Dilshad vs State (Govt. Of Nct Of Delhi)
2009 Latest Caselaw 1791 Del

               HIGH COURT OF DELHI : NEW DELHI

                Judgment reserved on: April 22, 2009

              Judgment pronounced on: May 01, 2009

+               Crl. Appeal No. 215 of 2000


%      Dilshad                                     ... Appellant
             Through:         Mr. Avninder Singh, Advocate

                              Versus

       State (Govt. of NCT of Delhi)         ... Respondent
             Through: Mr. Amit Sharma, Additional Public
                        Prosecutor for State

COARM
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. About a decade ago, a minor girl was kidnapped and raped.

Appellant was tried for committing this offence and the trial ended in

conviction of the appellant, which is under challenge in this appeal.

2. Appellant- Dilshad, son of Chhote Khan, is aggrieved of the

trial court judgment/ order of 17th March, 1999, vide which he has

been held guilty for committing offence under Sections 363/366 and

376 of the Indian Penal Code and vide impugned order, the

appellant has been sentenced to undergo rigorous imprisonment for

Crl. Appeal No. 215 of 2000 Page 1 two years and to pay a fine of Rupees two hundred and in default of

payment of fine, to undergo RI for one month for committing offence

under Section 363 of the IPC and to a further RI of three years and

fine of Rupees five hundred for committing offence under Section

366 of the IPC and in default thereof, to undergo RI for two months.

Besides, appellant has also been ordered to undergo RI for four

years and to pay a fine of Rupees five hundred for committing

offence under Section 376 of the IPC, and in default of payment of

fine, he has been directed to undergo RI for two months.

3. Concisely put, the background facts emerging from the record

of this case are as follows:-

On 28th August, 1997, prosecutrix (PW-1), a minor, went to T.B. Hospital, Fatehpuri, Delhi, alongwith her younger sister, for buying some medicine and on the pretext of going for nature's call, went to meet appellant/accused - Dilshad, who was acquainted to her. Appellant took the prosecutrix to Pahar Ganj, then to ISBT, Kashmiri Gate, Delhi, and thereafter boarded a bus for Muradabad. Ultimately, they both reached Salempur, i.e. to the house of appellant's sister and stayed there for one day, where appellant committed rape upon the prosecutrix. Thereafter, the prosecutrix was first taken to Salone and then to Village Pritampur where she was again raped by the appellant/accused. Missing Report vide DD No. 91- B was entered, wireless message of a missing minor girl was flashed, FIR was registered, investigation was carried out and appellant/accused was apprehended from Police Station Gajrela. Prosecutrix was taken into custody, her statement under Section 164 of the Code for Criminal Procedure was got recorded and Charge- sheet was filed in the court for the offence of kidnapping and rape.

4. The trial court framed charges under Sections 363/366 and

376 of the IPC against appellant/accused- Dilshad, whereas his co-

accused- Gajraj, was charged for committing offence under Section Crl. Appeal No. 215 of 2000 Page 2 376 of the IPC and they both were put to trial, as they had pleaded

not guilty to the charges framed against them under the aforesaid

provisions of law.

5. At trial, prosecution had got examined sixteen witnesses in

support of its case. Prosecutrix (PW-1) has asserted in her

deposition that she was aged less than fifteen years on the day of

this incident. Chanderpal Singh (PW-2) is father of the prosecutrix

who has stated on oath of his daughter was a minor, Doctor Gopesh

(PW-4) has proved Ossification Report (EX. PW-4/A) and opined

the age of prosecutrix between 14 to 16 years. Doctor Saroj Sarin

(PW-6) is the Principal of the school, who has proved date of birth of

the prosecutrix as per school records and Constable Shiv Kant (PW-

12) had arrested the appellant/accused- Dilshad and got his medical

examination done. ASI Shiv Dutt Sharma (PW-11) and Head

Constable Sunil Kumar (PW-14) had carried out investigation of this

case.

6. At the stage of recording of statement of appellant/accused,

and his co-accused, trial court found that there was no incriminating

evidence against co-accused Gajraj and therefore, on 22nd February,

1999, the trial court acquitted co-accused Gajraj by observing as

under:-

"There is nothing against accused Gajraj which may be put to him under Section 313 Cr.P.C.. Hence he is acquitted of the charge vide my separate judgment of the date. Final arguments are heard in respect of the case of accused- Dilshad".

