Umesh Kumar vs The State Of Nct Of Delhi
2009 Latest Caselaw 524 Del

*                      HIGH COURT OF DELHI : NEW DELHI


               Judgment reserved on : February 05, 2009

              Judgment delivered on : February 13, 2009


+                         Crl. A. No. 496/1999


%        Umesh Kumar                            ... Appellant
                 Through:     Mr. R.S. Juneja, Advocate

                                versus

    The State of NCT of Delhi             ... Respondent
               Through: Mr. Amit Sharma, Additional Public
                         Prosecutor for State
CORAM:

HON'BLE MR. JUSTICE SUNIL GAUR

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?

SUNIL GAUR, J.

1. This appeal is filed on behalf of Appellant impugning the

judgment and order on sentence of 30th July, 1999, vide which he

has been held guilty for the offence punishable under section 376

IPC and has been sentenced to undergo rigorous imprisonment

for three years.

2. In this appeal, aforesaid conviction and sentence has been

assailed by the appellant by raising the question of age of the

prosecutrix (PW.3) as well as of his own age.

Crl. A. No. 496/1999 Page 1

3. The background facts emerging from the record of this case

are as follows:-

"Families of Kedar Singh Yadav and accused Om Prakash Sharma shifted to House No.3/53 and 3/52 respectively in Khichripur, Delhi, and relationship between the wives of these two were cordial and both families lived happily for about a decade. Their houses were single storeyed, adjoining each other with common wall and roof was divided by a three feet high parapet wall. Om Prakash had one built up room on the first floor. Savita - prosecutrix was having good terms with Sudha daughter of Om Prakash. The prosecution case is that in the night between 13/14th March, 1986, prosecutrix went to see Sudha, where Appellant/accused - Umesh, brother-in-law of Om Prakash was present in the house as he had started living with them for about two years. He tried to pull the hand of prosecutrix but she freed herself. Thereafter, he told that his „jiji‟ was in the room on first floor. Thereafter, prosecutrix climbed the stairs and reach the room but it was vacant.

Appellant/accused Umesh followed her into the room, bolted the door from inside and made the prosecutrix lie down on a cot, opened nara of her salwar and committed rape on her and threatened her not to disclose this to anyone. Prosecutrix disclosed that she had intercourse with accused Umesh 10 of 12 times during the period of six months; and also wrote love letters EX.DA-1 to EX.DA-7, which she innocently claimed during trial that they were on the dictation of Appellant/accused. The last encounter between prosecutrix and Appellant/accused took place between

Crl. A. No. 496/1999 Page 2 the night of 13/14th March, 1986, at about 3.30 AM, when prosecutrix went to the roof of her house, scaled the parapet wall and reached the room occupied by the Appellant, who was there and had sex with her. The mother of prosecutrix Araam Sree woke up at about 5 AM and found that the prosecutrix was not in house. She searched the prosecutrix in her house but she was not found in the back room, where she used to sleep with her brothers, nor she was found in toilet. She informed her husband Kedar Singh Yadav, checked the out door of the house and found the same duly bolted from inside. The mother of prosecutrix went to roof and after ten minutes, she saw that the prosecutrix was coming from the roof of the house of accused by scaling the wall. Prosecutrix was questioned by her parents and she narrated the entire story from the beginning before her father, mother, eldest brother - Anil (now deceased) and one Munna Lal and told that she had been raped even on that night under threat. Thereafter, Kedar Singh Yadav, his wife Araam Sree, brother Munna Lal and Anil Kumar (deceased) went to the house of Appellant/accused in order to handover him to the police, where Anil Kumar was murdered by Umesh and ran away from the spot. On information from father of Appellant/accused, SI Madan Lal went to Attah Jail where the Appellant/accused was held under section 34 of the Police Act, got the production warrant from the court and brought the accused to Delhi and formally arrested him in this case. Appellant/accused was medically examined and it was opined that there was nothing to indicate that he was incapable of sexual intercourse."

Crl. A. No. 496/1999 Page 3

4. After completion of the investigation of this case, charge-

sheet was filed against the appellant, who was called upon by the

trial court to face trial for the offences under Section 376/506 of

the Indian Penal Code, as he had not pleaded guilty to the

aforesaid charges.

