Teja @ Tejveer Singh @ Tej Pal vs Nct Govt. Of Delhi (State)
2009 Latest Caselaw 3889 Del

*             THE HIGH COURT OF DELHI AT NEW DELHI

%                             Judgment Reserved on: 21.08.2009
                              Judgment delivered on: 22.09.2009

                            Crl. Appeal No. 160/2006 &
                            Crl. M. (Bail) 558/2009

TEJA @ TEJVEER SINGH @ TEJ PAL                             ..... Appellant

                                          Vs

N.C.T. GOVT. OF DELHI (STATE)                              ..... Respondent

Advocates who appeared in this case:

For the Appellants           : Mr Naresh Kumar, Advocate
For the Respondent           : Mr Amit Sharma, Addl. Public Prosecutor

CORAM :-
HON'BLE MR JUSTICE RAJIV SHAKDHER

1.     Whether the Reporters of local papers may
       be allowed to see the judgment ?
2.     To be referred to Reporters or not ?                Yes
3.     Whether the judgment should be reported
       in the Digest ?                                     Yes

RAJIV SHAKDHER, J

1. This is an appeal preferred by the appellant against the

judgment and sentence dated 21.12.2005 rendered by the

Additional Session Judge (ASJ), Karkardooma, Delhi. The learned

ASJ, by virtue of the impugned judgment, has sentenced the

appellant to a rigorous imprisonment for a period of 10 years for

each of the offences under Section 363/366 and 376 of the Indian

Penal Code, 1860 (in short the „IPC‟). In addition, a fine of

Rs 5,000/- has been imposed in respect of each of said offences. In

default, the appellant/accused would be required to undergo simple

imprisonment for a further period of one year for each of the

offences. The sentences are to run concurrently.

2. The appellant/accused who is convicted for an offence of

kidnapping and rape has primarily pivoted his defence on the

ground of consent of the prosecutrix (PW1), who he claims,

willingly accompanied him in fleeing from her home, and

subsequently got married to him. However, this by itself would not

end the travails of the appellant/accused because even if the

prosecution fails to establish that there was a lack of consent, it

could still succeed in getting the appellant/accused convicted at

least under Section 376 of the IPC, if it is able to prove that on the

date of the incident, i.e., 16.01.2002 the age of the prosecutrix

(PW1) was less than 16 years, as it would then, constitute a rape

within the provisions of the 6th circumstance provided for under the

provisions of Section 375 of the IPC. Unfortunately, the trial court

has confined its examination of the case only to this aspect and,

therefore, returned a finding only as regards the issue as to

whether the prosecutrix (PW1) on the date of incident was below

the age of 16. This, according to me, is an approach which should

be abjured by the trial courts. The trial court ought to have

determined both the issues. Given the fact that nearly 7 years have

passed from the date of the incident, and the appellant has already

undergone nearly half of the sentence, awarded to him, it would be

inappropriate for this court not to examine all the contentions of the

appellant/accused based on the evidence, available on record.

3. It is in this background that one is called upon to examine the

case of the prosecution. The prosecution has examined Sixteen (16)

witnesses, out of which three (3) are the relatives of the prosecutrix

(PW1) being; the father Mool Chand (PW3), mother Kaushalya

(PW7), and cousin brother Rajesh (PW2). The land lord of the

house, where the prosecutrix (PW1) and the appellant/accused

stayed for nearly one month, Mahesh (PW5), has also been

examined. Dr. Usha Upreti, who examined the prosecutrix (PW1)

on 27.02.2002 is PW9, while Dr. S.B. Jangpangi, who examined the

appellant/accused, is PW10. The remaining witnesses, apart from

the prosecutrix (PW1), are police witnesses, who were involved with

various facets of the investigation. The edifice of the prosecution‟s

case, therefore, rests mainly on the testimony of the prosecutrix

(PW1) herself, the members of her family, the land lord and the

doctors, who examined her and the appellant/accused.

