Avdesh Kumar vs The State (Govt. Of Nct Of Delhi)
2015 Latest Caselaw 5278 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                  RESERVED ON : 7th JULY, 2015
                                   DECIDED ON : 23rd JULY, 2015

+                        CRL.A. 632/2003

      AVDESH KUMAR                                      ..... Appellant

                         Through :   Mr.Pankaj Gupta, Advocate for
                                     Mr.Paramjit, Advocate.


                         versus



      THE STATE (GOVT. OF NCT OF DELHI)                 ..... Respondent

                         Through :   Mr.Navin K.Jha, APP.


       CORAM:
       HON'BLE MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. This appeal is directed against a judgment dated 14.05.2003

of learned Addl. Sessions Judge in Sessions Case No. 250/01 arising out

of FIR No. 159/01 PS Bawana by which the appellant - Avdesh Kumar

was convicted under Sections 366/376 IPC. By an order dated 16.05.2003,

he was sentenced to undergo RI for seven years with fine ` 15,000/- under

Section 376 IPC and RI for five years with fine ` 5,000/- under Section

366 IPC. Both the sentences were to operate concurrently.

2. Briefly stated, the prosecution case as reflected in the charge-

sheet was that on 04.05.2001 the appellant after kidnapping the

prosecutrix 'X' aged around thirteen years from the lawful guardianship

of her parents took her in a forest and sexually assaulted her. On

04.05.2001, PW-2 (Manohar Lal), victim's father lodged a 'missing

person report' (Ex.PW-2/A) informing that her daughter 'X' was missing

from his house since 04.05.2001 at around 12.30 p.m. Efforts were made

to find her but she could not located. Finally, she was recovered along

with the appellant at Old Delhi Railway Station on 05.05.2001. 'X' was

taken for medical examination; she recorded her statement under Section

164 Cr.P.C. The accused was arrested and medically examined.

Statements of the witnesses conversant with the facts were recorded.

Exhibits collected during investigation were sent to Forensic Science

Laboratory for examination. After completion of investigation, a charge-

sheet was filed under Sections 363/366/376 IPC against the appellant; he

was charged for the said offences to which he pleaded not guilty and

claimed trial. The prosecution examined thirteen witnesses to prove the

charges. In 313 Cr.P.C. statement, the accused denied his involvement in

the crime and pleaded false implication without producing any evidence in

defence. The trial resulted in his conviction under Sections 366/376 IPC.

It is relevant to note that the appellant was acquitted of the charge under

Section 363 IPC and the State did not challenge the said acquittal. I have

heard the learned counsel for the parties and have perused the file.

Throughout the investigation and trial, 'X' and her parents had claimed

that 'X' was a minor child aged 13 years. However, they did not furnish

any cogent document to show her exact date of birth. Reliance was placed

on school record where the date of birth was recorded as 08.07.1988 as

proved by PW-8 (Kaptan Singh). Admittedly, date of birth recorded in

school at the time of her admission was not based upon any birth

certificate. To ascertain her age, ossification test was conducted and as per

ossification test (Ex.PW-6/A) her age was determined 16 - 18 years. The

Trial Court came to the conclusion that the prosecutrix was more than 16

years of age as on 04.05.2001. Consequently, benefit of doubt was given

to the appellant and it resulted in his acquittal under Section 363 IPC.

3. On perusal of the statements of the prosecution witnesses, it

reveals that both the prosecutrix and her family members were acquainted

with the accused before the incident. Admittedly, the appellant and 'X's

father used to run their respective shops in neighbourhood. 'X' and the

appellant used to meet each other and have conversation. Admittedly, the

appellant used to express his love towards the prosecutrix. On 04.05.2001,

all of a sudden 'X' went missing from her house without informing her

parents. At no stage prior to her recovery, she attempted to contact and

inform them her whereabouts. When she could not be located for quite

some time, her father PW-2 (Manohar Lal) lodged 'missing person report'

with the police on 04.05.2001 at around 11.00 p.m. without suspecting the

appellant's involvement in the crime. Only after they were recovered by

the police at the railway station, 'X' opted to implicate the appellant for

establishing physical relations with her against her wishes after her

kidnapping. In her 164 Cr.P.C. statement (Ex.PW-1/A) recorded on

09.05.2001, she disclosed that on the day of occurrence she had gone to

her shop, where the appellant, to whom she knew before, met her. She ate

cake offered by him and thereafter he took her in a rickshaw. She did not

claim that the accused had enticed or allured her to 'take' her out of lawful

guardianship of her parents. Apparently, she had voluntarily accompanied

the appellant that time. She further disclosed that in the jungle the accused

committed rape upon her. Again, she did not utter a word if she had raised

any alarm to attract the attention of the public at that time or offered

resistance to the sexual act. She further disclosed that thereafter the

accused took her to Old Delhi Railway Station after changing 4 - 5 buses.

When the accused was making enquiries at the ticket-counter, finding the

opportunity, she informed her parents on phone. It is unclear if the

prosecutrix was carrying any mobile that day. It is unclear from where she

had made a telephone call to inform her parents. In her Court statement as

PW-1, she admitted that the accused who had a shop in front of their shop,

used to induce her for marriage; he used to have love talks with her. She

admitted that on 04.05.2001, the accused took her in a TSR to Rohini. At

no stage prior to the incident, 'X' had lodged any complaint about

appellant's conduct and behaviour towards her. She further deposed that

at a lonely place near Rohini, the accused established physical relations

against her wishes. She did not aver if she raised any hue and cry or alarm

that time. Rather she conveniently accompanied the accused thereafter to

the railway station while travelling in four - five buses. They remained

there throughout the night. She did not bother to inform any police official

or public person present at the railway station. All these circumstances

indicate that the prosecutrix was a willing party throughout. No force

whatsoever was used at any stage by the appellant aged around 20 years.

He was not armed with any weapon to create real apprehension in X's

mind to succumb to his demands. If regard be had to the sequence of the

events as disclosed by the prosecutrix in her evidence, it is impossible to

believe that she was under fear. Conduct of the prosecutrix in keeping

silent throughout is indicative of the fact that she was a consenting party.

Consent of the prosecutrix is writ large. No external visible injuries were

found on her body to demonstrate that there has been any resistance

offered by her. There were no struggle marks or marks of violence on her

body. Physical relations, if any, were consensual. Since the age of the

prosecutrix has been ascertained and relied upon to be above 16 years by

the Trial Court, apparently, no conviction under Section 376 IPC was

sustainable. As per ossification test, her age was assessed between 16 - 18

years and if margin of error is given as reflected in the impugned

judgment, her approximate age comes even above 18 years. It is well

settled law that if two views are possible, the one favourable to the

accused has to be adopted.

4. On consideration of the totality of the facts and

circumstances, it would be unsafe to convict the appellant when there are

so many infirmities, holes and lacunas in the prosecution version. The

appeal is allowed. Conviction and sentence awarded by the Trial Court are

set aside. Bail bonds and surety bonds stand discharged.

5. Trial Court record be sent back immediately with the copy of

the order. A copy of the order be sent to the Superintendent Jail for

information.

(S.P.GARG) JUDGE JULY 23, 2015 / tr