Munna @ Rikas v. State

SANGITA DHINGRA SEHGAL, J OCTOBER 13, 2017 //gr

* IN THE HIGH COURT OF DELHI AT NEW DELHI + CRL.L.P. 20/2016 Judgment reserved on: 13th September, 2017 Judgment pronounced on: 13th October, 2017 STATE (NCT OF DELHI) …..Petitioner Through: Mr. Mukesh Kumar, APP for the State Versus MUNNA @ RIKAS &ANR …..Respondent Through: Mr. S. B. Dandapani, Advocate for respondent No. 1. Mr. Harsh Prabhakar, with Mr.Anirudh Tanwar, Advocate for respondent No. 2. + CRL. A. 957/2015 MUNNA @ RIKAS …..Petitioner Through: Mr. S. B. Dandapani, Advocate. Versus STATE …..Respondent Through: Mr. Mukesh Kumar, APP for the State. CORAM: HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL 1. Vide impugned judgment dated 30.04.2015 passed by the Additional Sessions Judge, Special Fast Track Court, Karkardooma Courts, Delhi, Munna @ Rikas was convicted for the offences punishable under Sections 376(2)(e)/344/506 of the Indian Penal Code (hereinafter referred to as 'IPC') but acquitted for the offences punishable under Section 366/372/511/34 IPC whereas Suman Kumar was acquitted of charges under Sections 366/344/506(II)/372/511/34 IPC. 2. Munna @ Rikas preferred Crl. A. 957/2015 assailing his conviction for the aforesaid offences whereas the State has filed Crl. L.P. 20/2016 and sought leave to appeal against the acquittal of Munna @ Rikas and Suman Kumar. 3. The brief facts of the case are that on 01.04.2011, on receipt of DD No. 31A, SI Mukesh Kumar and Constable Ishwar Singh found accused Suman Kumar at the traffic signal of Shastri Park, Delhi who informed them that accused Munna@Rikas had kept the prosecutrix in room C-13, 3rd Floor, DDA flats, Shastri Park, Delhi whereafter he accompanied them to the above said flat. On reaching there, they found the accused/respondent No. 1 and the prosecutrix. In her statement recorded by the police officials, the prosecutrix stated that she left her home about five or six months ago and came to Delhi. On reaching Old Delhi Railway Station, she met an old man, Munna@Rikas/ respondent No. 1 and Suman Kumar/ respondent No. 2 and accompanied them on their assurance that they would arrange a job for her. Thereafter Munna/Rikas took her to Panipat where he confined her in a flat for 2½ months and raped her repeatedly and also made her consume intoxicating pills under threat to kill her if she tried to escape. She further stated that accused/Munna@Rikas took her to an unknown city and raped her many times and that after about 1½ months, she was taken to a flat rented out from Suman Kumar in Noida from where she was not allowed to go out. On 01.04.2011, both the accused persons brought the prosecutrix to a flat at Shastri Park, Delhi, where she was again raped by accused Munna@Rikas in the absence of the co-accused Suman Kumar. On the next day, a heated altercation took place between Suman Kumar and Munna@Rikas when Suman Kumar objected Munna@Rikas while he was trying to rape the prosecutrix. Thereafter, the police officials came to the room and the prosecutrix claimed that both the accused persons wanted to sell her for the purpose of prostitution. 4. Based on the above statement of the prosecutrix, FIR No. 102/2011 under Sections 344/366/376/506/34 IPC was registered at Police Station Seelampur and thereafter, the accused were taken into custody. The site plan was prepared at the instance of the prosecutrix, evidence was collected and the prosecutrix was medically examined wherein it was diagnosed that she was pregnant. Further, as per the documentary evidence of the prosecutrix, the date of birth was 15.08.1996 which shows that she was 14-15 years old at the time of the alleged offence but as per the bone and wrist X-ray of the prosecutrix, her age was opined to be between 16-18 years on 05.04.2011. The Trial Court, however, relied upon the judgment in State of NCT of Delhi vs. Shiva & Ors. (Crl. L.P. No. 172/2008 decided on 16.03.2012 by a Division Bench of the Hon'ble Delhi High Court) and stated that if there are two possible opinions in a case, the one reclined towards t