Love Kumar @ Bittoo vs State Of Delhi
2015 Latest Caselaw 2491 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                 RESERVED ON : MARCH 10, 2015
                                 DECIDED ON : MARCH 24, 2015

+                           CRL.A. 586/2003

       LOVE KUMAR @ BITTOO                              ..... Appellant

                            Through :   Mr.M.L.Yadav, Advocate.

                            versus

       STATE OF DELHI                                   ..... Respondent

                            Through :   Ms.Kusum Dhalla, APP.

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

S.P.GARG, J.

1. Aggrieved by a judgment dated 16.08.2003 of Additional

Sessions Judge in Sessions Case No.618/2002 arising out of FIR 211/02

registered at Police Station Ambedkar Nagar by which the appellant Love

Kumar @ Bittoo was held guilty for committing offences under Section

376/452 IPC, the instant appeal has been filed by him. By an order dated

18.08.2003, RI for three years with fine `500/- under Section 452 IPC and

RI for seven years with fine `500/- under Section 376 IPC was awarded to

him.

2. Briefly stated, the prosecution case as projected in the

charge-sheet was that the appellant sexually assaulted 'M' (assumed

name), aged about 13 years after putting her in fear at the point of knife at

the roof of her House No.1/359 Dakshinpuri, New Delhi at about 3:00

p.m. before 1.5.2002. The police machinery swung into action when the

incident was reported vide daily diary (DD) No.31 B (Ex.PW-8/A)

recorded at 1:22 p.m. on 1.5.2002 at Police Station Ambedkar Nagar. FIR

was lodged after recording victim's statement (Ex.PW-1/A). The

prosecutrix was medically examined. The accused was arrested and

medically examined. Statements of witnesses conversant with the facts

were recorded. After completion of investigation, a charge-sheet was

filed against the appellant for the commission of aforesaid offences. To

establish appellant's guilt, the prosecution examined ten witnesses in all.

In 313 statement, the appellant denied his complicity in the crime and

pleaded false implication. He examined DW-1 (Udai Singh) and DW-2

(Deepak) in defence. The trial resulted in his conviction as aforesaid.

Being aggrieved and dissatisfied, the instant appeal has been preferred.

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

examined the file. The incident occurred about six months prior to the

lodging of the report. Exact date when the occurrence took place has not

been established. Undisputedly, there is inordinate delay of about six

months in lodging the report with the police. No cogent and plausible

explanation has been offered by the prosecution witnesses for the delay.

'X'in her Court statement attempted to justify it and deposed that she

suspected the appellant's hand in the disappearance of her cousin for the

last five or six months and due to fear, she did not lodge the report. No

such reason finds mention in her initial statement given to the police

(Ex.PW-1/A). PW-2 (Vijay Kumar), 'M's cousin who was allegedly

present at the time of occurrence contradicted her and in the cross-

examination disclosed that he had apprised his mother about the incident

same day. Her mother had scolded the accused after calling him. The

prosecution did not examine prosecutrix's uncle and aunt to ascertain as to

what had prevented them not to lodge the report with the police at the

earliest. PW-8 (SI Kailash Chand), the Investigating Oficer, revealed that

he had inquired from the prosecutrix about delay in lodging the complaint

and her reply was that she was under threat extended by the accused.

Inconsistent version has been given by the prosecution witnesses and the

delay has remained unexplained. The prosecutrix and her cousins were

not expected to be under threat for long six months and not to lodge the

report with the police. It is unclear if the appellant had given threat to 'M'

on any specific date. The appellant lived in their neighbourhood. Nothing

has come in record if at the time of occurrence he was armed with knife;

no such knife was recovered in the instant case. The prosecutrix and her

family members had no real apprehension not to lodge the report with the

police. It is true that delay in lodging the First Information Report cannot

be used as a ritualistic formula for discarding the prosecution case and

doubting its authenticity. It, however, puts the court on guard to search

for and consider if any explanation has been offered for the delay. In

case, the prosecution fails to satisfactorily explain the inordinate delay and

there is possibility of embellishment or exaggeration in the prosecution

version on account of such delay it is a relevant factor.

