Delhi High Court
Tara Chand vs State (Govt. Of Nct) Of Delhi on 22 August, 2017
$~1
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 22nd August, 2017
+ CRL.A. 1526/2013
TARA CHAND ..... Appellant
Through: Mr. Biswajit Kumar Patra, Adv.
versus
STATE (GOVT. OF NCT) OF DELHI ..... Respondent
Through: Mr. Rajat Katyal, APP for the State
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MR. JUSTICE CHANDER SHEKHAR
G.S.SISTANI, J. (ORAL)
1. This is an appeal under Section 374(2) of the Code of Criminal
Procedure (hereinafter referred to as 'Cr.P.C.') against the judgment
dated 10.01.2013 by which the appellant has been held guilty for the
offence under Sections 376 and 506 of the Indian Penal Code
(hereinafter referred to as 'IPC'). Challenge is also made to the order
on sentence dated 24.01.2013 by which the appellant has been
sentenced to rigorous imprisonment for life and a fine to the tune of
Rs.10,000/- for the offence under Section 376 of IPC, in default of
payment of fine, simple imprisonment for a period of one month and
for the offence under Section 506 of IPC, the appellant has been
sentenced to rigorous imprisonment for a period of two years. Both
the sentences were ordered to run concurrently.
2. The brief facts of the case as noticed by the Trial Court reads as under:
"2. The case of the prosecution is that on 3.5.2012 an
information was received at Police Station Samaypur Badli
from Baba Sahib Ambedkar Hospital, Rohini that a girl 'P'
aged about 13 years, unmarried in a pregnant condition was
got admitted in the hospital by her father. The said information
was reduced into writing vide DD No.21A which was handed
over to ASI Raj Devi who reached the hospital and collected
the MLC of the victim and recorded her statement. In her
statement to the police, the victim 'P' informed that her father
was working as a Cook in a hotel and her mother was working
as maid servant in kothies. According to the victim, about
four-five months ago her Mausa (uncle) Tara Chand started
residing in their house and started working with her father as
Cook. She further informed the police that they were residing
in a tenanted room and she used to sleep along with her
parents in the said room only and after her parents went off to
sleep, her Mausa Tara Chand used to wake her up and took
her outside the room near the door where he used to commit
rape upon her. She further alleged that TaraChand used to
threaten her not to disclose about the incidents to anybody or
else he would kill her father. According to the prosecutrix 'P'
out of fear she did not raise any alarm nor she informed her
parents about the same but on 2.5.2012 she experienced pain
in his stomach on which her father took her to Dr. Baba Sahib
Ambedkar Hospital where she was treated.
(3) On the basis of the said statement of the prosecutrix 'P'
the present case was got registered and investigations were
commenced. There was a natural abortion suffered by the
prosecutrix and hence the foetus could not be preserved but on
account of the complications she was brought to the hospital
where dilation and evacuation was completed samples of
which product were taken, preserved and handed over to the
Investigating Officer which were thereafter sent to FSL for
examination. On 4.5.2012 the accused Tara Chand was
arrested at the instance of the father of the prosecutrix who on
interrogation admitted his involvement in the present case.
During investigations the statement of the prosecutrix 'P' was
recorded under Section 164 Cr.P.C. before the Ld. MM
wherein she stood by her ground. After completion of
investigations charge sheet was filed against the accused Tara
Chand in the Court"
3. To bring home the guilt of the appellant, the prosecution examined 13
witnesses in all. The statement of the appellant was recorded under
Section 313 of Cr.P.C. whereby he stated that he had been arrested on
the basis of wrong allegations and denied all the incriminating
material against him. The appellant pleaded innocence and claimed to
be falsely implicated in the present case. No evidence was led by the
appellant in his defence.
4. Mr. Biswajit Kumar, learned counsel appearing on behalf of the
appellant submits that the judgment of the Trial Court is based on
surmises and conjectures and not based on cogent, clear or
impeachable evidence. Counsel contends that the Trial Court had
erred in not taking into consideration that the prosecution has not been
able to prove its case beyond reasonable doubt. The order is contrary
to the law and has resulted in gross miscarriage of justice. It is
contended that the testimony of the victim is full of discrepancies and
contradictions and cannot form the basis of conviction of the
appellant. Counsel further contends that the testimonies of PW6 and
PW7, being the father and mother of the prosecutrix respectively are
hearsay evidence and thus cannot form the basis of conviction.
5. Learned counsel has strenuously urged that both PW6 and PW7 have
testified that the victim along with her parents, brother and the
appellant were all residing in one room and thus it is highly
improbable that the appellant was able to lure the prosecutrix in the
middle of the night to leave the room without her consent. It is
contended that the victim has testified that her mother was suffering
from depression and used to take sleeping pills, while her father used
to consume alcohol with the appellant and would then fall into deep
sleep. In these circumstances, learned counsel for the appellant
contends that the testimony of the brother of the victim would have
been of utmost importance. However, the prosecution has chosen not
to produce the brother of the prosecutrix in the witness-box.
