STATE Vs. BRIJESH KUMAR

JUDGEMENT

(1.) State has preferred the instant appeal under Section 377 of Code of Criminal Procedure for enhancement of sentence awarded to the respondent in Sessions Case No.95/2009 arising out of FIR No. 1059/2006 under Sections 363/368/376/506 IPC PS Nangloi. It is pertinent to note that the respondent was convicted by a judgment dated 27.01.2010 of the learned Addl. Sessions Judge under Sections 363/366/376 IPC and vide order dated 04.02.2010 he was awarded various prison terms with fine. Under Section 376 IPC, the respondent was sentenced to undergo RI for three years with fine Rs. 3,000/-. Appellant's contention is that in the absence of adequate and sufficient reasons the Trial Court committed grave error in awarding sentence less than seven years as prescribed under Section 376 IPC. The appeal is contested by the respondent.

(2.) I have heard the learned Addl. Public Prosecutor for the State and have examined the file. On perusal of the statement of the prosecutrix 'X' (assumed name) and other relevant witnesses, it transpires that it was a case of elopement with consent. Daily Diary (DD) No.12A (Ex.PW- 3/A) was recorded at PS Nangloi when victim's father reported that her daughter was missing from the house since 20.09.2006 at 10.00 a.m. At that time, the respondent was not suspected to have kidnapped the prosecutrix. Her age was disclosed 15 years. Subsequently, the prosecutrix was recovered on 15.11.2006 and after recording her statement, Sections 376/368 IPC were added. In her statement, the prosecutrix not only implicated the respondent but also levelled various allegations against Sanjay, Daulatram, Subhash and Anita. They were discharged vide order dated 19.05.2007 and the State did not challenge the said order. It is pertinent to mention that some of them also remained in custody. It has further come on record that after the respondent and 'X' went together, she remained at various places for considerable time where physical relations were established. At no stage, 'X' bothered to contact her parents to inform them about her whereabouts. 'X' was taken by the respondent to different places of his relations. Since they did not provide shelter to them, they changed their residences / places during this period. When the respondent visited Delhi to fetch money, admittedly, 'X' remained in the company of Sanjay for number of days alone. At no stage, she raised any alarm or hue and cry for her kidnapping. Apparently, she was willing and consenting party throughout. Since, she was below 16 years of age, the Trial Court was left with no alternative but to convict the respondent. Again, age of the prosecutrix has not been ascertained with certainty. It is based upon the date of birth recorded in the school record where she took admission on 08.04.2004 in class VI. No birth certificate of the prosecutrix was produced that time. The prosecution was unable to collect the date of birth as recorded by the prosecutrix in the school where she took admission for the first time i.e. MCD Primary School, J.J.Colony, Nangloi, E-Block, Delhi. During medical examination, no visible injuries were found on her body. The respondent was aged around 20 years. In 313 Cr.P.C. statement, he categorically stated that there were love affairs between the two and she had accompanied with him voluntarily. This possibility cannot be ruled out. Apparently, these were the adequate and special reasons for the Trial Court to award less than seven years sentence as prescribed under Section 376 IPC. The incident is dated 20.09.2006.

(3.) In the light of above discussion, I find no merit in the appeal and is dismissed.