4. The prosecution version is as follows: On 19.01.2002, ASI

Chanchal Sharma (PW4) was on duty at police station Mandawali,

Delhi. At about 1.50 p.m., he received a complaint from the father

(PW3) of the prosecutrix (PW1), which inter alia, brought to fore the

fact that the prosecutrix (PW1), had attended her school on

16.01.2002 for her pre-board examination along with her younger

sister Monika. Since the prosecutrix (PW1) did not return from her

school, the complainant/father (PW3) tried to look for her at all

known places, including the house of his relatives and friends. The

complainant/father (PW3) also made enquiries with the owner of

the van, which each day took the prosecutrix (PW1) along with

other children to the school and brought them back. Through his

enquires with the van owner that PW3, the father of the

prosecutrix, learnt that the appellant/accused had been removed

from employment. It is in these circumstances, that the

complainant/father (PW3) informed the police that he suspected the

appellant/accused of having kidnapped the prosecutrix (PW1).

Based on his complaint, a FIR bearing no. 19/2002 under Section

363 of the IPC was registered on 19.01.2002.

4.1 The ASI Chanchal Sharma (PW4) proved the registration of

FIR being Ex. PW3/A. He also deposed that the FIR was handed

over to SI D.K. Tejwan (PW15) through constable Pawan Kumar

(PW8).

4.2 SI Pawan Kumar (PW8), in his testimony, deposed that on

receipt of the FIR he handed over the same to SI D.K. Tejwan

(PW15). He further deposed that they visited the village of the

appellant/accused in Ghazipur, U.P. where they met his sister Saroj

as well as his brother. In their visit to Ghazipur, they were

accompanied by PW3, the father of the prosecutrix (PW1). It is

here that they were handed over a passport size photograph of the

appellant/accused, which SI D.K. Tejwan (PW15) took in his

possession and drew up a memo (Ex. PW8/A). In his examination-

in-chief, even though he deposed that it was the prosecutrix (PW1)

who had handed over the birth certificate issued by St. Andrews

Scots Senior Secondary School, where she was studying at the time

when the incident took place; in his cross-examination, however, he

slipped into amenisia and, stated that he did not remember having

made any statement with regard to having taken into possession

the age certificate of the prosecutrix (PW1). PW8, however, stated

that the I.O. seized the birth certificate and drew up a memo being

Ex. PW 8/B.

4.3 S.I. D.K. Tejwan, I.O. (PW15) confirmed the events of

19.01.2002, that is, receipt of information from the father (PW3)

about his daughter having been kidnapped by the

appellant/accused. He testified that on receipt of information,

notices were published with respect to, the prosecutrix (PW1) and

the appellant/accused which he proved as Ex. PW15/A and

Ex.PW15/B respectively. He also testified that wireless messages

were flashed with regard to the kidnapping of the prosecutrix

(PW1). He testified having collected the age certificate of the

prosecutrix (PW1) from the complainant/father (PW3). He deposed

that on 26.02.2002, secret information was received that the

appellant/accused was residing with the prosecutrix (PW1) at DD-

221, Krishna Colony, Palwal, Haryana. Thereafter, on receipt of

information, he testified, a raiding party comprising of himself,

cousin brother of the prosecutrix, Rajesh (PW2) and constable

Somdutt (PW14) reached Palwal (Haryana) along with the informer,

at about 11.00 p.m. At 6.00 a.m. in the morning, the next day they

entered the house situated at DD-221, Krishna Colony, Palwal,

Haryana, where both the prosecutrix (PW1) and the

appellant/accused were found present. The prosecutrix (PW1) was

identified by her cousin brother Rajesh (PW2). A recovery memo

(Ex. PW2/A) was prepared. He proved his signatures at point „A‟ on

the recovery memo. He also testified that a site plan (Ex. PW15/D)

of the place of recovery was also prepared. He testified with regard

to his signatures at point „A‟ on the site plan. He also deposed with

respect to the fact that a statement of the owner of the house,

Mahesh (PW5) was also recorded by him. He also testified with

regard to the medical examination of both the prosecutrix (PW1)