6. Counsel further contends that, according to the prosecutrix, she was
raped daily for a period of 2-4 months. It is highly unusual that after
the repeated act committed by the appellant, the victim continued to
reside in the same room and did not make any complaint. It is also
highly unusual that there was no change in her behaviour which is
evident upon reading the testimonies of PW6 and PW7 during cross-
examination. All the factors clearly show that either the appellant has
been falsely implicated or assuming, without admitting, the act was
consensual in nature. Learned counsel has also relied upon the
ossification test which was conducted, as per which it was opined that
the girl was not less than 14 years of age and not more than 16 years
of age. While relying upon the judgment of a Single Judge of Madhya
Pradesh High Court in the case of Akeel vs. State of Madhya Pradesh,
reported at 1997 SCC On Line MP 225, learned counsel contends that
the appellant should be given the benefit and the age of the prosecutrix
based on the ossification test would be three years plus or minus
which would show that she was a major and in a position to give
consent.
7. Per contra, Mr. Rajat Katyal, learned counsel for the State submits
that there is no infirmity in the judgment passed by the Trial Court.
The Trial Court has carefully analyzed the testimonies of various
witnesses and reached the conclusion of the guilt. Mr. Katyal submits
that the testimony of the parents of the victim is consistent in the
manner how the victim had suffered stomach-ache and was taken to
the hospital where she informed the nurses about her condition.
Counsel also contends that the testimony of the victim is of sterling
quality. Her statement made in Court, statements made under
Sections 164 of Cr.P.C and 161 Cr.P.C. are consistent and thus it
cannot be said that the conviction cannot be made on the basis of the
sole testimony of the victim. Mr. Katyal further submits that the case
of the prosecution stands fully established not only on the basis of the
evidence of the prosecutrix and her parents but also stands established
on the basis of the scientific evidence. The MLC of the prosecutrix
stands proved by PW4 Dr. Hem Lata and the opinion rendered by the
Medical Board was proved by PW11 Dr. Vineet Popli as Ex.PW11/A
and also the DNA examination leaves no room for doubt that the
prosecutrix was raped by the appellant herein.
8. Counsel has also highlighted the fact that the prosecutrix could not
raise any alarm as she was threatened by the appellant that in case she
would raise an alarm, he would stab her father. Mr. Katyal further
submits that the appellant cannot derive any benefit out of minor
discrepancies/contradictions which did not go to the root of the matter.
Counsel further submits that the defence sought to be raised by the
appellant today in Court cannot be pressed as the appellant has not
cross-examined the prosecutrix on the ground that the act was
consensual in nature neither such a defence has been raised in the
statement recorded under Section 313 of Cr. P.C.
9. We have heard learned counsel for the parties and considered their
rival submissions and also given our thoughtful consideration to the
matter.
10. At the outset, it would be necessary to analyse the testimony of the
prosecutrix who was examined as PW8.
11. The prosecutrix (PW8) testified in her examination-in-chief that her
father was working as a cook in a hotel and her mother was working
as a maid in kothies. PW8 testified that about four to five months prior
to the incident, the appellant had come to Delhi and started living at
their house at the instance of her Mausi. The appellant was
unemployed and her Mausi pleaded with her father to get him
employed somewhere. The father of PW8 got the appellant employed
in the same hotel where he was working as a cook and the appellant
started staying at their house. It was further deposed by PW8 that they
were residing on rent in a room where they all used to sleep together.
PW8 explained that there were two rooms in the house, out of which
they were residing in one of the rooms, however, nobody was residing
in the other room and was kept vacant. The remaining testimony of
PW8 was in the form of question and answers which were put to the
prosecutrix by the Trial Court. It was deposed by PW8 that the
appellant used to commit gandi harkat with her. PW8 explained that
when her parents went off to sleep, the appellant used to wake her up
and ask her to come outside and there he used to commit rape upon
her. It was put to PW8 as to whether she had informed this fact to
anybody. The prosecutrix responded that she did not tell anybody as
the appellant used to threaten her not to disclose the incident to
anybody or else he would stab her father who used to come late at
night with the appellant. PW8 further deposed that one day she felt
severe pain in her abdomen to which her father took her to the hospital
where she was examined by the doctor and the incident of rape came
to light. It was further deposed by PW8 that initially she did not tell
anything to the doctor in the hospital but when the Doctor questioned
her, she told everything to the Doctor about what the appellant used to
do with her. The police was called by the Doctor. The statement of
PW8 was recorded by the Police which was proved by her as
Ex.PW8/A. After some days, she was produced before the
Metropolitan Magistrate and her statement under Section 164 of
Cr.P.C. was recorded which was proved as Ex.PW8/B. On a specific
Court Question regarding how many occasions did the appellant made
physical relations with her, to which she responded that the appellant
made physical relations with her daily for a period of two to four
months. The appellant was correctly identified by the prosecutrix in
the Trial Court as her Mausa.
12. In her cross-examination PW8 admitted that she alongwith her
parents, brother and the appellant used to sleep in one room. PW8
stated that the appellant used to do galat kaam with her in the room
which is on the front side. It was voluntarily explained by PW8 that
the said room remained vacant and nobody used to reside in the same.
