Rajesh Son Of Devi Dayal vs The State (Nct Of Delhi)
2010 Latest Caselaw 702 Del

*                     HIGH COURT OF DELHI : NEW DELHI

        Judgment reserved on : February 01, 2010
      Judgment pronounced on : February 08, 2010

+                            Crl. A. No. 74/2004

%       Rajesh son of Devi Dayal          ...   Appellant
                  Through: Mr. Sanjiv Vashisht, Advocate

                                 versus

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

CORAM:

HON'BLE MR. JUSTICE SUNIL GAUR


1.          Whether         the
            Reporters  of local
            papers    may    be
            allowed to see the
            judgment?
2.                                         No.
            To be referred         to
            Reporter or not?

3.          Whether the judgment
            should be reported in
            the Digest?

SUNIL GAUR, J.

1. The conviction of the appellant herein is for the

offences of kidnapping and rape of prosecutrix (PW-5),

who was a minor, on the day of this incident i.e. on 30th

October, 2001. Trial Court had sentenced the appellant to

rigorous imprisonment for seven years with fine of rupees

Crl. A. No. 74/2004 Page 1 two thousand for the main offence of rape. Impugned

order awards similar sentence for the offence of

kidnapping.

2. This incident of kidnapping of the prosecutrix (PW-5)

was reported to the police on 6th November, 2001, which

led to registration of FIR No.684 of 2001 under Section

363/366/376 of the IPC at Police Station Kalkaji, New Delhi.

The First information of this incident reveals that

appellant/accused was a petty employee in Kalkaji Mandir,

where father of the prosecutrix (PW-5) was a Pujari and

prosecutrix used to frequently visit this Mandir to assist

her father and appellant/accused used to often send her to

get pan etc. for him and this is how, he became

acquainted with her. Pertinently, appellant/accused is

named in this FIR as a suspect. It is prominently stated in

this FIR that all efforts were made to search for the

prosecutrix (PW-5) but her whereabouts could not be

known, then this matter was reported to the police.

3. Investigation of this case reveals that on 14th

December, 2001, prosecutrix (PW-5) and the

appellant/accused were spotted by the police, while they

were sitting at the Anand Vihar Bus Stop of route No.534

in East Delhi. Upon their apprehension, they were sent for Crl. A. No. 74/2004 Page 2 medical examination. Version of the prosecutrix was

recorded by the police and after completion of the

necessary investigation, charge-sheet in this case was

filed against the appellant/accused, who chose to contest

the charges under Section 363/366/376 of the IPC framed

against him by the Trial Court. The evidence led, not only

consists of the deposition of the prosecutrix (PW-5) but

also of her father (PW-6) and apart from the medical

evidence, there is evidence of the Investigating Officer

(PW-12).

4. Despite opportunity given by the Trial Court,

appellant/accused had not led any evidence in his

defence, but had denied the prosecution case and had

taken the following stand:-

"I was in Kalka Mandir, prosecutrix used to visit Mandir Daily. Then we developed friendship and she told me to tell her parents that I will marry her. I told her that I belong to different caste and I will not tell this to her parents and prosecutrix told me that in case I do not tell these facts to her parents then she is ready to come with me and I should take her and then I told her if she wants so she can accompany me. And I married her in court. Thereafter, I was apprehended by Police. I am innocent."

Crl. A. No. 74/2004 Page 3

5. Trial of this case concluded with the conviction of the

Appellant, which is assailed in this appeal.

6. After having heard counsel for the parties and upon

analysis of evidence on record, this Court finds that the

stand of the appellant/accused is that the prosecutrix (PW-

5) was a consenting party to the sexual intercourse and it

was preceded by marriage between them. According to

Appellant's counsel, trial court has illegally ignored the

true version of the prosecutrix (PW-5) as given by her in

her statement under Section 164 of Cr. P.C. which renders

the impugned judgment unsustainable. As regards the age

of the prosecutrix (PW-5), being between 15 to 16 years,

as per the bone age report, Ex. PW-9/A, it is asserted on

behalf of the Appellant that the benefit of margin of two

years on either side has to be given in view of the various

decision of this Court as well as of the Apex Court and trial

court has erred in not doing so. Finally, it is asserted on

behalf of the appellant/accused that apart from the

aforesaid infirmities, there is a inordinate delay in lodging

of the FIR, which makes the plea of consent taken by the

appellant/accused probable and therefore, the impugned

judgment deserves to be set aside.

7. First of all, the age aspect has to be dealt with.

Crl. A. No. 74/2004 Page 4 Prosecutrix (PW-5) in the first instance, at the time of her

medical examination gives her age as fifteen years, which

is reflected in MLC (Ex.PW-11/A). She is an illiterate girl.

Her father (PW-6), who is also illiterate, in his report to the

police, gave the age of the prosecutrix (PW-5) as twelve

years. However, statement of the prosecutrix (PW-5) - Ex.

PW-7/B, recorded under Section 164 of Cr. P.C., indicates

that the age of the prosecutrix (PW-5) is sixteen years.

