Shri Chand vs State
2011 Latest Caselaw 2968 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                       Judgment reserved on: May 24, 2011
                                       Judgment delivered on: June 02, 2011

+      CRL.A.No.435/2010

       SHRI CHAND                                        ....APPELLANT

                  Through:   Ms. Rakhi Dubey, Advocate

                             Versus

       STATE                                             .....RESPONDENT
           Through:          Ms. Fizani Husain, APP


        CORAM:
        HON'BLE MR. JUSTICE AJIT BHARIHOKE

1.     Whether Reporters of local papers
       may be allowed to see the judgment?

2.     To be referred to the Reporter or not ?
3.     Whether the judgment should be
       reported in Digest ?

AJIT BHARIHOKE, J.

1. This appeal is preferred against the impugned judgment of learned

Additional Sessions Judge dated 07.08.2009 in Sessions Case No.62/2008,

FIR No.71/2007 under Section 363, 366 and 376 IPC P.S. Najafgarh

whereby the appellant has been convicted on the charges under Section

363, 366, 376 IPC as also the consequent order on sentence dated

10.08.2009.

2. Briefly put, case of the prosecution is that on 28.01.2007, PW4 Smt.

Lalo Devi, mother of the prosecutrix visited P.S. Najafgarh and lodged her

complaint Ex.PW4/A alleging therein that the prosecutrix went missing in

the evening of 15.01.2007. A missing report in this regard was lodged at

P.S. Najafgarh by her husband on 16.01.2007 morning vide DD No.14A.

Lalo Devi alleged in the complaint that the appellant was living as a

tenant in the portion of her house along with his family. His wife and

children at the relevant time had gone to their native place in Bihar. The

appellant did not turn up on 16.01.2007. Complainant further alleged

that she searched for her daughter and the appellant, but they could not

be traced. On 28.01.2007, prosecutrix returned home and from her she

came to know that the appellant had enticed her and kidnapped her with

the intention to marry her. It was also alleged in the complaint that the

prosecutrix was perplexed and afraid and she would be produced before

the police on the next day.

3. On the basis of said statement of Lalo Devi, formal FIR under

Section 363/366 IPC was registered and the investigation was entrusted

to SI Nirmala Sharma (PW14), who recorded statement of the prosecutrix

under Section 161 Cr.P.C. wherein she disclosed that on 15.01.2007, the

appellant took her to village Kakrola on the pretext that her mother was

calling her. There, he kept her in a rented house and had forcibly sexual

intercourse with her and threatened that in the event of her leaving that

room or informing anyone, he would kill her. On 28.01.2007, on getting

an opportunity, she escaped from that room and came home and

disclosed her experience to her parents. SI Nirmala Sharma moved an

application and got statement of the prosecutrix recorded under Section

164 Cr.P.C. Proxecutrix was also sent for medical examination and her

MLC Ex.PW9/A was obtained. The examining doctor took the nail

clippings, pubic hair, vaginal swab as well as undergarments of the

prosecutrix into possession and sealed the same. Those sealed packets

were handed over to the Investigating Officer. Exhibits were sent for

chemical analysis to FSL. Statements of the witnesses were recorded. On

completion of the investigation, appellant was challaned and sent for trial.

4. Learned Additional Sessions Judge charged the appellant for

offences under Section 363, 363 and 376 IPC. Appellant pleaded not

guilty to the charge and claimed to be tried.

5. In order to bring home the guilt of the appellant, prosecution

examined 15 witnesses.

6. Prosecutrix appeared as PW1. She testified that she had studied

upto 6th Standard. On 15.01.2007 at around 8:00 pm, appellant Shri

Chand came to her house and told that her mother was calling her. On

this, she accompanied the appellant on a cycle and he took her to village

Kakrola where he rented a room and kept her there. She further stated

that in the said room, appellant raped her and forcibly married her.

Learned APP, with the permission of the court, cross examined the

prosecutrix wherein she stated that the appellant threatened her that if

she tried to leave the room or told anybody about the rape, he would kill

her. The prosecutrix further stated that on 28.01.2007, she managed to

escape from said room and reached her home and narrated the incident

and her experience to her parents, who called the police and that police

got her medically examined. She also stated that her statement under

Section 164 Cr.P.C. was recorded by the Magistrate.

