Vishnu Kumar vs The State (Delhi Administration)
2010 Latest Caselaw 879 Del

*                     HIGH COURT OF DELHI : NEW DELHI

         Judgment reserved on: February 08, 2010
       Judgment pronounced on: February 16, 2010

+                           Crl. A. No. 19/2004

%       Vishnu Kumar                        ... Appellant
                 Through: Mr. H.P. Aditya, Advocate

                                 versus

        The State
        (Delhi Administration)              ...  Respondent
                  Through: Mr. R.N. Vats, 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.          To be referred to Reporter or         No.
            not?

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


SUNIL GAUR, J.

1. Award of minimum sentence of seven years with fine,

for the offence of rape and of three years with fine, for the

offence of kidnapping of the prosecutrix (PW-1) aged

about fourteen and a half years in February, 2001, is

assailed by the appellant/accused in this appeal. Both

these substantive sentences were not ordered by trial Crl. A. No. 19/2004 Page 1 court to run concurrently, but while entertaining this

appeal, it stands clarified vide order of 31st July, 2006 of

this Court that these two substantive sentences have to

run concurrently.

2. As the prosecution version goes, on 10th February,

2001, a report was lodged by the father (PW-2) of the

prosecutrix (PW-1), regarding missing of his daughter

Durgesh @ Pooja (PW-1) since 9th February, 2001, and on

this report, FIR No. 73/2001 under Section 363 of the IPC

was registered at Police Station Rohini, Delhi. The

investigation of this FIR, led to the recovery of the

prosecutrix (PW-1) and the apprehension of the

appellant/accused from his native place. They were got

medically examined and the statement of the prosecutrix

(PW-1) under Section 164 of the Cr.P.C. was recorded.

Charge-sheet under Section 376 and 363 of the IPC was

placed before the Court concerned and the

appellant/accused had claimed trial for these offences.

Recording of evidence began with the deposition of the

prosecutrix (PW-1), followed by the evidence of her father

(PW-2). PW-4 - Mother of the prosecutrix (PW-1) had also

deposed in this case. The medical evidence was also led

to prove the MLCs of the prosecutrix (PW-1) and the

Crl. A. No. 19/2004 Page 2 accused herein. Official witness was also examined by the

Trial Court to prove the birth certificate Ex.PW.10/A of the

prosecutrix (PW-1). ASI Dharampal (PW-13) had

investigated this case.

3. The plea taken by the appellant/accused before the

trial Court was of prosecutrix (PW-1) being a consenting

party, as she was in love with him. According to the

appellant/accused, father of the prosecutrix (PW-1) was

opposed to the marriage of the appellant/accused with the

prosecutrix (PW-1). However, no evidence was led by the

appellant/accused in his defence before the trial Court.

4. The trial of this case ended in the conviction of the

appellant/accused, which is impugned herein.

5. Both the sides have advanced their respective

contentions. The recorded evidence has been re-

appreciated and the decisions cited have been perused.

6. The aforemost contention advanced on behalf of the

appellant/accused is regarding the age of the prosecutrix

(PW-1). It is pointed out that prosecutrix (PW-1) in her

evidence has admitted that she does not know her date of

birth and the same is the stand of her father (PW-2), who

had stated in his evidence that the prosecutrix (PW-1) was

Crl. A. No. 19/2004 Page 3 the youngest, i.e., sixth child and he stands contradicted

by the official witness (PW-10), who has clearly stated in

his evidence that the prosecutrix was the fifth child in the

family.

7. Appellant's counsel had sought to contradict the date

of birth given in the Birth Certificate (Ex. PW-10/A) of the

prosecutrix (PW-1), by drawing the attention of this Court

to the certified copy of the order of trial Court of 16th April,

2001, declining bail to the appellant/accused, wherein

Investigating Officer had disclosed the date of birth of the

prosecutrix (PW-1) as 13th October, 1984. According to

the counsel for the appellant, Birth Certificate

(Ex.PW.10/A) is of one Durgesh and it cannot be said to be

of the prosecutrix (PW-1), who is known as Pooja. Reliance

has been placed upon decisions reported in 1992 JCC

376, and 1994 Crl.L.J. 1216, by learned counsel for the

appellant to contend that where there is discrepancy

regarding the age of the prosecutrix (PW-1) then the

benefit of doubt has to go to the accused.

8. The testimony of the prosecutrix (PW-5) has been

reappraised in the light of the pertinent observations

made by the Apex Court in Dildar Singh vs. State of

Punjab, AIR 2006 SC 3084, which are as under:-

Crl. A. No. 19/2004                                               Page 4
         "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."