The explanation given by the prosecutrix (PW-5) in this

regard, in her evidence, is that appellant/accused upon

being apprehended with her by the police, had told her

that in case she does not depose in his favour before the

Magistrate, she would be killed and therefore, she had

exonerated the appellant/accused and had incorrectly

given her age as sixteen years in her statement under

Section 164 of Cr. P.C.

8. Trial court has relied upon the categoric evidence of

Dr. Preeti (PW-9), to hold that the prosecutrix (PW-5) was

not aged more than sixteen years. Regarding giving the

benefit of margin of two years on either side, while

assessing the bone age, the best person to give an expert

opinion was Dr. Preeti (PW-9). Unfortunately, she has not

been cross-examined regarding the giving of benefit of

Crl. A. No. 74/2004 Page 5 two years on either side. For this, the appellant/accused

has to suffer. The benefit of error of two years while

assessing the bone age is not to be blindly given and

expert witness on this aspect has to be questioned about

it. In fact, there is unchallenged relevant evidence of Dr.

Preeti (PW-9) which needs to be highlighted as under:-

"When I had given the range, it cannot be more than sixteen years."

9. In such a situation, trial court had no other option

except to hold that the prosecutrix (PW-5) was aged below

sixteen years on the day of this incident. I have no reason

to take a different view than the one taken by the trial

court on this crucial aspect.

10. Now, the testimony of the prosecutrix (PW-5) has to

be reappraised in the light of the apt observations made

by the Apex Court in Dildar Singh vs. State of Punjab, AIR

2006 SC 3084, which are as under:-

"In the normal course of human conduct an unmarried girl who is victim of sexual offence would not like to give publicity to the traumatic experience she had undergone and would feel terribly embarrassed in relation to the incident to narrate such incident. Overpowered, as she may be, by a feeling of shame her natural inclination would be to avoid talking to anyone, lest the family name and Crl. A. No. 74/2004 Page 6 honour is brought into controversy. Thus delay in lodging the first information report cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same on the ground of delay in lodging the first information report."

11. The delay in lodging the FIR in this case is hardly of

one week. The reason for this delay is disclosed in the FIR

itself and is not difficult to comprehend in cases like the

present one. The reason is that the parents of the

prosecutrix (PW-5) had made frantic search for the

prosecutrix (PW-5) and when they could find her, then

ultimately, they had reported this matter to the police. In

any case, the delay is hardly of any consequence as the

clear cut stand of the appellant/accused is of prosecutrix

(PW-5) being a consenting party to the sexual intercourse.

12. A scrutiny of the testimony of the prosecutrix (PW-5),

clearly repels the plea of consent raised by the

appellant/accused. Prosecutrix (PW-5) has maintained her

stand of her accompanying the appellant/accused under

threat of being eliminated and she is clearly asserted that

her statement under Section 164 of Cr. P.C. was also

made after she was threatened by the appellant/accused.

In the light of this assertion, there was a need of a

searching cross-examination of the prosecutrix (PW-5) as

Crl. A. No. 74/2004 Page 7 to why she had not disclosed to the Magistrate at the time

of recording of her statement under Section 164 of Cr. P.C.

that she was under threat of the accused. This has not

been done.

13. Even the contents of the statement of the prosecutrix

(PW-5) under Section 164 of Cr. P.C. has not been put to

her in cross-examination by the defence. Had there been

any truth, in the statement of the prosecutrix (PW-5)

under Section 164 of Cr. P.C., the same would have found

reflection in the alleged history given by the prosecutrix

(PW-5) at the time of her medical examination. As per the

deposition of Dr. Pradeep (PW-11), the alleged history

given by the prosecutrix (PW-5) at the time of her medical

examination was of rape. Even on this aspect of alleged

history, prosecutrix (PW-5) has not been cross-examined

by the defence. Furthermore, there is not even a

suggestion to the prosecutrix (PW-5) that her evidence

before the Court, is tutored one and at whose instance.

Appellant/accused claims to have married the prosecutrix

(PW-5) but he fails to lead any evidence to support this

plea. There is no cross-examination of the prosecutrix

(PW-5) on the marriage aspect.

14. The tenor of the deposition of the prosecutrix (PW-5)

Crl. A. No. 74/2004 Page 8 does not even remotely suggest that the prosecutrix (PW-

5) was a consenting party. In the totality of the

circumstances of this case, there is no plausible reason to

doubt the version of the prosecutrix (PW-5), which is infact

found to be consistent and reliable.

15. As a sequel, this appeal is found to be without any

merit. Impugned judgment and sentence does not suffer

from any illegality or infirmity. There are no adequate or

special reasons for awarding sentence less than the

minimum prescribed. This appeal is without any substance

and is hereby dismissed. Bail bonds of the Appellant are

forfeited. Trial court is directed to take the Appellant into

custody to serve out the sentence as awarded by it and to

submit compliance report at the earliest.

16. This appeal as well as pending application, if any, are

accordingly disposed of.

Sunil Gaur, J.

February 08, 2010
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Crl. A. No. 74/2004                                        Page 9