7. PW2 Ganesh Kamti is father of the prosecutrix. He testified that the

appellant was a tenant in a portion of his house since a year prior to

15.01.2007. He also stated that on 15.01.2007 at about 7:45 pm, he

noticed that the prosecutrix was missing. He searched for the prosecutrix

and when she could not be found, he lodged a missing report Ex.PW2/A at

P.S. Najafgarh. In the morning of 28.01.2007, prosecutrix returned.

When he asked her as to what had happened, she told that the appellant

had forcibly taken her away under the threat that if she declined to

accompany him, he would kill her family members. PW2 Ganesh Kamti

further stated that at the time of incident, age of the prosecutrix was

about 14 years and 09 months. When the police asked him to give proof

of birth of his daughter, he handed over school leaving certificate to the

police. He has proved the photocopy of school leaving certificate mark

`A' and stated that the certificate was seized by the police vide memo

Ex.PW2/C.

8. PW4 Lalo Devi, complainant is another important witness. She has

also reiterated the version of PW2 Ganesh Kamti regarding the missing of

the prosecutrix and lodging of missing report. She further stated that on

28.01.2007 prosecutrix returned back. She was under fear and she told

that the appellant had taken her away. On this, she went to the Police

Station and lodged the complaint Ex.PW4/A.

9. PW11 Hari Narain stated that he had rented a room at village

Kakrola to the appellant Shri Chand who had brought a girl along with

him. He stated that appellant introduced said girl as his wife and they

both resided in the said room for a fortnight. In his cross-examination by

the learned prosecutor, the witness gave the name of the prosecutrix as

the girl who had accompanied the appellant.

10. PW8 Satbir Singh, a Teacher from GGSS School, Khera, Najafgarh

deposed on the basis of admission register of the school and stated that

the prosecutrix was admitted in the school on 08.04.2003 vide entry at

Serial No.1157 and her name was struck off from the roll on 29.07.2004

due to long absence and parents' consent. He proved the relevant

extract of register Ex.PW8/A and also photocopy of the school leaving

certificate Ex.PW8/B.

11. The appellant in his statement under Section 313 Cr.P.C. denied the

prosecution version in totality and gave following explanation:

"I am innocent. I was a tenant under the father of prosecutrix/victim. His father was a property dealer. I have also paid him some money for purchasing a plot. When I asked for my money he beated my wife and due to this fact only I have been falsely implicated in this case".

12. Vide order dated 12.03.2009, learned Additional Sessions Judge

directed the ossification test of the prosecutrix to be got conducted at

RTRM Hospital, Jaffarpur, Najafgarh.

13. Appellant examined Dr. L.R. Richhele as DW1 who testified that on

examination of the X-ray plates of the prosecutrix Ex.DW1/2, he is of the

opinion that the bone formation of the prosecutrix is suggestive of her

bone age between 18 to 19 years.

14. Learned Additional Sessions Judge on consideration of the evidence

found the appellant guilty on all the three counts and convicted and

sentenced him for the offences under Section 363, 366 and 376 IPC.

