Sohan @ Sonu S/O Late Amar Singh vs The State (Govt. Of Nct Of Delhi)
2010 Latest Caselaw 868 Del

*              HIGH COURT OF DELHI : NEW DELHI

         Judgment reserved on: February 11, 2010
       Judgment pronounced on: February 16, 2010

+                       Crl. A. No. 92/2004

%       Sohan @ Sonu s/o Late Amar Singh ... Appellants
                 Through: Mr. Ramesh Rawat and Mr.
                           Sunder Lal, Advocates

                              versus

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

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     No.
            not?

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

SUNIL GAUR, J.

1. On the plea of consent, impugned conviction and

sentence for the offence of rape, etc., is sought to be

challenged in this appeal, by asserting that prosecutrix

(PW-1) was aged seventeen years on the date of this

incident, which took place on 3rd day of October, 2001. On

that very day, a report, regarding the missing of the

prosecutrix (PW-1), was lodged by her father (PW-5), Crl. A. No. 92/2004 Page 1 leading to registration of FIR No. 543/01 under Section 363

of the Indian Penal Code at Police Station Okhla Industrial

Area, New Delhi.

2. Age of the prosecutrix (PW-1) disclosed in the Police

Report (Ex. PW-5/A), was fourteen years. On 8th October,

2001, upon recovery of the prosecutrix (PW-1) and

appellant/accused, they were got medically examined.

Age Certificate of the prosecutrix (PW-1) was obtained.

Statements of the prosecutrix (PW-1) and her parents and

that of other material witnesses were recorded. Bone age

examination of the prosecutrix (PW-1) was got done and

its report (Ex. PW-9/A) was obtained. Completion of

investigation of this case, resulted into charge sheeting of

the appellant/accused for the offences under Section

363/366/376 of Indian Penal Code. Appellant/accused had

claimed trial for the aforesaid offences by pleading not

guilty to the charges framed under the aforesaid

provisions of law.

3. Recording of the prosecution evidence began with

the deposition of the prosecutrix (PW-1) and stood

completed with the recording of the evidence of the

Investigating Officer (PW-14). The deposition of public

witness - Pradesh Kumar (PW-2) is regarding the recovery Crl. A. No. 92/2004 Page 2 of the prosecutrix (PW-1). Apart from the evidence of PW-5

- father and PW-6 - mother of the prosecutrix (PW-1),

there is medical evidence and the evidence of the official

witnesses, regarding the age certificate of the prosecutrix

(PW-1) on record.

4. Before the trial court, appellant/accused had not

taken a specific plea of consent. Rather, plea of alibi was

taken by him in his statement under Section 313 of Cr.

P.C. and to support it, he had got two witnesses examined.

Impugned judgment accepts the prosecution version and

reject the defence plea and convicts the

appellant/accused for the offence of kidnapping and rape

and imposes minimum sentence of rigorous imprisonment

for seven years with fine, which is under challenge in this

appeal.

5. At the hearing of this appeal, detailed submissions

were advanced and the evidence on record was adverted

to, and the decisions reported in 2010 (1) JCC 140 (SC);

2007 Cri.LJ (NOC) 665; 2004 (3) JCC 1754 (Delhi); AIR 1998

SC 2694; AIR 1995 SC 2169; and AIR 1982 SC 1297, have

been carefully perused and appreciated in the light of the

clinching observations made by the Apex Court in Dildar

Singh vs. State of Punjab, AIR 2006 SC 3084, which are Crl. A. No. 92/2004 Page 3 as follows:-

"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 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."

6. The principal submission made on behalf of the

appellant/accused is regarding the age of the prosecutrix

(PW-1). Prosecutrix (PW-1) as well as her parents (PW-5)

and (PW-6) in their deposition had maintained that the

prosecutrix (PW-1) was aged fourteen years on the day of

this incident. Their testimonies have been meticulously

scrutinized. No worthwhile infirmity in their depositions

has been pointed out by the defence, nor detected to

show that the prosecutrix (PW-1) was aged sixteen years

or above on the day of this incident.

