VIRENDER SINGH Vs. STATE OF DELHI

JUDGEMENT

(1.) By way of the present appeal the Appellant challenges the judgment of conviction for offence punishable under Section 366 IPC and a sentence of Rigorous Imprisonment for six months and fine of '10,000/-.

(2.) Briefly, the prosecution case is that on 30 th July, 1997, a complaint was lodged by the father of the prosecutrix regarding the missing of his daughter alleging that his daughter aged about 14 years, a student of VIIIth standard had gone to the school on 28 th July, 1997 at about 7 a.m., but she neither reached the school nor came back to home. On further enquiries, the complainant Narender Mishra, father of the girl found out that his daughter had been taken away/enticed by his former tenant Pradeep S/o Vishwanath. On 6 th August, 1997, on the basis of this statement of Narender Mishra a case was registered under Section 363 IPC. The police started its search for the girl and Pradeep. Search was conducted at various places and finally she was found in the area of P.S. Loni along with Pradeep on 16 th September, 1997, where Pradeep was arrested by the Loni Police and a case punishable under Section 25 of the Arms Act was registered against him. The girl was then handed over to the Delhi Police who brought her to Delhi. Her statement was got recorded before the Magistrate under Section 164 Cr. P.C. on 17.09.1997 wherein she stated that on 28 th July 1997, when she started from her house for her school at about 7 a.m., Virender, the Appellant herein who was living in her neighbourhood met her and told her that he would leave her at the school on the cycle; so she sat on his cycle. On reaching near Meethapur Pull, Pradeep met them and Virender left her there. Pradeep told the prosecutrix to accompany him and on her refusal he threatened to kill her father and brother, so she had to accompany him. Pradeep took her to ISBT by a TSR and from there, in a bus, took her to Kasganj where he kept her at the house of some Bhaiya-Bhabhi for 4-5 days and raped her every night. From there he brought her to Delhi and kept her in a house at Indirapuri where she was confined and raped for 3-4 days. On 15 th September, 1997 when Pradeep went somewhere, the prosecutrix availing the opportunity came to her parents? house. After completion of the investigation, on a charge sheet being filed, the Appellant herein was charged for offence punishable under Section 366-A IPC and Pradeep under Section 366/376 IPC.

(3.) Learned counsel for the Appellant contends that the only role attributed to the Appellant is that the prosecutrix accompanied him willingly on his bicycle. There is no allegation that the Appellant enticed or allured the prosecutrix for any act. Moreover, no alarm was raised by the prosecutrix. The prosecution has neither produced the attendance register of the school nor any teacher to show that the prosecutrix did not reach the school on the date of the incident. The prosecutrix allegedly lived with Pradeep for a period of two and a half months without raising any grievance or alarm or any complaint to anyone, and thus her conduct casts a grave doubt on her version. To prove that the age of the prosecutrix is 14 years, only a school leaving certificate has been produced which is not a cogent and convincing evidence of age. Reliance is placed on Sunil v. State of Haryana, 2010 1 SCC 742 to contend that in a criminal trial conviction cannot be based on an approximate age which is not supported by any record and in the absence of cogent and convincing proof of age, the accused is entitled to the benefit of doubt, and on Gabbu vs. State of M.P., 2006 AIR(SC) 2461 and Jinish Lal Sha vs. State of Bihar, 2003 AIR(SC) 2081 to contend that there was no meeting of mind of the co-accused and the Appellant. The enticement should be by deceitful means and merely dropping at the place where the co-convict was present does not fall within the ambit of commission of an offence punishable under Section 366 IPC especially when the version of the prosecutrix itself is doubtful.