It was observed by the Trial Court that PW8 had explained that she
and her family were residing as tenants in one room whereas the other
room was vacant and nobody was residing there. PW8 further stated
that when the appellant used to wake her up in the night, nobody from
her family had ever come to know about the same. It was voluntarily
explained by PW8 that her mother used to take sleeping pills during
the night for the treatment of her depression and therefore her mother
did not ever come to know about what was happening. PW8 also
stated that her father did not ever realise what was going on during
those nights and had voluntarily explained that her father and the
appellant used to take alcohol together before sleeping and therefore
her father never came to know about what had happened during those
nights. PW8 further stated that she did not raise any alarm when the
appellant used to take her out and had voluntarily explained that PW8
was extremely scared because whenever she tried to object, the
appellant used to show her a knife. PW8 did not tell any of her friends
in the school or her class teacher or any other teacher, as to what the
appellant was doing with her. It was voluntarily explained by PW8
that at that time she was new in the school and did not know anybody
there. It was also stated by PW8 that on one occasion she had tried to
tell her mother about the incident but her mother refused to believe
and stated that the appellant used to love her and take good care of her
because the appellant used to give her chocolates and chowmin to eat.
The appellant used to drop her to the school in the morning. In the
evening, PW8 used to go for tuition classes. It was voluntarily
explained by PW8 that she used to go for her tuitions alone. PW8 had
denied that she had made physical relations with some other person
and when her parents came to know about the same, in order to save
their honour, they had falsely implicated the appellant. She further
denied that she has deposed falsely to implicate the appellant at the
instance of her parents.
13. PW6 Joginder (father of the prosecutrix) testified in his examination-
in-chief that he was a Cook by profession and his wife namely Anju
Arya @ Hansi Devi (PW7) used to work as a Maid in the Kothies. On
01.05.2012 at about 1:00 AM in the night, his daughter 'P' complained
pain in her stomach and took his daughter to Baba Sahib Ambedkar
Hospital, Delhi. His daughter was bleeding from her private parts and
was examined by the doctors. The doctor informed PW6 that his
daughter was pregnant and it was a case of rape. His daughter was
admitted in the hospital for about nine to ten days and was medically
treated. After one day of admission of his daughter in the hospital,
police came in the hospital and recorded his statement whereby it was
alleged by her that the appellant had committed rape upon her. The
site plan was prepared at the instance of his daughter. The statement
of his daughter was recorded before the Metropolitan Magistrate,
Rohini Court. The appellant was arrested on 04.05.2012 and was
interrogated by the Police officials. PW6 testified that in the year
2007, his daughter was admitted in MCD Primary School, Rohini, in
first standard and her date of birth was recorded as 02.04.2002. Before
01.05.2012, the appellant was residing with them for the last
seven-eight months. The appellant was duly identified by PW6 in the
Trial Court.
14. In his cross-examination, PW6 stated that he was residing as a tenant
and there were only two rooms on the second floor. PW6 stated that
he along with his family members i.e. his wife, daughter 'P' and son
Kuldev and the appellant used to sleep in the same room. It was
further stated by PW6 that he came to know about the pregnancy and
the rape of his daughter from the doctors and later his daughter had
disclosed the same to him. PW6 admitted that prior to the incident his
daughter never informed him about any kind of misbehaviour by the
appellant nor he noticed any abnormality in her conduct. It was also
admitted by PW6 that he had no suspicion on his daughter or on the
appellant or anybody before the incident came to light. PW6 denied
that he had enmity with the appellant and due to which he falsely
implicated him in the instant case.
15. PW7 Anju Arya @ Hansi Devi (mother of the prosecutrix) testified in
her examination-in-chief that she used to work in the Kothies as a
Maid and her husband used to work in the Hotel as a Cook. She
further testified that the appellant used to reside with them for about
four to five months prior to the date when her daughter made
complaint to them regarding the pain in her stomach. On the first day
of May of the year 2012, her daughter complained pain in her
stomach. At about 10-11 PM, her husband (PW6) alongwith the
appellant returned to home when she informed her husband about the
condition of the prosecutrix. Thereafter, her daughter complained
severe pain in her stomach and was taken to a Government Hospital
i.e. Baba Sahib Ambedkar Hospital in Rohini where her daughter was
admitted and was medically examined by the doctors. Her daughter
remained in the hospital for about nine days. The doctor informed
them that her daughter was pregnant and had been raped. The hospital
authorities further informed the police officials after her daughter
informed nurses that the appellant committed rape upon her. PW7
further deposed that her daughter did not tell her anything and she
only came to know from the nurses that her daughter was being raped
by the appellant. On 03.05.2012, Police came to the hospital and made
inquiries from her daughter. The statement of her daughter was
recorded by the Police whereby she alleged that the appellant
committed rape upon her. PW7 further deposed that her daughter was
discharged from the hospital after a period of nine days. The appellant
was duly identified by PW7 in the Court as the husband of her
younger sister.
