SUNIL KUMAR SHARMA Vs. STATE NCT OF DELHI

JUDGEMENT

(1.) These appeals arise from a common impugned judgment whereby all the three Appellants have been convicted for offence punishable under section 366/34 IPC and awarded a sentence of Rigorous Imprisonment for five years and to pay a fine of 1000/- each and in default of payment of fine to further undergo simple imprisonment for one month. The Appellant Sunil Kumar Sharma has also been convicted for offence punishable under Section 376 IPC and awarded a sentence of Rigorous Imprisonment for seven years and to pay a fine of 2,000/- and in default of payment of fine to further undergo Simple Imprisonment for two months.

(2.) Briefly the prosecution case is that on 25 th October, 2003 the PW4 Complainant Kusuma Devi got recorded her statement Ex. PW4/A wherein she stated that she is a permanent resident of village Nangla Dharmpal, PS Barnahal, District Mainpuri, UP and is presently residing in Manav Mangal School, Prahladpur , New Delhi and is also working in the said school. Her daughter (the prosecutrix) studying in 8 th Class in the said school aged about 13-14 years is missing from the house since 25 th October, 2003 at around 6.00A.M. She suspected that Sunil Sharma S/o Gopal Sharma R/o village Dhamdha South Toll PS and Post Dhamdha, District Purnia, Bihar who does the wood work in the school has abducted her daughter and taken her away by alluring her. A case under Section 366, IPC bearing FIR No. 604/2003 was registered at Police Station Sangam Vihar, Delhi on the basis of the said statement. Investigation was conducted and the prosecutrix was recovered. Her statement was recorded both under Sections 161 and 164 Cr.P.C. wherein she stated that she was residing at IInd floor of Manav Mangal Public School. Sunil Sharma was working as a Carpenter in the school and used to come to IInd Floor for drinking water. He used to tease her but she did not tell anybody about it as her father was strict and she was afraid of him. On 24 th October, 2003 at around 5:00- 5:30 P.M. Sunil Sharma had come to IInd Floor to drink water. He told her that the next day being a holiday they should go somewhere. She refused and said that she will not go anywhere with him on which he said that he wanted to go to the temple with her. She agreed to accompany him. At that time no one was there at her house. On 25 th October, at about 5.30 A.M. Sunil Sharma telephoned her and called her outside the school. At about 6 A.M. she went downstairs where he was present along with Mukesh Sharma and Montoo. They forced her into a TSR and took her to Tamur Nagar and from there to New Delhi Railway Station. At the Railway Station Montoo and Sunil Sharma sat with her and Mukesh Sharma went to purchase the tickets. Thereafter, accused Sunil Sharma and Mukesh Sharma took her to Bhagalpur in a train. From there they hired a Tata Sumo and took her to Purnia. After that they took her to Hanuman temple and the Appellant Sunil Sharma forcibly married her there. He took her to village Dhamdha and kept at his place for two days that is on 27 th and 28 th October. On 28 th October, 2003 Sunil Sharma came to know that police was coming from Delhi and he took her back to Purnia and said that they would marry in Court and thereafter go anywhere. There four persons Sunil Sharma, Babloo Sharma, Mukesh Sharma and an uncle of Sunil Sharma were present. They kept her hiding in field because of the fear of the police and on the same day brought her back to Purnia and kept her in his brother-in-law's house till 1 st November, 2003. On 2 nd November they asked her to give a call to her uncle (Mama) to tell that they could take her provided they withdrew the case instituted by her mother Kusuma. On 3 rd November, they also made her call her nanaji whom she told everything. She was brought back to Purnia and kept in other relative's house. Finally she was brought back to Delhi by her uncle who had come to Bihar. These people that is the Appellants herein made her sign documents. Sunil Sharma raped her against her wishes on 26 th , 27 th and 28 th of October and again physically assaulted her against her wishes on 2 nd , 3 rd and 4 th of November. After completion of investigation a charge sheet was filed. Pursuant to the prosecution evidence and the statement of the Appellants under Section 313 Cr.P.C. the Appellants were convicted and sentenced as above.

(3.) Learned counsel for the Appellant contends that from the perusal of the statement of PW3, the prosecutrix it is clear that she is a consenting party and she willingly went along with the Appellant and married the Appellant Sunil Sharma. Despite number of opportunities available to her she neither raised any alarm nor protested. Thus, offence of rape under Section 376 IPC is not made out. Moreover, as per the allegation the alleged rape was committed on the prosecutrix only after the marriage was performed and though the marriage with a minor under the Hindu Marriage Act is voidable marriage, however, the same continues to be a valid marriage till it is avoided. The punishment prescribed for an offence of rape of once wife is imprisonment upto two years.