Nitish Kumar @ Pinku @ Bablu vs State
2010 Latest Caselaw 534 Del

             HIGH COURT OF DELHI: NEW DELHI
+                CRL. APPEAL NO. 234/2008
%

NITISH KUMAR @ PINKU @ BABLU            ..... Appellant
                 Through: Mr.S.M.Chopra,Adv.

                         Versus

STATE                                           .....Respondent
                         Through: Mr. M.P. Singh, Adv.


Coram:
HON'BLE MR. JUSTICE A.K. PATHAK

       1. Whether the Reporters of local papers Not Necessary
          may be allowed to see the judgment?

       2. To be referred to Reporter or not?      Not Necessary

       3. Whether the judgment should be          Not Necessary
          reported in the Digest?


A.K. PATHAK, J. (ORAL)

1. Appellant has been convicted under Section 376 of the

Indian Penal Code (IPC) by the learned Additional Sessions

Judge, New Delhi; sentenced to face rigorous imprisonment

for a period of seven years and pay fine of Rs.5,000/-; in

default of payment of fine to further undergo rigorous

imprisonment for a period of three months.

2. Briefly stated, prosecution case is that on the night

intervening 22nd and 23rd September, 2004 Sub Inspector Ram

Babu Singh was on patrolling duty along with Constable Ram

Kishore and when he reached near Patel Chowk at about 2:30

AM he found prosecutrix; a minor girl, along with appellant, in

suspicious circumstances; On making enquiry she disclosed

that appellant had raped her. Even, prior thereto she was

raped by the appellant and his other friends. Prosecutrix

could not give details of other boys, thus, they could not be

apprehended.

3. On the statement of prosecutrix, FIR No. 238/2004 was

registered at police station Parliament Street. Prosecutrix

was medically examined at Lady Hardinge Medical College,

New Delhi. As per the MLC hymen was found torn; doctor

opined that recent sexual intercourse cannot be ruled out.

There was no documentary evidence to indicate the exact age

of the prosecutrix. As per radiological examination she was

between 10 to 12 years of age.

4. Medical examination of the appellant was conducted at

R.M.L. Hospital, wherein it was found that he was capable of

performing sexual intercourse. Blood and semen samples of

appellant were taken by the doctor.

5. Statement of prosecutrix under Section 164 of the Code

of Criminal Procedure (Cr.P.C.) was got recorded before the

learned Metropolitan Magistrate, wherein prosecutrix

corroborated her version, as contained in the FIR.

Prosecutrix stated that she was resident of Utter Pradesh; her

father was a rickshaw puller; she had gone to Amritsar along

with her brother, where she was lost in the crowd. Thereafter

she came to Delhi by a train and someone dropped her at

Bangla Sahib Gurudwara. That the appellant and one Raj

Singhania met her there. They committed " galat kaam" with

her after removing her clothes; while committing rape they

also gagged her mouth.

6. Charge under Section 376 IPC was framed by the

learned Additional Sessions Judge against the appellant on

13th January 2005 to which he pleaded not guilty and claimed

trial.

7. Prosecution examined eleven witnesses in all.

Prosecutrix was examined as PW1. Dr. Varsha Jain, who had

medically examined prosecutrix, was examined as PW6. Dr.

Amit Kochar, who had opined the age of prosecutrix between

10 to 12 years, was examined as PW7. Learned Metropolitan

Magistrate, who had recorded the statement of prosecutrix

under Section 164 Cr.P.C., was examined as PW11. Sub

Inspector Ram Babu Singh and Constable Ram Kishore, who

found prosecutrix in the company of appellant in the odd

hours in the night intervening 22nd and 23rd September, 2004

near Patel Chowk, were examined as PW4 and PW8

respectively. These were the material witnesses. All other

witnesses are formal being police officials, who had

participated in the investigation at one stage or the other.

8. After prosecution closed evidence, statement of

appellant under Section 313 Cr.P.C. was recorded on 20 th

August, 2005, wherein entire incriminating evidence, which

had come on record during the evidence, was put to him.

Appellant denied it to be incorrect and claimed himself to be

innocent. He stated that he had been falsely implicated.

