Om Prakash Alias Kalia vs State
2011 Latest Caselaw 74 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+                  CRL. APPEAL No.358/1999

%                                        Reserved on: 23rd November, 2010

                                         Decided on: 7th January, 2011

OM PRAKASH ALIAS KALIA                                             ..... Appellant
                 Through:                  Mr. Sudershan Rajan with Md. Qamar
                                           Ali, Advocates.
                     versus
STATE                                                       ..... Respondent
                              Through:     Mr. Pawan Bahl, App.
Coram:

HON'BLE MS. JUSTICE MUKTA GUPTA


1. Whether the Reporters of local papers may
   be allowed to see the judgment?                            Not necessary

2. To be referred to Reporter or not?                         Yes

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

MUKTA GUPTA, J.

1. A case FIR No.191/1992 under Section 363/366 IPC was registered at

P.S. Roop Nagar on 3rd September, 1992 on the complaint of one Meena

wherein she alleged that on 30th August, 1992 at about 7.00 a.m., her daughter

aged 15 years, who used to work in the houses as a cook had left her house

without telling anybody. She further alleged that a boy named Om Prakash @

Kalia who resides in their neighbourhood and often came to their house, is

also missing from his house since 30th August, 1992. She has been making

efforts to trace her daughter and she apprehends that the said Om Prakash @

Kalia has enticed away her daughter on the pretext of marrying her. On the

said FIR, investigations were carried out and the girl was finally traced on 10 th

September, 1992 while going on an auto rickshaw along with the Appellant

for the registration of their marriage. The girl was medically examined and

her statements were recorded both under Section 161 and 164 Cr.P.C.,

wherein she stated that the Appellant had taken her away on 30 th August, 1992

on the point of knife, confined and raped her. After investigation a charge

sheet was filed against Kamlesh, Hari Chand, Bal Chand and Om Praksah @

Kalia, the present Appellant for offences punishable under Sections

363/366/376/368 IPC. After recording of evidence, all the other co-accused

were acquitted except the Appellant who was convicted for offences

punishable under Section 366 and 376 IPC and sentenced to undergo rigorous

imprisonment for a period of three years and a fine of `1,000/- and in default

to further undergo rigorous imprisonment for three months for offence

punishable under Section 366 IPC and to undergo rigorous imprisonment for 7

years and to pay a fine of `5,000/- and in default to further undergo rigorous

imprisonment for six months for offence punishable under Section 376 IPC.

This judgment of conviction and sentence is impugned in the present appeal.

2. Learned counsel for the Appellant contends that the statement of the

prosecutrix that she was enticed at the point of knife or that she was raped is

not trustworthy. The evidence on record shows that she had willingly

accompanied the Appellant, lived with him and got married. Only after the

Appellant was arrested and the prosecutrix was sent to live with her parents,

she gave this statement against the Appellant. The consent of the prosecutrix

is evident from the fact that she admits her signature on the marriage

certificate Ex. PW5/DA. This marriage of the Appellant and prosecutrix is

witnessed by two relations of the prosecutrix that is Bal Chand DW2 and Anu

Devi DW4. The prosecutrix has also admitted the photographs of marriage

Ex. PW5/D1 to D-11. Reliance is placed on Sadhu Ram @ Dalip v. The State

(Govt. of NCT of Delhi), Crl. Appeal No.836/2009, Manu/DE/2230/2010

wherein it has been held that once the photographs are admitted then the same

are not required to be proved as an admitted document needs no proof.

Though the Appellant is alleged to have taken the prosecutrix from

Chandrawal to Sultan Puri in an auto rickshaw, through a crowded area, at a

distance of about 15-20 km., however, she raised no alarm. Further though she

lived with the Appellant and on 3rd September, 1992 she was taken to a temple

at Mandir Marg for the marriage, however, she did not raise any alarm either

on the way or at the temple. Thereafter also the prosecutrix was staying with

the Appellant till the 10th September, 1992 and was travelling in a TSR,

however she raised no alarm. In her cross examination on a question as to

why she did not raise any alarm, once she stated that she was under constant

threat on the point of knife, whereas later she stated that she was threatened by

showing knife only on the 29th August, 1992. The defence witnesses have

clearly deposed about the marriage and her willingness for the marriage,

which evidence has been overlooked by the learned trial court. The defence

witnesses are also entitled to the same credence as the prosecution witnesses.