5. At trial, prosecution got examined nine witnesses. Araam

Sree Devi (PW-1), deposed that there was no birth certificate of

MCD and informed that prosecutrix was 18/19 years old at the

time of incident. She denied that prosecutrix used to write love

letters to accused and intended to marry him but they had

opposed the marriage on the ground of caste. HC Kiran (PW-2)

took the prosecutrix to hospital for medical examination.

6. Prosecutrix (PW-3) had deposed that daughter of Sudha was

her friend and on the day of incident, when she went to meet

Sudha, Appellant/accused was present there, who told that Didi

was upstairs, upon which she went upstairs, accused also came

and bolted the door and made her lie on the cot, opened the nara

of her salwar and despite her resistance, he forcibly committed

the sexual intercourse. She also deposed that about 5/6 months

prior to the murder of her brother, accused threatened her not to

disclose this matter to anyone, otherwise he would defame her.

She also deposed that after that incident, whenever the accused

called her she went to his room on the first floor and Appellant

used to commit sexual intercourse with her. She also deposed

about her report Ex.PW-3/A to police and her medical

Crl. A. No. 496/1999 Page 4 examination and seizure of her Pajami Ex.P-1. In her cross-

examination, she admitted the love letters and their contents,

which she had written to appellant/accused.

7. Dr. Daya Shanker (PW-4) did the medical examination of

Appellant/accused and vide his report Ex.PW-4/A, opined that

there was nothing to suggest that Appellant/accused was

incapable of sexual intercourse.

8. Shri Shiv Dayal Madaan, TGT (PW-5), from Sarvodaya Girls

Vidyalya brought the record and placed the photocopy of the

extract Ex.PW-5/A, which showed that the prosecutrix was born

on 30.10.1972. A certificate to the same effect Ex.PW-5/B was

also given by the principal of the School. In his cross-

examination, he explained that the prosecutrix was a student of

7th class in the year 1983 and admitted that there is no MCD

certificate or affidavit of her birth on record.

9. Mr. Om Prakash, (PW-6), Record Clerk proved the report of

Dr. B Bhattacharya, Ex.PW-6/A, who had left the service of the

hospital without leaving a clue of his residence. MLC of the

prosecutrix gave the age of prosecutrix between 16 to 17 years

on the date of incident.

10. ASI Dhobhal Singh proved the deposit of case property in

Malkhana and transmission of the same to CFSL on 21.3.86 and

receipt of CFSL report Ex. PW-7/A on 7.7.86.

11. SI Gyan Singh (PW-8) after joining the investigation with SI

Madan Lal, Investigating Officer in the murder case, proved the

Crl. A. No. 496/1999 Page 5 statement of prosecutrix Ex. PW-3/A recorded by him, made an

endorsement as Ex.PW-8/A, prepared ruqa and sent to Police

Station, on the basis of which formal FIR (carbon copy of which is

Ex.PW-11/F) was recorded. He also deposed about seizure of

pajami, medical examination of prosecutrix for the sexual assault

and bony age as well as that of the accused for potency. He also

collected the school record of the prosecutrix from Head Master

of Municipal Primary School, Kalyanpuri and got a certificate Ex.

PW-8/G indicating the date of birth of prosecutrix as 30.10.1972,

as per affidavit of her mother, copy of which is Ex.PW-8/E,

Certificate from Vice Principal and Principal of the Govt. Senior

Secondary School, Kalyan Vas, Delhi were also obtained by the

Investigating Officer and in both the certificates Ex. PW-8/F and

Ex.PW-8/G the date of birth of prosecutrix was mentioned as

30.10.1972. S.I. Madan Lal is Investigating Officer of this case.

12. Before the trial court, Appellant/accused in his statement

under section 313 Cr. P.C., denied that he had been residing with

his sister Kunti Devi for about two years before the occurrence of

the incident and also denied that the room on the first floor was

in his possession. He asserted that he was not in Delhi on the

date of occurrence. He also deposed that the prosecutrix wanted

to marry him but her parents did not agree due to casteism . He

also denied incriminating evidence on record. He, however,

stated that he would like to lead evidence in his defence, but did

not name the witnesses to be summoned. He had filed an

Crl. A. No. 496/1999 Page 6 application before the learned Additional Sessions Judge for

calling the record from Etta, to show that the Appellant/accused

was juvenile on the date of incident. The Trial court noted that in

the conviction slip, the appellant/accused was shown as 18/19

years of age at the time of occurrence, still he never claimed to

be juvenile during the trial and filing of application was held to be

a new strategy to delay the disposal of the case.

