Delhi High Court
Bhagwan Dass @ Bablu vs State Of Delhi on 13 December, 2011
Author: Mukta Gupta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Crl. Appeal No. 707/2002 & Crl.M.B. 773/2011
% Reserved on: 29th November, 2011
Decided on: 13th December, 2011
RAM SINGH @ KARAN ..... Appellant
Through: Mr. Bhupesh Narula, Advocate
versus
STATE N.C.T. OF DELHI ..... Respondents
Through: Mr.Mukesh Gupta, APP for State.
AND
+ Crl. Appeal No. 367/2002
BHAGWAN DASS @ BABLU ..... Appellant
Through: Mr. Permod Bajaj, Advocate
versus
STATE OF DELHI ..... Respondents
Through: Mr.Mukesh Gupta, APP for State.
Coram:
HON'BLE MS. JUSTICE MUKTA GUPTA
1. By these appeals, the Appellants lay a challenge to the judgment dated
28th April, 2002 convicting the Appellant Ram Singh for offence punishable
under Section 376 IPC and the Appellant Bhagwan Dass for offence
punishable under Sections 376/109 IPC.
2. By the order on sentence, the Appellants Ram Singh and Bhagwan
Dass have been directed to undergo rigorous imprisonment for a period of
seven years and a fine of Rs.500/- each and in default of payment of fine to
further undergo simple imprisonment for one month.
3. Learned counsel for the Appellants contends that though the Appellant
Ram Singh was charged for the offences punishable under Sections 366/376
IPC and the Appellant Bhagwan Dass for offences punishable under Sections
366/34 and 376/109 IPC, however Appellant Ram Singh has been convicted
only for offence punishable under Section 376 IPC and Appellant Bhagwan
Dass for abetment thereof. The learned Trial Court has held that the
prosecutrix was a consenting party by upholding the defence of the
Appellants. However, in view of the School Leaving Certificate it came to
the conclusion that the prosecutrix was below 16 years of age and, thus, her
consent was immaterial.
4. Learned counsel for the Appellants submits that as per the ossification
test the age of the prosecutrix was opined to be 16 to 18 years and in view
thereof, the Appellants were entitled to be acquitted of the charges framed.
The date of birth, as entered in the School Leaving Certificate, was
supported by no contemporaneous document. In the absence of
reliability of the School Leaving Certificate, the medical evidence, i.e., the
report of the bone ossification test should have prevailed thus entailing the
benefit to the Appellants. Further, in view of the fact that the Trial Court
itself came to the conclusion that the prosecutrix was a consented party, the
sentence awarded to the Appellants was on the higher side.
5. I have heard learned counsel for the parties.
6. Briefly, the case of the prosecution is that FIR No.511/1997 was
lodged for offences under Sections 363/366/376 IPC at PS Sarojini Nagar on
complaint filed by Charan Singh, the father of the prosecutrix, who alleged
that on 25th August, 1997, at about 8:30 p.m. his daughter "u" aged about 15
to 16 years had gone to Ram Mandir, Safdarjang Enclave to celebrate
Janmashtmi but had not returned back. He apprehended that accused Ram
Singh @ Karan and Bhagwan Dass had kidnapped his daughter. On
28.8.1997, both the appellants along with prosecutrix were apprehended near
Hanuman Mandir. Statement of the prosecutrix was recorded under Section
164 Cr.P.C. wherein she stated that she was born on 20th March 1982. That
year i.e. in 1997, she failed in the 10th standard because she was weak in
Mathematics, since then she had stopped going to school. Her mother sent
her to her uncle's house at Safdarjang Enclave. Her aunt's daughter was also
of her age. On the day of Janmashtmi, both of them went with their friends
to see Ram Mandir. When she went to the toilet, she met two boys whom she
knew since earlier as they were neighbours in Sultanpuri. She named them
as Ram Singh @ Karan and Bhagwan Dass @ Bablu. They stated that her
parents were standing on the other side and were calling her as her sister was
unwell. She went with them. There she found two other unknown boys
standing near a taxi. The two boys put a handkerchief on her mouth, made
her sit in the taxi and took her. When she got up in the morning, she found
that she was in a plot which had a dilapidated room. There Ram Singh gave
beatings to her and then raped her. When Ram Singh was doing this
Bhagwan Dass @ Babloo was standing outside guarding the place. She
could not make noise as her mouth was shut with a chunni. Thereafter, the
two of them went away and came there in the evening but did not speak to
her. Next day morning they planned to take her at a Mandir where the Police
and her mother rescued her.
7. The prosecutrix has supported her version and so have her parents
PW3 Rajwati and PW4 Charan Singh. However, prosecutrix was confronted
by the letters written by her to Ram Singh which expressed her love towards
him. In her statement in the Court, she also stated that she went to different
places in a rickshaw and on foot with the Appellants, however she did not
raise any hue and cry.
8. In view of the letters of the prosecutrix expressing her love towards
the Appellant Ram Singh and the conduct of the prosecutrix, the learned
Trial Court came to the conclusion that the prosecutrix was a consenting
party in going with the appellants. This finding of the learned Trial Court is
not incorrect on the basis of evidence on record.
9. However, the core issue is the age of the prosecutrix. The learned
Trial Court, on the basis of the School Leaving certificate came to the
conclusion that the date of birth of the prosecutrix was 20th March, 1982 and
thus on the date of incident i.e. 25th August, 1997 she was 15 years 5 months
and 5 days old. I find no reason to disagree with the learned Trial Court on
this count. The School Leaving Certificate of the prosecutrix from
Government Middle School, P- Block, Sultanpuri, has been proved as
EXPW10/A by PW10 Ravinder Singh Mann. Even the school record, on the
basis of which the School Leaving Certificate was prepared, had been
produced. As per the school record, the date of birth of the prosecutrix was
recorded as 20th March, 1982. The prosecutrix was admitted to the school on
2nd April, 1986 on the basis of the School Leaving Certificate issued by the
previous school attended by the prosecutrix. Thus, there is no reason not to
rely on the certificate and rely on the bone ossification test which gives only
a rough estimate of age. Further, even as per the bone ossification test, the
prosecutrix was about 16 years thus corroborating the age of the prosecutrix
in the School Leaving Certificate. I find no infirmity in the impugned
judgment convicting the appellants for the offences punishable under Section
376 and 376/109 IPC respectively.
10. As regards the sentence, the prosecutrix was just below 16 years. For
special reasons to be recorded, the Court can award a sentence less than the
minimum prescribed period of 7 years. In view of the fact that from the
evidence adduced, the Appellants have been able to successfully show that
the prosecutrix was in love with the Appellant Ram Singh @ Karan and had
gone of her own free will thus, it is a fit case to reduce the sentence of the
Appellant below 7 years.
11. The Appellant Ram Singh has been convicted for offence punishable
under Section 376 IPC. He has undergone a sentence of Rigorous
Imprisonment for about 5 years 8 months. The Appellant Bhagwan Dass has
been convicted for offence punishable under Section 376/109 IPC. He has
undergone Rigorous Imprisonment for about 3 years. In view the aforesaid
discussion, the sentence of the Appellants are modified to the period already
undergone. The appellants are in custody. The Superintendent, Tihar Jail, is
directed to release the Appellants forthwith, if not required in any other case.
12. The appeals and application are disposed of accordingly.
(MUKTA GUPTA)
JUDGE
DECEMBER 13, 2011
'ga'