The fact that she was a consenting party is also evident from the MLC Ex.

PW12/A which shows no external marks of injury and the history given by the

prosecutrix is "she is living with a man willfully since 29th August, 1992."

The MLC further observes history of "contact present". These evidences on

record clearly prove that the prosecutrix was a consenting party. The age of

the prosecutrix as per the radiological examination Ex. PW9/B is more than

18 years. The mother of the prosecutrix has given the age of the prosecutrix

as 15 years on the date of incident. As per the school leaving certificate Ex.

P1, the date of birth of the prosecutrix is 1st June, 1978, thus giving her age as

14 years and three months on the date of incident. However, the school

leaving certificate cannot be relied upon as it is not based on any documentary

proof of registration with the authorities at the time of birth. Reliance is

placed on Rakesh Kumar v. State, 109 (2004) DLT 826. Even the learned trial

court has arrived at a finding in this regard in favour of the Appellant that the

age of the prosecutrix was more than 18 years on the date of incident. The

judgment of the learned trial court is based on presumptions and in a criminal

trial the conviction can be based only if the prosecution has proved the case

beyond reasonable doubt against the accused and not on preponderance of the

probabilities. Since the prosecutrix is more than 18 years and there is ample

evidence on record to show that she was a consenting party, the judgment of

the learned trial court being based on presumptions, the Appellant is entitled

to be acquitted. In the alternative it is prayed that the Appellant has

undergone imprisonment for a period of more than 4 months and thus he be

released on the period already undergone.

3. Learned APP, on the other hand, contends that on the basis of the

testimony of the prosecutrix, it is evident that she was taken away under threat

and the purpose of marriage was to commit sexual intercourse with her. The

learned trial court erred in discrediting the age given in the school leaving

certificate as the same is the primary evidence. According to the school

leaving certificate the age of the prosecutrix is 14 years, thus her consent is

irrelevant for the offences punishable under Section 366 IPC and 376 IPC. It

is, therefore, prayed that the appeal be dismissed being devoid of merit.

4. The two issues to be determined on the basis of evidence adduced are

the age of the prosecutrix and whether she was a consenting party. As regards

the age of the prosecutrix, the mother of the prosecutrix PW2 in her statement

has stated that she was aged about 15 years at the time of incident and the

prosecutrix when she was examined in the court in the year 1996 gave her age

as 18 years. In the school leaving certificate the date of birth was shown as 1st

June, 1978. PW-11 Smt. Sumitra Arora, working as a teacher in Roop Nagar

School has proved this school leaving certificate Ex.P-1. She had brought the

register Ex.PW-11/A wherein the entry at serial number 2093 depicts the date

of birth of the prosecutrix as 1st June, 1978. However, this entry is not co-

related to the date of birth recorded with the Registrar of the Births in the

municipal records. PW11 has not stated the basis on which the date of birth

of the prosecutrix was recorded in the school register. Hence, the same is not

infallible. As per the report of the ossification test Ex.PW9/B, the age of the

prosecutrix is above 18 years. Undoubtedly, there is a possibility of an error

of plus minus two years in the opinion rendered by radiological examination.

The Hon'ble Supreme Court in Jaya Mala v. Home Secretary, of Govt. J&K,

AIR 1982 SC 1296, held that there can be two years' margin either way in

radiological examination. The relevant portion of the report states:

".....It is notorious and one can take judicial notice that the margin of error in age ascertained by radiological examination

is two years on either side"

Even on reducing two years, the age of the prosecutrix would be more

than 16 years, thus capable of consenting to sexual intercourse. However,

when two opinions are possible, the one favouring the accused have to be

taken. Thus, I find no error in the finding of the learned trial court that the

prosecutrix was above 18 years of age at the time of the incident.