16. In her cross examination, PW7 stated that her age at the time of her
deposition in Court was around 35 years and she was married around
16 years before her deposition. The prosecutrix was her eldest child
and was born at home after three years of her marriage in Delhi. No
information was given to Anganwari or to the Municipal Corporation
and thus there was no authentic date of birth certificate of her
daughter. PW7 further stated that her daughter was seven to eight
years of age when she got admitted in the school. The husband of
PW7 had given the information with regard to the date of birth of her
daughter. PW7 failed to state the date of birth of her daughter which
was recorded in the school records nor did she recollect in which year
the prosecutrix was born. PW7 further stated that her daughter was
around 13 years of age. PW7 denied that she was deposing wrong age
of her daughter by five to six years or that her daughter is more than
18 years of age. PW7 further stated that she was doing the work in
Kothies as a maid and her daughter did not accompany her. She had
two children i.e. one daughter and one son. PW7 used to leave her
house at about 7.00-8.00 AM and returned by 5.00-6.00 PM. It was
further stated by PW7 that the prosecutrix used to leave the house by
8:00 AM and used to return at about 2:00 PM and thereafter left for
tuitions at 3:00 PM. PW7 admitted that she was not at home when 'P'
used to return from the school and also when she used to return from
tuitions and has voluntarily explained that she used to return at about
4:30 PM. The daughter of PW7 used to go for tuitions along with one
Madam and used to return with her husband. However, she could not
tell the name of the Madam. PW7 denied that the prosecutrix used to
go for tuitions alone along with her other friends. PW7 admitted that
she could not tell with whom the prosecutrix used to go in her absence
and had voluntarily explained that she only knew that she went for
tuitions. PW7 stated that prior to the time when they took her
daughter to the hospital, the prosecutrix neither told her anything nor
did she notice any abnormality in her behaviour and conduct. It was
voluntarily explained by PW7 that she was totally normal. PW7
admitted that she never had any suspicion on the appellant nor on her
daughter till she was taken to the hospital for treatment where they
came to know that her daughter was pregnant. PW7 denied that the
appellant had been falsely implicated by her and her husband or that
the prosecutrix had named the appellant on their tutoring because they
were inimical to the appellant.
Medical Evidence:
17. PW4 Hemlata had proved the MLC of the prosecutrix as Ex.PW4/A,
which was prepared by Dr. Roshini Aggarwal. As per the MLC, the
prosecutrix was brought to the hospital by her father Joginder (PW6)
on 02.05.2012, at about 1:30 AM as she was complaining pain in her
abdomen and bleeding per-vagina from five days and history of
passage of some fleshy mass per vagina at home. During her medical
examination, the UPT of the prosecutrix was found positive but her
parents did not give any history pertaining to the sexual or physical
assault. On local examination, there was slight bleeding per vagina,
her hymen was torn, cervical OS was closed and uterus was found
ante-verted. The prosecutrix was admitted in the hospital for further
dilation and evacuation and the evacuated material was preserved and
handed over to the Investigating Officer. As per the MLC the
prosecutrix was found fit for the statement on 02.05.2012 at about
1:34 AM.
Forensic Evidence:
18. PW13 A.K. Shrivastava, Deputy Director (Biology), DNA
Fingerprinting Unit, FSL, Delhi testified that on 18.12.2012 two
parcels were received by him for the examination. The parcel No.1
was containing blood sample and blood in gauze of the appellant
which was marked as Ex.1a and Ex.1b respectively. The parcel No.2
was containing the POC kit and three pads in normal saline of the
prosecutrix which was marked as Ex.2a and Ex.2b respectively. On
DNA profiling, one set of alleles of the source of Ex.1a and Ex.1b are
accounted in the alleles of the source of Ex.2a and Ex.2b. As per the
report, one set of alleles from the source of Ex.2a and EX.2b are
similar with one set of alleles of the source of Ex.1a and Ex.1b. The
detailed report of PW13 was proved by him as Ex.PW13/A and the
Genotype Data Table was proved as Ex.PW13/B.
19. As to the age of the prosecutrix, the prosecution has relied upon the
opinion rendered by the Medical Board (Ex.PW11/A) and the
testimony of PW5 Renu Bhatnagar, Principal of MC Primary School,
Sector-18 Rohini who had brought the relevant documents pertaining
to the prosecutrix.
20. PW11 Dr. Vineet Popli testified that on 29.06.2012, the prosecutrix
was produced before the Medical Board for her age determination/
ossification test. The Medical Board comprised of Dr. Rajeev Ranjan
(Radiologist), Dr. Jitender Singh (Ortho Surgeon), Dr. Vijay Dhankar
(HOD, Deptt. of Forensic Medicine) and Dr. Kunwar Sanjay Kumar
(Dental Surgeon). The detailed report of the Medical Board was
proved as Ex.PW11/A as per which the approximate bone age of the
prosecutrix was more than 14 years but less than 16 years.
21. PW5 Renu Bhatnagar deposed that as per the admission record, the
prosecutrix was admitted to their school on 06.07.2007 in first
standard and her name was found mentioned at serial No. 5936. As
per the records, the date of birth of the prosecutrix was 02.04.2002.
