Brij Pal @ Baiju vs State
2011 Latest Caselaw 2934 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+           CRL. APPEAL NO. 278 OF 2000

%                                          Reserved on: 2nd May , 2011

                                           Decided on: 31st May, 2011

BRIJ PAL @ BAIJU                                              ..... Appellant
                            Through:    Mr. Sumeet Verma, Amicus Curiae.
                   versus

STATE                                                     ..... Respondent
                            Through:    Mr. Manoj Ohri, APP for the State.
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. By this appeal the Appellant lays challenge to the judgment dated 6 th

October, 1999 convicting him for offence punishable under Sections 366/376

IPC and order on sentence dated 8th October, 1999 awarding the sentence of

Rigorous Imprisonment for a period of seven years and a fine of `2,000/- and

in default of payment of fine to further undergo Rigorous Imprisonment for a

period of six months for offence punishable under Section 376 IPC; three

years Rigorous Imprisonment and a fine of `1,000/- and in default of payment

of fine to further undergo Rigorous Imprisonment for a period of three months

for offence punishable under Section 366 IPC.

2. Briefly the prosecution case is that PW 2 Smt. Kamal Sharma, mother

of the prosecutrix lodged a missing report of her daughter vide DD No. 54B

Ex. PW 2/B on 31st March, 1998. Thereafter on 2nd April, 1998 the

Complainant lodged a complaint Ex PW2/A against the Appellant stating that

he used to reside in their neighbourhood at Mahavir Enclave and is a native of

village Hamirpur, District Farukabad. He had induced and taken away her

daughter with him and thus an FIR was registered on the said complaint.

PW2 in her testimony before court has further stated that she had gone to the

village of the Appellant after 3-4 days alongwith 2-3 relatives and brought

back her daughter from there. On coming to know that the Complainant had

come in search of her daughter, the Appellant had run away from his house at

that time. She produced the prosecutrix on 4th April, 1998 whereafter the

statements of prosecuterix were recorded including one under Section 164

Cr.P.C. and her medical examination was got conducted. Subsequently, the

Appellant was arrested on 5th July, 1998 from his native village. During

investigation the school leaving certificate of the prosecutrix was seized

Ex.PW3/A which bore her date of birth as 22nd May, 1986. After completion

of investigation, a charge-sheet was filed. After recording the statements of

witnesses and examining the accused under section 313 Cr.P.C. the Ld. Trial

Court convicted and sentenced him as aforeasaid.

3. Learned counsel for the Appellant contends that as per the history given

in the MLC by the prosecutrix herself has stated that she had eloped with the

Appellant on 30th March, 1998 in a bus of her own free will. The date of birth

of the prosecutrix, as per the school leaving certificate was rejected by the

learned Trial Court as it was not based on any contemporaneous record. The

age of the prosecutrix according to the school leaving certificate as on the date

of incident was around 12 years whereas at the time of incident, the

Prosecutrix was more than 16 years of age. Despite the advice of the doctor

in the MLC Ex.PW7/A the prosecutrix did not get the ossification test

conducted and thus an adverse inference should be drawn against the

prosecution. The defence has proved the marriage certificate and since the

parties have married of their own free will and the prosecutrix was more than

16 years only an offence under Section 376 (1) IPC is made out. Thus, the

sentence awarded by the learned Trial Court could not have been more than 2

years imprisonment. The testimony of the mother of the prosecutrix cannot be

relied upon as in her cross examination she has exaggerated by stating that the

Appellant came to their house along with 2-3 persons and gave a call and after

she opened the door he put a knife on her and took away her daughter. This

was neither stated in the complaint nor anything on similar lines has been

deposed by the prosecutrix. It is contended that the consent of the prosecutrix

is evident from the fact that though she was admittedly taken in bus yet she

did not raise any hue and cry. The consent is further evident from the history

given by her in the MLC. It is thus prayed that the Appellant be acquitted of

the charges framed or in the alternative the sentence be reduced as stated

above.

4. Learned APP for the State on the other hand contends that Section 376

(1) IPC would not be applicable to the facts of the case as the Appellant had to

prove a valid legal marriage which onus has not been discharged by him.

Moreover, no suggestion has been given to the prosecutrix that the marriage

was performed first and thereafter sexual intercourse was committed on her.

According to the learned APP for the State, the learned Trial Court wrongly

rejected the Principal's testimony who had brought the register and thus

proved the age of the prosecutrix. Even in the MLC the age given by the

prosecutrix is 14 years consistent with the school leaving certificate and the

statement of the mother. The Appellant in his statement recorded under

Section 313 Cr.P.C. in reply to the question of the Court that he had taken the

prosecutrix from her house to Hamirpur in a bus, confined her in a room and

committed rape on her, has replied that the prosecutrix had gone with him to

his village as she wanted to marry him and he had also committed sexual

intercourse with her consent. Thus neither the provision of Section 376 (1)

IPC is applicable nor the Appellant is entitled to be acquitted of the offence

under Section 376/366 IPC because the prosecutrix was below 16 years and

thus her consent was immaterial. According to the learned APP no case for

reduction of sentence is made out as the Appellant has not brought out any

adequate or compelling reasons to reduce the same.

