Delhi High Court
Ali Sher @ Raju vs The State & Another on 21 January, 2011
Author: A. K. Pathak
IN THE HIGH COURT OF DELHI: NEW DELHI
+ CRL. APPEAL 507/2009
% Judgment decided on: 21st January, 2011
ALI SHER @ RAJU .....APPELLANT
Through: Mr. Rajesh Mahajan and
Ms. Satsheel Sheokand,
Advs.
Versus
THE STATE & ANOTHER .....RESPONDENTS
Through: Mr. M.P. Singh, APP for the
State
Coram:
HON'BLE MR. JUSTICE A.K. PATHAK
1. Whether the Reporters of local papers No
may be allowed to see the judgment?
2. To be referred to Reporter or not? No
3. Whether the judgment should be No
reported in the Digest?
A.K. PATHAK, J. (Oral)
1. Appellant has been convicted under Sections 363/376
IPC by the Trial Court; sentenced to undergo rigorous
imprisonment for seven years with fine of Rs.1,000/- and in
default of payment of fine to undergo simple imprisonment for
three months under Section 376 IPC; sentenced to undergo
rigorous imprisonment for two years with fine of Rs.500/- and
in default of payment of fine to undergo simple imprisonment
for one and half months under Section 363 IPC.
2. It is this judgment which is under challenge in this
appeal.
3. Prosecution case as unfolded is that one Sauraj Singh
came to the Police Station Vasant Vihar on 11th October, 2006
and made a statement that his daughter (hereinafter referred
to as the "prosecutrix") aged about 14 years was missing from
the house since 10th October, 2006. His neighbor Alisher @
Raju (appellant) was also missing. On his this statement FIR
No. 491/2006 under Section 363 IPC was registered.
Investigation was handed over to SI Pradeep Rawat. During
the investigation he came to know that appellant and
prosecutrix were in Agra. He along with Sandhya, aunt of the
prosecutrix went to Agra on 17th October, 2006 and found
prosecutrix and appellant present at the bus stand of Vidya
Niketan Colony. On the pointing of Sandhya, appellant and
the prosecutrix were apprehended. They were brought to Delhi.
Medical examination of prosecutrix was conducted in
Safdarjung Hospital. Hymen was found torn but no mark of
injury was found on the body of prosecutrix.
4. Appellant was also medically examined in the same
hospital. No marks of external injury were found on the body
of the appellant as well. Doctor opined that there was nothing
to suggest that appellant was not competent to perform sexual
intercourse under normal circumstances.
5. Age of the prosecutrix was got determined through
radiological examination by a medical board of doctors since
no document could be produced by the parents of the
prosecutrix in support of her age. After examining the x-ray
plates of her wrist, elbow, shoulder and pelvis, doctors opined
that age of the prosecutrix was between 14 to 16 years.
6. Statement under Section 161 Cr.P.C of the prosecutrix
was recorded. It may be noted here that investigation of the
case was handed over on 18th October, 2006 to Women
Assistant Sub Inspector Kailash (hereinafter referred to as the
"I.O.") who recorded the statement under Section 161 Cr.P.C of
the prosecutrix. In her statement prosecutrix stated that
appellant was her neighbor. He was married. Appellant and
his wife used to quarrel almost daily. On 10th October, 2006
she was sad as her parents had reprimanded her. Appellant
asked her as to why she was upset at which she narrated the
entire story to him. He told her that he was also fed up with
his wife. He suggested that they should go somewhere else
and set up a new home. Appellant took her to Agra where they
stayed in the house of a friend of appellant located in Vidya
Niketan Colony. Appellant introduced her to them as his wife.
Appellant did "bura kaam" with her for 2/3 days. While they
were going to some other house police officials apprehended
them at the bus stand.
7. On 19th October, 2006 statement of the prosecutrix was
recorded under Section 164 Cr.P.C before Metropolitan
Magistrate, Delhi wherein she stated that on 10th October,
2006 she was standing outside her house when appellant
came there and took out one cloth from his pocket and waived
it in front of her face. Thereafter, she followed him meekly. He
took her to Agra. There he kept her in his friend's house. He
gave beatings to her. He kept her there for several days.
During this period he did "galat kaam" with her after removing
his clothes and her clothes. When she objected to this he gave
beatings to her. Appellant used to bolt the room from outside
whenever he went out. One day she saw someone outside the
room and called him. Said person opened the latch of the
room and she went to a nearby STD booth. She rang up her
aunt who brought the police officials with her to Agra.
8. Charges under Sections 363/376 IPC were framed by the
Trial Court against the appellant to which he pleaded not
guilty and claimed trial.
9. Prosecution examined eight witnesses in all to support its
story. Prosecutrix has been examined as PW1. Her father
Sauraj has been examined as PW4. Her aunt Sandhya has
been examined as PW2. SI Pradeep Rawat has been examined
as PW8. I.O. has been examined as PW5. Dr. G.A. Sunil has
been examined as PW3. He has deposed that the appellant
was potent to perform sexual intercourse. PW6 Dr. Garima
had clinically examined the prosecutrix. She has proved her
report as Ex. PW6/A. She has deposed that the possibility of
rape and sexual assault cannot be ruled out. PW7 Dr. M.K.
