State (Govt Of Nct) vs Sujeet
2019 Latest Caselaw 2150 Del

#1

         IN THE HIGH COURT OF DELHI AT NEW DELHI

                                         Judgment delivered on: 24th April, 2019

CRL.L.P. 683/2018 & CRL.M.A. 34712/2018 (Delay)
STATE (GOVT OF NCT)                                               ..... Petitioner

                                       versus

SUJEET                                                           ..... Respondent
Advocates who appeared in this case:
For the Petitioner      :    Mr. Ravi Nayak, APP for State with SI Monika
                             (Investigating Officer), SI Ravi Kumar, PS- Karawal
                             Nagar.

For the Respondent      :     Mr. Chetan Lokur, Adv. with respondent in person.

CORAM:
HON'BLE MR. JUSTICE SIDDHARTH MRIDUL
HON'BLE MS. JUSTICE ANU MALHOTRA
                     JUDGMENT

SIDDHARTH MRIDUL, J (OPEN COURT)

CRL.M.A. 34712/2018 (Condonation of delay)

1. The present application under Section 5 of the Limitation Act, 1963, read with Section 482 of the Code of Criminal Procedure, 1973, filed on behalf of the applicant/State, seeks condonation of delay of 47 days in filing the accompanying appeal.

2. Issue notice.

3. Mr. Chetan Lokur learned counsel accepts notice on behalf of the CRL.L.P. 683/2018 page no.1 of 12 non-applicants/respondents and fairly does not oppose the application.

4. For the reasons stated in the application, which are duly supported by an affidavit and in the interest of justice, the same is allowed. The delay of 47 days in filing the accompanying appeal is condoned.

5. The application is disposed of accordingly. CRL.L.P. 683/2018

1. The present CRL.L.P.683/2018 under Section 378 (3) of the Code of Criminal Procedure seeks leave of this Court to impugn by way of an appeal the judgment and order dated 25.05.2018 passed by the learned Judge, Special Court (POCSO Act), Karkardooma Courts, whereby the solitary respondent was acquitted of all charges framed against him, on the finding that, the prosecution had failed to prove its case beyond reasonable doubt.

2. Briefly encapsulated, the allegations against the respondent were that on 21.01.2016, the prosecutrix PW-4 aged about 16 years and 06 months is alleged to have left her residential house at 12:15 am without informing anyone. It was fundamentally the case of the prosecution that the respondent had kidnapped, wrongfully confined the prosecutrix at different locations and raped her. The sum and substance of the testimony of the prosecutrix before the trial Court was that the respondent telephoned her at about 11- 11:30 pm on that day, on her mother's mobile phone, and asked her to open the gate of their residential dwelling. It was further asseverated that upon the prosecutrix voluntarily opening the main gate of the residential dwelling, the respondent made her smell something, consequent upon which, she was rendered unconscious. It was further deposed on behalf of the prosecutrix that she came to her senses only days later on the 24.01.2016 when she CRL.L.P. 683/2018 page no.2 of 12 found herself at a railway station near Bareilly in Uttar Pradesh. The testimony of the prosecutrix goes on to state that the respondent brought her in a car driven by an unidentified person to a factory in Ghaziabad on 28.01.2016. It is stated by the prosecutrix that her father had already provided his number to the owner of the subject factory, who informed the former upon meeting with the prosecutrix at the said place.

3. The trial Court by way of its detailed judgment essentially determined two cardinal issues that arose in the facts and circumstances of the case.

4. Having considered the evidence available on the record, the first question determined by the trial Court was in relation to the age of the prosecutrix on the date of the commission of the offence.

5. In this behalf, the trial Court found as follows:-

"28. In order to prove the age of victim, the prosecution has examined PW8 Krishan Pal Kashyap, Manager from Bharat Model Public School, Tunda Nagar, Johripur, Delhi. He had brought the admission record in respect of victim. The copy of admission form of victim was Ex.PW8/A. Victim was admitted in class 1st in their school on 10.04.2006 vide entry no. 808. Copy of admission register was Ex.PW8/B. He deposed that as per the records, the date of birth of victim was 22.07.1999. At the time of admission of victim, her father had given an undertaking, which was EX.PW8/C.

29. During his cross examination, he admitted that at the time of admission of victim, no certificate issued by MCD or any other government authority was obtained in respect of victim and the date of birth given by her father was taken to be correct. No independent inquiry regarding her date of birth was conducted by their school.