15. Learned Ms. Rakhi Dubey, Advocate appearing for the appellant

submits that prosecution case is based on sole testimony of the

prosecutrix who is not a reliable witness and her evidence leads to an

inference that this is a case of consensual sex. Expanding on the

argument, learned counsel submitted that the prosecutrix claims in her

cross-examination that while she was detained in a rented room at Village

Kakrola, she told about her plight to the wife of the landlord. She also

stated that on 28.1.2007, she escaped from the said room with the help

of a lady. Learned counsel argued that neither of those ladies have been

examined by the prosecution to substantiate her version. This casts a

shadow of doubt on the version of the prosecutrix. Learned Ms.Rakhi

Dubey further contended that as per the version of the prosecutrix, she

was taken away by the appellant on a false pretext that her mother was

calling her, which version also is not reliable for the reason that PW-11

Hari Narain has testified that when the appellant took the room on rent

from him, he was accompanied by the prosecutrix whom he introduced as

his wife. Learned counsel argued that if the prosecutrix was persuaded

by the appellant to accompany him on the false pretext that her mother

was calling her, she, under the natural course of circumstances, was

expected to protest before PW-11 Hari Narain when the appellant

introduced her as his wife. Learned counsel has urged that this

circumstance clearly shows that the prosecutrix had accompanied the

appellant of her own accord and the story of misrepresentation made by

the prosecutrix is false. Learned counsel also referred to the report of

Radiologist (Ex.DW-1/1) wherein the Radiologist has opined that on

examination of X-Ray plates of the prosecutrix on the basis of bone

formation, he was of the opinion that the prosecutrix, on the date of

medical examination, was between 18-19 years. Learned counsel

contended that in view of the aforesaid medical report, the prosecutrix

was aged more than 16 years and this being the case of consensual sex,

no offence under Section 376 IPC is made out. She also argued that since

the prosecutrix had attained sufficient age of majority and she had gone

along with the appellant of her own, even the offence under Section

363/366 IPC is not made out.

16. Learned APP, on the contrary, has argued in favour of the impugned

judgment. She contended that the prosecution has been able to establish

that the prosecutrix was below 16 years of age at the time of the incident.

In support of this contention, she has referred to the extracts of admission

and withdrawal register of the school of the prosecutrix wherein her date

of birth is recorded as 02.04.1992 which imply that on the date of incident

on 15.01.2007, the prosecutrix was less than 15 years old. Learned APP

contended that the bone age test is not a conclusive test for the age of

the prosecutrix and it cannot take precedence over the date of birth

entered in the school record. Learned APP referred to the suggestion

given to the prosecutrix in her cross-examination that appellant had sex

with the prosecutrix with her consent and submitted this amounts to

deemed admission of correctness of prosecutrix version. It is contended

that once it is established that the appellant had sex with the prosecutrix,

her consent becomes immaterial for the reason that the prosecutrix was

less than 16 years of age. Thus, it is vehemently urged that the charge

under Section 376 IPC is established. Learned APP further submitted that

from the statement of the prosecutrix, it is also established that the

appellant had taken her away from the custody of her parents on false

pretext, as such the charges under Section 363 and 366 IPC are made

out.

