Mahesh vs State
2015 Latest Caselaw 5703 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                               Judgment reserved on :31.07.2015
                               Judgment delivered on : 07.08.2015.
+      CRL.A. 430/2013
       MAHESH
                                                        ..... Appellant
                          Through    Mr. K. Singhal, Adv.
                          versus
       STATE
                                                     ..... Respondent
                          Through    Ms. Kusum Dhalla, APP for the
                                     State
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J.

1 This appeal impugns the judgment and order on sentence dated

28.09.2012 and 10.12.2012 respectively wherein the appellant Mahesh

stands convicted under Sections 366/376/506 of the IPC. For his

conviction under Section 376 of the IPC, he has been awarded RI for a

period of 8 years and to pay a fine of Rs.3,000/- and in default of

payment of fine to undergo SI for a period of 4 months. For his

conviction under Section 366 of the IPC, he has been awarded a

sentence of RI 7 years along with fine of Rs.2,000/- and in default of

payment of fine to undergo SI for 3 months. For his conviction under

Section 506 of the IPC, he has been sentenced to undergo RI for a

period of 2 years and to pay a fine of Rs.1,000/- and in default of

payment of fine to undergo SI for 1 month. The sentences were to run

concurrently.

2 This Court notes that two criminal appeals have been filed by the

same appellant which will be disposed of by this common order; this

was due to inadvertence and both the appellants were accordingly

directed to be listed together.

3 The version of the prosecution was unfolded in the testimony of

'S' examined as PW-2. She was living with her sister and brother-in-

law. The appellant was known to her. On the fateful day i.e. on

19.01.2011, he had committed forceful act of rape upon her. Her

complaint was lodged on the following day on 20.01.2011.

4 Prior to her complaint on 19.01.2011, her brother-in-law had

lodged a missing report which was recorded vide DD dated 19.01.2011;

this was at 10:12 pm. In this DD, it had been stated that the victim had

gone with a person by the name of 'Tikka'. Apart from the statement of

PW-2, the statements of her sister Jamila (PW-3) and her brother-in-law

Sher Mohammad (PW-4) were recorded. The victim was medically

examined on 04.02.2011 vide MLC Ex.PW-9/A. The victim could not

be examined earlier. The bony age of the victim had been conducted by

Dr.Shipra Rampal, Radiologist (PW-8) who had opined vide report

Ex.PW-8/A that the bony age of the victim to be between 16 to 17 years.

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

Cr.PC, he had pleaded innocence. Submission being that he has been

falsely implicated in the present case.

6 On the basis of the aforenoted evidence collected by the

prosecution, the accused was convicted.

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

detail. Attention has been drawn to the version of PW-2 in various parts

of her cross-examination. Submission being that PW-2 was a consenting

party and by no stretch of imagination, can it be said that there was any

forceful act committed upon her which was against her wishes. There

have been vital improvements in her version. She had refused to get her

statement recorded under Section 164 of the Cr.PC; she had also refused

her medical examination and this is evident from the version of the

Investigating Officer SI Sushil Rana (PW-16). The trial Judge has

wrongly concluded that the victim was a minor when the finding

suggests otherwise; she was major on the date of the offence. The

appellant is entitled to a benefit of doubt and a consequential acquittal.

8 Needless to state that the State has refuted these allegations.

Submission being that the impugned judgment calls for no interference.

9 Arguments have been heard. Record has been perused.

10 The star witness of the prosecution is the victim herself. She was

examined as PW-2. Her statement under Section 164 of the Cr.PC has

not been recorded. Her statement under Section 161 of the Cr.PC had

been recorded which had formed the basis of the FIR. In this statement,

she had given her age as 14 years. In her version on oath, she had

deposed that she was residing with her sister and brother-in-law and was

working in a pickle factory where the accused Mahesh also worked. He

was known to her. He had made a proposal of marriage to her. On

19.01.2011, the accused had called her to his house. At 07:00 pm, she

went to his house without telling anyone at her house. The accused

forcibly committed sexual intercourse upon her. He pressed her mouth.