Crl. Appeal No. 215 of 2000 Page 3

7. Appellant/accused in his statement under section 313 Cr. P.C.,

denied the prosecution case set up against him and pleaded that he

was innocent and was falsely implicated in this case. However,

appellant/accused had not led any evidence in his defence before

the trial court.

8. After the trial, appellant/accused stood convicted and

sentenced as noticed above.

9. Both the sides have been heard at length and with their

assistance, the evidence on record has been perused.

10. It is asserted on behalf of the appellant that the Prosecutrix

PW-1 was a consenting party and was major in age and the trial

court has illegally ignored the Bone Age Report of the Prosecutrix

which clearly shows that she was aged between fifteen to sixteen

years and while giving benefit of two years, the age of the

prosecutrix comes to more than seventeen years. Learned Counsel

for the appellant contends that there is no basis of the age of the

Prosecutrix, as recorded in the school leaving certificate and so the

trial court has erred in relying upon it. Learned counsel points out

that Ramphool (PW-2), Uncle of the prosecutrix, has not denied that

the Prosecutrix was aged above eighteen years on the day of the

incident. Lastly, it is contended on behalf of the appellant that when

two views are possible, then view in favour of the accused ought to

be preferred. Reliance has been placed upon a decision of the Apex

Court reported in (2001) 5 Supreme Court Cases 714, wherein, it

has been observed as under:-

Crl. Appeal No. 215 of 2000 Page 4 "The source of age recorded in the original school is not known to us in order to ascertain whether the information furnished at the time of the first admission in the school was correct or not and in this respect, no evidence has been adduced. Furthermore, if the admission of the father in his cross-examination regarding the age of the accused is accepted, entries in the school certificate cannot be said to be correct particulars of the age of the accused."

11. Another decision relied upon on behalf of the appellant is of

(2000) 9 SCC 204 to contend that for adequate and special reasons,

less than the minimum sentence was awarded in a case of rape and

the sentence was reduced to the period already undergone, even

though Prosecutrix was found to be "not more than sixteen years of

age" and was a consenting party. Thus, it is submitted in the

alternative that appellant has already remained behind bars in this

case, for about four months and therefore, sentence of four years

deserves to be reduced to the period already undergone by him as

the appellant was aged about twenty years at the time of this

incident and now he is married and has minor children to support

and because he has already faced the agony of trial and appeal

proceedings for the last about twelve years. Nothing else has been

urged on behalf of the appellant.

12. Learned Additional Public Prosecutor for the State has relied

upon the two recent decisions of the Apex Court reported in 2008 (3)

JCC 1781 & 2138 to contend that the school certificate has to be

given preference over the determination of the bone age and

especially so, in the cases like the present one. It is pointed out that

as per the School Leaving Certificate of the Prosecutrix, her date of

birth is 15th May, 1982 and on the day of this incident i.e. on 28th

Crl. Appeal No. 215 of 2000 Page 5 August, 1997, she was aged fifteen years and three months, i.e. less

than sixteen years and so her consent has been held to be

immaterial by the trial court and there is no illegality in the impugned

judgment.

13. After having heard both the sides and upon perusal of the

evidence on record and decisions cited, I find that the bone of

contention in this case is the age of the Prosecutrix. As per the

school leaving certificate ( EX. PW6/A) of the Prosecutrix (PW-1),

her date of birth recorded therein is 15th May, 1982 and as per the

deposition of Dr. Saroj (PW-6), School Principal, the said date of

birth has been recorded on the basis of the school admission

register. Prosecutrix (PW-1) in her evidence has given her age as

fifteen years, meaning thereby, she was aged fourteen years at the

time of this incident. From the evidence of Chander Pal (PW-3)

father of the Prosecutrix, it emerges that age of the Prosecutrix on

the day of the incident was fourteen years. No doubt that the

evidence of father of the Prosecutrix regarding the age of the

Prosecutrix is based upon oral testimony only and similar is the

position in the case of Ramphool (PW-2) Uncle of the Prosecutrix.

Infact, Prosecutrix in her evidence has stated that she was born in

the year 1983. However, she has denied the suggestion of the

defence that she was aged above sixteen years on the day of the

incident.

