State vs Raj Pal @ Raj
2015 Latest Caselaw 277 Del

$~3.
*       IN THE HIGH COURT OF DELHI AT NEW DELHI


+                   CRIMINAL LEAVE PETITION NO. 235/2014


                                          Date of decision: 13th January, 2015
        STATE                                                 ..... Appellant
                           Through Mr. Varun Goswami,APP along with SI
                           Roshan Lal, P.S. Nangloi.

                           versus

        RAJ PAL @ RAJ                                     ..... Respondent

Through Ms. Inderjeet Sidhu, Advocate.

CORAM:

HON'BLE MR. JUSTICE SANJIV KHANNA HON'BLE MR. JUSTICE ASHUTOSH KUMAR

SANJIV KHANNA, J. (ORAL):

CRL.M.A. No. 4808/2014

Delay of 74 days in filing of the leave to appeal is condoned for the

reasons given in the application seeking condonation of delay.

The application is disposed of.

CRIMINAL LEAVE PETITION NO. 235/2014

By impugned judgment dated 5th October, 2013, the respondent has

been acquitted, giving benefit of doubt, under Sections 363, 366 and 376 of

the Indian Penal Code, 1860 (IPC, for short). The aforesaid prosecution

arose out of FIR No. 31/2012, Police Station Nangloi dated 7th February,

2012.

2. In the present case, the amendments made to Section 375 IPC vide

Criminal Law Amendment Act, 2013, effective from 3rd February, 2013

would not be applicable, for the reason that as per the charge sheet, the

prosecutrix had gone missing on 2nd February, 2012 and was recovered

along with the respondent-Raj Pal on 23rd February, 2012.

3. On the question of consent, the trial court in the impugned judgment

has recorded a finding in favour of the respondent. We are inclined to

accept the said finding. The parents of the prosecutrix Kiran (PW-3) and

Ram Pal (PW-4) have endorsed that the respondent was their distinct

relative, indicating that the prosecutrix and the respondent knew each

other. Ram Pal (PW-4) accepted and admitted the photographs Exhibit

PW-4/DA1 to DA5, which show that the respondent and the prosecutrix

were friendly and extremely close to each other.

4. Dr. Heena Kausar (PW-5), Sr. Gynaecologist, SGM Hospital,

Mangolpuri had deposed as to examination of the prosecutrix on 23rd

February, 2012 and the factum that the prosecutrix was very adamant to

deny sexual assault. She had refused medical examination. PW-5,

therefore, could not conduct internal medical examination. However, urine

pregnancy test was negative. In cross-examination, PW-5 accepted as

correct that the patient had told her that she was not sexually assaulted.

Further, PW-5 accepted as correct that the patient had informed her that

although she had got married, she had no physical relationship with her

husband.

5. The prosecutrix was also examined under Section 164 of the Code of

Criminal Procedure, 1973 on 24th February, 2012, vide statement marked

Exhibit PW-6/A. In the said statement, the prosecutrix in categorical terms

had asserted that on 2nd February, 2012 she had spoken to the respondent at

Hapur on phone and that she wanted to reside with him. She had known

the respondent for last six years. Thereafter, she went to ISBT and took a

bus to Hapur and started living with the respondent. She had gone Hapur

on her own. In her court deposition, the prosecutrix did alter her stand, to

state that the respondent had enticed her to accompany him. He had told

her that he would marry her and take good care. Contrary to her Section

164 Cr.P.C. statement, the prosecutrix in her court deposition had claimed

that the respondent had taken her to Anand Vihar Bus Terminal and then to

Hapur where she stayed about twenty days. She accepted as correct that

the respondent used to go for work at Hapur. She admitted her statement

under Section 164 Cr.P.C., but claimed that this statement was under the

influence of the accused and as she was confused. She accepted that they

had sexual intercourse, but it was with her consent. She denied the

suggestion given by the Public Prosecutor, who was allowed to put leading

questions that the respondent used to have sexual intercourse without her

consent. In cross-examination by the counsel for the respondent, the

prosecutrix accepted that she had stated before the Magistrate in her

statement Exhibit PW-6/A that she had gone to Hapur and started living

with the respondent. She also accepted as correct that she had made a

telephone call to the respondent on 2nd February, 2012 to state that she

wanted to live with him.

6. Noticing the contradictory statements, we have no reason to interfere

with the finding of the trial court on the question of consent. We also

notice that there is discrepancy whether or not the prosecutrix and the

respondent had any physical relationship. In case there was no physical

relationship, rape under Section 375 IPC would not be made out. The said

discrepancy and lack of evidence, would go in favour of the respondent.

7. On the question of age of the prosecutrix, we find that the issue is

highly debatable and not established beyond doubt. Prosecutrix in her

court deposition has given her date of birth as 10th October, 1996. The said

date of birth was recorded in the school records produced by Ramesh

Chander (PW-13). But before we refer to the statement of PW-13, we

would like to cite Ravinder Singh (PW-7), who had stated that the

prosecutrix had taken admission in IInd class in the B.S. Convent School at

Shiv Ram Park, Nangloi in the year 2004. After studying for two-three

years, she left and took admission in a Government school. In cross-

examination, PW-7 accepted that at the time of admission parents of the

prosecutrix did not provide any documentary evidence or proof of date of

birth. He also accepted as correct that in the school records the date of

birth was not mentioned. This means that date of birth of the prosecutrix

was not recorded or mentioned in the records of B.S. Convent School

where the prosecutrix was admitted for studies for the first time in the year

2004.

8. Ramesh Chander (PW-13), Record Keeper, had produced the records

maintained in the Government Girls Senior Secondary School, JJ Colony,

Nangloi. This included admission register (Exhibit PW-13/A), admission

form (Exhibit PW-13/B) and the affidavit furnished by the father of the

prosecutrix (Exhibit PW-13/C). The said affidavit records and mentions

the date of birth of the prosecutrix as 10th October, 1996. It is apparent that

only on the basis of the said affidavit the date of birth was recorded as 10th

October, 1996 in the school records. Kiran (PW-3), mother of the

prosecutrix in her examination in chief had stated that she did not

remember the date of birth of her daughter, i.e., the prosecutrix. In her

cross-examination, she accepted that she had another daughter Anshu, who

had got married five years back and had a child. She, however, claimed

that Anshu was married at the age of fifteen years. She also deposed that

Anshu had expired recently from jaundice. Ram Pal (PW-4), the father in

his cross-examination accepted as correct that he did not have any

documentary proof as to the date of birth of the prosecutrix and had also

not furnished any documentary proof at the time of admission. These facts

create doubt about the age of the prosecutrix. No ossification test was

conducted in the present case.

9. Keeping in view the aforesaid facts, we find that no ground for

interference is made out and the leave to appeal is dismissed. The surety

bond furnished by the respondent will be treated as discharged.

                                       (SANJIV KHANNA)
                                            JUDGE


                                      (ASHUTOSH KUMAR)
        JANUARY 13, 2015                   JUDGE
        VKR