Delhi High Court

Akil Ahmad vs State on 28 April, 2014

Author: Indermeet Kaur

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                 Judgment reserved on :03.04.2014.
                                 Judgment delivered on :28.04.2014.

                           CRL.A. 494/2000
AKIL AHMAD                                       ......Appellant
                           Through:   Mr. H.M. Singh and Ms.
                                      Shabana, Advs.

                      Versus


STATE                                              .......Respondent
                      Through:   Ms. Fizani Hussain, APP

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J.

1 The appellant is aggrieved by the impugned judgment and order

of sentence dated 31.07.2000 & 04.08.2000 respectively wherein he has

been convicted under Sections 363/366/376 of the IPC. For the offence

under Section 376 of the IPC, he has been sentenced to undergo RI for a

period of 7 years and to pay a fine of Rs.5,000/- and in default of

payment of fine, to undergo RI for 1 year; for the offence under Section

366 of the IPC, he has been sentenced to undergo RI for a period of 5

years and to pay a fine of Rs.3,000/- and in default of payment of fine,

to undergo RI for 9 months; for the offence under Section 363 of the

IPC, he has been sentenced to undergo RI for a period of 3 years and to

pay a fine of Rs.2,000/- and in default of payment of fine to undergo, RI

for 6 months. Benefit of Section 428 of the Cr.PC had been accorded to

the appellant.

2 The version of the prosecution is that on 11.08.1997, the accused

had taken the prosecutrix 'S' forcibly to Rohini where she was kept at

his relative's house till 22.08.1997. The accused had committed rape

upon her in this intervening period; the prosecutrix was a minor aged

about 15 years.

3 Missing report about the victim being missing from her house had

been recorded vide DD No. 5-A on 20.08.1997 by the mother of the

victim Khursheed (PW-4).

4 Investigation revealed that on 22.08.1997, the victim and the

accused had got married as per Muslim rites and the nikahnama was

proved by Hasin Ahmed (PW-8); the marriage was performed by the

Qazi Bismil Nijami who had been examined as PW-12 also affirming

this fact.

5 In the statement of the victim recorded under Section 161 of the

Cr.P.C., she had stated that she had gone with the accused of her own

free will; this was reiterated by her in her statement under Section 164

of the Cr.P.C. before the learned Metropolitan Magistrate (PW-10). In

both these statements, she had given her age as 18 years. On oath in

Court, she had however given a different version and had stated that the

accused had forcibly taken her and she was only 15 years of age at that

time; he had raped her.

6 The victim was examined by Dr. Sangeeta Gupta (PW-2) on

28.08.1997. No injury mark was noted on her body but bleeding from

the vagina was noted. Her MLC was proved as Ex.PW-2/A. X-ray was

advised. Dr. Gopesh (PW-9) had proved the X-ray report of the victim

opining her age to be 14-17 years.

7 The Investigating Officer SI Ravinder Kumar Malik (PW-14) had

completed the investigation.

8 In the statement of the accused recorded under Section 313 of the

Cr.P.C., he had pleaded innocence; submission being that the parties had

got married voluntarily in the presence of Qazi; the prosecutrix was

major on the date of the incident.

 9      No evidence was led in defence.

10     On the basis of the aforenoted evidence collected by the

prosecution, the accused was convicted and sentenced as aforenoted.

11 On behalf of the appellant, arguments have been addressed by Mr.

H.M. Singh, Advocate. It is pointed out that this is clearly a case where

the prosecutrix had voluntarily accompanied the accused and had

married him of her will; the fact that she was major on the date of the

incident is clear from her version recorded under Section 161 of the

Cr.PC as also her statement under Section 164 of the Cr.PC wherein she

has given her age as more than 18 years; the trial Judge relying upon the

testimony of the mother of the victim who was admittedly an illiterate

lady to conclude that the prosecutrix was a minor has committed an

illegality. The trial Court has also committed an illegality in ignoring the

ossification report. On all counts, the appellant is entitled to a benefit of

doubt and a consequent acquittal.

12 Arguments have been refuted by the learned public prosecutor. It

is pointed out that the judgment of the trial Court does not call for any

interference and the age finding returned by the trial Judge holding the

victim to be less than 16 years is based on the unchallenged testimony of

PW-4 (the mother of the victim) wherein she had explained and detailed

the manner in which her children were born and that is how she has

arrived at a finding that her daughter was less than 16 years of age on

the date of the incident.

13 Arguments have been heard. Record has been perused.

14 The star witness of the prosecution is PW-5. She had admittedly

left her home on 11.08.1997. On 28.08.1997, the prosecutrix had

voluntarily gone to the police station and gave her statement

Ex.PW-5/DA. This statement has been perused. In this statement, she

has stated that she had gone with the accused of her own free will and

she had got married with him on 22.08.1997; she had given her age as

18 years. On the same date, the victim was medically examined by PW-

2 and her MLC has been proved as Ex.PW-2/A. As noted supra, no

injury marks were found on her body. In this MLC, in the history given

by the patient, the victim has stated that she was 19 years of age and she

had married a boy Akil on 23.08.1997. The statement of the prosecutrix

was recorded under Section 164 of the Cr.PC by the learned MM

(PW-10) who on oath had proved it as Ex.PW-10/A. Even in this

statement, the prosecutrix has categorically stated that she had gone with

the accused voluntarily; she had given her age as 19 years. This

statement was recorded in the chamber of the Judge. On oath in Court,

the version of the prosecutrix was however different. She had on oath

stated that on 11.08.1997, the accused had forcibly taken her away and

lived with her as her husband; he had physical relations with her; she

was not allowed to leave the house of the relative of the accused where

she was kept; she denied that any marriage/'nikah' was performed. She

however admitted that she had made her statements both under Section

161 as also under Section 164 of the Cr.P.C. before the Magistrate. In

her cross-examination, she however stated that this statement was given

under pressure.

