Naresh Kumar vs The State (Govt. Of Nct) Delhi
2012 Latest Caselaw 3870 Del

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*IN THE HIGH COURT OF DELHI AT NEW DELHI

+      Crl. A. No. 313/2010

%              Judgment decided on: 4th July, 2012


       NARESH KUMAR                              ..... Appellant
                   Through            : Ms. Rakhi Dubey, Adv.

                      versus

       THE STATE (GOVT. OF NCT) DELHI ... Respondent
                     Through   :Mr. Mukesh Gupta, APP

A.K. PATHAK, J. (Oral)

1. Appellant has been convicted for the offences under Sections

363 and 376 IPC by the judgment impugned in this Appeal. He has

been sentenced to undergo rigorous imprisonment of seven years

with fine of `10,000/- and in default of payment of fine to face

simple imprisonment for four months for the offence punishable

under Section 376 IPC; rigorous imprisonment for three years with

fine of `5,000/- and in default of payment of fine to face simple

imprisonment for two months for the offence punishable under

Section 363 IPC. Both the sentences have been directed to run

concurrently. Benefit of Section 428 Cr.P.C. has also been granted

to the appellant.

2. In brief, prosecution story as unfolded is that the appellant

took away with him the prosecutrix aged 14 years on 22nd July,

2008, after enticing her, to Bihar and had sexual intercourse with

her against her wishes till 28th July, 2008 when he and the

prosecutrix were recovered from a hotel by the officials of Police

Station Roshra District, Samastipur, Bihar. During this period

appellant even tried to marry the prosecutrix and had taken her to

court for this purposes but their marriage could not be registered.

3. A close scrutiny of the testimony of prosecutrix (PW-4)

clearly indicates that she was a consenting party and had

accompanied the Appellant on her own volition. Though in her

examination-in-chief she has stated that appellant had taken her to

his village, in Bihar, kept her there with him and had sexual

intercourse with her, against her wishes. However, her this

statement does not inspire confidence in view of her deposition in

cross-examination. Appellant was the neighbour of prosecutrix,

which fact has been admitted by her. She has further admitted that

the appellant was known to her for about 2-3 months prior to the

incidence. According to her, on 22nd July, 2008 she was sleeping in

her jhuggi when appellant came there at about 3/4 PM, woke her up

and thereafter took her with him to the bus stand in a taxi.

Thereafter, they travelled in two buses and subsequently in a train

before they reached the village. They remained in the train for three

nights. In the village appellant introduced her to his father and

sisters as his wife. She has admitted in her cross-examination that

she did not tell the taxi driver or fellow passengers in the buses and

train in which they travelled as also, the family members of

appellant that she was kidnapped by the appellant or that appellant

had forced her to accompany him, by extending threats. Prosecutrix

has further admitted in her cross-examination that the appellant and

his parents had taken her to court for the purpose of getting

appellant and prosecutrix married. It may be noted that even in the

court she did not raise any alarm nor made any attempt to draw

attention of the lawyers, police or court staff or litigants present

there that she was kidnapped by the appellant. Police had recovered

the porsecutrix and Appellant from a hotel where she was living

with the appellant. During her stay in the hotel, she neither raised

any alarm nor complained to anyone that appellant had been

forcibly keeping her with him by exercising force or extending

threats. All this clearly indicates that she had willfully accompanied

the appellant and had stayed with him at Bihar between 22nd July,

2008 till 28th July, 2008 on her own free will and was a consenting

party.

4. In Mahabir vs. State, 55 (1994) DLT 428, the prosecutrix had

travelled with the accused for long-long hours in a compartment

shared by other passengers, they went to a house on a Tonga which

was hired from the Railway Station and shared by other passengers.

All this while she did not make any protest or raised any alarm or

made any attempt to flee. In these facts, it was concluded that she

was a consenting party. In Mohamad Imteaz Khan alias Sannu vs.