He kept her in his house at night. When she went home, she narrated the

entire incident to her sister and brother-in-law pursuant to which the

present FIR was lodged. She was permitted to be cross-examined by the

learned public prosecutor. In her cross-examination by the learned

defence counsel, she admitted that she had left the house on the pretext

of attending to a call of nature; she reiterated that her younger sister was

at home when she left her house. The accused had met her at the toilet

from where she accompanied him to his house. She knew the accused

since the last 10-15 days as they were both working in the same pickle

factory. She did not raise any alarm while she was going to the house of

the accused. This was at about 7- 8 pm. She sat in the house of the

accused for about five minutes. The accused had committed rape upon

her three times during the night. He had disrobed her and thereafter he

put her clothes upon her. The accused had also been making a proposal

of marriage to her since the last 5-6 days. In another part of her cross-

examination, she had stated that in the morning of the fateful day, a

friend of the accused took her to his house at Jahangirpuri and from

there she went to the bus stop and then returned home where she

narrated the incident to her sister and brother-in-law. She did not visit

the hospital on 20.01.2011 but had gone on 21.01.2011. She denied the

suggestion that the accused has been falsely implicated.

This version of PW-2 on oath reflects that the appellant was

known to the victim since the last 10-15 days as they were both working

in the same factory. Parties had a friendly relationship and that was

probably the reason that the proposal for marriage had been made to her.

Further version of PW-2 being that she had left her house at 7:00-8:00

pm on the fateful evening of 19.01.2011 pretending to attend a call of

nature and the accused met her at the toilet from where she had

accompanied him to his house which was at a distance of 10-15 minutes

away. She did not raise any alarm on the way. She sat in the house of the

accused for about 5 minutes.

11 All these facts do show that there was a consent and voluntariness

on the part of the victim to have accompanied the accused.

12 However, the next question which arises is that whether this act of

accompanying the accused to his house on the fateful evening;

presuming it was consent to go to his house but did it mean that it was

also a consent to allow the accused to commit the forceful act of rape

upon the victim or not has to be answered?

13 To answer, this query, inconsistencies relied upon by the learned

counsel for the appellant have been highlighted. The submission of the

learned counsel for the appellant being that this witness is not worthy of

any credence as there have been vital improvements in her version.

14 This submission of the learned counsel for the appellant has to be

tested on the anvil of the testimony of the victim recorded both under

Section 161 of the Cr.PC as also her version on oath in Court. At the

cost of repetition, it was noted that there was no statement of the victim

recorded under Section 164 of the Cr.PC. In this context, the cross-

examination of the Investigating Officer (PW-16) is also relevant. PW-

16 has admitted that PW-2 was not cooperating inspite of every effort to

get her statement recorded under Section 164 of the Cr.PC; she did not

appear before the Court of learned MM to get her statement recorded.

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

Cr.PC, she had stated that she knew the appellant since the last one

month and since 15 days he was pressurizing her to marry him. In the

evening of 19.01.2011, when she had gone to attend a call of nature, the

accused enticed her and took her to his jhuggi where he committed the

forceful act of rape upon her. She was threatened not to disclose this

incident to anyone. She managed to escape and disclosed the incident to

her sister and brother-in-law pursuant to which the report in the police

station was lodged.

16 On oath in Court, the victim has admitted that she had

accompanied the accused voluntarily which was at a distance of 10-15

minutes away and she had not raised any alarm while accompanying

him there and where she sat for about 5 minutes. On oath, she had stated

that on the following day, the friend of the accused took her to his house

at Jahangirpuri from where she came to the bus stop and then managed

to return to her house. This version on oath, that the friend of the

accused had taken her to his house at Jahangirpuri does not find mention

in her statement under Section 161 of the Cr.PC. Who was this friend

was not detailed? Even presuming that this is not a material

contradiction/omission on the part of the victim, her version on oath was

that at the time of committing rape upon her when she had resisted, two

friends of the accused who were also present in the house caught hold of

her hands. This version on oath in Court that there were two other

friends in the house of the accused at the time when the accused was

committing rape upon her had not found mention in her statement

recorded under Section 161 of the Cr.PC and which had formed the

basis of the FIR. This to the mind of the Court is a vital improvement

which has been made by the prosecutrix. This throws doubt on the

credibility of the witness as up to the date of registration of the FIR, the

version of the prosecution was that the accused had forcibly committed

the act of rape upon her in his jhuggi after having enticed her. On oath,

the victim has admitted that she had gone voluntarily on her own with

the accused; at the time when rape was committed upon her, there were

two other friends of the accused who were also present in the house and

when she resisted, they caught hold of her hands. Credibility of PW-2

does become questionable?

17 Testimonies of PW-3 and PW-4, the sister and brother-in-law are

also relevant. PW-3 was the sister with whom PW-2 was residing at the

time when the offence had taken place. Her deposition was to the effect

that while searching for her, they saw their sister on the staircase outside

the house of the accused and she was weeping. She was taken for

medical examination but she could not be medically examined as she

was having her menstruation. In her cross-examination, she has made an

evasive statement about the love affair between her sister and the

accused. She however admitted that the accused was known to her

sister. She admitted that her sister had gone to the hospital on

20.01.2011 as well.