9. I have thoughtfully pondered over the submissions

advanced. Testimony of the prosecutrix (PW-1) has to be

read as a whole and upon doing so, I find that in her

deposition, she has not given her date of birth but has

stated that she was aged 14 years and she was studying

in sixth standard in the school. Her cross-examination by

the defence does not go to show that she was aged

sixteen years or more on the date of this incident. PW-2 -

Father of the prosecutrix (PW-1) does not give the date of

birth of the prosecutrix (PW-1) but had produced her birth

certificate - Ex. PW-10/A, before the police.

10. It is true that the prosecutrix (PW-1) and her father

(PW-2) state in their evidence that prosecutrix (PW-1) was

Crl. A. No. 19/2004 Page 5 the youngest child of the family, but from their

depositions, it could not be shown that prosecutrix (PW-1)

was aged sixteen years or more on the date of this

incident. Therefore, nothing turns on the stray utterance

of official witness (PW-10) regarding prosecutrix (PW-1)

being fifth child of her family.

11. Birth Certificate (Ex. PW-10/A) of prosecutrix (PW-1)

gives her date of birth as 13th October, 1986. Meaning

thereby, that the prosecutrix (PW-1) was aged about

fourteen and half years on the date of this incident. The

deposition of the official witness (PW-10) proving the Birth

Certificate (Ex. PW-10/A), virtually remains unchallenged.

However, Birth Certificate (Ex. PW-10/A) is sought to be

discredited by relying upon certified copy of bail order,

wherein one Sub-Inspector Anand Kiran had orally

disclosed the date of birth of the prosecutrix (PW-1)

mentioned in one certificate as well as in school record is

13th October, 1984. It is a matter of record that Sub-

Inspector Anand Kiran (PW-9) is not the main Investigating

Officer of this case and he has not been confronted with

the alleged statement made by him at the hearing of the

bail application on 16th April, 2001. The Birth Certificate

(Ex. PW-10/A) in question, was in fact, not seized by ASI

Crl. A. No. 19/2004 Page 6 Anand Kiran (PW-9) but was taken into possession by the

main Investigating Officer (PW-13). In any case, contents

of the bail application cannot be given precedence over

and above documentary evidence, i.e., Birth Certificate

(Ex. PW-10/A), which stands conclusively proved on

record.

12. Appellant/accused cannot be now heard to say that

the Birth Certificate (Ex. PW-10/A) is of one Durgesh and

not of the prosecutrix (PW-1), because Investigating

Officer (PW-13), who had seized this Birth Certificate (Ex.

PW-10/A) has not been cross-examined by the defence on

this aspect. Furthermore, prosecutrix (PW-1) has clarified

in her evidence that she was known as Durgesh in the

school. Birth Certificate (Ex. PW-10/A) indicates that the

name of the father of Durgesh mentioned therein is

Netrapal, who is the father of the prosecutrix (PW-1).

There is no cross-examination of the prosecutrix (PW-1) or

her father (PW-2) that there is any other child in the family

by the name of Durgesh. In fact, PW-2 - father of the

prosecutrix (PW-1) gives her name as Durgesh @ Puja. It

has not been suggested to any of the witnesses that the

Birth Certificate (Ex. PW-10/A) in question does not relate

to the prosecutrix (PW-1).

Crl. A. No. 19/2004                                        Page 7
 13. Taken             in   the   right   perspective,   there   is   no

controversy, inconsistency or discrepancy regarding the

age of the prosecutrix (PW-1) and so, the reliance placed

upon the decisions reported in 1992 JCC 376 and 1994

Crl.L.J. 1216, is clearly misplaced. Upon re-appreciation

of the entire evidence on record, this Court finds that the

trial court has rightly arrived at a conclusion that the

prosecutrix (PW-1) was aged about fourteen and half years

on the date of this incident.

14. Since this court concurs with the finding of the trial

court regarding the age of the prosecutrix (PW-5),

therefore, the question of consent need not be gone into,

as the consent of the prosecutrix in cases where she is

below sixteen years, is immaterial.

15. In the light of the aforesaid, reliance placed upon

decisions reported in 1997 (1) RCR 85; 1998 (2) JCC

(DELHI) 122, 2003 II AD (S.C.) 358; 2003 II AD (DELHI)

777; 2009 (3) JCC 2002 and 2010 (1) JCC 292; is of no

avail.

16. In the ultimate analysis, this Court is of the

considered opinion that the conviction and the sentence

imposed upon the appellant/accused is well merited and it

Crl. A. No. 19/2004 Page 8 calls for no interference by this Court. This appeal is

without merit and is dismissed. Bail bonds of the

appellant/accused are forfeited. Trial court to ensure that

he is taken into custody to serve out the sentence, as

awarded by it.

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

accordingly disposed of.

Sunil Gaur, J.

February 16, 2010
n/pkb




Crl. A. No. 19/2004                                      Page 9