and that of the appellant/accused. He further deposed with respect

to having received two sealed packets (pulandas) and one sample

containing the vaginal swab. He deposed having received the blood

sample of the appellant/accused. He further testified that the

sealed packet (pulanda) (Ex. PW12/A) containing underwear and

blood sample of the appellant/accused, and the other packet

(pulanda) (Ex. PW11/A) containing undergarments and vaginal

swab of the prosecutrix (PW1) were sent to the Forensic Science

Laboratory (FSL), Malviya Nagar, Delhi, through Constable Kheta

Ram (PW13) for examination. He testified with regard to the fact

that the said reports are exhibited as Ex. PW/E1 to Ex. PW/E3 as

also the fact that the Ossification report of the prosecutrix (PW1) is

Ex PW15/F. In his cross-examination, he testified that prosecutrix

(PW1) and the appellant/ accused were lying on a cot when they

were apprehended and the prosecutrix (PW1) was wearing salwar

and shirt, while the appellant/accused was wearing pant and shirt

at that point in time. He accepted the fact that at the time when

the prosecutrix (PW1) and the appellant/accused were apprehended

they did not attempt to run away. He had no recollection, however,

as to whether the prosecutrix (PW1), at the time when she was

apprehended, had applied sindhoor on her forehead. He denied the

suggestion that the prosecutrix (PW1) had told him, at the time

when she was apprehended along with the appellant/accused, that

the appellant/accused was her husband, and that she wanted to live

with him and not go back to her parents. In his cross-examination

he seems to have contradicted himself as to whether the appellant/

accused, at the time when he was apprehended, was carrying a

mobile phone. At one point he said that the appellant/accused had

a mobile phone with him, and immediately thereafter, he denied

this fact.

4.4 As indicated by me, the testimony of the prosecutrix (PW1) is

crucial for the purposes of this case. In her testimony, the

prosecutrix (PW1) has stated that she had been travelling in the

van, driven by the appellant/accused, for about two months prior to

the date of incident. She has also testified that the appellant/

accused had, on one such trip, handed over a letter to her, in which

he had expressed his love and affection for her, which was not

reciprocated by the prosecutrix (PW1). On 16.01.2002, the

prosecutrix (PW1) travelled by the van to appear for her pre-board

examination. In the afternoon she got into the same van. The van

was empty, according to the prosecutrix (PW1), as younger children

were on vacation, due to pre-board examination being held for

students of classes Xth and XIIth. The prosecutrix (PW1) testified

that the appellant/accused instead of taking the van home, took the

van to some other place. On the way she, however, screamed.

Since the appellant/accused threatened to harm her and her family

members, she remained quiet. The van, according to her, took her

to a place outside Delhi, wherefrom she did not attempt to

telephone her parents, since the appellant/accused issued threats

both vis-à-vis her and her family members. The prosecutrix (PW1)

deposed that she started living with the appellant/accused, and it is

then that he subjected her to sexual intercourse repeatedly over the

period of one month, that she lived with him, in a tenanted

accommodation, outside Delhi. She testified that her date of birth

was 18.07.1986. In her cross examination, she deposed that she

knew the appellant/accused for nearly two months prior to the

incident. The appellant/accused used to telephone her at her

residence; however, she was not aware of the mobile number of the

appellant/accused. She also testified that even though threats were

meted out to her while they were travelling in the van, the

appellant/accused did not, at any point in time, leave his seat. The

prosecutrix (PW1) testified that at the various traffic signals, where

the van stopped, she did raise an alarm but persons passing by

could not hear her, since the windows of the van were rolled up.