However, he did not examine any witness in his defence.

9. I have heard the learned Amicus Curiae for the

appellant, learned counsel for the State and perused the trial

court record, more particularly the deposition of PW1

prosecutrix. First of all, it is necessary to ascertain whether

prosecutrix was minor on the date of incident. As per the

prosecutrix herself she was raped outside the Gurdwara not

only by the appellant but by some other boys as well. In case

she is found major and healthy woman the whole case has to

be viewed with different perspective as in such an eventuality

question regarding prosecutrix being a consenting party may

have to be looked into. But in case she is minor, the consent

would be meaningless.

10. In her statement under Section 164 Cr.P.C. prosecutrix

had given her age as 10 years. This statement was recorded

on 1st October, 2004. While deposing in the court on 26 th

February, 2005 she gave her age as 10 years. During the

investigation, birth certificate of the prosecutrix was not

collected by the Investigating Officer. Prosecutrix deposed

that she was not attending any school. Thus, no documentary

evidence was available on record to indicate the exact age of

the prosecutrix. The only evidence is in the shape of medical

evidence. Her age was determined on the basis of

radiological examination. PW7 Dr. Amit Kochar proved the

report given by the team of doctors regarding bony age of

prosecutrix as Ex. PW7/A. He deposed that on 8th November,

2004 six number of x-ray plates of prosecutrix were examined

by him along with Dr. Yasoda Rani and Dr. Atul Murari and on

the basis thereof prosecutrix was found between 10 to 12

years of age. This witness was not even cross-examined by

the appellant. There is no reason to disbelieve the statement

of PW7 duly supported by Ex. PW7/A according to which, age

of the prosecutrix was between 10 to 12 years of age as on the

date of incident. At the same time, it is also well settled that

age determined through radiological examination is not

accurate. It varies two years on either side. In Jaya Mala vs.

Home Secretary, Govt. of J & K, reported in AIR 1982 SC

1297, it has been held that margin of error in age ascertained

by radiological examination is to be taken as two years on

either side.

11. In absence of any other documentary evidence, court has

no option but to accept the age as determined through

radiological examination but while doing so, it shall give

margin of two years, that too for the benefit of accused.

However, in this case even if this benefit is extended to the

appellant, the age of prosecutrix would be at the most about

14 years. This shows that the prosecutrix was minor as on the

date of incident.

12. I have perused the testimony of PW1 and find her to be

trustworthy and reliable. Statement of PW1 has remained

unshattered in her cross-examination and is in line with the

prosecution story, as set up in the FIR, as also in her

statement recorded under Section 164 Cr.P.C. From the

version of the prosecutrix it is clear that she along with her

brother had gone to Amritsar where she was lost in the crowd.

At the railway station she boarded another train and reached

New Delhi Railway Station. She was a destitute minor girl,

lost in a metropolis like Delhi and in search of a shelter she

reached Bangla Sahib Gurudwara, where she was violated by

unscrupulous and mischievous boys including the appellant.

She was a helpless adolescent girl who had fallen prey to the

lust of the appellant who in fact continued to exploit her till

PW4 Sub Inspector Ram Babu Singh and PW8 Constable Ram

Kishore intercepted them in the odd hours of about 2:30 AM

near Patel Chowk. She being minor, illiterate and a small

town girl probably could not to do anything to fend away the

appellant from sexually assaulting her. In her cross-

examination prosecutrix categorically affirmed that accused

had raped her; she confirmed that the police met her and

saved her from the clutches of appellant. In my view

testimony of PW1 is trustworthy and reliable and has been

rightly accepted by the learned Additional Sessions Judge for

convicting the appellant under Section 376 IPC.

13. Learned Amicus Curiae has failed to point out any

discrepancy in the testimony of PW1, so as to make her

testimony unreliable and untrustworthy.

14. I do not find any material illegality, impropriety or any

infirmity in the impugned judgment and order on sentence,

inasmuch as, learned Additional Sessions Judge has already

taken a lenient view by awarding minimum sentence of seven

years to the appellant as provided under Section 376(1) IPC.

15. Appeal dismissed.

A.K. PATHAK, J February 01, 2010 rb