State (Govt. Of Nct Of Delhi) vs Hasan Khan & Ors.
2016 Latest Caselaw 2120 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                           RESERVED ON : 23rd FEBRUARY, 2016
                           DECIDED ON : 17th MARCH, 2016

+                        CRL.A.355/2015


      STATE (GOVT. OF NCT OF DELHI)           ..... Appellant
                    Through : Mr.Amit Gupta, APP.

                         VERSUS

      HASAN KHAN & ORS.                                 ..... Respondents
                  Through :           Mr.Sameer Kumar, Advocate for
                                      respondents No.1 & 2.
                                      Mr.Manish Kumar Singh,
                                      Advocate with Ms.Nusrat Hussain,
                                      Advocate for respondent No.3.

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

S.P.GARG, J.

1. Present appeal has been preferred by the State to challenge

the legality and correctness of a judgment dated 15.12.2011 of learned

Addl. Sessions Judge in Sessions Case No.33/10 arising out of FIR

No.368/09 PS Burari by which the respondents were acquitted of the

charges. Appeal is contested by the respondents.

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

charge-sheet was that on 14.08.2009 at around 06.00 a.m. the prosecutrix

'X' (changed name) left her home without informing her mother -

Mahalakshmi Devi. She searched her here and there but to no effect. She

lodged missing person report vide Daily Diary (DD) No.17 (Ex.PW-18/A)

on 16.08.2009 without suspecting the involvement of any individual. She

had promised to return soon in a telephonic conversation with her. On

25.11.2009 after recording statement of victim's mother (Ex.PW-18/A)

the Investigating Officer lodged First Information Report. On 17.01.2010

'X' was recovered while she was in the company of the respondents. She

was medically examined; she recorded her 164 Cr.P.C. statement (Ex.PW-

7/A). Statements of the witnesses conversant with the facts were

recorded. Exhibits collected during investigation were sent to Central

Forensic Science Laboratory for examination. Respondent Nos.1 to 3

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

against them for committing various offences. In order to establish its

case, the prosecution examined 23 witnesses. In 313 Cr.P.C. statements

the accused persons denied their involvement in the crime and pleaded

false implication. DW-1 (Amrish Kumar) appeared in defence. After

considering the rival contentions of the parties and on appreciation of the

evidence, the Trial Court, by the impugned judgment acquitted all the

respondents of the charges. Being aggrieved and dissatisfied, the State

has filed the instant appeal.

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

examined the file. Learned Addl. Public Prosecutor emphasized that since

the prosecutrix was below 18 years of age on the day of occurrence, her

consent to have physical relations with respondent No.1 was of no

relevance. There were no valid reasons for the Trial Court to suspect the

genuineness and authenticity of the date of birth as described in the school

record. He further urged that the prosecutrix being under threat and

pressure had not divulged true and correct facts before various authorities

earlier. Learned counsel for the respondents urged that the Trial Court has

elaborately discussed all the aspects and no sound reasons exist to

interfere in the acquittal recorded by the Trial Court.

4. It was claimed that the prosecutrix was aged around 14 ½

years on the day of occurrence and her date of birth as recorded in school

record was 12.04.1995. The prosecution examined PW-1 (A.K.Kashyap)

who proved the relevant records and deposed that Transfer Certificate

(Ex.PW-1/B) was issued and the date of birth recorded in the school

register at the time of her admission on 24.06.2003 was 12.04.1995. The

Trial Court has minutely dealt with this aspect in the impugned judgment.

PW-1 (A.K.Kashyap) admitted in the cross-examination that date of birth

in the school record came into existence on the basis of declaration made

by the 'person' who had accompanied the child to the school for seeking

admission; it was not based upon any birth certificate. Nothing has come

on record to show as to on the basis of what material, this date of birth

12.04.1995 came to be recorded in the school record at the time of X's

admission. PW-18 (Mahalakshmi Devi), victim's mother, did not

elaborate as to who had got 'X' admitted in the school and how her date

of birth 12.04.1995 came into existence. She did not produce any birth

certificate of the child. No other cogent document showing her date of

birth was produced. It was not revealed as to at which particular place the

child was born. In the cross-examination, it was informed that she was

born in a private hospital at Lahoria Sarai. However, no such record from

the said hospital was summoned. Ossification test of the prosecutrix was

conducted by a Medical Board. As per documents marks 'D1' and 'D2'

(pages 61 & 62 of Ex.5/A1 to Ex.5/A93) the Medical Board opined her

age in between 18 - 18 ½ years. This ossification report was never

challenged. The Trial Court has also referred to various documents where

conflicting dates of birth were given by the prosecutrix herself before

various authorities. The prosecutrix and respondent No.1 had filed a Writ

Petition before this Court vide documents collectively exhibited as

Ex.PW-5/A1 to Ex.PW-5/A93 where she had claimed herself to be

'major'. Statement of the prosecutrix was recorded under Sections 164

Cr.P.C. in case FIR No.146/09 by the police of PS Tazpur, Distt.

