Ajay Kumar vs State
2015 Latest Caselaw 5940 Del

$
*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                 RESERVED ON : AUGUST 04, 2015
                                 DECIDED ON : AUGUST 14, 2015

+                           CRL.A. 260/2005
       AJAY KUMAR                                        ..... Appellant
                            Through :   Mr.Braham Singh with
                                        Mr.M.S.Vidhudi, Advocates.
                            versus
       STATE                                             ..... Respondent
                            Through :   Mr.Navin K.Jha, APP.


+                           CRL.A. 324/2005
       RAM SAHU @ RAM
                                                            ..... Appellant
                            Through :   Mr.Krishan Kumar, Advocate.
                            versus
       STATE
                                                          ..... Respondent
                            Through :   Mr.Navin K.Jha, APP.
        CORAM:
        HON'BLE MR. JUSTICE S.P.GARG




Crl.A.Nos.260/05 & 324/05                                  Page 1 of 8
 S.P.GARG, J.

1. Aggrieved by a judgment dated 27.01.2005 of learned

Additional Sessions Judge in Sessions Case No.48/01 arising out of FIR

No.243/00 registered at Police Station Vivek Vihar by which the

appellants were convicted under Sections 363/366/376 IPC, they have

preferred the instant appeals. By an order dated 01.02.2005, the

appellants were awarded various prison terms with fine.

2. Briefly stated, the prosecution case as set up on the charge-

sheet was that on 23.11.2000 in between 7.30 a.m. to 9.30 a.m., the

appellants in furtherance of their common intention kidnapped the

prosecutrix 'X' (assumed name) aged 13 years from the lawful

guardianship of her parents. After kidnapping, they took her to village

Ramoli, Distt. Darbangha, Bihar where the appellant-Ajay committed rape

upon her.

On 23.11.2000 'X' went missing and could not be found

despite hectic search by her parents. PW-2 (Nirmala Chaubey) 'X's

mother lodged First Information Report with the police and suspected the

appellants involvement in the crime. 'X' was recovered from appellants'

custody at their village Ramoli, Distt. Darbangha, Bihar on 30.11.2000.

'X' was medically examined, she recorded her statement under Section

164 Cr.P.C. Both the accused persons were medically examined after

their arrest. Statements of witnesses conversant with the facts were

recorded. Upon completion of investigation, a charge-sheet was filed

against them for committing offence under Sections 363/366/376 IPC. To

establish its case, the prosecution examined seventeen witnesses. In 313

statements, the appellants denied their involvement in the crime and

pleaded false implication. The trial resulted in their conviction as

mentioned previously. Being aggrieved and dissatisfied, the instant

appeals have been preferred.

3. I have heard the learned counsel for the parties and have

examined the record. Admitted position is that on 23.11.2000 along with

her father 'X' had gone to Ucchtar Madhyamik Vidyalaya, Jhilmil Colony

at 7.30 a.m. She went missing from the school leaving her school bag

there. Principal of the school informed her parents. The appellants were

working in the factory of the victim's father. They were acquainted with

'X' before the incident.

4. On scrutinizing the testimony of the prosecutrix, it leaves no

doubt that it was a case of elopement with consent. 'X' had entered inside

the school premises after she was left there by her father. However, she of

her own voluntarily came out of the school gate to accompany the

appellants without informing anyone. She travelled by train to

Darbangha, Bihar and remained in the company of the appellants for

about seven days. Physical relations were established between 'X' and

appellant Ajay during this period. At no stage 'X' raised any alarm to

attract the attention of public/police to complain about the alleged forcible

kidnapping and seek help from them. The appellants were not armed with

any weapon to create real apprehension in 'X's mind to desist from

protesting her kidnapping. At Darbangha (Bihar) also, where she lived for

about seven days before her recovery by Delhi police, she had no

complain, whatsoever, against the conduct and behaviour of the

appellants. She was acquainted with the accused persons and used to be

in conversation with them before the incident. During her stay with the

appellants, she did not attempt to contact her parents to apprise them her

whereabouts. She left the school without informing her friends or school

teacher leaving her school bag there. She had no reasons or occasion to

come out of school gate during school hours without seeking prior

permission of her school teachers. Apparently, 'X' was a willing and

consenting party. She was medically examined vide MLC Ex.PW-8/A by

Dr.Anju Gautam on 2.12.2000. No visible injuries were found on her

body. Vagina admitted two fingers with pain; hymen was found torn.

