IKLAKH Vs. STATE

JUDGEMENT

(1.) The appellant-Iklakh @ Bablu challenges the legality and correctness of a judgment dated 18.12.2013 of learned Additional Sessions Judge in Sessions Case No.46/13 arising out of FIR 266/11 under Section 363/376 IPC registered at Police Station Rajouri Garden by which he was held guilty for committing offence under Section 376 IPC. By an order dated 19.12.2013, he was awarded RI for seven years with fine Rs. 2,000/-.

(2.) The prosecution case as reflected in the charge-sheet was that on 26.07.2011 at about 03:30 p.m. the appellant kidnapped 'X' (assumed name) aged 16 years from the lawful guardianship of her parents without their consent and took her at Sangam Vihar where he sexually assaulted her against her wishes. Victim's father Chander Bhan (PW-6) lodged missing person report on 29.07.2011 and DD No.43A (Ex.PW-15/A) came into existence. FIR (Ex.PW-15/B) was recorded under Section 363 IPC. On 8th August, 2011 both the appellant and the prosecutrix were apprehended at bus stand Sangam Vihar. Statements of witnesses conversant with facts were recorded. The prosecutrix was medically examined. She recorded her statement under Section 164 Cr.P.C. Exhibits were sent to Forensic Science Laboratory for examination. After completion of investigation, a charge-sheet under Section 363/376 IPC was submitted against the appellant in the court. The prosecution examined 18 witnesses to prove its case. In 313 statement, the appellant denied his involvement in the crime and alleged false implication. He, however, did not examine any witness in defence. The trial resulted in his conviction under Section 376 IPC. It is relevant to note that the prosecutrix was found major and the appellant was acquitted for commission of offence under Section 363 IPC. The State did not challenge the said acquittal.

(3.) I have heard the learned counsel for the parties and have examined the file. Admitted position is that the prosecutrix was major on the day of incident i.e.26.07.2011. Both the prosecutrix and the appellant were known to each other before the incident being native of the same village. Both had come in the same train on 12.07.2011 to Delhi. Further admitted position is that on 26.07.2011 'X' herself had called the appellant on his mobile to her house and had accompanied him with her free consent. In the cross-examination, she admitted that her bhabhi was present in the house that time. She had left the house with the appellant without informing her. It is not in dispute that thereafter the appellant had taken the 'X' at the residence of his friend at Sangam Vihar where he lived along with his wife and sister. Both the prosecutrix and the appellant stayed at the said house for ten days. At no stage, the prosecutrix raised any alarm for objectionable conduct or behavior of the appellant. She was introduced by the appellant to be his 'wife' to the inmates of the house. Admittedly, when on the day of apprehension the prosecutrix left Sangam Vihar, she was wearing 'burka' to conceal her identity. She did not attempt to inform her parents about her whereabouts during her ten days stay at Sangam Vihar with the appellant. She has admitted that greeting card (Ex.PW2/DA) and letter (Ex.PW2/DB) in her hand writing were sent to the appellant. The appellant had visiting terms at her house. From all these circumstances reasonable inference can be drawn that the appellant and the prosecutrix were having love affairs and she had accompanied him with her free consent. It was a case of elopement with consent.