5. Undoubtedly, a prosecutrix is not an accomplice and conviction can be

based on her sole testimony if the same inspires confidence. However, in the

present case the testimony of the prosecutrix is full of contradictions and is

not corroborated by other evidence on record. The prosecutrix has stated that

the Appellant threatened her at the point of knife and made her sit forcibly in

the TSR. She further stated that he confined her in a vacant room at

Sultanpuri, and when she made noise, the Appellant made her to smell

something as a result of which she became unconscious. She further states

that the Appellant raped her contrary to her wishes every night and when she

raised noise, he would drown her noise in the stereo which he played on a

high pitch at the time of committing rape. The version of the prosecutrix does

not inspire confidence. The prosecutrix had also implicated Kamlesh, Hari

Chand, Bal Chand along with the Appellant. The learned trial court has

acquitted them. According to the prosecutrix she was confined in the said

room till 10th September, 1992 and on 10th September, 1992 in the morning

the accused persons performed the marriage ceremony of the prosecutrix with

the Appellant forcibly. One pandit was called for this purpose. According to

her, a doctor was also called who stated that she would be taken to the court

where the marriage would be registered. While they were going in the TSR,

on reaching Malkaganj red light she saw her mother and uncle present there

and on seeing them she rushed towards them. The prosecutrix admits her

signature on the marriage certificate. There is no explanation as to how she

agreed to the signing of the marriage certificate. Though admission of

signature on the document is not an admission of the contents of the

document, but in the present case the photographs which have been admitted

by the prosecutrix and the evidence of the defence witnesses including her

own relations clearly show that she married the Appellant willingly. In this

regard testimony of Bal Chand DW2 her cousin brother and Anu Devi DW2

her aunt is relevant. They both attended the marriage in the temple at Mandir

Marg. Though the prosecutrix states that the marriage was performed at the

house where she was confined on the 10th however, as per the defence and

other evidence on record it is evident that the same was performed in a

temple. Bal Chand DW2 states that he performed the kanyadan and identifies

his presence in the photographs. DW4 Anu Devi has also stated that both the

prosecutrix and Appellant knew each other and were in love with each other,

however, her sister in law that is her jethani, who is the mother of the

prosecutrix did not like the Appellant and thus was opposed to the marriage.

In her cross examination she has stated that the marriage was performed at

Akhil Bhartiya Hindu Maha Sabha Mandir as parents of the prosecutrix were

not agreeable to the marriage. Testimony of DW3 Madan Gopal Dubey is

also relevant who is the purohit of the mandir at Mandir Marg. According to

him when the marriage took place in his mandir, he issued a certificate to this

effect. The marriage was also witnessed by her other cousin brother Mohan

Chand DW1 who is the brother of Bal Chand DW2 who also supports the

defence version. The prosecution could not elicit anything in their cross

examinations. I find the testimony of the defence witnesses creditworthy as

the same is duly corroborated by contemporaneous documentary evidence on

record especially the photographs. Further, the prosecutrix herself gave her

statement in the MLC to the doctor who is an independent witness that she

was willfully living with a man since 29 th August, 1992. In view of this

overwhelming evidence, the consent of the prosecutrix is evident. I find force

in the contention of the learned counsel for the Appellant that the prosecutrix

was a major at the time of incident and she willfully married the Appellant by

eloping from the house as her mother was not agreeable to this marriage, but

when she joined her family she leveled allegations of abduction and rape

against the Appellant.

6. In view of the findings above, the Appellant is entitled to be acquitted

of the charges under Sections 366/376 IPC. Accordingly, the appeal is

allowed. The impugned judgment of conviction and sentence is set aside. The

bail bond and the surety bond are discharged.

(MUKTA GUPTA) JUDGE

JANUARY 7th, 2011/mm