Whether Rape convict should be released as he married with victim?

 The appellant suffered conviction as the prosecutrix was
below 16 years of age on the day of occurrence. Record reveals that the
appellant has remained in custody in this case for around three years. He
is not a previous convict and is not involved in any other criminal case.
Material aspect is that both the appellant and the victim have married on
27.06.2015 on ‘X’s attaining majority. They were in love and it was a case
of elopement with consent. Physical relations (if any) between the two 
were consensual. No external injuries were found on ‘X’s body including
private parts at the time of medical examination. Considering these facts
and circumstances, sufficient and adequate reasons exist to modify the
Sentence order to enable them to enjoy their married life. No useful
purpose will be served to send the appellant in custody to serve out the
remaining period of substantive sentence.
 IN THE HIGH COURT OF DELHI AT NEW DELHI
DECIDED ON : JANUARY 21, 2015

CRL.A.46/2013
RAHUL 
versus
STATE NCT OF DELHI 
Complainant present with her
parents.
CORAM:
HON’BLE MR. JUSTICE S.P.GARG



1. Aggrieved by a judgment dated 5.11.2012 of learned
Additional Sessions Judge in Sessions Case No.11/2012 arising out of FIR
No.209/11 registered at Police Station Prasad Nagar by which he was held
guilty under Section 376 IPC, the appellant-Rahul has filed the instant
appeal. By an order dated 8.11.2012, he was awarded RI for seven years
with fine `5,000/-.
2. Briefly stated, the prosecution case as stated in the chargesheet
was that on 8.12.2011 at about 5.00 p.m. the appellant kidnapped the
prosecutrix ‘X’(assumed name), aged around 14 years from the lawful
guardianship of her parents and took her to a house at Mohan Garden near
Gandhi Chowk. On 8.12.11 and 9.12.11, he committed rape upon the
prosecutrix. The police machinery came into motion when Daily Diary
(DD) No.3A (Ex.PW3/A) came into existence on 10.12.2011 and ‘X’s
mother lodged ‘Missing Person’ report. Subsequently, the prosecutrix was
recovered; she was medically examined; she recorded her 164
Cr.P.C.statement. The accused was arrested and taken for medical
examination. Exhibits collected during investigation were sent for
examination to Forensic Science Laboratory. Upon completion of
investigation, a charge-sheet was filed against the accused for commission
of offences punishable under Sections 363/368/376 IPC. By an order
dated 3.4.2012, the appellant was charged for committing offences under
Sections 368/376 IPC to which he pleaded not guilty and claimed trial.
The prosecution examined sixteen witnesses to establish its case. In 313
statement, the appellant denied his involvement in the crime and pleaded
false implication. The trial resulted in his conviction under Section 376
IPC as mentioned above. However he was acquitted of the charge under
Section 368 IPC. The State did not prefer any appeal to challenge his
acquittal under Section 368 IPC.Crl.A.46/2013 Page 3 of 5
3. During the pendency of appeal, the appellant and the victim
wished to marry on her attaining majority. Affidavits of victim and her
parents were filed to corroborate appellant’s version. Vide order dated
7.11.2014, the appellant was granted interim bail to get marry.
Engagement ceremony thereafter took place on 31.01.2015. On
31.07.2015, it was informed that the prosecutrix and the appellant had
since married on 27.06.2015. Today the prosecutrix and the appellant are
present before the Court along with victim’s parents. They have disclosed
that after marriage on 27.06.2015, the appellant and the prosecutrix are
living happily. Prayer has been made by the appellant, victim and her
parents to take lenient view and release the appellant on the sentence
already undergone by him. To this, the learned APP has no objection.
4. The appellant’s counsel has further stated that the appellant
has opted not to challenge the findings of the Trial Court on conviction.
The only prayer is that the sentence order be modified considering the
factum of marriage between the appellant and the victim.
5. Since the appellant has opted not to challenge the findings of
the Trial Court, his conviction under Section 376 IPC is confirmed.
6. It is a matter on record that the prosecutrix and the victim
were acquainted with each other for the last about 3/4 years before the 
incident and used to remain in contact on phone. In her 164 Cr.P.C.
statement (Ex.PW7/A), the victim categorically informed the learned
Presiding Officer that she was in love with the appellant and intended to
marry him on attaining age of 18 years; she had no complaint, whatsoever,
against him. She informed that on 8.12.2011, she her own had called the
appellant on phone as she wanted to live with him. The appellant was
implicated in a complaint lodged by her family members. In her Court
statement also as PW-7, she deposed that she had friendship with the
appellant and they used to talk with each other on phone. On 08.12.2011,
she had called the appellant on phone and apprised him that she did not
wish to live at her house. She did not attribute any overt act to the
appellant to ‘entice’ her. She fairly admitted that from 08.12.2011 to
10.12.2011 they lived together and had physical relations twice.
7. The appellant suffered conviction as the prosecutrix was
below 16 years of age on the day of occurrence. Record reveals that the
appellant has remained in custody in this case for around three years. He
is not a previous convict and is not involved in any other criminal case.
Material aspect is that both the appellant and the victim have married on
27.06.2015 on ‘X’s attaining majority. They were in love and it was a case
of elopement with consent. Physical relations (if any) between the two 
were consensual. No external injuries were found on ‘X’s body including
private parts at the time of medical examination. Considering these facts
and circumstances, sufficient and adequate reasons exist to modify the
Sentence order to enable them to enjoy their married life. No useful
purpose will be served to send the appellant in custody to serve out the
remaining period of substantive sentence.
8. Taking into consideration all these facts and circumstances,
the recent developments whereby a love relationship finally fructified and
culminated into a legal relationship i.e.marriage, the period already
undergone by the appellant in custody in this case shall be treated as
substantive sentence. Fine is stated to have been deposited. The Trial
Court shall verify this fact and if the fine remains unpaid, it shall be
deposited by the appellant within two weeks from the date of this order
before the Trial Court.
9. The appeal stands disposed of in the above terms. Trial
Court record be sent back forthwith. Intimation be sent to the
Superintendent Jail.
(S.P.GARG)
 JUDGE
JANUARY 21, 2015/sa

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