Wahi has proved bony age report as Ex.PW7/B. He was
Chairman of the Board which had examined the x-ray plates
and opined the age of prosecutrix above 14 years and below 16
years. He has deposed that margin of error of six months to
one year on lower side of the age as well as on the higher side
of the age is possible in such cases. All other witnesses are
formal in nature being police officials having been joined with
the investigation at one or the other stage.
10. After prosecution closed its evidence, statement under
Section 313 Cr.P.C. of the appellant was recorded wherein
entire incriminating material, which had come on record, was
put to him. The case of the appellant is that of simple denial.
He claimed that he had been falsely implicated on account of
earlier quarrel between his wife and the prosecutrix. He has
not led any evidence in his defense.
11. After scrutinizing evidence regarding the age of
prosecutrix, Trial Judge has held that there was possibility
that prosecutrix was above 16 years of age.
12. Learned Amicus Curiae has vehemently contended that
age of the prosecutrix has to be taken 18 years after extending
benefit of two years on the higher end, as determined by the
doctors through radiological examination. Conduct of the
prosecutrix as emerges from the record indicates that she was
a consenting party. Prosecutrix had accompanied the
appellant and stayed with him for about seven days without
raising any alarm or making any effort to escape which itself
shows that she was a consenting party. During this period she
had passed through crowded places and travelled by public
transport without raising any alarm, She even did not
complain to any person including her fellow passengers that
appellant had been taking her with him forcibly. Prosecutrix
has not deposed that appellant had threatened her by showing
any weapon or otherwise and for this reason she had meekly
accompanied him. Testimony of prosecutrix is discrepant as
she has taken inconsistent stand at different stages. In
nutshell, his contention is that prosecutrix being a consenting
party, no offence of rape within the meaning of Section 375 IPC
is made out against the appellant. Reliance has been placed
on Satish Kumar Vs. State (Delhi) 1987 (3) Times 597. He
has further contended that offence under Section 363 IPC is
not made out since the prosecutrix had accompanied appellant
voluntarily. Reliance has been placed on S. Varadarajan Vs.
State of Madras 1964 (1) SCR 243.
13. Per contra, learned APP has vehemently contended that
prosecutrix is a trustworthy and reliable witness. In her
statement under Section 164 Cr.P.C as also while deposing in
the Court, she has categorically deposed that appellant had
taken her away against her wishes. She was made to smell
one handkerchief. Thereafter, she lost her senses and
accompanied the appellant without raising any alarm.
Prosecutrix has deposed that she was confined in a room by
the appellant, thus, there was no occasion for her to raise any
alarm. One day, she saw a person outside the room who
helped her in coming out of the room. She went to a STD
booth and rang up her aunt and narrated the incident to her.
Police officer was informed. Police officials along with aunt of
the prosecutrix went to Agra and apprehended the appellant.
In nutshell, contention of learned APP is that prosecutrix was
not a consenting party.
14. I have considered the rival contentions of both the parties
and meticulously scrutinized the evidence led before the Trial
Court. First of all, it would be relevant to return a finding
regarding age of the prosecutrix. In case, prosecutrix is found
below 16 years of age her consent would be immaterial in view
of clause sixthly of Section 375 IPC which provides that sexual
intercourse with a woman under 16 years of age with or
without her consent would amount to rape. In this case, no
documentary evidence was made available to the Trial Court
regarding exact age of the prosecutrix. No ocular evidence is
also there to conclusively indicate that the age of prosecutrix
was below 16 years as on the date of incident. Only medical
evidence is available in this regard. PW7 Dr. M.K. Wahi was
the Chairman of the Board which had rendered opinion
regarding the age of the prosecutrix on the basis of radiological
examination. He has deposed that x-ray plates were examined
by him and other members of the Board. From the physical,
dental and radiological examination it was found that
prosecutrix was above 14 years but below 16 years of age. At
the same time he has admitted that there is possibility of
margin of six months to one year error on lower side of the age
as well as on the higher side of the age. Thus, it is clear that
age of a person cannot be conclusively determined by
radiological examination. Margin of error is always there. In
Jaya Mala Vs. Home Secretary, Govt. of Jammu & Kashmir
& Ors. 1982 SCC 502, it has been held that one can take
judicial notice that the margin of error in age ascertained by
such examination is two years on either side. In Satish Kumar
(Supra), Senior Radiologist had opined the age of the
prosecutrix between 14 to 16 years. It was held that there can
be existence of variation in the age on account of climatic,
diabetic or hereditary factors extending upto one to two years,
thus, age of the prosecutrix, could be between 17 to 18 years.