The copy of the admission register, the copy of the admission form
which was filed by Joginder (PW6) in respect of the admission of the
prosecutrix and the copy of the affidavit filed by Joginder with regard
to the date of birth of the prosecutrix was proved by PW5 as
Ex.PW5/A, Ex.PW5/B and Ex.PW5/C respectively. PW5 also proved
a certificate with regard to the date of birth of the prosecutrix as
Ex.PW5/D. In her cross-examination, it was admitted by PW5 that
PW6 Joginder did not submit any date of birth certificate of the
prosecutrix from any local authority at the time of her admission and
also admitted that the date of birth of the prosecutrix was recorded on
the basis of the affidavit filed by her father.
22. At this stage, it would be relevant to mention Rule 12 (3) of the
Juvenile Justice (Care and Protection of Children) Rules, 2007 which
reads as under:
"12. Procedure to be followed in determination of Age:
... .... ....
(3) In every case concerning a child or juvenile in conflict with
law, the age determination inquiry shall be conducted by the
court or the Board or, as the case may be, the Committee by
seeking evidence by obtaining:
(a) (i) the matriculation or equivalent certificates, if
available; and in the absence whereof;
(ii) the date of birth certificate from the school (other
than a play school) first attended; and in the absence
whereof;
(iii) the birth certificate given by a corporation or a
municipal authority or a panchayat;
(b) and only in the absence of either (i), (ii) or (iii) of clause
(a) above, the medical opinion will be sought from a duly
constituted Medical Board, which will declare the age of the
juvenile or child. In case exact assessment of the age cannot
be done, the Court or the Board or, as the case may be, the
Committee, for the reasons to be recorded by them, may, if
considered necessary, give benefit to the child or juvenile by
considering his/her age on lower side within the margin of
one year.
and, while passing orders in such case shall, after taking into
consideration such evidence as may be available, or the
medical opinion, as the case may be, record a finding in
respect of his age and either of the evidence specified in any of
the clauses (a)(i), (ii), (iii) or in the absence whereof, clause
(b) shall be the conclusive proof of the age as regards such
child or the juvenile in conflict with law."--
23. It would be useful to refer the observations made by the Supreme
Court of India in the case of Ashwani Kumar Saxena vs. State of
Madhya Pradesh, reported at (2012) 9 SCC 750, the relevant para 43
reads as under:
"43. We are of the view that admission register in the school
in which the candidate first attended is a relevant piece of
evidence of the date of birth. The reasoning that the parents
could have entered a wrong date of birth in the admission
register hence not a correct date of birth is equal to thinking
that parents would do so in anticipation that child would
commit a crime in future and, in that situation, they could
successfully raise a claim of juvenility."
(Emphasis Supplied)
24. In the case of Mahadeo vs. State of Maharashtra reported at (2013)
14 SCC 637, the Apex Court made reference to Rule 12 of the
Juvenile Justice (Care and Protection of Children) Rules, 2007. The
relevant para 13 reads as under:
"13. In the light of our above reasoning, in the case on hand,
there were certificates issued by the school in which the
prosecutrix did her Vth standard and in the school leaving
certificate issued by the said school under Exhibit 54, the date
of birth of the prosecutrix has been clearly noted as 20-5-
1990, and this document was also proved by PW 11. Apart
from that the transfer certificate as well as the admission form
maintained by the Primary School, Latur, where the
prosecutrix had her initial education, also confirmed the date
of birth as 20-5-1990. The reliance placed upon the said
evidence by the courts below to arrive at the age of the
prosecutrix to hold that the prosecutrix was below 18 years of
age at the time of the occurrence was perfectly justified and we
do not find any good grounds to interfere with the same."
(Emphasis Supplied)
25. We may profit with the view taken in the case of Uday Kumar Yadav
vs. State (NCT) of Delhi reported at 2015 SCC Online Delhi 7255, of
which one of us (G.S. Sistani, J.) was a member wherein the Rule 12
of the Juvenile Justice (Care and Protection of Children) Rules, 2007
was considered and it was categorically held that clause (b) of sub-
Rule 3 of Rule 12 makes it abundantly clear that only in the absence
of (i), (ii) and (iii) of clause (a) the medical opinion is to be sought
from a duly constituted Medical Board.
26. Reliance has been placed by the learned counsel for the appellant on
Akeel's case (supra). We find the facts of the case relied upon are
different wherein the prosecutrix had admitted in her Court testimony
that she had gone with the accused voluntarily and the accused had
intercourse with her and there was no compulsion. The para 6 and 7
relied by the counsel read as under:
"6. To appreciate the rival submission raised at the Bar, I
have perused the impugned judgment and closely scrutinised
the evidence on record with the assistance of the learned
counsel for the parties. The prosecutrix who has been
examined as PW 4, has categorically asserted that she had
gone with the accused voluntarily and the accused had
intercourse with her and there was no compulsion. As there
was consent on the part of the prosecutrix it is not necessary to
consider whether there has been sexual intercourse or not.
However, on a perusal of the materials on record, there is no
iota of doubt that the accused had sexual intercourse with the
prosecutrix.