18 This version of PW-3 is in contrast with the version of PW-2. As

per the version of PW-2, she managed to escape from the house of the

accused; she had gone to the house in Jahangirpuri and then she

managed to return home and narrate the incident to PW-3 and PW-4.

PW-3 in her cross-examination had stated that they found the victim

sitting outside the house of the accused Mahesh.

19 The medical record of the victim shows that she had been taken to

the hospital on 20.01.2011 but she had refused medical examination.

This has been admitted by PW-16 (Investigating Officer) who in her

cross-examination had admitted that initially the prosecutrix had refused

to undergo internal medical examination. The victim was finally

examined on 05.02.2011.

20 Testimony of PW-4, the brother-in-law of the victim is also

relevant. His testimony is to the same effect as that of PW-3; both of

them have stated that they found the victim sitting outside the house of

the accused. In his cross-examination, he also admitted that PW-2 had

initially refused her medical examination. He had also made an evasive

statement on a specific query as to whether his sister-in-law used to have

secret talks and conversations with the appellant.

21 The learned trial Court had returned a finding that the victim was

a minor on the date of the offence i.e. aged about 14 years. This finding

is wholly against the record of the case. Admittedly in terms of Rule 2

of the Juvenile Justice (Care and Protection of Children) Rules, 2007 in

the absence of the three categories of documents mentioned in the first

part of Rule 12 (which is applicable for purposes of determination of age

of a rape victim in view of the judgment of the Apex Court in 2013 (14)

SCC 637 Mahadeo Vs. State of Maharashtra and Another) a Medical

Board has to be constituted and the age of the victim has to be

determined from the radiological examination. Dr. Shipra Rampal (PW-

8), Radiologist had conducted the radiological examination of PW-2 on

19.02.2011. She had submitted her detailed report after examination of

the X-ray plates of the victim. Her report is Ex.PW-8/A which had

opined the age of the victim between 16-17 years. However, how the

trial Court had returned a finding that the victim was 14 years of age

inspite of documentary evidence adduced before him is not answered.

This is wholly unjustified. A margin of two years has in fact to be given

after estimation of bony age and this margin has to work in favour of the

accused.

22 In 1999 (1) Crimes 1 Mahabir Prasad Vs. State 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."

23 By no stretch of imagination, can it be said that the victim was a

minor. For the offence under Section 376 of the IPC (under the amended

law i.e. prior to Amendment Act of 2013), a victim of rape is to be

treated as a minor only if she is below 16 years. In the instant case, the

victim was above 16 years.

24 This finding becomes necessary to correlate it to answer the

question whether the victim was a consenting party or not as consent of

a minor would have no relevance in the eye of law. However, if the

victim was an adult as is so inferred from the evidence noted and

discussed supra it becomes material.

25 This Court is of the considered view that the victim had consented

to her relationship with the accused and had voluntarily accompanied

him to his jhuggi. Qua the act of rape which has been alleged against the

accused, this Court notes that the testimony of PW-2 is shaky and

suffering from vital improvements which throws a grave shadow of

doubt on her credibility. Her version on oath in Court that there were

two other boys who were in the room at the time when the accused had

committed rape upon her, who had caught hold of her hands at the time

when she had resisted did not find any mention in the FIR. Her

resistance to get her statement recorded under Section 164 of the Cr.PC

and to get herself medically examined again throws doubt on her

credibility. From where the victim was recovered i.e. in front of the

house of the accused (as is the version of PW-3 & PW-4) or whether she

had gone to the house of the friend of the accused at Jahangipuri from

where she had gone back to her own house is also in conflict.

26 There are too many contradictions in the version of the

prosecution.

27 The Apex Court in this context in (2013) 11 SCC 688, Umesh

Singh v. State of Bihar has held as under:-

"there is possibility of some variations in the exhibits, medical and ocular evidence and it cannot be ruled out. But it is not that every minor variation or inconsistency would tilt the balance of justice in favour of the accused. Where contradictions and variations are of a serious nature, which apparently or impliedly are destructive of the substantive case sought to be proved by the prosecution, they may provide an advantage to the accused."

28 The appellant is entitled to a benefit of doubt. Giving him benefit

of doubt, he is acquitted. He be released forthwith, if not required in any

other case.

29     Appeal is allowed.

Crl. M (B) No.964/2014

30     This application has become infructuous.

31     It is accordingly disposed of.

32     Date of 20.08.2015 stands cancelled.



                                        INDERMEET KAUR, J
AUGUST 07, 2015
A