15 PW-4 was the complainant and the mother of the victim. She had

lodged the missing report of her daughter (Ex.PW-4/A) on 20.08.1997

wherein she has stated the age of her daughter as 15 years. On oath in

Court, she had reiterated that her daughter was 15 years of age at the

time when she went missing with the accused; the accused had taken her

away forcibly. In her cross-examination, she admitted that she is an

illiterate lady; she had three children; she does not remember the date of

birth of any of her children; she was also not clear as to whether she had

three children or five children; her elder son Ishrar had completed 26

years; this was her second marriage; her husband has expired about 15

years back; her son Jabbar was 17 years old and is younger to Ishrar by

6 years; her daughter Mobin is younger by another 4-½ years to Ishrar;

her daughter 'S' (the prosecutrix) was born in Meerut; she studied for 2

years at the Madrasa.

16 In this context, PW-5 has given different picture. She has

admitted that she is not educated. She has stated that her elder brother

Jabbar is elder by 2 years; she has one sister Mobin and another brother

Abrar who is aged 15 years. This version of PW-5 does not state

anything about there being any elder brother by the name of Ishrar;

PW-4 in this context in her examination in chief has stated that she had

three children but has gone by to give details of five children. It has also

come on record that both PW-4 and PW-5 were illiterate and uneducated

although PW-5 had studied at Madrasa school for about 10-12 months.

Testimony of Investigating Officer SI Ravinder Kumar Malik (PW-14)

is also relevant in this regard. He has admitted that in the first statement

given by the prosecutrix, she has given her age as 18 years; the

'nikahnama' proved as Ex.PW-8/A mentions her date of birth as 19

years. PW-14 has further admitted that although he had asked the

mother of the prosecutrix on documentary evidence about the age of the

victim but none could be produced; he admitted that PW-4 did not tell

him the specific age or date of birth of the prosecutrix 'S'. He admitted

that in the course of investigation, he had got done the ossification test

of the prosecturix to determine her age.

17 The statement of PW-9 is also relevant. He has proved the

ossification report of the prosecutrix as Ex.PW-9/A evidencing her age

to be between 14-17 years.

18 Record thus shows that there is no documentary evidence qua the

age of the prosecutrix except the report of the ossification test which has

opined her age to be between 14 to 17 years. The oral versions of the

witnesses qua the age of the victim are conflicting. PW-4 has given the

age of her daughter 'S' as 15 years but she being an illiterate and

uneducated lady candidly admitted that she did not remember the date of

birth of any of her children and having given the age of Ishrar as 26

years whereas PW-5 has given his age as 15 years, all goes to show that

PW-4 was not really in the knowhow or knowledge about the age of her

children which included the victim 'S'. The oral version of the

prosecutrix on this count is also contrary and conflicting. In her

statement under Section 161 of the Cr.PC as also under Section 164 of

the Cr.PC she has given her age as 18 years; in her MLC Ex.PW-2/A,

this has been reiterated; in 'nikahnama' (Ex.PW-8/A), her age

mentioned is 19 years. The 'nikahnama' was a genuine document; it was

produced by the prosecution itself; PW-8 was a witness to this

'nikahnama' who was an independent witness; there was also no

suggestion given to him that he would be deposing falsely for any

purpose; the Qazi who had performed the 'nikah' had also been

examined as PW-12. This document thus shows that the prosecutrix was

aged 19 years on that day. It was only in her version on oath in Court

that the prosecutrix decided to give a different age and stated her age to

be 15 years. This oral version being totally conflicting and contrary

could not have been relied upon and the one line finding given by the

Sessions Judge stating that in these circumstances he would rather rely

upon the version of PW-4 than the ossification report is clearly an

illegality as it is based on no cogent material.

19 In this background, where there were conflicting oral versions, it

was incumbent upon the trial Judge to have looked into the ossification

report which had opined the age of the victim between 14-17 years. An

ossification report is not conclusive on the age of a person; it is only an

approximate factor but no doubt a useful guiding factor.

20 The Apex Court in AIR 1982 SC 1297 Jayamala Vs. Home

Secretary, Govt. of J. & K. in the context of margin of error in

ascertaining the age on a radiological report has inter-alia noted as

under:-

"However, 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."

21 In 1999 (1) Crimes 1 Mahabir Prasad Vs. State the Court while

dealing with the age of the prosecutrix, it was held:-

"On consideration of the entire evidence on record and the judgment cited at the bar, if there can be difference of two years, even in the ossification tests, in that event, the benefit of doubt has to go to the accused." 22 Thus relying upon the ossification report as the oral evidence

necessarily has to be discarded for being unreliable and granting the

margin of two years in favour of the accused, the prosecutrix was

admittedly a major on the date of the offence being more than 18 years

of age.

23 The appellant has been convicted under Sections 363/366/376 of

the IPC. Section 361 defines the offence of 'kidnapping'. The

expression used in Section 361 is 'whoever takes or entices any minor'.

The prosecutrix is a major. Offences under Sections 363/366/376 for

which the appellant has been sentenced are clearly not made out. Not

only is there a clear evidence which is to the effect that the victim was a

major on the date of the incident; it has also come on record that she had

gone with the appellant voluntarily and had entered into a 'nikahnama'