5. I have heard learned counsel for the parties and perused the record.

PW 1, the prosecutrix has stated that the Appellant used to visit her house and

in the month of March, 1998 he asked her to accompany him to his house but

she refused. Thereafter he threatened her on the point of knife and asked her

to accompany him to his house. At about 10.30 P.M. on 30th March, 1998, the

Appellant took her to Village Hamirpur, Farukhabad, U.P. by bus where he

confined her in a room and committed rape on her two-three times. Then her

mother and uncle came there and recovered her. The prosecutrix has admitted

in the cross-examination that she did not tell to any passenger, driver or

conductor that the Appellant was taking her forcibly. The MLC Ex.PW7/A in

the history given by the prosecutrix herself records that she had eloped with

the boy namely Brijpal on 30th March, 1998 and he had intercourse with her

six-seven times. Thus there is contradiction in her statement. Though it was

advised that X-ray of wrist, joint etc. of the prosecutrix be conducted for age

confirmation, however, no effort in this regard had been made by the

investigating agency. As per the testimony of PW3 Asha Sharma, Principal,

Government Girls School, Bindapur, Janakpuri, Delhi the date of birth of the

prosecutrix was recorded as 22nd May, 1986. However, she could not produce

any record or the document on the basis of which the said date of birth was

recorded. Thus, the date of birth mentioned in the school leaving certificate is

without any contemporaneous document showing the true date of birth of the

prosecutrix. Learned Trial Court after appreciating the evidence arrived at the

conclusion that the age of the prosecutrix was 14 years on the basis of the

statement made by the mother and the prosecutrix in her MLC and in the

Court. Even if taking that the age of the prosecutrix as shown in the school

record is not based on any contemporaneous record, however the fact remains

that whenever age is recorded in the school at the time of admission an error

of one or two years on either side may exist but the same cannot be a

difference of four years. Thus, even if giving that marginal benefit of two

years, the prosecutrix's age was not more than 16 years.

6. Hon'ble Supreme Court in AIR 2006 SC 508 Vishnu Vs. State of

Maharashtra has held that the ossification test cannot form the basis of

determination of age of the prosecutrix as it varies. Also, when the prosecutrix

is not subjected to the ossification test, it cannot be said that the best evidence

has not been placed on record by the prosecution. The ossification test is not

the best evidence to determine the age the opinion is based on the fusion of

joints in the human body and there is always a possibility of an error of +/- 2

years in such determination.

7. To bring the offence under the provisions of Section 376 (1) IPC the

onus was on the Appellant to discharge. No valid marriage has been proved

by the Appellant. He has not produced any witness nor has he substantiated

this claim on the basis of any other legal documents. In the absence of the

said proof it cannot be said that the marriage was performed and the Appellant

can only be said to have committed the offence of rape on his wife.

8. The factum of sexual intercourse has been admitted by the Appellant.

Thus, the issues which arises for consideration before this Court is whether

the same was with the consent of the prosecutrix and whether she was legally

competent to consent. In view of the discussion above since the age of the

prosecutrix was less than 16 years on the date of commission of offence

therefore, her consent was immaterial. I find no error in the order of the

learned Trial Court convicting the Appellant for offences punishable under

Sections 366/376 IPC.

9. The quantum of sentence has to be decided on the basis of the facts and

circumstances of each case, the mitigating and the aggravating factors have to

be considered and thereafter the delicate balance has to be arrived at. While

exercising the discretion for awarding sentence below the statutory minimum,

adequate and special reasons are to be noted. In the present case the MLC of

the prosecutrix, wherein she has given the history herself, says that she had

willingly gone with the Appellant. Her subsequent conduct of not informing

anybody or raising any alarm while she was on the bus also shows that she

had willingly accompanied the Appellant. Thus, all these factors persuade

this Court to take a lenient view in the matter by awarding sentence less than

the minimum prescribed. The Appellant has been in custody for more than

four years now and it would be thus in the interest of justice to reduce the

sentence of imprisonment awarded to the Appellant to the period already

undergone.

10. The appeal is accordingly, partly allowed. While maintaining the

conviction of the Appellant for offence punishable under Sections 376/366

IPC the sentence is modified to the period of imprisonment already

undergone.

11. Copy of the order be sent to the Appellant through the Superintendent,

Tihar Jail and the Appellant be released forthwith if not required in any other

case.

MUKTA GUPTA, J MAY 31, 2011 vn