4. Findings of the trial court that the appellant established

forcible physical relation with the prosecutrix against her wishes after

putting her in fear cannot be accepted. The prosecutrix and the appellant

were acquainted with each other before the incidence. The appellant lived

in her neighbourhood. On the day of incidence 'M's aunt was sleeping in

the house on the ground floor and her two cousin were with her on the

roof. The appellant came on the roof through the staircase of the house.

No alarm, whatsoever, was raised either by the prosecutrix or her cousins

to attract the attention of her aunt or neighbours when allegedly the

appellant was armed with a knife and had confined the children in an

adjacent room. Even after sexual assault when the appellant left the spot

and the prosecutrix came out of the room, she did not raise hue and cry.

She rather kept mum and did not inform her close family members. She

remained silent for about six months. Though she felt pain due to sexual

assault, yet she was not taken to any doctor for medical examination. She

did not suffer any visible injury/struggle marks on her body. When she

was medically examined after about six months, there was least possibility

of any such injury to be noticed/detected on her body. Her hymen was

found 'torn'; vagina admitted two fingers with difficulty as reflected in

the MLC (Ex.PW-7/A). It seems that the prosecutrix and the appellant

were in regular touch and it led to the lodging of DD No.31 B (Ex.PW-

8/A) where it was disclosed that the appellant was sexually assaulting the

prosecutrix for the last 5/6 months. PW-2 (Vijay Kumar) her cousin did

not find any injury on her body. Blood stained clothes of the prosecutrix

were not seized. In fact, the whole evidence which could have been

collected to confirm sexual assault washed away due to inordinate delay

in lodging the report. PW-2 too did not suffer any injury on his body. He

also did not shout when allegedly pushed into a room. The other cousin

Krishan KUmar did not appear for evidence. From the circumstances

referred above, it can be inferred that physical relations (if any) were the

result of free consent of the prosecutrix.

5. To infer appellant's guilt, age of the prosecutrix on the day of

incident is of utmost relevance. Admitted position is that the prosecutrix

had studied upto Vth Standard in a school in her native place. However,

no school record depicting her date of birth was produced before the

Investigating Officer. The IO did not collect any birth certificate of the

prosecutirx from her native village. 'M' lived in her native village before

coming to reside with her uncle and aunt in Delhi after the death of her

parents. She alone shifted to Delhi whereas her real sister and brother

continued to stay in the village. No reasonable explanation has been

offered by the Investigating Officer as to why the best piece of evidence

to ascertain the age of the prosecutrix was not collected during

investigation. 'M's close relatives including her uncle and aunt who could

have requisite knowledge about her birth/studies were not produced for

examination. The prosecutrix claimed herself of 13 years old without any

proof. Ossification test was conducted to ascertain her age and as per

ossification report (Ex.PW-10/A) given by Dr.Levina Varma (PW-10) her

age was in between 13 to 14.9 years. No positive evidence regarding the

exact date of birth of the prosecutrix surfaced. Ossification test is not a

sure test as to the age of the prosecutrix. It gives only an approximate age

which may vary by two years on either side. This Court in Akil Ahmad

vs.State 2014 (3) JCC 1543 held the prosecutrix therein to be major

considering the X-ray report where her age was opined to be 14 to 17

years. It relied upon Jayamala v.Home Secretary, Govt. of J& K AIR

1982 SC 1297 where it was observed "However, it is notorious and one can

take judicial notice that the margin of error in age ascertained by radiological

examination is two years on either side". Reliance was also placed on

Mahabir Prasad vs.State 1999(1) Crimes 1 where it was held "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 thë ossification

tests, in that event, the benefit of doubt has to go to the accused". In Ram

Suresh Singh vs.Prabhat Singh @ Chhotu Singh and Anr. AIR 2009 SC

2805, similar view was taken. Under these circumstances, considering the

age determined in the ossification report and the variation of two years to

be given on either side, it can be inferred that the prosecutrix was above

16 years of age on the day of occurrence and was capable to give consent.

6. In the light of the above discussion, the appeal is allowed.

Conviction and sentence recorded by the trial court are set aside. Copy of

this order be sent to the concerned Jail Superintendent for information and

necessary action. Trial court record be sent back along with a copy of this

order. Bail bond and Surety bond furnished by the appellant stand

discharged.

(S.P.GARG) JUDGE MARCH 24, 2015 sa