7. School certificate Ex. PW-4/A shows that the date of Crl. A. No. 92/2004 Page 4 birth of the prosecutrix (PW-1), was 10th February, 1988.

School record was produced by the Vice Principal (PW-4)

of the school to prove the aforesaid School Certificate and

her deposition remained unchallenged by the defence.

During investigation of this case, appellant/accused had

produced some college document (Mark-A) to indicate that

he was aged a little more than sixteen years on the date

of this incident. This document was got verified by the

police and as per deposition of the College Principal, (PW-

3),the document (Mark-A), purported to be issued by the

College of PW-3 is forged one. Certificate to this effect

issued by PW-3 is Ex. PW-3/A, which is duly proved on

record by the College Principal (PW-3) and his deposition

remains unchallenged by the defence.

8. It is on the basis of the Bone age report (Ex. PW-9/A),

margin of error of two years on either side is claimed by

the defence and by adding two years to the upper age

given in the certificate, it is asserted on behalf of the

appellant/accused that prosecutrix (PW-1) was aged

seventeen years and eight months and so her consent

becomes meaningful. Bone age report (Ex. PW-9/A) stands

proved on record by Dr. Shashi (PW-9) whose deposition

remains unchallenged by the defence. To claim the benefit

Crl. A. No. 92/2004 Page 5 of margin of two years on either side, this witness (PW-9)

ought to have been cross-examined, which has not been

done by the defence. Therefore, no advantage to the

defence accrues on this account. The Bone age report (Ex.

PW-9/A) has to be read as it is and when the range of age

given in this report is between 14.5 and 15.8 years, it has

to be accepted, being unchallenged evidence.

9. According to Appellant's counsel, secondary

evidence, i.e., School Certificate (Ex. PW-4/A) has been

relied upon, whereas the primary evidence, i.e., from the

initial school of the prosecutrix (PW-1) at Ferozabad, UP, is

not forthcoming. Submission of this kind being advanced

for the first time in appeal, cannot be appreciated, for the

reason that there is no cross-examination of the

prosecutrix (PW-1), her parents (PW-5) and (PW-6) and of

the Investigating Officer (PW-14) on this aspect. Therefore,

this submission deserves to be rejected out rightly and is

being accordingly done. Simply because, prosecutrix (PW-

1) has uttered in her deposition that in her school record,

her year of birth is 1985, it cannot override the School

Certificate (Ex. PW-4/A) itself, which gives the year of birth

of prosecutrix (PW-1) as 1988 and because it remains

unchallenged.

Crl. A. No. 92/2004 Page 6

10. This Court is of the considered opinion that the trial court has committed no error or illegality in relying upon the unchallenged evidence, i.e., school certificate (Ex. PW- 4/A) of the prosecutrix (PW-1) to hold the prosecutrix (PW-

1) was minor on the date of this incident. The resultant effect would be to render the consent of the prosecutrix (PW-1) meaningless. The decisions cited can very well be distinguished on facts and can be no precedents.

11. During the hearing of this appeal, it was pointed out

by Counsel for the Appellant that the prosecutrix (PW-1)

had not disclosed the name of the appellant/accused at

the time of her medical examination. There is no need to

wonder about it, because there is no cross-examination of

the prosecutrix (PW-1) on this aspect. Prosecutrix (PW-1)

in her deposition disowns the version given by her in her

police statement by asserting that it was under coercion

by the police and supports the prosecution case. Since it

has been found that the prosecutrix (PW-1) was minor on

the date of this incident, therefore, question of consent

need not be gone into.

12. The cumulative effect of the entire evidence on

record, persuades this Court to uphold the impugned

judgment as it does not suffer from illegality or infirmity.

Resultantly, this appeal stands dismissed. Bail bonds of

the appellant/accused are forfeited. Trial court to ensure Crl. A. No. 92/2004 Page 7 that he is taken into custody to serve out the sentence, as

awarded by it.

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

accordingly disposed of.

Sunil Gaur, J.

February 16, 2010
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Crl. A. No. 92/2004                                      Page 8