17. I have considered the rival contentions and perused the record.

18. Case of the prosecution is essentially based upon the testimony of

the prosecutrix who appeared as PW1. She has testified that on

15.01.2007, appellant Shri Chand came to her house and falsely

represented her mother was calling her. Thereafter, he took her to village

Kakrola where he hired a room and kept her there till 28.01.2007 when

she managed to escape. During her stay at Kakrola, she was raped by

Shri Chand. Aforesaid version of the prosecutrix does not inspire

confidence for the reason that PW11 Hari Narain, landlord of the room at

village Kakrola where the prosecutrix was kept by the appellant from

15.01.2007 till 28.01.2007 has testified that on the relevant day,

appellant came with the prosecutrix to take the room on rent and he

introduced the prosecutrix as his wife. If the prosecutrix was taken away

from the custody of parents by the appellant on the false pretext that her

mother was calling her, under the natural course of circumstances, when

she was introduced to the landlord as wife of the appellant, it was

expected of her to protest and tell Hari Narain that she had been brought

by the appellant on a false pretext. This, however, is not the case. Thus,

in my view, the story of the prosecutrix regarding kidnapping is not

reliable. Further, prosecutrix in her cross-examination testified that on

15.01.2007 after leaving her in the room, the appellant went away on a

cycle and he came back in the morning at around 9:00 am and brought

some food. She also testified that she had complained against the

appellant to the landlady by going to the adjacent room. In her further

cross-examination, the prosecutrix stated that on 28.01.2007, she

managed to escape from the said room with the help of one another lady,

who unbolted the room from outside and who used to reside at a distance

of 25 paces from the room in which the prosecutrix was confined. Neither

the landlady nor the other lady who helped the prosecutrix in escaping

have either been cited or produced as witnesses. This circumstance also

go against the case of the prosecution. Further, perusal of DD No.9A

dated 28.01.2007 P.S. Najafgarh (Ex.PW7/A) reveals that on 28.01.2007

at about 8:30 am, Amarjit brother of the prosecutrtix reported to the

police station that the prosecutrix had returned back after visiting some

relations. Despite that, prosecutrix has not cared to either cite or

examine said Amarjit to clarify as to what was the source of aforesaid

information provided by him to the police. His non-production in

evidence has also deprived the appellant of his valuable right to cross-

examine him and bring the true facts on record. Thus, under the

circumstances, I do not find the version of the prosecutrix regarding her

kidnapping by the appellant worthy of reliance and it appears that the

prosecutrix left the house of her parents by her own accord and this is a

case of consensual sex. Doubt against the correctness of prosecutrix

version is further compounded by the fact that in the FIR which is based

on the statement Ex.PW4/A of mother of the prosecutrix Lalo Devi, there

is no allegation of rape.

19. Learned APP has referred to the extract Ex.PW8/A of the relevant

entry pertaining to date of birth of the prosecutrix in the admission and

withdrawal register of GGSS School, Khera, Najafgarh as also the copy of

the school leaving certificate Exhibits PW8/B and submitted that from the

aforesaid documents, it is established that the date of birth of the

prosecutrix is 02.04.1992. The incident occurred between 15.01.2007 to

28.01.2007. Therefore, at the relevant time, the age of the prosecutrix

was slightly below 15 years. Learned APP has referred to the definition of

rape given under Section 375 IPC and submitted that as per this definition

sexual intercourse with the girl below sixteen years of age, with or

without her consent amounts to rape. Thus, it is contended that even if it

is a case of consensual sex, the appellant is guilty of rape and he has

been rightly convicted for the offence under Section 376 IPC.

20. I am not convinced with the above argument. Admittedly, birth of

the prosecutrix was not registered with the municipal authorities. The

entry regarding date of birth of the prosecutrix obviously is on the basis of

information supplied by the parents of the prosecutrix. PW2 Ganesh

Kamti, father of the prosecutrix has stated that he does not remember

the date of birth of his daughter. Similarly, PW4 Lalo Devi, mother of the

prosecutrix has stated that the prosecutrix was aged about 14 to 15 years

at the time of occurrence. From the aforesaid version of the parents of

the prosecutrix, it is obvious that they being illiterate persons are not

definite about the date of birth of the prosecutrix. Therefore, it can be

safely assumed that the date of birth recorded in the school register has

been given as per approximation. In absence of definite proof of age of

the prosecutrix, the learned Additional Sessions Judge had directed the

ossification test of the prosecutrix. DW1 Dr. L.R. Richhele has proved his

opinion regarding bone age of the prosecutrix on the basis of the

examination of X-ray plates as DW1/1. As per the aforesaid report as on

18.03.2009, the age of the prosecutrix was between 18 to 19 years. It is

well settled that in a criminal trial, if there are two opinions possible the

opinion favourable to the accused is to be given precedence. Thus, the

age of the prosecutrix as per the report is taken as 19 years as on

18.03.2009. Calculated backward, the age of the prosecutrix was to

above 16 years at the relevant time between 15.01.2007 to 28.01.2007.

21. In view of the above, I do not find it safe to rely upon the testimony

of the prosecutrix and a possibility cannot be ruled out that she of her

own left the house of her parents and accompanied the appellant to

village Kakrola and stayed there with him as his wife. Thus, I find it

difficult to sustain the conviction of the appellant on either of the charges

under Section 363, 366 and 376 IPC.

22. Accordingly, the appeal is accepted. Impugned judgment and

consequent order on sentence are set aside and the appellant is acquitted

giving him benefit of doubt.

23. Appellant is reported to be in Jail. He is directed to be released

forthwith, if not required in any other case.

24. Appeal stands disposed of.

(AJIT BHARIHOKE) JUDGE JUNE 02, 2011 pst/ks