14. Now the question which arises for consideration is as to

whether the age of the Prosecutrix as given in the school leaving

Crl. Appeal No. 215 of 2000 Page 6 certificate duly proved, ought to be relied upon or her age as per the

Ossification Test Report (EX. PW-4/A) giving her age as between

fourteen to sixteen years, with margin of two years, can be the basis

to give any benefit to the appellant/accused.

15. The view of the Apex Court in the year 2001 in the case of

juveniles in a murder case stands reflected in its decision in (2001) 5

SCC 714, as noted above. The aforesaid view of the Apex Court has

under gone a sea change. In the two recent verdicts of the Apex

Court reported in 2008 (3) JCC 1787 & 2138, it has been declared

that the age of the Prosecutrix as reflected in the duly proved school

record, has to be preferred, over and above, the Bone Age Report.

The relevant observations made by the Apex Court in its decision

reported in 2008 (3) JCC 1781, reads as under:-

"On the basis of the evidence of the Headmaster and the original school leaving certificate and the school register which were produced the High Court came to abrupt conclusion that normally for various reasons the guardians to understate the age of their children at the time of admission in the school. There was not material or basis for coming to this conclusion. The High Court in the absence of any evidence to the contrary should not have come to hold that the date of birth of the prosecutrix was not established and the school leaving certificate and the school register are not conclusive.

There is no requirement that at the time of admission, documents are to be produced as regards the age of the student. Practically, there was no analysis of the evidence on record and abrupt conclusions, mostly based on surmises, were arrived at. The inevitable conclusion is that the judgment of the High Court is unsustainable, deserves to be set aside which we direct."

16. In the case of State of Karnanataka v. Bantara Sudhakara @

Sudha & Another 2008 (3) JCC 2138, Apex Court has expressed its

Crl. Appeal No. 215 of 2000 Page 7 view about the evidentiary value of the Bone Age Report, by

observing as under:-

"Additionally, merely because the doctor's evidence showed that the victims belong to the age group of 14 to 16, to conclude that the two years age has to be added to the upper age limit is without any foundation. There was no basis for coming to such a conclusion."

17. In the case of Sukhvinder Singh v. State of Punjab (2000) 9

SCC 204, relied upon by the appellant, the sentence for the offence

of rape was reduced to less than the minimum provided as the

accused had married the Prosecutrix. It is not so in the instant case.

18. The bone age report of the Prosecutrix (EX. PW4/A) reveals

that on the day of this incident, she was aged between fourteen to

sixteen years, whereas the School Leaving Certificate ( EX PW6/A)

gives the date of birth of the prosecutrix as 15th May, 1982 which

clearly shows that the Prosecutrix was aged below sixteen years on

the day of the incident. Nothing worthwhile has been brought out by

the defence in cross-examination of the school Principal or the father

of prosecutrix (PW-1) or the prosecutrix (PW-1) to show that date of

birth, as given in school record, is incorrect or there is any conflict in

age of prosecutrix (PW-1) to show that she was aged above sixteen

years on the day of this incident.

19. In view of the aforesaid latest pronouncements of the Apex

Court, I proceed to rely upon the School Leaving Certificate of the

Prosecutrix (PW-1), which given her age as below sixteen years.

Otherwise also, the School Leaving Certificate of the prosecutrix,

indicating her date of birth, can be safely relied upon, because, it

could not have been anticipated about one and a half decade ago Crl. Appeal No. 215 of 2000 Page 8 that such a unfortunate incident would take place and therefore,

there is no possibility of lesser age of the Prosecutrix being recorded

in the school records. The possibility of understating the age of the

children by the parents at the time of the admission in the school,

has been discounted by the Apex Court in its recent verdict in 2008

(3) JCC 1781 (supra).

20. In view of the aforegoing narration, I do not find any illegality or

infirmity in the impugned judgment, calling for any interference by

this court in this appeal. This appeal is devoid of merit and is

accordingly dismissed. Appellant is on bail. His bail bonds are

cancelled and he is directed to surrender forthwith, failing which, trial

court shall ensure that he is put behind bars to serve out the

remainder of the sentence, as awarded to him. Trial court be

apprised of this order, to ensure its compliance.

21. This appeal is accordingly disposed of with directions as

aforesaid.

Sunil Gaur, J.

May 01, 2009
rs




Crl. Appeal No. 215 of 2000                                          Page 9