Delhi High Court

Santu Dass vs State Of Nct Of Delhi on 7 March, 2014

Author: Indermeet Kaur

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                   Judgment reserved on:03.03.2014
                                   Judgment delivered on:-06.03.2014
+      CRL.A. 132/2006
       SANTU DASS
                                                          ..... Appellant
                          Through       Mr.Shakti Chand Sharma, Adv.

                          versus

       STATE OF NCT OF DELHI
                                                       ..... Respondent
                          Through       Mr. Varun Goswami, APP

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J.

1 This appeal is directed against the impugned judgment and order

of sentence dated 30.01.2006 and 31.01.2006 respectively wherein the

appellant has been convicted under Section 363 of the IPC and has been

sentenced to undergo RI for 2 years and to pay a fine of Rs.1,000/- and

in default of payment of fine to undergo SI for 1 month.

2 The present FIR had been registered at PS Vasant Kunj on the

statement of the mother of the victim namely Tulsa Devi examined as

PW-2. She had lodged a missing report on 14.10.2002 stating that her

daughter was missing since 30.09.2002. Her allegation was that

appellant Santu Dass had kidnapped her daughter 'R' aged about 16

years from the lawful custody of her parents and had also committed

rape upon her. After the recovery of the prosecutrix, the appellant was

arrested. The statement of the prosecutrix was got recorded under

Section 164 of the Cr.PC. Challan was filed.

3 The prosecution had examined 10 witnesses in support of its

version.

4 In the statement of the accused, he denied his involvement in the

offence; his submission was that the prosecutrix was a major and the

parties had got married voluntarily in the Arya Samaj Mandir; there was

no force or pressure on the prosecutrix.

5      No evidence was led in defence.

6      The trial Judge on the basis of the aforenoted evidence both oral

and documentary had convicted the appellant under Section 363 of the

IPC; he had been acquitted of the charge under Section 376 of the IPC.

The Court had noted that the victim was aged more than 16 years but

less than 18 years; the offence of rape was not made out as in her

statement recorded under Section 164 of the Cr.PC, she had exonerated

the accused; moreover she stayed with the accused for several days and

there were no explanation given by her as to why and in what

circumstances, she had accompanied him and gone from Delhi to

Calcutta; there was no force upon her; there was no injury found upon

her person. The Court had noted that the prosecutrix was in fact at the

age of discretion and was fully able to understand the consequences of

her acts. Accordingly for the offence under Section 376 of the IPC, the

appellant stood acquitted. However on the point of age of the

prosecutrix, the Court had noted that the date of birth of the prosecutrix

was proved as 15.04.1986 in terms of Ex.PW-6/A and Ex.P-1 which was

a school leaving certificate from Sarvodya Vidyalaya, New Delhi; the

transfer certificate was proved as Ex.P-1. The ossification report of the

prosecutrix opined her age between 14-17 years. The Court had thus

noted her to be minor and being below 18 years of age, the consent of

the prosecutrix for the purpose of kidnapping was not material.

Accordingly the accused had been convicted under Section 363 of the

IPC. He had been sentenced accordingly.

7 On behalf of the appellant, arguments had been addressed in

detail. Learned counsel for the appellant at the outset had proceeded to

make his submissions on sentence alone; submission being that out of

the 2 years period of incarceration which had been ordered against the

appellant, he has already suffered imprisonment for one year. However,

thereafter, he proceeded to argue the appeal on its merits. It is argued

that the age of the prosecutrix was clearly in doubt and the trial Court

holding the prosecutrix below 18 years has clearly committed an

illegality as the Court had relied upon the school leaving certificate

(Ex.PW-6/A) and the transfer certificate (Ex.P-1) which are clearly

liable to be disbelieved for the reason that PW-2 (the mother of the

victim) in her cross-examination had admitted that they had given a

wrong date of birth in Ex.P-1 i.e. the transfer certificate of the

prosecutrix. Attention has been drawn to that part of the testimony of

PW-2. Further submission being that even the ossification report had

opined the age of the prosecutrix as 14-17 years and giving benefit of

two years in view of the judgment of the Apex Court reported in 1999

(1) Crimes 1 Mahabir Prasad Vs. State, this benefit necessarily has to

accrue in favour of the accused and the prosecutrix was in these

circumstances clearly more than 18 years and thus being a major, no

offence under Section 363 of the IPC was made out.

8 Arguments have been refuted by the learned APP for the State. It

is pointed out that Ex.P-1 and Ex.PW-6/A can for no reason be

disbelieved. The trial Court had correctly relied upon these documents

to hold that the prosecutrix was less than 18 years of age. The impugned

judgment does not call for any interference.

9 Arguments have been heard and record has been perused.

10 Under Section 363 of the IPC, if any person kidnaps another from

lawful guardianship such an act comes within the ambit of that clause.