4.5 What is important is that in her testimony, she accepts the

fact that even though she got acquainted with the ladies of the

tenanted house, where they were living, however, at no point in

time did she disclose to them that she had been kidnapped or

subjected to sexual intercourse by the appellant/accused against

her will. In the prosecutrix‟s (PW1) testimony, it has clearly come

out that she informed the other ladies of the house where she was

residing with the appellant/accused, that she was the wife of the

appellant/accused. The prosecutrix (PW1) also testified to the

effect that the appellant/ accused did step out of the house for a

period of 1 to 3 hours daily, at which point in time she was alone,

and even so, she made no attempt to escape from the house where

they were living. She also deposed that it was the appellant/

accused who would cook and wash clothes for both of them, while

they were living in the house. She denied the suggestion that the

appellant/accused had sexually assaulted her prior to 16.01.2002,

i.e., the date of the incident. The prosecutrix (PW1) denied the

factum of her marriage with the appellant/accused. In her

testimony, the prosecutrix (PW1) accepted that she did not resist

the sexual assault of the appellant/accused though she had tried to

push the appellant/accused away. She stated that since the

appellant/accused would shut her mouth, it prevented her from

raising an alarm, while being subjected to sexual intercourse. She

deposed that the appellant/accused was in love with her. However,

the feeling was not reciprocated by her.

4.6 The cousin brother Rajesh (PW2) testified with respect to the

fact that he had gone along with the police to the appellant‟s/

accused village at Ghazipur, U.P., where they were handed over a

photograph of the appellant/accused by his family members. He

also testified to the effect that he had accompanied S.I. D.K. Tejwan

(PW15) on 26.02.2002 on their raid at the house in Palwal

(Haryana), from where the prosecutrix (PW1) and the appellant/

accused were apprehended. In his cross examination, he denied

the suggestion that the prosecutrix (PW1) was a major, and that she

was married to the appellant/ accused.

4.7 The complainant/father (PW3) of the prosecutrix (PW1) in his

testimony detailed the events of 16.01.2002. He deposed with

respect to lodgement of the complaint by him with the police

station, Mandawali, Delhi, on 19.01.2002. He proved his signatures

on the FIR (Ex. PW3/A) at point „A‟. He deposed with respect to the

medical examination of the prosecutrix (PW1) at Lal Bahadur

Shahtri Hospital (in short the „Hospital‟) on 27.02.2002. In his

cross-examination, PW3 testified that at the time of his daughter‟s

admission at St. Andrews Scots Senior Secondary School, he had

submitted a school leaving certificate issued by the school in which

she was earlier admitted, which is, Sarvodaya Laghu Mahyamik

Vidyalya at Ghajipur, U.P. He testified that the prosecutrix (PW1)

was admitted to St. Andrews Scots Senior Secondary School in

1997, and that his younger daughter Monika was admitted to the

same school in 1999. He denied the suggestion that the prosecutrix

(PW1) had informed him about being teased by the appellant/

accused at any time prior to 16.01.2002. He denied the suggestion

that the prosecutrix (PW1) was 22 years old. He denied the

knowledge of the fact that the prosecutrix (PW1) received

telephone calls from the appellant/accused at their residence.

4.8 The landlord, Mahesh (PW5), identified the appellant/accused

as the one who had stayed at his house. He testified that on

16.01.2002 the appellant/accused came to his house looking for a

room on rent along with the prosecutrix (PW1), who he claimed to

be his wife. He deposed that he had let out the house on a monthly

rent of Rs 400. He deposed that while the appellant/ accused was

away from his house, the prosecutrix (PW1) had often accompanied

his wife and other ladies to the market. In his cross-examination,

he testified that the prosecutrix (PW1) used to apply sindhoor, and

also wore chutaki in the fingers of her feet, and also, a mangalsutra,

and that she dressed like a married woman. He further testified

that the prosecutrix (PW1) had attended a „jasotan‟ ceremony held

at his house. It was also brought out in his cross-examination that

he had a telephone installed in his house to which the prosecutrix

(PW1) had access. He further testified that he had seen both the

appellant/accused and the prosecutrix (PW1) in a compromising

position. He testified that the prosecutrix (PW1) never made any

complaint against the appellant/accused to him or any other

members of the family.