For determination of the age of the prosecutrix, the learned
trial Judge has placed reliance on the school leaving
certificate. He has also taken into consideration the evidence
of the Doctor, PW-7 and the radiologist, PW-9 to arrive at the
conclusion that she was below 16 years. Mr. Pandey, learned
counsel for the appellant has strenuously urged that PW-9, the
radiologist in his report (Ex. P-6) has opined that the girl was
above 16 but below 17 years of age. He has also contended
that from the school admission register it appears that the
victim girl was more than 13 years and 9 months. The
submission of the learned counsel for the appellant is that
once a report has been given by the doctor, emphasis should
not have been given on the oral evidence by the Court to
arrive at the conclusion that the age of the prosecutrix is
below 16 years of age. On a perusal of the evidence of PW-9 it
is apparent that he has opined in his report that the victim girl
is between 16 to 17 years of age. Ossification test is one of the
tests to find out the age. It is well known that the determination
of age by ossification test is neither absolute nor exact. The
High Court of Orissa in the cases of Srilatcha Kumari v. State
of Orissa, (1993) 6 O.L.R. 661 and Bishnudas v. State of
Orissa, (1996) 11 O.L.R. 602 have held that variation of age in
the ossification test can be upto 3 years in either way. The
High Court of Bombay in the case of Balasaheb v. The State of
Maharashtra, 1994 Crl. L.J. 3044, after referring to Modi's
Medical Jurisprudence and Toxicology (First Edition)
expressed thus:
"It is observed that the error in the case of age based on
ossification test may be three years."
It is also noticed that the learned trial Judge has placed
reliance on school leaving certificate. The said document
cannot form the basis to determine the age, as the guardians
have a tendency to understate the age of their children at the
time of admission in the school. This view of mine gains
support from the decisions rendered in the cases of Brijmohan
Singh v. Priyabrata Sinha, AIR 1965 SC 282, and Bishnudas
Behra v. State of Orissa, 1997 Crl. L.J. 2207.
As indicated above, the doctor has already opined that the
victim girl was between 16 to 17 years of age. No doubt there
can be an error in the periphery of three years. But the benefit
of the error has to go in favour of the accused in view of other
obtaining circumstances.
7. The learned trial Judge has scrutinised the oral evidence to
arrive at the conclusion that the victim girl is below 16 years.
Taking into consideration the opinion under Ex. P-6 and the
permissible margin, I am of the considered view that the
determination with regard to the age of the prosecutrix does
not appear to be correct. It can be safely concluded that at the
time of occurrence the girl was more than 16 years of age.
Once it is determined that the victim is more than 16 years and
there was free consent, the question of commission of offence
under section 376 does not arise"
(Emphasis Supplied)
27. We are of the view that the case of Akeel's (supra) as relied upon by
the counsel for the appellant does not apply in the given facts and
circumstances of the case and the observations made by the Hon'ble
Supreme Court in the case of Mahadeo and Ashwini Kumar Saxena's
case (supra) would apply in the facts of this case.
28. Furthermore, in view of the Mahadeo's case (supra), we are of the
view that Rule 12(3) of the Juvenile Justice (Care and Protection of
Children) Rules, 2007 extracted hereinabove, is applicable in
determining the age of the victim of rape. In this regard, the testimony
of PW5 Renu Bhatnagar (Principal, MC Primary School) assumes
importance. As per her evidence, the date of birth of the prosecutrix
has been mentioned as 02.04.2002 in the school records. The copy of
the admission register, the copy of the admission form and the copy of
the affidavit filed by her father with regard to the date of birth of the
prosecutrix was proved by PW5 as Ex.PW5/A, Ex.PW5/B and
Ex.PW5/C respectively. PW5 had also proved a certificate with regard
to the date of birth of the prosecutrix as Ex.PW5/D. No suggestion
had been put to PW5 with regard to the entries mentioned in the
school records. The said date of birth also finds support from the
testimony of PW6 Joginder (father of the prosecutrix), whereby the
date of birth of the prosecutrix was stated as 02.04.2002 and had gone
unchallenged in his cross-examination.
29. Therefore, the argument of the appellant that the certificate tendered
by the father of the prosecutrix at the time of her admission in school
and also the certificate issued by the school authorities showing the
date of birth of the prosecutrix cannot be relied is erroneous and not
convincing. Thus, we believe the date of birth of the prosecutrix as
02.04.2002. Even otherwise, as per the Rule 12 (3) of the Juvenile
Justice (Care and Protection of Children) Rules, 2007, „In case exact
assessment of the age cannot be done, the Court or the Board or, as
the case may be, the Committee, for the reasons to be recorded by
them, may, if considered necessary, give benefit to the child or
juvenile by considering his/her age on lower side within the margin
of one year'. Thus, the margin of only one year has to be considered
while calculating the age of the minor.
30. We may also notice the view taken in the case of Dildar Singh vs.
State of Punjab, reported at (2006) 10 SCC 531, wherein the mother
of the prosecutrix came to know about the rape of her daughter after 3
months had elapsed and the symptoms of pregnancy were shown by
her daughter. The Apex Court upheld the concurrent finding of the
Trial Court and the High Court and maintained the conviction of the
accused under Sections 376 and 506 of IPC. The relevant para 7 reads
as under:
"7. In the instant case, the girl was a minor below the age of
16 years. She was studying in Class VIII and the appellant was
the drawing teacher of that class. It is no doubt true that the
prosecutrix did not report the incident to anyone either on the
first occasion or on the second. Ultimately a stage was
reached when she could not keep it a secret since her mother
discovered that she was pregnant. In these circumstances, she
was compelled to disclose the true facts. Having regard to the
facts and circumstances of the case, we do not find any
infirmity in the reasoning of the High Court and the
conclusion reached by it."
