenting party in going with the accused appellants and staying in the house of Bhana and further more she was consenting party with sexual intercourse committed by accused appellant Dungar. Therefore, no case of forcible abduction or forcible rape is made out. Hence, findings of the learned Sessions Judge by which he convicted the accused appellants as stated above are liable to be set aside and the appeal filed by the appellants is liable to be allowed."
13.In the present case believing the observations of Hon'ble Court in case 'Dungar and Others Vs State of Rajasthan' (supra), this court is of the considered view that prosecutrix was compelled to marry and to have sexual intercourse by accused, being above 16 years of age as defined under section 375 of IPC. Thus, no case of rape is established. This part of evidence goes to the root of this case, since vide deposition of PW8, she has been compelled to have sexual course with accused, after marriage vide 7 photographs of marriage which are on record. In these facts and circumstances, it appears that prosecutrix was compelled to have sexual intercourse committed by accused after marriage. So, no case of forcible rape is proved beyond reasonable doubt. Therefore, this court again is of the considered view that prosecution has miserably 20 failed to prove its case against accused for the offence u/s 376 IPC.
14.So long as the offences u/s 363/ 366 IPC are concerned, let the relevant sections be reproduced verbatim which are as under : "359. Kidnapping.Kidnapping is of two kinds: kidnapping from [India], and kidnapping from lawful guardianship.
360. Kidnapping from India.Whoever conveys any person beyond the limits of 15[India] without the consent of that person, or of some person legally authorised to consent on behalf of that person, is said to kidnap that person from 15 [India].
361. Kidnapping from lawful guardianship.Whoever takes or entices any minor under 16 [sixteen] years of age if [eighteen] years of age if a female a male, or 17 , or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship.
363. Punishment for kidnapping.Whoever kidnaps any person from 18 [India] or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
366. 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; [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 21 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]."
15.In light of the ingredients of the above sections, I am of the view that prosecution has successfully established the fact that at the time of kidnapping of PW8 prosecutrix, she was under the age of 18 years when she was compelled to marry by accused and to make sexual intercourse, vide her deposition in which she has categorically stated as follows: "on 07.03.2008, accused had taken me forcefully to a court situated in Mau or that he married with me there itself. I have seen the document i.e. declaration of marriage. It bears my signature at point A at Ex.PW8/DA. Vol. at that time two other persons were also standing beside me who were companion of accused Guddu and I forcefully asked to put my signature and due to fear I put my signature."
Accused was having one handkerchief in his and he kept that handkerchief type cloth in front of my face and due to the same I became unconscious. Accused committed rape upon me several times during this period against my consent and forcefully. Accused used to confine me in that room itself and whenever he used to go outside from that room, he used to lock the room from outside and due to this reason I did not come out that room.
My statement was also recorded by Ld. Magistrate in the court. I have seen document i.e. my recovery memo Ex.PW2/A which bears my signature at point A. I have studied upto 6th standard at Sonepat. I know my date of birth. The same is 24.03.1991."
16.However, the deposition of PW8 with regard to the fact that she was compelled to marry and for sexual intercourse comes under the shadow 22 of doubt, since in her deposition it has categorically come on record that she was taken in a court in Mau and accused married her and her signatures were obtained on a declaration of marriage vide Ex.PW8/DA. This part of evidence raises suspicion that as to why she did not raise alarm or make any complaint to the Court or Pandit that she is being married under pressure or threat. Besides, 7 love letters admittedly written by PW8 Ms. Pooja in the crossexamination, shows that she was in love and affection with the accused. This part of evidence goes to the root of this case. Moreover, she stayed with accused about 3 months i.e. from 31.01.2008 to 11.04.2008 and during that period neither she has made any complaint to the police or neighbour nor she raised any alarm. Therefore, in light of the observations made in case 'Dungar and Others Vs State of Rajasthan' I am of the view that prosecution again has failed to prove its case against accused for the offence u/s 366 IPC.
17.So, long as the offence u/s 363 IPC is concerned, I am of the view that ingredients of section 363 IPC are met out, since the date of birth of prosecutrix is 24.03.1991 and date of kidnapping is 31.01.2008, meaning thereby that she was about 16 years and 10 months old at the time of kidnapping from her lawful guardianship. Therefore, in light of the depositions of PW4 Ms. Meena Kumari, Principal, PW7 Dinesh Singh - 23 father of prosecutrix, PW8 Ms. Pooja - prosecutrix, PW9 ASI Ram Bhau and PW12 Sh. Raghuvir Singh I am of the view that prosecution has successfully proved its case beyond reasonable doubt for the offence u/s 363 and contentions of ld. Counsel for accused that prosecutrix was consenting party and she left her home with her consent, does not come to the rescue of the accused precisely for the reasons that at the time of kidnapping of prosecutrix from her lawful guardianship, she was under the 18 years of age and in her testimony she has categorically stated that accused kidnapped her. She has correctly identified the accused as well. Thus, ingredients of section 363 are met out in the case. Hence, I convict accused for the offence u/s 363 IPC.
Accordingly, accused Guddu @ Dinesh is convicted for the offence u/s 363 IPC; and he is acquitted for the offence u/s 366 and 376 IPC. ANNOUNCED IN THE OPEN COURT ON THIS 27.08.2012 (RAJ KAPOOR) ASJ2/ West Tis Hazari Courts, Delhi 24