4.9 Ms P.L. Rana (PW6), Principal of St. Andrews Scots Senior

Secondary School testified that the prosecutrix (PW1) was admitted

to their school on 30.07.1997, and as per their record her date of

birth was 10.07.1986. She testified that the certificate (Ex PW6/A)

was issued by her, on 19.01.2002. She proved the application form

(Ex. PW6/B) for registration of admission of the prosecutrix (PW1)

which was filed by her parents, on 23.07.1997. She also proved the

certificate issued by the school in which the prosecutrix (PW1) was

admitted (Ex. PW6/C). She testified that as per the original register

of all the students, maintained by the school, the prosecutrix‟s

(PW1) name appeared at serial no. 1687, and that as per the said

register her date of birth was 10.07.1986. In her cross-

examination, she accepted the fact that there was over-writing in

Hindi of the word „swecha‟ and, also with respect to, the date of

birth which has been evidently changed from 10.07.1985 to

10.07.1986. She also testified that there was over-writing of the

word „naukri‟ after the name, Mool Chand.

4.10 Sh. Ram Karan Singh Yadav (PW16), who at the relevant time,

was the Asst. Head Master of Sarvodya Laghu Mahyamik Vidyalya,

Gazipur, U.P., deposed that as per their record, the date of birth of

the prosecutrix (PW1) was 10.07.1986. He testified that the

prosecutrix was admitted to their school on 18.07.1996, in Grade VI

and, continued in the school till 11.07.1997. He proved the transfer

certificate being Ex. PW6/C, which bore the signatures of the

Principal at point „A‟. In his cross-examination, it was observed by

the Court, that except the entry pertaining to the prosecutrix

(PW1), the Principal had not signed any of the entries in the

register.

4.11 The appellant/accused in his statement under Section 313 of

the Code of Criminal Procedure, 1973 (in short the „Cr.P.C.‟) clearly

stated that at the relevant point in time on 16.01.2002, he was not

in the service of the school. He made a categorical statement that

he had left the job of the school one month prior to the date of the

incident, and that it was the prosecutrix (PW1), who had called him

to school; and after initial reluctance, on the prosecutrix‟s (PW1)

insistence, he agreed to visit her at the school. He categorically

stated that the prosecutrix (PW1) had informed him that she was 19

years of age, and that the prosecutrix (PW1) had willingly

accompanied him to Palwal (Haryana) as she was in love with him;

a relationship which was objected to by her family members. He

also stated that they had got married and were staying at Palwal

(Haryana) as husband and wife for a period of one month before

they were apprehended by the police. The appellant/accused‟s

defence was one of false implication.

4.11 Dr. Usha Upreti (PW9), who examined the prosecutrix (PW1),

proved the MLC (Ex.PW9/A). She confirmed the opinion rendered

by her in the MLC. In her deposition she clearly testified as

follows:-

"No injury marks over thigh or vulva, bilateral labia majora and minora normally developed, hymen - torn, old tear + no fresh injury mark, carunculae myritiformis.

P/S - Cervix healthy; vagina healthy. P/V vagina patulous, admitting two fingers easily, uterus deviated to left side, normal size, mobile, R/V bilateral fornices free, non tender."

4.12 In her cross-examination, PW9 testified that when the vagina

admits two fingers, it can be concluded that the person concerned

is sexually active.

4.13 Dr. S.B. Jangpangi (PW10) proved the MLC (PW10/A) with

regard to clinical examination of the appellant/accused. He

testified that the appellant/accused was capable of performing

sexual activity. He also testified that the under garments of the

appellant/accused as well as his blood samples were sealed and

handed over to the I.O. (PW15).

Submissions of Counsel

5. The learned counsel for the appellant/accused submitted that

the reading of the testimony of the prosecutrix (PW1),

complainant/father (PW3), mother Kaushalya (PW7), cousin brother

Rajesh (PW2) and more importantly, the land lord Mahesh (PW5)

would show that the prosecutrix (PW1) went away with the

appellant/accused of her own will; the prosecutrix (PW1) was living

with the appellant/accused as his wife in Palwal (Haryana); and that

therefore, it could not be said that the prosecutrix (PW1) was

subjected to sexual intercourse against her will.