CRL.L.P. 683/2018 page no.3 of 12

30. Therefore, from the testimony of this witness, it is apparent that the only basis of recording the age of victim was the undertaking given by her father wherein he had stated her date of birth to be 22.07.1999. Both the mother and father of victim were examined before the court.

31. The father of victim appeared as PW5 and during his cross examination, he deposed that he did not possess any birth certificate or horoscope of victim. He admitted that at the time of admission of victim, he got her age recorded in the school by approximation. He denied that at the time when victim went missing, she was more than 18 years of age.

32. Mother of victim appeared as PW10 and during her cross examination, she admitted that she was not having any MCD certificate or certificate issued by any authority regarding the age of victim. She also admitted that she had mentioned the age of victim as per approximation and as per her knowledge. She then stated that her approximation regarding the age of victim was correct. She denied that at the time of registration of FIR, victim was more than 18 years of age.

33. Therefore, in the present case, at the time of admission of victim in school, her age was recorded on the basis of an undertaking given by her father. The father and mother of victim have deposed that they were not sure about the age of victim and father of victim had admitted that at the time of her admission, he had given her age by approximation.

34. In exactly similar facts, the Hon'ble Delhi High Court in the judgment of State v. Raj pal @ Raj (supra) has held as under;

CRL.L.P. 683/2018 page no.4 of 12

7. On the question of age of the prosecutrix, we find that the issue is highly debatable and not established beyond doubt. Prosecutrix in her court deposition has given her date of birth as 10th October 1996. The said date of birth was recorded in the school records produced by Ramesh Chander (PW13). But before we refer to the statement of PW-13, we would like to cite Ravinder Singh (PW-7), who had stated that the prosecutrix had taken admission in IInd class in the B.S Convent School at Shiv Ram Park, Nangloi in the year 2004. After studying for two- three years, she left and took admission in a Government school. In cross examination, PW-7 accepted that at the time of admission parents of the prosecutrix did not provide any documentary evidence or proof of date of birth. He also accepted as correct that in the school records the date of birth was not mentioned. This means that date of birth of the prosecutrix was not recorded or mentioned in the records of B.S. Convent School where the prosecutrix was admitted for studies for the first time in the year 2004.

8. Ramesh Chander (PW-113), Record Keeper, had produced the records maintained in the Government Girls Senior Secondary School, JJ Colony, Nangloi. This included admission register (Exhibit PW-13/A), admission form (Exhibit PW- 13/B)and the affidavit furnished by the father of the prosecutrix (Exhibit PW-13/C). The said affidavit records and mentions the date of birth of the prosecutrix as 10th October, 1996. It is apparent that only on the basis of the said affidavit the date of birth was recorded as 10th October, 1996 in the school records. Kiran (PW-

3), mother of the prosecutrix in her examination CRL.L.P. 683/2018 page no.5 of 12 in chief had stated that she did not remember the date of birth of her daughter, i.e., the prosecutrix. In her cross examination, she accepted that she had another daughter Anshu, who had got married five years back and had a child. She, however, claimed that Anshu was married at the age of fifteen years. She also deposed that Anshu had expired recently from jaundice. Ram Pal (PW-4), the father in his cross examination accepted as correct that he did not have any documentary proof as to the date of birth of the prosecutrix and had also not furnished any documentary proof at the time of admission. These facts create doubt about the age of the prosecutrix. No ossification test was conducted in the present case.

35. Therefore, it is very much clear that the Hon'ble Delhi High Court has held that where at the time of her admission, the age of victim has been recorded by approximation, the school record would not be a conclusive proof of her age and like in that case, in this case also, no ossification test was conducted.

36. It is also to be noticed that victim, during her cross examination, had stated that it might be possible that at the time when she went with accused, she was more than 18 years."

6. In view of the findings extracted hereinabove, the trial Court answered this question by observing that the prosecution had failed to establish that the age of the prosecutrix at the time of the alleged commission of the offence was less than 18 years. Consequently, the trial Court has returned a finding that the accused could not have been charged CRL.L.P. 683/2018 page no.6 of 12 under the provisions of the Protection of Children from Sexual Offences, Act 2012.

