The Delhi High Court affirmed the conviction of the appellant for rape under Section 376 IPC. However, acknowledging mitigating factors including past custody duration and family welfare, the court commuted his rigid imprisonment sentence from seven years to three years.
Sentence commuted from R.I. for seven years to rigid imprisonment for three years with fine.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
*** IN THE HIGH COURT OF DELHI AT NEW DELHI**
DECIDED ON : FEBRUARY 02, 2015
+ CRL. A. 883/2004
MUKESH KUMAR ..... Appellant.
Through : Mr. R.P. Shukla with Mr.R.K.Sonaki and Mr.Dhanajay Singh, Advocates along with appellant in person.
versus
THE STATE ..... Respondent
Through : Ms. Kusum Dhalla, APP for State.
CORAM:
HON’BLE MR. JUSTICE S.P.GARG
S.P.GARG, J. (ORAL)
Crl.A.883/2004 Page 1 of 6
name) aged about 16 years from the lawful guardianship of her parents without their consent and sexually assaulted her thereafter. Daily Dairy (DD) No.36/A (Ex.PW.13/A) came into existence on 06.01.2002 at Police Station Vasant Kunj when intimation about ‘X’ missing from her house was lodged. The investigation was assigned to SI Naubat Singh. On 07.01.2002 ‘X’ was recovered and after recording her statement, the investigating officer lodged first information report (Ex.PW-5/A). The prosecutrix was medically examined. She recorded her statement under Section 164 Cr.P.C. Statements of witnesses were recorded; the accused was arrested; and exhibits were sent to forensic science laboratory for examination. After completion of investigation, a charge-sheet was submitted against the appellant for committing offence under Sections 363/366/376 IPC. The prosecution examined 14 witnesses to establish his guilt. In 313 statement, the appellant denied his involvement in the crime and pleaded false implication. The trial resulted in his conviction under Section 376 IPC. It is relevant to note that he was acquitted of the charges under Section 366/363 IPC. The State did not challenge the said acquittal. Being aggrieved and dissatisfied, the appellant has preferred the present appeal.
Crl.A.883/2004 Page 2 of 6
On perusal of the evidence on record, it transpires that the appellant lived in the neighbourhood of the prosecutrix and both of them were known to Crl.A.883/2004 Page 3 of 6
each other. The prosecutrix did not raise alarm when the appellant had taken her at odd hours at 06:00 a.m. in a TSR. She had remained with the appellant for one day and at no stage she raised any hue and cry about the conduct and behaviour of the appellant. MLC (Ex.PW-9/A) does not reflect any physical body injury on her private parts. The doctor was unable to give definite opinion regarding rape. There was no specific opinion that the hymen was torn. In the alleged history recorded in the MLC (Ex.PW-9/A), the victim informed the doctor that she herself had married with the appellant on the previous day. In her statement under Section 164 Cr.P.C., the victim revealed that she had accompanied the appellant with her consent but the physical relations were established against her wishes. The very fact that the appellant was acquitted of the charge under Section 363/366 IPC reveals that the prosecutrix was a consenting party. There is no intention if any force was used by the appellant to establish physical relations against her wishes. Even if the consent of the prosecutrix is taken as a valid defence of the appellant, age of the prosecutrix below 16 years at the time of incident does not exonerate him of the crime under Section 376 IPC. Her date of birth has
been proved by PW-7 (Raj Kaur), Headmistress of MCD Primary Girls School Rangpuri, New Delhi. As per their record the date of birth of the Crl.A.883/2004 Page 4 of 6
prosecutrix was 01.11.1986 in the certificate (Ex.PW-7/A). Apparently, the prosecutrix was below 16 years on the day of incident. Consent of the prosecutrix to establish physical relations was immaterial and is of no consequence.
they wanted to marry. Since the prosecutrix was below 16 years of age and did not know the consequences of sexual relations, the appellant is
liable for committing offence under Section 376 IPC.
Crl.A.883/2004 Page 5 of 6
order is modified and instead of awarding minimum sentence i.e. RI for
seven years under Section 376 IPC, the appellant is ordered to undergo RI for three years with fine. Other terms and conditions of the sentence order
are left undisturbed.
Superintendent for information and necessary action. Trial court record be sent back along with a copy of this order.
(S.P.GARG) JUDGE
FEBRUARY 02, 2015 sa
Crl.A.883/2004 Page 6 of 6
2 issues framed by the court
Whether to acquit the appellant considering the consent of an underage prosecutrix and lack of corroborative forensic evidence regarding rape.
Whether the sentence awarded by the trial court should be reduced considering mitigating circumstances such as prolonged custody and the appellant's family situation.
1 provisions across 1 enactments
Mukesh Kumar
The State
S.P. Garg
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
