* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision : 20th April, 2010
+ CRL.L.P.133/2010
STATE ..... Petitioner
Through: Mr.M.N.Dudeja, Advocate
versus
RAM PRAKASH @ LALIE ..... Respondent
Through: None
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE SURESH KAIT
1. Whether the Reporters of local papers may be allowed
to see the judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be reported in the Digest?Yes
PRADEEP NANDRAJOG, J. (Oral)
Crl.M.A.No.5042/2010 Allowed.
Crl.M.A.No.5041/2010 Delay of 63 days in seeking leave to appeal is condoned. CRL.L.P.133/2010
1. The respondent was charged for the offence punishable under Sections 363/366/376 IPC. Vide impugned judgment and order dated 07.08.2009, the appellant has been acquitted of the charges framed against him.
2. Kumari 'S' was the girl allegedly kidnapped and Crl. LP No.133/2010 Page 1 of 6 subsequently raped by the respondent. She is the daughter of Smt.Poojari PW-2 and Sh.Lorik Prasad PW-4.
3. That Kumari 'S' was found missing on 21.10.2005 is a fact proved with reference to the FIR Ex.PW-6/A recorded after PW-4 went to the police station on 24.10.2005 and informed that his daughter aged 16 years was missing and he suspected the respondent, a tenant in his house, as the one who had eloped with his daughter.
4. After the prosecutrix was recovered she not only refused her medical examination but even refused to undergo ossification test.
5. During cross-examination, the prosecutrix admitted having visited civil courts at Pratapgarh and that her signatures were at point 'A' on Ex.PW-1/DA with a joint photograph of the prosecutrix and the respondent at point 'B' thereon. The said document evidences that the prosecutrix voluntarily got married to the respondent. She admitted that from the courts at Pratapgarh she went to the village of the respondent which was at a distance of about 2-3 kms and the two resided there for 20 days.
6. The learned trial Judge, in our opinion, has correctly returned a finding that the aforesaid admissions of the prosecutrix show that she left in the company of the Crl. LP No.133/2010 Page 2 of 6 respondent of her free consent.
7. An issue was raised whether the prosecutrix was above the age of 16 years or she was less than 16 years. Apparently, said issue was raised with reference to the charge of rape for the reason consent contemplated by Section 375 IPC relates to that of a woman above the age of 16 years.
8. Apparently, the learned trial Judge appears to have lost track of the fact that for the offence of kidnapping, the age relevant is 18 years.
9. Be that as it may, the finding returned by the learned trial Judge is that the evidence on record shows that the prosecutrix was not a minor on 21.10.2005, the date she went away with the respondent.
10. Through the testimony of Dr.Virender Prasad PW-7, the prosecution proved Ex.PW-7/A, the School Leaving Certificate of the prosecutrix, as per which the date of birth as entered in the school record was 10.10.1990. The application form Ex.PW-7/B and the relevant extract of the register Ex.PW- 7/C evidenced that at the time of admission, the date of birth as declared by the father of the prosecutrix was 10.10.1990.
11. If 10.10.1990 was the date of birth of the prosecutrix, it is apparent that as on 21.10.2005, her age would be 15 years.
Crl. LP No.133/2010 Page 3 of 6
12. The learned trial Judge has noted that as per admissions made by Smt.Poojari, mother of the prosecutrix, who deposed that on 01.12.2006, she and her husband had been living in Uttar Pradesh before shifting to Delhi and that they shifted to Delhi and resided in Sultanpuri for the last 20 years. Four children, three daughters and a son was born to her. The prosecutrix was her second daughter. Smt.Poojari disclaimed remembering the date when her children were born but stated that when she shifted to Delhi along with her husband the prosecutrix was two months old. If this be so, Smt.Poojari having deposed in court that on 01.12.2006, the prosecutrix would be born somewhere in the year 1986 and thus as on 21.10.2005, her age would be about 19 years.
13. So motivated, probably under the influence of her parents was the prosecutrix, that she claimed to be the youngest sister. She stated that her other two sisters named Sunita and Anita were married. She admitted that Anita was married about 7 years ago.
14. In view of the fact that the prosecutrix deposed her being the youngest sister, in direct conflict with the testimony of her mother, the learned trial Judge has found the prosecutrix to be a most unreliable witness on the issue of her age.
Crl. LP No.133/2010 Page 4 of 6
15. In a nutshell, noting the refusal of the prosecutrix to undergo ossification test, the absence of any municipal or village record pertaining to the date of birth of the prosecutrix, the testimony of the mother of the prosecutrix, the learned trial Judge has held that it would be unsafe to rely upon the school record to accept the age of the prosecutrix.
16. We may only add that it is not unknown for parents and especially when they migrate from village to urban areas, to declare a lower age of their children. They do so for the reason local self governments have various schemes for minor girls under which benefits are granted. The reason is obvious, when employment is to be found, it becomes beneficial to have lower age recorded in the records.
17. In our opinion the learned trial Judge has correctly appreciated the evidence on record to return a finding that the prosecutrix was not a minor and thus her consent carried weight.
18. We concur with the reasoning of the learned trial Judge and record that in view of the testimony of the mother of the prosecutrix it is apparent that the prosecutrix would be aged about 19 years on the day when she left her parental house. We concur with the finding that the admissions made by the prosecutrix and other documentary record shows that Crl. LP No.133/2010 Page 5 of 6 she left the house of her parents with consent.
19. No case is made out to grant leave to appeal.
20. The petition is dismissed.
PRADEEP NANDRAJOG, J SURESH KAIT, J APRIL 20, 2010 'nks' Crl. LP No.133/2010 Page 6 of 6