5.1 As regards the age of the prosecutrix (PW1), the learned

counsel for the appellant submitted that the Ossification report

clearly shows [which has been proved by the I.O. (PW15) and

marked as „X‟] that the prosecutrix (PW1) was between 18 to 22

years of age at the time of the incident. He also referred to the

application form (Ex. PW6/B) for registration of admission as well

as the certificate (Ex. PW6/C), issued by the Sarvodya Laghu

Mahayamik Vidyalya, Ghazipur, U.P., to demonstrate that there was

over-writing in the first one with respect to the date of birth, in

particular, the year which has been changed from 1985 to 1986,

and in the second certificate (Ex. PW6/C), there was over-writing

with respect to the column where details of the father had to be

given in so far as the words „naukri‟ was concerned, as also the date

of birth, which was once again quite evidently over-written and

changed from 1985 to 1986. He submitted that the admission and

withdrawal register, on which reliance has been placed by the

prosecution, in which the date of birth of the prosecutrix (PW1) was

given as 10.07.1986 being Ex. PW6/D, would have no relevance

since the entry was on the face of it made on 04.04.2002, much

after the date of the incident, as well as, the filing of the FIR. He

also took me through the testimony of the mother Kaushalya (PW7)

to show that her deposition with regard to the age of the

prosecutrix (PW1) cannot be relied upon. In brief, his submission

was that in view of the fact that there is overwhelming evidence of

the fact that the prosecutrix (PW1) went away with the

appellant/accused of her own volition, and lived with him as his

wife, the offences of kidnapping and rape were not made out. He

further submitted that in view of the fact that the Ossification

report indicated that the age of the prosecutrix (PW1) was 18 to 22

years on the date of the incident, and given the fact that there was

tampering with the record of the case, and the inherent

unreliability of the evidence of the other witnesses being interested

witnesses, it could not be held that the case of the

appellant/accused came within the ambit of the definition of the

„rape‟ as provided under the 6th circumstance of Section 375 of the

IPC.

6. As against this, Mr Amit Sharma, the learned APP, laboriously

took me through the evidence of prosecutrix (PW1) to show lack of

consent on her part. He submitted that there was apprehension of

danger to her life which inhibited her from disclosing the fact that

she was being subjected to sexual intercourse against her will. As

regards the age, the learned APP submitted that the birth

certificate was a vital piece of evidence which the courts have

accepted for determination of the age of a rape victim. He relied

upon the judgment of the Supreme Court in the case of State of

Maharashtra vs Gajanan Hemant Janardhan Wankhede

(2008) 8 SCC 38.

Reasons

7. I have heard the learned counsel for the appellant as well as

the learned APP for the State. I am of the view that the benefit of

doubt will have to be given to the appellant/accused for the

following reasons: The testimony of prosecutrix (PW1) as well as

that of the land lord, Mukesh (PW5), clearly raises the following

issues and hence a doubt with regard to the prosecution version:

(i) How is that the prosecutrix (PW1) travelled from Delhi to

Palwal (Haryana), which is a journey of nearly two hours, in broad

day light, and it did not attract anyone‟s attention despite the fact

that prosecutrix (PW1) testified that she had raised an alarm. It is

not conceivable that the prosecutrix (PW1) could have been

controlled by the appellant/accused while he was driving the van in

which they were travelling. It is also inconceivable and therefore,

difficult to accept that she could not attract any passerby‟s

attention even though the van stopped at various traffic signals as

per her own testimony.

(ii) How is it that despite the fact that the prosecutrix (PW1) was

left alone for long hours by the appellant/accused while he went

away for work or, to attend to his personal chores, the prosecutrix

(PW1) did not use the circumstance to her advantage. This fact

raises doubts as regards the prosecution‟s case that she was unable

to physically free herself from the clutches of appellant/accused. It

is not the prosecution‟s case that while the appellant/accused was

away, the prosecutrix was tied, locked or gagged.

(iii) The acceptance by the prosecutrix (PW1) in her testimony

that she informed the ladies of the house, in which she was staying

in Palwal (Haryana), that she was the wife of the appellant/accused;

a fact which is also substantiated by the testimony of the land lord

Mahesh (PW5). The argument put forth by the prosecution that the

prosecutrix (PW1) could not divulge the truth to the other

occupants of the house or any person in locality because the

appellant/ accused had threatened her and her family members, is

difficult to believe, given the time span over which the

appellant/accused and the prosecutrix (PW1) lived in the house of

PW 5.