Samastipur, Patna. In the document (mark 'D3'), the victim disclosed her

age as 20 years. In her complaint (Ex.PW-5/DA), the complainant /

victim had claimed herself to be 'major'. In Writ Petition (Crl.)

No.1241/09 in the order dated 09.12.2009, this Court recorded that the

prosecutrix had stated her date of birth as 30.09.1990. She had also

disclosed about her marriage with respondent No.1 on 06.01.2009 when

she had attained the age of more than 18 years. The impugned judgment

further refers to an affidavit (mark 'DA') sworn before Executive

Magistrate Ist Class, Howrah (Calcutta) where the prosecutrix had

disclosed her age 19 years. Marriage certificate mark 'DB' contains her

age 19 years. Apparently, the victim has given divergent and conflicting

dates of birth at various stages before various authorities. No cogent and

clinching evidence recording her exact date of birth has emerged on

record. Under these circumstances, benefit is to go to the respondents and

it cannot be concluded with certitude that the prosecutrix was below 18

years of age on the date of occurrence. The findings of the Trial Court on

that score cannot be faulted.

5. The learned Presiding Officer was of the view that the

prosecutrix was a consenting party throughout. The said conclusion is

based upon the fair and proper appreciation of the evidence on record.

Admittedly, the prosecutrix and her mother were familiar with respondent

No.1. 'X' had eloped with respondent No.1 without informing her

mother. When she gave a call to her mother, she did not complain if she

was kidnapped or abducted against her wishes. She promised to return

soon. It has come on record that the prosecutrix and the victim had lived

together for sufficient duration. At no stage, the prosecutrix raised hue

and cry to allege her forcible kidnapping. Physical relations took place

between the two during this period. However, nothing has come on

record to show if the prosecutrix suffered any bodily injury to infer

forcible rape. She admitted that photographs (marks 'A1' to 'A15') were

hers with respondent No.1. In these photos, both appear to be in intimate

relationship. The Trial Court had further noted that the victim had visited

Delhi High Court on number of dates and had filed petition for seeking

protection from her mother who was a party to the litigation. This Court

had made enquiries from the victim and had recorded her statement. She

had not alleged kidnapping and rape against respondent No.1 that time.

She was taken by respondent No.1 to Pune in a marriage function. She

admitted her presence in the CDs of marriage (marks 'X1' and 'X2')

along with respondent No.1 and his family members. The Trial Court

further noted that respondent No.1 had taken her to his house after return

from Calcutta. Her mother was also with her at that time. 'X' did not go

to her mother's house but lived with respondent No.1 at his house at

Tazpur, Distt. Samastipur, Patna. She did not make complaint regarding

her forcible stay with the accused to anyone. She did not make any

complaint during her stay with her mother in Bihar. In Delhi, respondent

No.1 had taken her from her house in a four wheeler scooter but she did

not raise any hue and cry that time. She was taken to lawyers at Delhi

High Court. She never claimed herself to be under threat. 'X' had

appeared before various Courts in Delhi, Patna and Bihar where her

statements were recorded. She had all opportunities to disclose the correct

facts but nothing was done. Under these circumstances, the findings of

the Trial Court that the prosecutrix was a consenting party cannot be

disturbed.

6. The principles which would govern and regulate the hearing

of appeal by this Court against an order of acquittal passed by the Trial

Court have been succinctly explained by the Apex Court in a catena of

evidence. In 'State of Goa vs. Sanjay Thakran & Anr.', (2007) 3 SCC 75,

it was held :

"16. From the aforesaid decisions, it is apparent that while exercising the powers in appeal against the order of acquittal the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. Merely because two views are possible, the Court of appeal would not take the view which would upset the judgment delivered by the Court below. However, the appellate court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the Court has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the appellate court, in such circumstances, to re-appreciate the evidence to arrive to a just decision on the basis of material placed on record to find out whether any of the accused is connected with the commission of the crime he is charged with."

7. Similar principle has been laid down by the Apex Court in

the cases of 'State of Uttar Pradesh vs. Ram Veer Singh and Ors.', AIR

2007 SCW 5553 and in 'Girja Prasad (Dead) by LRs vs. State of M.P.',

AIR 2007 SCW 5589. Thus, the powers which this Court may exercise

against an order of acquittal are well settled.

"It is also a settled legal position that in acquittal appeal, the appellate court is not required to re- write the judgment or to give fresh reasonings, when the reasons assigned by the Court below are found to be just and proper."

8. In the light of above discussion, the appeal lacks merit and is

dismissed. Trial Court record be sent back forthwith with the copy of the

order. Intimation be sent to the Superintendent Jail.

(S.P.GARG) JUDGE MARCH 17, 2016 / tr