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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRIMINAL LEAVE PETITION NO. 235/2014
Date of decision: 13th January, 2015
STATE ..... Appellant
Through Mr. Varun Goswami,APP along with SI
Roshan Lal, P.S. Nangloi.
versus
RAJ PAL @ RAJ ..... Respondent
Through Ms. Inderjeet Sidhu, Advocate.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA HON'BLE MR. JUSTICE ASHUTOSH KUMAR SANJIV KHANNA, J. (ORAL):
CRL.M.A. No. 4808/2014 Delay of 74 days in filing of the leave to appeal is condoned for the reasons given in the application seeking condonation of delay.
The application is disposed of.
CRIMINAL LEAVE PETITION NO. 235/2014 By impugned judgment dated 5th October, 2013, the respondent has been acquitted, giving benefit of doubt, under Sections 363, 366 and 376 of the Indian Penal Code, 1860 (IPC, for short). The aforesaid prosecution arose out of FIR No. 31/2012, Police Station Nangloi dated 7th February, CRL.L.P. No. 235/2014 Page 1 of 6 2012.
2. In the present case, the amendments made to Section 375 IPC vide Criminal Law Amendment Act, 2013, effective from 3rd February, 2013 would not be applicable, for the reason that as per the charge sheet, the prosecutrix had gone missing on 2nd February, 2012 and was recovered along with the respondent-Raj Pal on 23rd February, 2012.
3. On the question of consent, the trial court in the impugned judgment has recorded a finding in favour of the respondent. We are inclined to accept the said finding. The parents of the prosecutrix Kiran (PW-3) and Ram Pal (PW-4) have endorsed that the respondent was their distinct relative, indicating that the prosecutrix and the respondent knew each other. Ram Pal (PW-4) accepted and admitted the photographs Exhibit PW-4/DA1 to DA5, which show that the respondent and the prosecutrix were friendly and extremely close to each other.
4. Dr. Heena Kausar (PW-5), Sr. Gynaecologist, SGM Hospital, Mangolpuri had deposed as to examination of the prosecutrix on 23rd February, 2012 and the factum that the prosecutrix was very adamant to deny sexual assault. She had refused medical examination. PW-5, therefore, could not conduct internal medical examination. However, urine pregnancy test was negative. In cross-examination, PW-5 accepted as correct that the patient had told her that she was not sexually assaulted. Further, PW-5 accepted as correct that the patient had informed her that CRL.L.P. No. 235/2014 Page 2 of 6 although she had got married, she had no physical relationship with her husband.
5. The prosecutrix was also examined under Section 164 of the Code of Criminal Procedure, 1973 on 24th February, 2012, vide statement marked Exhibit PW-6/A. In the said statement, the prosecutrix in categorical terms had asserted that on 2nd February, 2012 she had spoken to the respondent at Hapur on phone and that she wanted to reside with him. She had known the respondent for last six years. Thereafter, she went to ISBT and took a bus to Hapur and started living with the respondent. She had gone Hapur on her own. In her court deposition, the prosecutrix did alter her stand, to state that the respondent had enticed her to accompany him. He had told her that he would marry her and take good care. Contrary to her Section 164 Cr.P.C. statement, the prosecutrix in her court deposition had claimed that the respondent had taken her to Anand Vihar Bus Terminal and then to Hapur where she stayed about twenty days. She accepted as correct that the respondent used to go for work at Hapur. She admitted her statement under Section 164 Cr.P.C., but claimed that this statement was under the influence of the accused and as she was confused. She accepted that they had sexual intercourse, but it was with her consent. She denied the suggestion given by the Public Prosecutor, who was allowed to put leading questions that the respondent used to have sexual intercourse without her consent. In cross-examination by the counsel for the respondent, the CRL.L.P. No. 235/2014 Page 3 of 6 prosecutrix accepted that she had stated before the Magistrate in her statement Exhibit PW-6/A that she had gone to Hapur and started living with the respondent. She also accepted as correct that she had made a telephone call to the respondent on 2nd February, 2012 to state that she wanted to live with him.
6. Noticing the contradictory statements, we have no reason to interfere with the finding of the trial court on the question of consent. We also notice that there is discrepancy whether or not the prosecutrix and the respondent had any physical relationship. In case there was no physical relationship, rape under Section 375 IPC would not be made out. The said discrepancy and lack of evidence, would go in favour of the respondent.
7. On the question of age of the prosecutrix, we find that the issue is highly debatable and not established beyond doubt. Prosecutrix in her court deposition has given her date of birth as 10th October, 1996. The said date of birth was recorded in the school records produced by Ramesh Chander (PW-13). But before we refer to the statement of PW-13, we would like to cite Ravinder Singh (PW-7), who had stated that the prosecutrix had taken admission in IInd class in the B.S. Convent School at Shiv Ram Park, Nangloi in the year 2004. After studying for two-three years, she left and took admission in a Government school. In cross- examination, PW-7 accepted that at the time of admission parents of the prosecutrix did not provide any documentary evidence or proof of date of CRL.L.P. No. 235/2014 Page 4 of 6 birth. He also accepted as correct that in the school records the date of birth was not mentioned. This means that date of birth of the prosecutrix was not recorded or mentioned in the records of B.S. Convent School where the prosecutrix was admitted for studies for the first time in the year 2004.
8. Ramesh Chander (PW-13), Record Keeper, had produced the records maintained in the Government Girls Senior Secondary School, JJ Colony, Nangloi. This included admission register (Exhibit PW-13/A), admission form (Exhibit PW-13/B) and the affidavit furnished by the father of the prosecutrix (Exhibit PW-13/C). The said affidavit records and mentions the date of birth of the prosecutrix as 10th October, 1996. It is apparent that only on the basis of the said affidavit the date of birth was recorded as 10th October, 1996 in the school records. Kiran (PW-3), mother of the prosecutrix in her examination in chief had stated that she did not remember the date of birth of her daughter, i.e., the prosecutrix. In her cross-examination, she accepted that she had another daughter Anshu, who had got married five years back and had a child. She, however, claimed that Anshu was married at the age of fifteen years. She also deposed that Anshu had expired recently from jaundice. Ram Pal (PW-4), the father in his cross-examination accepted as correct that he did not have any documentary proof as to the date of birth of the prosecutrix and had also not furnished any documentary proof at the time of admission. These facts CRL.L.P. No. 235/2014 Page 5 of 6 create doubt about the age of the prosecutrix. No ossification test was conducted in the present case.
9. Keeping in view the aforesaid facts, we find that no ground for interference is made out and the leave to appeal is dismissed. The surety bond furnished by the respondent will be treated as discharged.
(SANJIV KHANNA)
JUDGE
(ASHUTOSH KUMAR)
JANUARY 13, 2015 JUDGE
VKR
CRL.L.P. No. 235/2014 Page 6 of 6