(iv) The testimony of the land lord, Mahesh (PW5), clearly brings

out the actual scenario, which was, that the appellant/accused and

the prosecutrix (PW1) were living in the house as husband and wife.

As a matter of fact, PW5 testified that in her appearance, the

prosecutrix (PW1) always brought to bear on her persona

accompaniments which are associated with a married woman. In

this regard, he made reference to the fact that she applied sindhoor

and wore chutaki on her toes which are attributed to a married

lady.

(v) The prosecutrix (PW1), on her own showing, as per the

testimony of the land lord Mahesh (PW5) clearly had several

opportunities to escape the clutches of the appellant/accused or at

least divulge her ordeal, if any, to the landlord (PW5) or, to the

other ladies of the house at Palwal (Haryana). The fact that she

freely visited the nearby market with the other ladies of the house

at Palwal (Haryana), where they were residing, only fortifies the

suspicion that the prosecutrix (PW1) was not confined to the house

against her will.

8. Based on the evidence on record, I am not persuaded to

accept the case, set up by the prosecution, that the prosecutrix

(PW1) was subjected to sexual intercourse against her consent.

9. This brings me to the other aspect of the matter, as to

whether the prosecutrix (PW1) on the date of the incident was less

than 16 years of age. The prosecutrix (PW1) in her testimony has

deposed that her date of birth is 18.07.1986. The record of both St.

Andrews Scots Senior Secondary School (Ex. PW6/B) as well as

Sarvodya Laghu Mahyamik Vidyalya (Ex. PW6/C) seems to indicate

that the prosecutrix‟s (PW1) date of birth is 10.07.1986. The

Ossification report, mark „X‟, shows the age of the prosecutrix

(PW1) between 18 to 22 years. Both the father (PW3) and the

mother (PW7) have denied the suggestion that the prosecutrix

(PW1) was a major on the date of the incident. Ordinarily, the

courts accept the date of birth certificate, issued from a

corporation, hospital or even one issued by the school. This is

based on the rationale that there would be no reason to incorporate

an incorrect date of birth on such like documents, as it could not

have been anticipated at the time when such information is entered

in the records of such authorities that the prosecutrix (PW1) would

get involved in an incident such as a rape. However, this statutory

rule of prudence is given a go-by when, in a given case, a doubt is

cast with regard to the quality of evidence produced in that regard.

In the instant case, the doubts are cast for the following reasons:

(i) Constable Pawan Kumar (PW8), in his examination-in-chief,

says that the prosecutrix (PW1) had handed over the birth

certificate issued by the principal of St. Andrews Scots Senior

Secondary School. In his cross-examination, he further stated that

he did not remember if he had made a statement regarding taking

possession of the birth certificate from the prosecutrix (PW1).

(ii) On the other hand, the I.O. (PW15), in his testimony, has

stated that the birth certificate of the prosecutrix (PW1) was

collected by him from the complainant/father (PW3).

(iii) Ms P.L. Rana (PW6), principal of St. Andrews Scots Senior

Secondary School clearly stated in her testimony that the entry as

regards the date of birth of the child at the stage of admission is

made as per the information given by the parent. In her cross-

examination, she produced both the application form (Ex. PW6/B)

filled up by the parents, as also the certificate issued by school

where the prosecutrix (PW1) was studying prior to her admission to

St. Andrews Scots Senior Secondary School (Ex. PW6/C). There is

undoubtedly an over-writing with regard to the word „naukri‟,

„swecha‟, as well as the year of birth, which has been changed from

1985 to 1986.

(iv) Similarly, Sh. Ram Karan Singh Yadav (PW16), Asst. Head

Master of Sarvodya Laghu Mahyamik Vidyalya, Gajipur, U.P. clearly

accepted in his cross-examination that the original certificate did

not bear the signatures of the principal. Furthermore, the court

had observed that the original register which contained the records

of the students did not bear the signatures of the principal.