In Azim vs. State 2010 III AD (Delhi) 823, as per the opinion
of the doctor, who had examined the x-ray plates, age of the
prosecutrix was above 14 and below 16 years. A Single Judge
of this Court held that since there can be variation of up to two
years in the bony age determined by examination of X-ray
plates, the age of the prosecutrix could be up to approximately
18 years at the time she left the house of her parents. In this
case no other evidence is available except report of PW7
according to which age of the prosecutrix was between 14 to
16 years. By giving benefit of margin of error of two years, the
age of the prosecutrix can safely be taken as approximately 18
years. Thus, prosecutrix is to be taken as major as on the date
of incident.
15. A perusal of testimony of prosecutrix makes it clear that
she was a consenting party. Such inference can be drawn
from her conduct. Prosecutrix has admitted that appellant
was her neighbor. In her statement recorded on 16th October,
2010 she has no where stated that appellant had waived a
cloth on her face and, thereafter, she followed him meekly till
they reached Agra. Instead, she has stated that on 10th
October, 2006 she was sad on account of scolding by her
parents. Appellant came up to her and told that he was also
fed up on account of quarrels with his wife and they should go
somewhere and set up a new home. Thereafter, she
accompanied him to Agra where he kept her in his friend's
house. She has admitted in her cross-examination that while
she was travelling with the appellant from Delhi to Agra, as
also during her stay with him for about seven days, she did not
raise any alarm nor complained anyone that appellant had
brought her forcibly and against her wishes. In her cross-
examination, she has stated that from their house they went to
bus stand in an auto rickshaw. Before boarding the auto
rickshaw they had walked for about 10 minutes through the
market. There were so many passengers at the bus stand as
also in the bus. Bus reached Agra at about 2 am in the night.
From the bus stand they went to the house where they stayed,
on foot, which was at a walking distance of 5 to 10 minutes.
Appellant asked her to stand outside the house while he went
inside the house. He came back and took her inside the
house. There was no toilet in the house. Her this statement
clearly shows that she was a consenting party and had
accompanied the appellant voluntarily. Prosecutrix walked
with the appellant through the crowded market. At the bus
stand lot of passengers were there. She travelled with the
appellant in a crowded bus. Judicial note of the fact can be
taken that at the railway station/bus stand presence of police
officials can be noticed. In spite of this, she did not make any
effort to raise alarm or to tell the people that appellant had
been taking her against her wishes. In her statement under
Section 164 Cr.P.C., she has stated that she was standing
outside her house, when appellant came there and waived a
cloth in front of her face where after she followed him. It is
hard to fathom that she would have walked for about 10
minutes before boarding the auto rickshaw and thereafter
travelled in the crowded bus and thereafter walked again for
about 10-15 minutes in semi-conscious state. She has vividly
described the way they reached Agra which also makes this
story set up by her highly improbable. It is unlikely that such
a detailed description can be given by a person who had been
allegedly in semi-conscious state. Her conduct makes her a
consenting party.
16. Prosecutrix has deposed that appellant used to bolt the
room from outside whenever he went out. One day she saw
somebody near the room and called him. He opened the door,
thereafter, she went to a nearby STD booth and talked to her
aunt Sandhya on telephone narrating her plight. Her aunt
along with police officials came to Agra and apprehended
appellant. However, her this statement is suspicious having
remained uncorroborated from the testimony of PW2 Sandhya,
who has nowhere deposed that she had received any call from
the prosecutrix. The story propounded by the prosecutrix also
fails to inspire confidence that she was confined in a room by
the appellant. She has admitted that there was no toilet inside
the house. If that is so, then she had been going out to ease
herself. Prosecutrix had stayed in the said house for about
seven days. It cannot be said that during this period in spite
of her going out for easing herself she had no opportunity to
raise alarm or to escape. PW2 Sandhya has deposed that the
prosecutrix was standing at the bus stand while appellant was
purchasing something from a shop, before they were
apprehended. There was lot of crowd at the bus stand. This
shows that appellant had not kept the prosecutrix in his strict
captivity and had given enough freedom to her, during which
period she could have raised alarm.
17. Conduct of the prosecutrix meekly accompanying the
appellant from her house to the bus stand in an auto rickshaw
and, thereafter, to Agra in a bus, staying with him at Agra for a
considerable long period without raising any alarm goes
against her and an inference can safely be drawn that she was
a consenting party. It is difficult to assimilate her failure to put
up any resistance or struggle against the appellant in the
public places to save herself, had she not been a consenting
party.
18. For the forgoing reasons, I am of the view that Trial Court
was not right in convicting the appellant under Section 376
IPC. Since the prosecutrix has been taken as major, therefore,
no offence under Section 363 IPC is also made out. Even if
prosecutrix is considered below 18 years then also ingredients
of offence 363 IPC would not be attracted in this case since the
prosecutrix had accompanied appellant and had stayed with
him voluntarily.
19. Result of the above discussion is that appellant is
acquitted under Sections 363/376 IPC. He be released
forthwith if not wanted in any other case.
20. Appeal is disposed of in the above terms.
21. Copy of this order be sent to Superintendent Jail for
serving it upon the appellant as also for compliance
A.K. PATHAK, J.
JANUARY 21, 2011/ga