Obviously, there were no marks of struggle or violence on her body. She

had sexual intercourse even on 30.11.2000 with the appellant-Ajay.

5. She did not lodge any report with the police about her alleged

forcible kidnapping/rape. After she was brought to Delhi and was

produced before the learned Metropolitan Magistrate for recording 164

Cr.P.C.statement, she fairly informed the learned Metropolitan Magistrate

that she was being threatened by her mother to state that Ajay and Ram

had forcibly kidnapped her after showing knife or else she would beat her.

Considering that 'X' was not making statement voluntarily, the learned

Metropolitan Magistrate did not deem it proper to record her 164 Cr.P.C.

statement on 02.12.2000.

In her Court statement, feeble attempt was made by 'X' to

wriggle out of it, alleging that police had threatened her not to state

anything against the appellants. This explanation does not inspire

confidence as 'X' who was before the Court had no reasons to fear and

not to disclose the real facts. Apparently, 'X' had no grievance against

any of the appellants when she was produced before the learned

Metropolitan magistrate on 02.12.2000 for recording 164 statement.

Number of discrepancies and improvements have emerged in her Court

statement and she was duly confronted with 161 Cr.P.C. statement

(Ex.PW-2/DA). 'X' was unable to offer any sound reasons for vital

improvements made in her Court statement. It appears that at the time of

recording her statement before the Court, she was under the influence of

her parents. No reliance can be placed on her statement to base conviction

in the absence of any independent corroboration.

6. Age of the prosecutrix on the day of occurrence was crucial

to find out if the appellants were guilty of crime. The prosecution case

from the very inception is that 'X' was aged about 13 years at the time of

incident and was studying in VIIth standard. During investigation,

however, no attempt, whatsoever, was made by the investigating agency

to collect any proof of her date of birth; no birth certificate was placed on

record. Date of birth recorded in the school at the time of 'X's admission

was also not relied upon. PW-6 (Smt.Usha Kathuria), Vice Principal of

Govt.Girls Senior Secondary School, Jhilmil appeared in the court to

prove that after coming to know 'X' missing from the school premises,

she informed her parents on phone. The prosecution did not consider it

relevant to ask her to bring and produce the school record showing her

date of birth at the time of her admission there. PW-14 (Dr.Ratan

Mahesh) who had examined 'X' by MLC Ex.PW14/A on 27.02.2001 had

advised bony age x-ray test. It appears that no ossification test was

conducted to ascertain her approximate age. No explanation has been

given by the Investigating Officer for this omission. Even during trial, no

application was filed for conducting ossification test to prove her age.

Adverse inference is to be drawn against the prosecution for not collecting

and proving the cogent and reliable documentary evidence showing the

exact or approximate age of the prosecutrix on the day of incident. PW-1

(Smt.Nirmala Choubay) 'X's mother claimed that 'X' was born in 1987.

However, she was not aware about the exact date and month. She

disclosed that at the time of 'X's admission in the school, she had given

her 'janampatri' where her correct age was reflected. PW-4 (Krishan

Kant Choubey) 'X's father contradicted her stating that no such

'janampatri' was handed over to the school authorities at the time of her

admission. He claimed that 'X' was born on 12.03.1987 but did not

produce any document including 'janampatri' to confirm it. Oral

testimony of the prosecutrix and her parents disclosing her age 13 years

on the date of incident cannot be taken at its face value. Conflicting and

contradictory statements have been given by PW-1 and PW-4 if 'X' had

failed or not during her studies upto VIIth standard. In the cross-

examination, PW-4 admitted that she had failed once in the VIIth class;

'X' mother denied it. The fact remains that no document, whatsoever, has

surfaced from any quarter to assess the age of the prosecutrix. The burden

was heavily upon the prosecution to prove all the ingredients of Section

363/366/376 IPC. Simply because the appellants did not bring any

document about the 'X's age or did not examine any witness in defence, it

does not absolve the prosecution to establish its case beyond reasonable

doubt.

7. In the light of the above discussion, I am of the view that the

prosecution has failed to prove its case beyond reasonable doubt. Giving

benefit of doubt, both the appellants are acquitted and their appeals are

allowed.

8. Trial Court record (if any) along with a copy of this order be

sent back forthwith. A copy of the order be sent to Jail Superintendent,

Tihar Jail for intimation. Bail bonds and surety bonds stand discharged.

(S.P.GARG) JUDGE AUGUST 14, 2015 sa