(v) Furthermore, the testimony of the mother (PW7) would

indicate that while she claims to be an illiterate in court; however

her qualification recorded in Ex. PW6/B, which is the application

form for registration of the admission of the prosecutrix (PW1) in

St. Andrews Scots Senior Secondary School disclose her

qualification as High School. PW7 has also clearly contradicted

herself in so far as the age of the prosecutrix (PW1) is concerned.

Before the court PW7 has given her age as 45 years. The testimony

of PW7 was recorded in court on 04.07.2003. She has claimed that

they had been residing in Delhi for about 8 to 9 years, which would

fix the year as 1994 or 1995. She has stated that she admitted the

prosecutrix (PW1) to Grade VI. In 1993-94, if the date of birth of

the prosecutrix (PW1) is taken as 10.07.1986, her age would be

around 7 or 8 years. It does seem unlikely that the prosecutrix

(PW1) could have gained admission to Grade VI when she was 7 or

8 years old. Furthermore, in her cross-examination PW7 said that

when she gave birth to the prosecutrix (PW1), she was about 19 to

20 years of age. In 2002, if the PW7‟s claim is accepted, that the

prosecutrix was 16 years then, by this calculation in 2003, PW7

should have been around 37 years of age, and not 45 years, as she

had stated on oath before the court.

(vi) The reliance by the learned APP on the judgment of Gajanan

Hemant Janardhan (supra) is of no help for the reason that, in

that case, the Supreme Court came to the conclusion that the High

Court should not have ignored the evidence which emerged with

regard to the date of birth of the prosecutrix from the school

leaving certificate and the school register. In the instant case, it

has clearly come out in the cross-examination that there is over-

writing in both exhibits, Ex. PW6/B, which is the application form

for registration/admission of the prosecutrix in St. Andrews Scots

Senior Secondary School, and Ex. PW6/C, which is a document

produced by Sarvodya Laghu Mahyamik Vidyalya, in respect of date

of birth of the prosecutrix (PW1).

10. If the date of birth of the prosecutrix (PW1) is taken as

10.07.1986, then, on the date of the incident, the prosecutrix (PW1)

would be around 15 years and six months. Keeping in mind the

evidence which has emerged in the present case vis-à-vis the age of

the prosecutrix (PW1), I am of the view that the benefit of doubt

should go to the appellant/ accused for the reason that both the

Exhibits, Ex. PW6/B, which is the application form for registration/

admission of St. Andrews Scots Senior Secondary School, and Ex.

PW6/C, which is a document produced by Sarvodya Laghu

Mahyamik Vidyala, clearly indicate that there is over-writing

crucially with regard to the year of birth of the prosecutrix (PW1).

The said interpolation, when seen in the light with the ossification

report (Ex. Mark „X‟), and the contradictions in the testimony of the

mother (PW7), and the inconsistency as to who handed over Ex. PW

6/B to the police, as has emerged from the testimony of constable

Pawan Kumar (PW8) and I.O. (PW15), clearly casts doubt with

respect to the age of the prosecutrix (PW1) on the date of incident,

as propounded by the prosecution.

11. In these peculiar circumstances, I would grant the benefit of

doubt to the appellant/accused. Unfortunately, in the impugned

order, as observed by me above, the trial court has not only not

dealt with the aspect, as to whether or not the prosecutrix (PW1)

was subjected to sexual intercourse with her consent, but also

failed to deal with the other crucial aspect which is discussed

above, that is, the interpolation of Ex. PW6/B and PW6/C. The trial

court, without discussing the anomalies in the said evidences, came

to a conclusion of conviction, in my view erroneously, by applying

the case law, without appreciating or weighing the evidence which

has come on record in the instant case. As to how the trial court

has recorded the conclusion in paragraph 21 of the impugned

judgment to the effect, that it is proved that the prosecutrix (PW1),

on the date of the incident, was below the age of 18, is a complete

mystery.

12. For the reasons given hereinabove, the appeal is allowed and

the impugned judgment is set aside. The appellant/accused is

acquitted of the offences, with which he has been charged in the

instant case. The appellant/ accused shall be set free, in the event,

he is not required in any other case.

RAJIV SHAKDHER, J SEPTEMBER 22, 2009 kk