(Emphasis Supplied)
31. It has been strongly urged before us by the counsel for the appellant
that the testimony of the prosecutrix is full of discrepancies and
contradictions and cannot form the basis of conviction of the
appellant.
32. Prior to dealing with the said argument, we deem it appropriate to
revisit the law relating to conviction of the accused on the basis of the
sole testimony of the prosecutrix in a rape case.
33. It is a settled proposition of law that an order of conviction for an
offence of rape can be sustained on the sole testimony of the
prosecutrix, provided the same is of sterling quality leaving no
shadow of doubt over her veracity. A coordinate bench of this Court,
of which one of us (G.S. Sistani, J.) was a member, in Rohit Bansal v.
State, reported at 2015 SCC Online Delhi 9937, had observed as
under:
"18. It is a settled principle of law that conviction can be
based on the sole testimony of the victim of sexual assault
without corroboration from any other evidence. The statement
of the prosecutrix is more reliable than any other witness.
Where the testimony of victim of sexual assault instills [sic:
instils] the confidence in court, the same can be relied for
conviction of the accused. It is also a well settled principle of
law that corroboration as a condition for judicial reliance on
the testimony of the prosecutrix is not a requirement of law but
a guidance to prudence under the given circumstances."
(Emphasis Supplied)
34. It would also be useful to refer the case of State of M.P. v. Dayal
Sahu reported at (2005) 8 SCC 122, wherein the Apex Court observed
that where the statement of the prosecutrix inspires confidence,
conviction can be based only on the solitary evidence of the
prosecutrix and no corroboration would be required unless there are
compelling reasons which necessitate the courts for corroboration of
her statement. It was further observed that minor contradictions or
insignificant discrepancies should not be a ground for throwing out an
otherwise reliable prosecution case. The relevant para 14 reads as
under:
"14. A plethora of decisions by this Court as referred to above
would show that once the statement of the prosecutrix inspires
confidence and is accepted by the courts as such, conviction
can be based only on the solitary evidence of the prosecutrix
and no corroboration would be required unless there are
compelling reasons which necessitate the courts for
corroboration of her statement. Corroboration of testimony of
the prosecutrix as a condition for judicial reliance is not a
requirement of law but a guidance of prudence under the given
facts and circumstances. It is also noticed that minor
contradictions or insignificant discrepancies should not be a
ground for throwing out an otherwise reliable prosecution
case. Non-examination of doctor and non-production of
doctor's report would not be fatal to the prosecution case, if
the statements of the prosecutrix and other prosecution
witnesses inspire confidence. It is also noticed that the court
while acquitting the accused on benefit of doubt should be
cautious to see that the doubt should be a reasonable doubt
and it should not reverse the findings of the guilt on the basis
of irrelevant circumstances or mere technicalities."
(Emphasis Supplied)
35. In a recent case of State of Himachal Pradesh v. Sanjay Kumar,
reported at (2017) 2 SCC 51, the Apex Court convicted the accused
for the offences under Sections 376(2)(f) and 506 of IPC and restore
the conviction recorded by the Trial Court. The relevant para read as
under:
"17. Another argument of the defence before the trial court
was that it was impossible that such an incident would have
occurred in the house where so many family members lived. In
such circumstances, it could not be believed that the
respondent would have taken the prosecutrix to the room on
the first floor and committed sexual intercourse. This
argument was also brushed aside by the trial court pointing
out that, in her cross-examination, the prosecutrix has stated
that the incident had taken place in the morning hours, around
8.00 a.m. to 9.00 a.m. Female members of the family returned
back to the house after one hour of the incident. The
prosecutrix had stated that she had not disclosed about the
incident to anyone since the respondent had threatened to kill
her and also did not disclose to her mother on phone, out of
fear. She was not conversant as to how to make a call on
phone. The Sessions Court found that the testimony of the
prosecutrix appeared to be true. It could not have been
expected of a child of tender age to narrate the incident or
share the happening with her to anyone when she had been put
under fear by the accused. Even she could not disclose this
incident to her mother. Her testimony that she did not disclose
to her mother out of fear on phone appeared probable to the
Sessions Court, keeping in view her tender age.
18. Concluding that the deposition of the prosecutrix was
found to be credible and trustworthy, which was sufficient to
convict the accused person even in the absence of any
corroboration, insofar as the present case is concerned, the
medical evidence supported her version. On this basis,
conviction of the respondent was recorded under Sections
376(2)(f) and 506 IPC.
xxx xxx
22. We have already narrated the case of the prosecution as
well as the testimonies of the prosecutrix, her mother PW 1
and the medical evidence. After going through the evidence of
the prosecutrix and her mother, we find that apart from some
minor and trivial discrepancies with regard to the period of
stomach ache or about the medicine taken from the local
doctor/chemist, insofar as material particulars of the incident
are concerned, version of both these witnesses is in sync with
each other. Here is a case where charge of sexual assault on a
girl aged nine years is levelled. More pertinently, this is to be
seen in the context that the respondent, who is accused of the
crime, is the uncle in relation. Entire matter has to be
examined in this perspective taking into consideration the
realities of life that prevail in Indian social milieu.
xxx xxx
30. By no means, it is suggested that whenever such charge of
rape is made, where the victim is a child, it has to be treated
as a gospel truth and the accused person has to be convicted.