The State of Haryana, 1994 (2) Recent Criminal Reports 456,

prosecutrix remained with the accused for number of days, travelled

in the buses and passed through crowded places without raising any

protest. In these facts, it was held that the prosecutrix was a

consenting party.

5. Since this court has come to the conclusion that the

prosecutrix was a consenting party, the age of prosecutrix assumes

great importance. Section 375 IPC defines "Rape". Clause sixthly

of Section 375 IPC envisages that if a man has sexual intercourse

with a woman with or without her consent when she is under 16

years of age, would amount to "rape". Thus, now it has to be seen

as to whether, as on the date of commission of crime, prosecutrix

was less than 16 years of age before it can be held that the

Appellant is guilty of committing offence of rape.

6. Father of the prosecutrix PW1 Narain Das has admitted in his

cross-examination that the prosecutrix never attended any school

nor her date of birth was registered with any authority. Similar is

the statement of mother of prosecutrix, that is, PW5 Babli. PW-5

has also deposed that her daughter had neither attended any school

nor her birth was registered in any office. No other cogent material

is available on record to indicate exact date of birth of the

prosecutrix. PW-3 and 5 have also not given exact date of birth of

prosecutrix, except that they have made a general statement that the

prosecutrix was 14 years of age. Only medical evidence is available

on record regarding age of the prosecutrix.

7. Age of the prosecutrix has been determined through

radiological examination. PW11, Dr. J. Dayal has proved the

report of Radiologist Dr. Sandeep in this regard, which reads as

under:

"BONE AGE ESTIMATION"

1. X-ray Rt.Shoulder-AP view Head of tumeours partially held-<16 yrs.

2. X-ray BK hand and lower end radius Lower end radius unheld-<16-½ yrs Lower end ultra unheld -<16 yrs

3. X-ray Rt.elbow-AP Lower tumeral epilysis head -14 yrs (medial epiccondyle)

Oleranon head - 15 yrs

4. X-ray B/L medial end cloride B/L medial end cloride appeared but unheld >14 years-<20 years

5. X-ray pelvis -AP Illiac crest unheld but appeared ->14 yrs- <19yrs

Ischial tuberosity appeared but unheld - >14 yrs to <20 yrs

Estimated bone age is more than 15 years (fifteen years) but less than 16 years (Sixteen years).

Bone age >15 yrs-<16 yrs."

8. Apart from this, no cogent evident has been adduced in

respect of the age of prosecutrix. In my view, the opinion of

medical expert based on ossification test cannot be regarded as

conclusive. There can be no doubt that the evidence of age by

ossification test is of considerable importance, but there is equally

no doubt that too much reliance cannot be placed on such evidence

alone. Such age determination is not infallible. In Jyoti Prakash

Rai @ Jyoti Prakash vs. State of Bihar, AIR 2008 SC 1696,

Supreme Court has observed thus, "this court in number of

judgments has held that age determination by the doctors should be

given flexibility of two years on either side. In Jaya Mala vs.

Home Secretary, Govt. of Jammu & Kashmir & Ors. 1982 SCC

502, Supreme Court has 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 vs. State 1988 Crl. L.J. 565,

Senior Radiologist had opined the age of prosecutrix between 14 to

16 years. In this context, 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 upto 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.

9. In this case, in absence of any „birth certificate‟ or „school

leaving certificate‟ the age of the prosecutrix can be taken

approximately 18 years by giving the benefit of margin of two

years. Accordingly, prosecutrix is taken to be major as on the date

of incidence.

10. The prosecutrix being major, neither offence under Section

376 nor 363 IPC is made out. She having willfully accompanied

the appellant to his village and stayed with him from 22 nd July,

2008 to 28th July, 2008 is a consenting party. Above factors have

not been considered by the trial court resulting in conviction of

appellant.

11. For the foregoing reasons, Appeal is allowed. Impugned

judgment and order on sentence are set aside. Appellant be released

forthwith if not wanted in any other case.

12. Copy of this order be sent to Superintendent Jail for serving it

upon the appellant as also for compliance.

A.K. PATHAK, J.

JULY 04, 2012 rb