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2016 DIGILAW 2727 (DEL)

GULAB v. STATE OF N. C. T. OF DELHI

2016-07-27

MUKTA GUPTA

body2016
JUDGMENT : MUKTA GUPTA, J. 1. The appellant has been convicted for the offences punishable under Sections 363/376/506 IPC, on the strength of the statement of the prosecutrix and her family members, and sentenced to undergo rigorous imprisonment for a period of seven years each for the offences punishable under Sections 363 and 376 IPC and rigorous imprisonment for a period of two years for the offence punishable under Section 506 IPC, vide the impugned judgment and order dated 26th February, 2000 and 1st March, 2000 respectively. 2. In her deposition before the court the prosecutrix deposed that while she was returning from school along with her bua, her bua stopped and started talking to someone near Nav Durga Temple. She started moving in the gali towards her house when Gulab told that her father, mother and uncle were standing on the opposite side and asked her to accompany him. As she went with him and had moved a few steps, he kept a handkerchief on her face, she felt giddiness and was unable to see. When she regained consciousness she found herself in a jhuggi and she started crying. Gulab threatened her with a knife that he will cut her into pieces if she cried. Gulab gave her 2/ 3 slaps and had also hit her with a knife on her right wrist. Accused’s sister Parvati who resided in nearby jhuggi was also present there and used to beat her daily. Parvati used to take her for the natural call in the night so that nobody could see her. Gulab committed rape on her two times against her will and consent during the period of two and half months. She was recovered by police and medically examined. She was produced before magistrate for recording of her statement (Ex. PW1/ A). During cross examination, she stated that she was weak in studies but was never beaten by her aunt for getting less marks. She stated that Parvati had met her on the way. Parvati had also got her admitted in a school in 5th standard on her asking. She went to the school only for three days but had not told her father’s name in the school. She also deposed that the injury on her wrist was caused due to the knife injury inflicted by the accused and was not from her childhood injury. She went to the school only for three days but had not told her father’s name in the school. She also deposed that the injury on her wrist was caused due to the knife injury inflicted by the accused and was not from her childhood injury. She had also informed about her abduction to neighbours. 3. A missing report of prosecutrix was lodged on 10th January, 1994, whereafter, search was made and she was recovered after nearly three months. Her statement under Section 164 Cr.P.C.(Annexure-A-4) was recorded. In the statement, the prosecutrix did not level any allegation of rape against Gulab. Thus, the statement of the prosecutrix about the rape being committed by Gulab during the period of two and a half months she was kidnapped is a material improvement. Considering the fact that the allegations of rape, as deposed before the court were a material improvement in the testimony of the prosecutrix, the appellant is liable to be acquitted for the offence punishable under Section 376 IPC. 4. The age of the prosecutrix is undisputably below 16 years in view of the date of birth mentioned in the school record. Thus, her consent for joining the company of the appellant was immaterial. There is consistency in the statement of the prosecutrix qua the threats extended. Thus the conviction of Gulab for offences punishable under Section 363 and 509 IPC is liable to be upheld. 5. Prosecutrix also deposed about an injury which was inflicted on her neck and writ by knife, but, no charge under Section 324 IPC was framed and no trial took place for the said offence. 6. Upon consideration of the facts and evidence on record, the conviction of the appellant is modified to one for offences punishable under Sections 363 and 506 IPC. As per the nominal roll, appellant has already undergone sentence for a period of nearly four years including remissions. Consequently, the order on sentence is modified to the period already undergone. Bail Bond and surety bond of the appellant are discharged. 7. Appeal stands disposed of. 8. Copy of the order be sent to the Superintendent Jail for updation of record. 9. Trial court record be sent back.