We have already discussed above the manner in which the
testimony of the prosecutrix is to be examined and analysed in
order to find out the truth therein and to ensure that deposition
of the victim is trustworthy. At the same time, after taking all
due precautions which are necessary, when it is found that the
prosecution version is worth believing, the case is to be dealt
with all sensitivity that is needed in such cases. In such a
situation one has to take stock of the realities of life as well.
Various studies show that in more than 80% cases of such
abuses, perpetrators have acquaintance with the victims who
are not strangers. The danger is more within than outside.
Most of the time, acquaintance rapes, when the culprit is a
family member, are not even reported for various reasons, not
difficult to fathom. The strongest among those is the fear of
attracting social stigma. Another deterring factor which many
times prevents such victims or their families to lodge a
complaint is that they find whole process of criminal justice
system extremely intimidating coupled with absence of victim
protection mechanism. Therefore, time is ripe to bring about
significant reforms in the criminal justice system as well.
Equally, there is also a dire need to have a survivor-centric
approach towards victims of sexual violence, particularly, the
children, keeping in view the traumatic long-lasting effects on
such victims.
31. After thorough analysis of all relevant and attendant
factors, we are of the opinion that none of the grounds, on
which the High Court has cleared the respondent, has any
merit. By now it is well settled that the testimony of a victim in
cases of sexual offences is vital and unless there are
compelling reasons which necessitate looking for
corroboration of a statement, the courts should find no
difficulty to act on the testimony of the victim of a sexual
assault alone to convict the accused. No doubt, her testimony
has to inspire confidence. Seeking corroboration to a
statement before relying upon the same as a rule, in such
cases, would literally amount to adding insult to injury. The
deposition of the prosecutrix has, thus, to be taken as a whole.
Needless to reiterate that the victim of rape is not an
accomplice and her evidence can be acted upon without
corroboration. She stands at a higher pedestal than an injured
witness does. If the court finds it difficult to accept her version,
it may seek corroboration from some evidence which lends
assurance to her version. To insist on corroboration, except in
the rarest of rare cases, is to equate one who is a victim of the
lust of another with an accomplice to a crime and thereby
insult womanhood. It would be adding insult to injury to tell a
woman that her claim of rape will not be believed unless it is
corroborated in material particulars, as in the case of an
accomplice to a crime. Why should the evidence of the girl or
the woman who complains of rape or sexual molestation be
viewed with the aid of spectacles fitted with lenses tinged with
doubt, disbelief or suspicion? The plea about lack of
corroboration has no substance (See Bhupinder Sharma v.
State of H.P. [Bhupinder Sharma v. State of H.P., (2003) 8
SCC 551]. Notwithstanding this legal position, in the instant
case, we even find enough corroborative material as well,
which is discussed hereinabove.
32. From the evaluation of the prosecution material discussed
above, it is abundantly clear that the evidence brought on
record contains positive proof, credible sequence of events and
factual truth linking the respondent with rape of the
prosecutrix and had criminally intimidated her. Hence, the
respondent is found to be guilty for offence under Sections
376(2)(f) and 506 IPC since he committed rape with a minor
girl aged nine years...."
(Emphasis Supplied)
36. Applying the law laid down in the aforesaid judgments to the facts and
circumstances of the present case, we are of the view that non-
examination of brother of the witness had not dented the case of the
prosecution. We believe the statement of the prosecutrix as true since
it was supported by the medical and scientific evidence on record. It
was found to be trustworthy and not shrouded with any doubt. The
next argument raised by the counsel for the appellant that it was
highly improbable that the appellant was able to lure the prosecutrix in
the middle of the night to leave the room without her consent. In this
regard, it is evident from the results of the ossification test that the
victim was not less than 14 years and not more than 16 years of age.
The reading of the ossification test would show that the prosecutrix
was less than 16 years. In this background, the plea of consent raised
by the counsel for the appellant cannot be entertained at all. We also
find force in the argument raised by the counsel for the State that the
appellant is not allowed to raise the defence of consent at this stage as
the appellant has failed to cross-examine the prosecutrix on this
ground and neither such a defence has been raised in the statement
recorded under Section 313 of Cr.P.C. Thus, the said argument was
also not found to be convincing.
37. Having considered all the aspects of the matter, we find no infirmity
in the judgment and order on sentence passed by the learned Trial
Court which would require interference by this Court. We uphold the
conviction and sentence awarded by the Trial Court. There is no merit
in the present appeal. Accordingly, the appeal stands dismissed.
38. Trial Court record be sent back.
G. S. SISTANI, J.
CHANDER SHEKHAR
AUGUST 22, 2017
//
