Rahul v. State NCT of Delhi

1. Aggrieved by a judgment dated 5.11.2012 of learned Additional Sessions Judge in Sessions Case No.11/2012 arising out of FIR No.209/11 registered at Police Station Prasad Nagar by which he was held guilty under Section 376 IPC, the appellant-Rahul has filed the instant appeal. By an order dated 8.11.2012, he was awarded RI for seven years with fine `5,000/-.

2. Briefly stated, the prosecution case as stated in the chargesheet was that on 8.12.2011 at about 5.00 p.m. the appellant kidnapped the prosecutrix ‘X’(assumed name), aged around 14 years from the lawful 2016:DHC:504 guardianship of her parents and took her to a house at Mohan Garden near Gandhi Chowk. On 8.12.11 and 9.12.11, he committed rape upon the prosecutrix. The police machinery came into motion when Daily Diary

(DD) No.3A (Ex.PW3/A) came into existence on 10.12.2011 and ‘X’s mother lodged ‘Missing Person’ report. Subsequently, the prosecutrix was recovered; she was medically examined; she recorded her 164 Cr.P.C.statement. The accused was arrested and taken for medical examination. Exhibits collected during investigation were sent for examination to Forensic Science Laboratory. Upon completion of investigation, a charge-sheet was filed against the accused for commission of offences punishable under Sections 363/368/376 IPC. By an order dated 3.4.2012, the appellant was charged for committing offences under Sections 368/376 IPC to which he pleaded not guilty and claimed trial. The prosecution examined sixteen witnesses to establish its case. 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 as mentioned above. However he was acquitted of the charge under Section 368 IPC. The State did not prefer any appeal to challenge his acquittal under Section 368 IPC.

3. During the pendency of appeal, the appellant and the victim wished to marry on her attaining majority. Affidavits of victim and her parents were filed to corroborate appellant’s version. Vide order dated 7.11.2014, the appellant was granted interim bail to get marry. Engagement ceremony thereafter took place on 31.01.2015. On 31.07.2015, it was informed that the prosecutrix and the appellant had since married on 27.06.2015. Today the prosecutrix and the appellant are present before the Court along with victim’s parents. They have disclosed that after marriage on 27.06.2015, the appellant and the prosecutrix are living happily. Prayer has been made by the appellant, victim and her parents to take lenient view and release the appellant on the sentence already undergone by him. To this, the learned APP has no objection.

4. The appellant’s counsel has further stated that the appellant has opted not to challenge the findings of the Trial Court on conviction. The only prayer is that the sentence order be modified considering the factum of marriage between the appellant and the victim.

5. Since the appellant has opted not to challenge the findings of the Trial Court, his conviction under Section 376 IPC is confirmed.

6. It is a matter on record that the prosecutrix and the victim were acquainted with each other for the last about 3/4 years before the incident and used to remain in contact on phone. In her 164 Cr.P.C. statement (Ex.PW7/A), the victim categorically informed the learned Presiding Officer that she was in love with the appellant and intended to marry him on attaining age of 18 years; she had no complaint, whatsoever, against him. She informed that on 8.12.2011, she her own had called the appellant on phone as she wanted to live with him. The appellant was implicated in a complaint lodged by her family members. In her Court statement also as PW-7, she deposed that she had friendship with the appellant and they used to talk with each other on phone. On 08.12.2011, she had called the appellant on phone and apprised him that she did not wish to live at her house. She did not attribute any overt act to the appellant to ‘entice’ her. She fairly admitted that from 08.12.2011 to 10.12.2011 they lived together and had physical relations twice.

7. The appellant suffered conviction as the prosecutrix was below 16 years of age on the day of occurrence. Record reveals that the appellant has remained in custody in this case for around three years. He is not a previous convict and is not involved in any other criminal case. Material aspect is that both the appellant and the victim have married on 27.06.2015 on ‘X’s attaining majority. They were in love and it was a case of elopement with consent. Physical relations (if any) between the two were consensual. No external injuries were found on ‘X’s body including private parts at the time of medical examination. Considering these facts and circumstances, sufficient and adequate reasons exist to modify the Sentence order to enable them to enjoy their married life. No useful purpose will be served to send the appellant in custody to serve out the remaining period of substantive sentence.

8. Taking into consideration all these facts and circumstances, the recent developments whereby a love relationship finally fructified and culminated into a legal relationship i.e.marriage, the period already undergone by the appellant in custody in this case shall be treated as substantive sentence. Fine is stated to have been deposited. The Trial Court shall verify this fact and if the fine remains unpaid, it shall be deposited by the appellant within two weeks from the date of this order before the Trial Court.

9. The appeal stands disposed of in the above terms. Trial Court record be sent back forthwith. Intimation be sent to the Superintendent Jail.

JUDGE JANUARY 21, 2015