Ravinder Kumar vs State (NCT of Delhi)

S.P. Garg, J.—The appellant-Ravinder Kumar challenges the correctness of judgment and order on ''sentence dated 06.04.2011 in Sessions Case No. 255/2008 arising out of FIR No. 992/2007 PS Saraswati Vihar by which he was convicted for committing offences punishable under Sections 363/366/376/342 IPC and sentenced to undergo RI for seven years with total fine Rs. 6,000/-. The prosecutrix ''X'' (assumed name) aged 14 years went missing on 04.10.2007. Smt. Basanti, her mother lodged missing person report on 05.10.2007. Efforts were made to find out the whereabouts of the prosecutrix but in vain. On 16.10.2007, complainant-Basanti suspected Ravinder Kumar to have kidnapped ''X''. On 08.02.2008, Ravinder Kumar and ''X'' were apprehended when they were present at ISBT, Delhi. Statements of witnesses conversant with the facts were recorded. Statement of the prosecutrix u/s 164 Cr.P.C. was recorded. She was medically examined. On completion of investigation, after a charge-sheet was submitted, the accused was duly charged and brought to trial. The prosecution examined fourteen witnesses. In his 313 Cr.P.C. statement, the accused pleaded false implication and stated that ''X'' was a consenting party throughout. On appreciating the evidence and considering the rival contentions of the parties, the Trial Court, by the impugned judgment, convicted and sentenced the appellant. Being aggrieved, he has preferred the appeal.

The prosecutrix remained in the company of the accused for four months at various places i.e. Delhi, Panipat and Hardoi. They established physical relations. The accused examined DW-1 (Ramgopal Mishra), District Marriage Officer, Hardoi, UP who deposed that on 28.11.2007, Ravinder Kumar and T had come in the office with their photographs for registration of the marriage. They were duly identified by Mr. S.C. Mishra, Advocate. He directed the parties to produce their proof of age. ''X'' moved an application stating that she was 21 years old and had married Ravinder Kumar and was living as husband and wife. He proved various documents filed in his office and further deposed that at the time of moving the application, both were happy. Their counsel were with them. At no stage, the prosecutrix raised hue and cry about her abduction. Apparently, she had accompanied the accused with her free consent when her parents were not present in the house. She did not bother to contact them. In the MIX, no injuries were found on her body to ascertain that she was forcibly subjected to rape. The accused had taken her at the house of her relations. At no stage, the prosecutrix lodged any complaint with them. She travelled freely in buses and trains with the accused but at no stage raised alarm. The accused was acquainted with the prosecutrix. From the evidence on record and circumstances, it can be inferred that the prosecutrix was a consenting party throughout.

To determine the guilt of the accused age of the prosecutrix is crucial. In the First Information Report (Ex. PW-1/A), complainant Basanti disclosed age of the prosecutrix as 13 years. In the MIX (Ex. PW-4/A), her age was recorded 13 years. PW-8 (Asha Sardana), Vice Principal, Govt. Girls Senior Secondary School, Rani Bagh, Delhi brought the admission record containing application form. She deposed that as per application form ''X'' was admitted in the school on 17.04.2003 in class 6-B. In the application form, her father gave her date of birth as 12.04.1993. X''s father also annexed her school leaving certificate depicting date of birth as 12.04.1993 issued by MCD Primary School, ED Block, Pitam Pura, Delhi. As per record, ''X'' was student of the school from 16.04.1998 till 31.03.2003. Photocopy of the admission form is Ex. PW-8/A. Photocopy of school leaving certificate Ex. PW-8/B. She also proved the attested photocopy of the register Ex. PW-8/C bearing entry at SI. No. 17 from point ''X'' to ''X''. The genuineness of the documents was not challenged in the cross-examination. PW-1 (Basanti), X''s mother and PW-3 (Nityanand), X''s father claimed that the date of birth of the prosecutrix was 12.04.1993. In the absence of any other proof, the date of birth recorded in the school register cannot be doubted as these documents were prepared much prior to the happening of the incident. The parents of the prosecutrix could not anticipate that any such untoward incident would happen in future to manipulate age of the prosecutrix. She was studying in 8th standard on the date of occurrence. These documents prove and establish beyond doubt that the ''X'' was below 16 years of age on the date of incident. Her consent to accompany had no consequence and was immaterial. Since the appellant, aged 20 years has allowed the minor girl below 16 years of age to stay in his company and established physical relations, he knew its consequence and was guilty for committing offences under Sections 363/376 IPC. The conviction of the appellant is based upon fair appraisal of the evidence and needs no interference.

This brings to the question of quantum of sentence. Counsel for the appellant relied upon State of Chhattisgarh Vs. Lekhram, , where in similar circumstances, the appellant therein was sentenced to undergo imprisonment for the period already spent by him in custody which was about one and a half year. Allegations against the accused are serious whereby he exploited innocence of the child victim who was unaware of the consequence of her act. She was of immature age and did not understand ramification of having sex with the accused. The accused did not inform X''s parents for four months and both remained in hiding during that period. Court can well understand trauma of parents whose minor daughter went missing for four months.

Considering the facts and circumstances of the case and the mitigating circumstance that the prosecutrix was a consenting party throughout, and the fact that the appellant is not involved in any other criminal case, lenient view is taken. Nominal roll reveals that the appellant has remained in custody for four years, one month and twenty nine days till 07.04.2012. He also earned remission for four months and three days. The period has since increased to five years incarceration. His overall jail conduct is satisfactory. Accordingly, order on sentence is modified and the substantive sentence of the appellant is reduced to RI for five years. Other sentences are left undisturbed. The appeal stands disposed of in the above terms. The Trial Court record be sent back forthwith.