13. After the trial, Appellant/accused stood convicted and

sentenced as noticed above.

14. Counsel for the parties have been heard and the evidence

on record has been perused.

15. Learned counsel for the appellant has drawn the attention

of this court to the findings in the impugned judgment, which are

as follows:-

"Even though, the loveletters and the statements of the prosecutrix leaves no manner of doubt that she was consenting party to the intercourse with the accused during the night between 13-14 March, 1986, her consent is no consent in the eyes of law, in view of exception sixthly appended to Section 375 IPC.

Though the record clerk proved the report of bony Age in place of the concerned doctor. The bony age was mentioned as between 16-17 years. It is an opinion evidence and there is always a margin on error of couple of years on both sides. In any case the school record of age is primary evidence and more reliable than the opinion evidence of doctor proved by a record clerk.

The accused is accordingly held guilty for offence under Section 376 IPC and convicted. Section 506 IPC is not proved."

Crl. A. No. 496/1999 Page 7

16. It is contended on behalf of the appellant that the bone age

report of the prosecutrix ought to have been relied upon by the

trial court and upon taking into consideration the margin of two

years, the age of the prosecutrix comes to eighteen years at the

time of this incident and since she has been found to be

consenting party, impugned conviction/sentence inflicted upon

the appellant is bad in law and it deserves to be set aside. Lastly,

it is contended that the appellant was also facing trial in a murder

case and vide order annexure-B, it was found that the appellant

was aged below sixteen years in March, 1986, and accordingly,

he was sent to the Juvenile court and as per the certified copy of

the order of 28th January, 2008, of the Juvenile Court, the enquiry

regarding the age of the appellant has been terminated by

observing that order of 21st August, 1999, of the learned

Additional Sessions Judge, observing that the appellant was

below sixteen years in March, 1986, has attained finality. Thus, it

is contended by relying upon decision of this court reported in

2004 (3) JCC 1620 that even if the conviction of the appellant is

maintained, still the sentence imposed upon him deserves to be

set aside, as he was a juvenile on the day of this incident.

Nothing else has been urged on behalf of the appellant.

17. Learned Additional Public Prosecutor appearing on behalf of

the State submits that the trial court has rightly relied upon the

school leaving certificate of the prosecutrix, which gives the age

as thirteen and a half years only and the bone age report of the

Crl. A. No. 496/1999 Page 8 prosecutrix, being an opinion evidence, has been rightly

discarded by the trial court and the plea of the appellant of being

a juvenile has not been decided by the Juvenile Board and,

therefore, there is no merit in this appeal.

18. After having heard both the sides and on perusal of record

of this case, I find that the fate of this case depends upon the

determination of the age of the prosecutrix. According to the

school leaving certificate of the prosecutrix, she was just thirteen

and a half years old at the time of this incident, whereas, her

bone age report, gives her age as between sixteen to seventeen

years.

19. Two views can be reasonably taken regarding the age of the

prosecutrix. One view is based upon the school leaving

certificate of the prosecutrix, which renders her consent

meaningless in view of clause Sixthly of Section 375 of the IPC.

The second view based upon the bone age report of the

prosecutrix which gives her age as between sixteen to seventeen

years. While taking into consideration the margin of two years, it

can be safely said that she was aged between sixteen to eighteen

years.

20. It is cardinal principle of criminal jurisprudence that when

two views can be reasonably taken, then the view which is in

favour of the accused, ought to be preferred. Trial judge has

done the reverse and has preferred to take a view, which favours

the prosecution and not the accused. I am of the considered

Crl. A. No. 496/1999 Page 9 view that it is not legally permissible to discard the scientific

evidence, which is in the shape of bone age report of the

prosecutrix, as opinion evidence and prefer school record

regarding age of prosecutrix which is based upon affidavit of a

parent of the prosecutrix.

21. While relying upon the bone age report of the prosecutrix,

Ex.PW-6/A, I hold that the prosecutrix was aged above sixteen

years at the time of this incident. Resultantly, the impugned

judgment and order, convicting the appellant, is rendered

unsustainable, and is accordingly set aside. As such, the appeal

succeeds and appellant is given benefit of doubt and is acquitted.

22. This appeal is accordingly disposed of.

SUNIL GAUR, J.

February 13, 2009
Pkb/n




Crl. A. No. 496/1999                                            Page 10