Chattar Pal vs State N.C.T. Of Delhi
2015 Latest Caselaw 4312 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                   RESERVED ON : MAY 06, 2015
                                   DECIDED ON : MAY 27, 2015

+                             CRL.A. 763/2003



       CHATTAR PAL                                        ..... Appellant
                             Through :   Mr.Haneef Mohammad, Advocate
                                         with Mr.Kamal Pal, Advocate.

                             VERSUS

       STATE N.C.T. OF DELHI                                ..... Respondent
                             Through :   Ms.Kusum Dhalla, APP.


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

S.P.GARG, J.

1. The appellant-Chattar Pal was convicted under Section

366/376 IPC by a judgment dated 22.03.2003 in Sessions Case

No.96/2001 arising out of FIR No.229/2001 registered at police station

Lajpat Nagar.

2. Admitted position is that the prosecutrix 'X' (assumed name)

was known to the appellant who was her Phufa's brother and it is a case of

elopement with consent. 'X' aged around 15 years was enticed by the

appellant and was taken out of lawful guardianship of her parents on

27.04.2001. Thereafter, both stayed together at various places and even

performed so-called 'marriage'. Finally both of them were

recovered/apprehended on 05.06.2001. During this period, they

established physical relations. After completion of investigation, the

appellant was charged under Section 366/376 IPC. The prosecution

examined eleven witnesses including 'X'. In 313 statement, the appellant

denied his involvement in the crime and pleaded that marriage with 'X'

was with her free consent.

3. Undisputedly, 'X' was a consenting party throughout. She

had accompanied the appellant at various places with her free consent for

sufficient long duration and at no stage, she raised any alarm. She did not

suffer any external physical injury on the body to infer forcible rape. The

Trial Court concluded that 'X' was below 16 years of age and her consent

was inconsequential.

4. It is a matter of record that the prosecution did not collect any

documentary proof to find out the exact age of the prosecutrix on the date

of incident. No birth certificate from any competent authority was

collected. 'X' did not attend any school; so there was no question of

getting any school record for determination of her age. Ossification test

was conducted and as per ossification report, age of the prosecutrix was

determined below 16 years. The prosecution, however, did not examine

the doctor who had conducted the ossification test and had given the

opinion. PW-11 (Dr.Achyut) merely identified his signatures on Ex.PW-

11/A. Even if this report is taken at its face value, the Trial Court did not

discuss at all if margin of any specific period was to be given while

determining the exact age based upon ossification test. Considering the

possibility of error on plus/minus two years in the opinion rendered by the

radiological examination, it cannot be concluded with certainty that the

prosecutrix was below 16 years of age on the date of incident. In Jaya

Mala vs.Home Secretary, Govt.of J&K (1982) SCC 1296, the Supreme

Court held that there can be two years margin either way in radiological

examination. It is well settled that when two opinions are possible, the

one favouring the accused has to be taken. Medical opinion that the

prosecutrix was below 16 years only gives approximation of the age. It is

not a sure test to determine the age of the prosecutrix; it only gives

approximation of the age.

5. Witnesses have given different age of the prosecutrix at

different stages of investigation/trial. None of the prosecution witness has

given the exact date of birth or year of the prosecutrix. In Ex.PW-2/A

'X's father described her age 14 years while lodging report with the

police. This age also finds mention in MLC (Ex.PW-10/A). In her 164

statement recorded on 06.06.2001 'X' disclosed her age 16 years. When

she appeared as PW-1 on 01.03.2002 before the Court, she gave her age

15 years. As per court observation from looks, she seemed to be a girl

aged around 14-15 years. No exact date of birth has come on record. It

cannot be ruled out that 'X' was not above 16 years of age on the day of

incident specifically taking into consideration the ossification report with

margin of error. Since the prosecutrix aged more than 16 years

established physical relations with her consent, it did not amount to

commission of rape. Conviction under Section 376 Cr.P.C. is

unsustainable and is set aside.

6. Since the prosecutrix 'X' was below 18 years of age on the

day of incident and she was taken out of the lawful guardianship of her

parents without their consent or permission, the appellant is liable to be

convicted under Section 366 IPC. Conviction on that score recorded by

the Trial Court cannot be faulted and is upheld.

7. Nominal roll dated 12.01.2004 reveals that the appellant was

in custody for two years, five months and nine days besides remission for

two months and eleven days as on 07.01.2004. Order dated 04.10.2004

when the appellant was granted suspension of sentence records that he had

already undergone sentence of more than three and a half years including

remission earned by him. The Trial Court has awarded sentence for three

years with fine ` 1,000/- and to undergo default sentence of 15 days under

Section 366 IPC. Since, the appellant has already undergone the sentence

awarded to him under Section 366 IPC, he needs not to be taken into

custody to serve out the sentence.

8. In the light of the above discussion, the appeal is partly

allowed. The appellant is acquitted of the charge under Section 376 IPC

while maintaining conviction under Section 366 IPC.

9. The appeal stands disposed of in the above terms. Trial court

record be sent back with a copy of this order. The bail bonds and surety

bonds stand discharged.

(S.P.GARG) JUDGE MAY 27, 2015 sa