Delhi High Court
State vs Babloo on 31 July, 2012
Author: Gita Mittal
3
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Crl.L.P.No.309/2012
% Date of decision: 13th July, 2012
STATE ..... Petitioner
Through : Mr.Pawan Sharma, Standing
Counsel.
versus
BABLOO ..... Respondent
Through : None.
CORAM:
HON'BLE MS. JUSTICE GITA MITTAL
HON'BLE MR. JUSTICE J.R. MIDHA
JUDGMENT (ORAL)
Crl.7847/2012
Heard. For the reasons stated in the application, the
delay in filing the petition is condoned.
The application stands disposed of.
CRL.L.P. 309/2012
1. The record has been received from the Trial Court and
has been perused.
2. We have also heard learned Standing Counsel for the State
who has filed the present petition seeking leave to appeal
under Section 378(1) of the Cr.P.C against the judgment dated
7th September, 2011 passed by Dr. Sudhir Kumar Jain, ASJ-01.
3. The instant case relates to an alleged incident which
occurred on 29.4.2010. The prosecution commenced on the
complaint made by Mohd. Shoaib a resident at House No.B-
4/12, Swarn Jayanti Vihar, Tikri Khurd, Delhi. It was complained
that 'S' is one of the daughters of Mohd. Shoaib who was a
student of class IX in Government Sarvodaya Co-Ed. Senior
Secondary School, Tikri Khurd; and that her date of birth was
14.3.1994. It was further alleged that on 29.4.2010, 'S' had
gone to the market with her sister-in-law in the evening. There
Babloo met 'S' and forced her to sit in a bus at bus stop Tikri
Khurd. Thereafter 'S' was taken to Bareilly. When 'S' did not
return home, Mohd. Shoaib lodged the complaint with the
police naming Babloo as the suspect who had removed his
daughter. The information was recorded as DD No.39A by the
police.
4. Mohd. Shoiab made a further statement on 4.5.2010
whereupon the FIR no.135/2010 under Section 363 IPC was
registered. Babloo and 'S' were apprehended on 18.5.2010
pursuant to information in this behalf. Thereafter Babloo was
arrested. Babloo and 'S' were also sent for medical
examinations. It is important to note that 'S' refused to
undergo a gynaecological examination. A statement of 'S' was
recorded under Section 164 Cr.P.C. by Ms.Aparna Swamy, the
concerned Metropolitan Magistrate, who was examined as
PW13 in the Court.
5. On completion of investigation, the police filed the
challan for commission of offences punishable under sections
363/366/376 IPC against Babloo.
6. It was alleged that Babloo had confined 'S' in a house
situated at Bareilly where he committed rape on her many
times against her wishes and consent. Babloo also threatened
to kill 'S' if she disclosed the fact of rape to anyone.
Charges were framed under Section 363/366/376 IPC
against the accused vide order dated 15.12.2011 to which the
accused had pleaded not guilty and claimed trial.
7. The prosecution examined 15 witnesses in support of its
case before the learned trial court. After a careful reading of
the evidence, the learned trial judge passed a judgment dated
07.09.2011 holding that the respondent was not guilty of
commission of the offences with which he was charged.
Aggrieved thereby the present appeal has been filed.
8. A perusal of the impugned judgment would show that the
learned trial court has rejected the prosecution case that 'S'
was born on 14.3.1994 inasmuch as 'S's date of birth was not
supported by any contemporaneous evidence in the nature of
a birth certificate. The only record produced in the Court as
date of birth was the school certificate where 'S' was studying.
9. The learned trial Judge had found that the school
certificate in which her date of birth was mentioned as
14.3.1994, was prepared without the assistance of any
certificate issued by the competent authority and that it
appeared to be based on estimation and as such was not as
authentic document of the date of birth. The learned trial
judge therefore, concluded that the prosecution had failed to
prove that the prosecutrix was less than 18 years of age at the
time of the incident beyond reasonable doubt.
10. Our attention has also been drawn to the deposition of 'S'
in court where she has supported the prosecution case. We
find, however, that 'S' was examined on oath under Section
164 Cr.P.C. by the concerned Metropolitan Magistrate on
19.5.2010 soon after she was apprehended.
11. In this statement, 'S' had deposed that she had married
Babloo, the respondent herein, in the court at Bidayuin, U.P.;
that when her affair with the respondent became public, she
ran away with Babloo; that her mother was opposed to her
marriage with Babloo on account of his belonging to a different
religion. She categorically denied that Babloo had established
relationship with her forcibly. In her statement on oath, she
had stated that she did not wish to return to her parents
because they were pressurizing her.
This statement of 'S' was exhibited as EX.PW-13/B in the
evidence of the learned Metropolitan Magistrate. EX.PW-13/B
bears the certificate by the learned Metropolitan Magistrate to
the effect that this statement was made by the petitioner
voluntarily without any pressure or coercion and nothing had
been added, subtracted or altered in the statement.
12. The statement Ex.PW13/B is supported by the conduct of
'S', who consciencely refused the gynaecological examination
as has been endorsed in her MLC Ex.PW15/A.
13. The learned trial Judge has observed that in the event of
forcible sexual relationship, the medical opinion pertaining to
sexual intercourse would be a very vital piece of evidence to
support the case of the prosecution. The refusal for the
gynaecological examination was without any justification and it
establishes that 'S' was clearly about 16 years of age.
14. We have also found that the learned trial Judge had
considered the evidence of 'S' examined as PW-7. It has been
observed that according to PW-7, she had travelled by bus for
3/4 days with the respondent and that during the journey, the
respondent had provided food to her from local dhabas. PW7
had also deposed that she had eased herself at places when
the bus had halted during the journey.
15. It is thus apparent that 'S' had several opportunities to
protest, seek assistance or inform her family. There is
evidence of the presence of many passengers in the bus
besides the driver and the conductor. There is no evidence
that 'S' raised any protest or any alarm regarding her having
been enticed from the custody of her family or lawful guardian,
or her having been kidnapped or taken from their possession.
No alarm was raised when the accused had allegedly
committed rape on her. No medical evidence of force or rape
was brought on record. In this background, the learned trial
judge has correctly observed that 'S' was a consenting party to
the alleged actions. The testimony of PW7 is clearly
demolished the statement made by the statement made by
PW7 under Section 164 of the Cr.P.C. on 19.5.2010, which was
soon after the accused Babloo and she were apprehended. It
is noteworthy that 'S' was in the company of the respondent
from the evening of 19.4.2010 till 18.5.2010.
In this background, the observations and the findings of
the trial Judge are factually and legally sound and cannot be
faulted with on any legally tenable grounds.
We, therefore, find no merit in the petition seeking leave
to appeal. The leave petition stands dismissed.
GITA MITTAL, J
J.R. MIDHA, J
JULY 13, 2012
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