State vs Anil Kumar

The present appeal has been filed by the State assailing the judgment dated 31st October, 1998 passed in Sessions Case No.511/1996 by the Additional Sessions Judge, New Delhi arising out of FIR No.143/88 (Ex.PW6/A) Police Station, Krishna Nagar under Sections 366/376 of IPC. After detailed consideration of the evidence brought on record, the learned trial court found that the prosecution had failed to make out the culpability of the respondent for commission of offence with which he was charged and by the judgment dated 31st October, 1998 acquitted the respondent from the same. Aggrieved thereby, the State preferred the present appeal which was admitted for hearing on 10th January, 2002 and notice was issued to the respondent. The respondent was granted bail by this court by the order of even date and bailable warrants were issued for appearance and furnishing the bail bonds and surety. The bail bonds and surety submitted by the respondent was duly accepted by the Joint Registrar of this Court by the order dated 2nd March, 2002.

The case of the prosecution in the trial was that the respondent was guilty of enticing PW-4, a minor child, aged about 13 years from the lawful custody of her mother on the intervening night of 12th/13th June, 1988 and having committed rape upon her. It was the case of the prosecution that the respondent's house was in front of the house of PW-4 who was sleeping on a cot along with her mother outside her house. At about 1:00 am of 13th June, 1988, the respondent allegedly enticed her to his room and committed offence against her wishes.

The prosecution examined 13 witnesses in order to prove its case against the accused which included the mother of the victim, Smt. Husno as PW-1 and grandfather of the victim, Shri Kishori Lal as PW-2.

The respondent as well as PW-4 were medically examined. The MLC of the respondent was proved on record by PW-3, Dr. B.D. Singh and exhibited on record as Ex.PW3/A. The MLC of PW-4 was exhibited on record as Ex.PW10/A by Shri Om Prakash, the Record Clerk from J.P.N. Hospital.

The learned trial judge has considered the evidence led by the prosecution at length as against the ingredients necessary for proving the charge under Sections 363 and 376 of Indian Penal Code as alleged by the prosecution. It has been rightly observed that to bring home the charge u/s 363 of IPC, the ingredients of Section 361 of IPC are required to be satisfied. The court has carefully observed that the prosecution was required to establish that a female under 18 years of age or a male under 16 years of age had been enticed out of the custody of lawful guardian without the consent of such guardian. The court has considered the evidence led by the prosecution on the age of PW-4 at great length and given a categorical finding to the fact that age of PW-4 was between 15 to 17 years on the relevant date and concluded that it was 16 years at the relevant time. The court has however found that the prosecution had not led any positive evidence that the accused was instrumental in the victim leaving her house and, therefore, disbelieved the prosecution that the respondent had allured or induced PW-4 to leave her house or come to his custody on the fateful night. It has thus been concluded that PW-4 was below 18 years of age however she was above 16 years and the prosecution had failed to prove that it was the respondent who had enticed her or kidnapped her out of the custody of her guardian.

So far as charge u/s 376 is concerned, the court has relied on the definition of rape as defined u/s 375 of IPC. It has been found that it was the case of the prosecution that PW-4 went to the house of the respondent at about 1:00 am and remained there till about 5:00 am to 5:30 am when she claimed to have escaped. During this period, there was no evidence of any protest by PW-4 or of her having raised any kind of alarm or objection. No evidence of any injury on the person of PW-4 was led by the prosecution. On the contrary, as per Ex.PW3/A, the MLC of PW-4 recorded on 13th June, 1988 at 2:00 pm at Lok Narayan Jai Prakash Hospital, upon her medical examination, the doctor has specifically recorded that there was no evidence of any external injury anywhere on the body. The MLC notices that the hymen of PW-4 was torn in the 5:00 o'clock position. However, the doctor has failed to note as to whether it was a new tear.

We may note that police has seized the underwear of the respondent as well as PW-4 which they were wearing on the fateful night. Our attention has been drawn to the report of the Central Forensic Laboratory, Lodhi Road, New Delhi which was proved on record as Ex.PW12/C dated 26th August. The report has specifically reported that no semen was detected on the underwear which was sent for analysis to the laboratory.

The record also shows that PW-2, Kishori Lal has deposed that his daughter-in-law, Smt. Husno - PW-1 woke up at about 1:30 am and informed him that PW-4 was not sleeping on the cot. They were alleged to have raised the alarm and searched for her but failed to trace PW-4. PW-2, Kishori Lal (grandfather of PW-4) and her mother PW-1, Smt. Husno remained sitting till 5:00 am whereafter they saw a glimpse of PW-4 from a grill (jangla) in the house of the respondent. PW-4 came out from his house only thereafter.

On a construction of the entire evidence, the learned trial judge has found that there was no evidence at all of rape. It has been held that the conduct of PW-4 suggests that she was a consenting party to all the acts with the respondent. It has been suggested that it was because her actions were discovered, she accused the respondent of having committed the said offence. In view of the above discussion, we find that the prosecution has failed to make out any ground for interference with the judgment dated 31st October, 1998. The appeal is dismissed as being devoid of any legal merit.