Section 361 defines the offence of kidnapping from lawful guardianship;

a minor for the purpose of Section 361 is below 18 years of age if a

female and under 16 years if a male. The Supreme Court has time and

again reiterated that where a minor is taken out of her lawful

guardianship without the consent of the guardian, the offence under

Section 363 is made out. Age thus becomes very relevant. In fact for a

prosecution under Section 363, age of the girl is a material point because

unless it is shown that she was 18 years of age at the relevant time, there

could be no case of kidnapping within the meaning of Section 363 of the

IPC. The prosecution must prove the age of the prosecutrix on the date

of taking away or enticing out of lawful guardianship being below 18

years.

11 In the instant case, what has weighed in the mind of the trial

Judge to hold that the prosecutrix was 18 years of age is Ex.PW-6/A and

Ex.P-1. Ex.PW-6/A was proved through Subha Gopinathan (PW-6), the

Head Clerk from Sarvodya Vidayalya, Vasant Vihar, New Delhi. She

had brought the admission register of the school wherein at serial

No.1225, there was an entry of 'R' who had left the school at

28.09.1996 and was admitted in the school on 15.04.1986. The transfer

certificate issued by the Vice Principal of the school was proved as

Ex.P-1.

12 The ossification report of the prosecutrix was proved through Dr.

P. Ramakrishnan (PW-9), the CMO of the Safdarjung Hospital. He had

proved the report as Ex.PW-9/A and as per this report, the age of the

prosecutrix was between 14-17 years on the date of her examination

which was on 31.10.2002 i.e. just around the period of the date of the

offence. In his cross-examination, the doctor had explained that this age

was calculated on the basis of X ray plates of both the wrists, elbows,

shoulders and pelvis; there is a bit of variation in calculating the age but

in this case, it would probably be less than 17 years because epiphyses

of lower end of radius and ulna had not fused. He denied the suggestion

that the prosecutix was 19 years of age on the date of the offence.

13 The investigating officer, SI P.C. Yadav was examined as PW-10.

In his cross-examination, he admitted that the prosecutrix had told him

that the accused had taken her to the mandir for marriage and in her

statement (Ex.PW-10/A), she had stated that Samay Santu Dass was her

husband. He further admitted that after her remand period was over, the

prosecutrix preferred to go to the 'Nari Niketan' rather than to join the

company of her parents.

14 Record shows that in her MLC conducted on 31.10.2002 at the

Safdarjung Hospital, the prosecutrix had given her age as 19 years and it

has been specifically mentioned that this age has been given by the

patient herself. So also in her medico legal report which was prepared

on the same day at the Safdarjung Hospital wherein in history the victim

'R' stated herself to be a major and aged 19 years and had married the

appellant Santu Dass on 30.09.2002 at the Arya Samaj Mandir, Vasant

Vihar with her own consent. Even in her OPD card which was also

prepared on the same day again her claim of her age was 19 years. The

statement of the prosecutrix was recorded under Section 164 of the

Cr.PC on the same date. On oath in Court wherein a specific question

was put to her by the Presiding Officer, she again stated her age to be 19

years. Ex.P-1 was a school leaving certificate issued by the Vice

Principal of the school wherein her date of birth had been noted as

15.04.1986. This document was proved as Ex.P-1. PW-2 in her cross-

examination has admitted that this date of birth given of the prosecutrix

in Ex.P-1 is an incorrect age. This version of PW-2 in her cross-

examination demolishes Ex.P-1. Moreover, it is not as if Ex.P-1 alone

can be looked at. This was transfer certificate where date of entry of

birth has been depicted as 15.04.1986 admittedly but there is no

documentary evidence with PW-2 or any other witness of the

prosecution to establish this date as her actual date of birth. In fact in

cross-examination PW-2 admitted that this date of 15.04.1986 is a

wrong date. This version of PW-2 thus completely demolishes Ex.P-1.

Moreover, Ex.P-1 is also not from a Government school; it is of a

private school; such an evidence is also not admissible under Section 35

of the Evidence Act.

15 What was thus left with the prosecution was the ossification

report of the victim which was proved as Ex.PW-9/A. This ossification

report had opined the date of birth of the prosecutrix as between 14-17

years. Trite it is to say that an ossification report only gives an opinion

about the approximate age of a person and it cannot be an exact age.

Margin of two years has to be given on either side.

16 In Mahabir Prasad (supra) the Court while dealing with the age

of the prosecutrix, in this context as held as under:-

"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." 17 The benefit of this margin has to accrue in favour of the accused.

Giving the benefit of two years, the age of the prosecutrix would thus be

17 + 2= 19 years.

18 The prosecutrix as noted supra has also at all stages of

investigation i.e. at the time when her statement under Section 164 of

the Cr.PC was recorded as also on all occasions when her medical

examination was being conducted has stated her age to be 19 years. In

this background, the trial Judge holding that the prosecutrix was less

than 17 years of age has clearly committed an illegality.

19 The Apex Court in AIR 2010 SC 392 Sunil Vs. State of Haryana

while examining the school leaving certificate in the context of a

conviction under Section 363 had noted where the record did not

disclose as to from where the date of birth of the prosecutrix had