7. The second and equally germane issue determined by the trial Court was qua the charge of kidnapping framed against the respondent. In this behalf, the trial Court expressed its opinion predicated on the evidence produced by the prosecution and the testimony inter alia of the prosecutrix in the following words:-

"39. Coming on the charge of kidnapping. Victim deposed that on 21.01.2016 at about 11/11.30 p.m. accused made a phone call at her mother's phone, which was kept near her. She attended the call and accused asked her to meet him. He asked her to open the gate of her house. She opened the gate of her house, he made her smell something and she became unconscious and then accused took her away. When she came to her senses on 24.01.2016, she found herself at a railway station near Bareilly, U.P. Thereafter, accused had brought her in a car, driven by some person, to a factory at Ghaziabad. She again deposed that she was brought to Ghaziabad on 28.01.2016 and she did not remember where she remained with accused in the intervening period.

40. During her cross examination, she admitted that sometimes she used to talk to accused on phone. She also admitted that she developed friendship with accused and had not revealed this fact to her parents. She further deposed that on 21.01.2016, it was not pre decided that accused would call her at night. That night, she had kept the mobile phone of her mother with her.

They used to sleep on the ground floor. There was only one entry gate in the room where they used to sleep and then a small gallery and then the main gate. There was an entry to the shop from her house which was locked CRL.L.P. 683/2018 page no.7 of 12 from inside during the night. The key of the lock used to be kept by her mother beneath her pillow. On that night, she stealthily took out the key and opened the gate without disclosing anything to her parents. She further deposed that one could get a TSR from just near their house but during night, it was difficult to find a TSR. She admitted that the railway station was a crowded place. On 21.01.2016, it was winter night and she was wearing a sweater and shawl. There were people around the railway station where she regained her senses. She never raised any alarm there or sought any help from any public person. They stayed at the railway station for four days and they took food at the railway station.

41. Therefore, victim in her examination in chief had stated that accused had made a telephone call to her, asked her to open the gate and she opened the gate of her house and immediately thereafter, accused made her smell something whereupon she became unconscious. However, her first statement, which was recorded, after her recovery, was exhibited during her cross examination by Id. Addl. PP as Ex.PW4/PA. In that statement, she stated that she discreetly came out of her house and then she and accused eloped. Thereafter, accused took her by train to different places and it is then she stated that accused had made her smell something and then she lost her senses. Therefore, there is a contradiction between the initial statement of victim and her examination in chief before the court. As per the examination in chief, immediately on her coming out of her house, accused made her smell something and she became unconscious whereas as per Ex.PW4/PA, which was recorded u/s 161 Cr.P.C, she stated that after coming out of her house, she and accused eloped (hum bhag gaye). The fact of voluntariness is also reflected from that part of the testimony where she states that accused used to talk to her on her mother's phone and CRL.L.P. 683/2018 page no.8 of 12 on that night, she had kept the phone with her. Although she had denied that it was predecided that accused would call her but her conduct of keeping the phone of her mother with her points otherwise. Her voluntariness is further reflected from the fact that she stealthily took the key from underneath the pillow of her mother and went out of the house without disclosing anything to anyone. Therefore, on the one hand, it is established that victim had gone voluntarily with accused and on the other hand, accused administering any stupefying substance to victim immediately on her coming out of her house, stands in contradiction with her initial statement and also in contradiction to her statement u/s 164 Cr.P.C where the allegations of administering some stupefying substance and being abducted thereafter, are completely missing. On the contrary, victim had stated that she used to talk to accused and accused ran away with her (Sujit mujhe kahin bhaga kar le gaya). Therefore, I find that the prosecution has failed to prove that accused had abducted the victim after administering some stupefying substance and on the contrary, the defence has successfully raised a probability that victim had voluntarily eloped with accused."

8. A perusal of the findings elaborated hereinabove clearly and unequivocally lead us to the conclusion that the prosecutrix left with the respondent, of her own free will. Our view is fortified by the following circumstances:-

a. that she opened the gate of the residential dwelling voluntarily b. that she admitted to have been befriended by the respondent prior to the date of the commission of the offence.

c. that the prosecutrix admitted that on the fateful night, CRL.L.P. 683/2018 page no.9 of 12 she stealthily took out the key of the residential dwelling and having opened the gate, left with the respondent without disclosing anything to her parents. d. that the prosecutrix admittedly stayed with the respondent for four nights at a railway station which from her own testimony, was admittedly a crowded place.

9. The prosecutrix also categorically testified that at no stage during her allegedly forced stay with the respondent, had she ever raised an alarm.

10. The last issue that came up for consideration before the trial Court was the charge under Section 376 IPC. In this regard, the prosecutrix did not specifically depose about the respondent having committed rape on her. Her testimony clearly reflects that she stated that she did not know if the respondent did anything with her for the first four days when he took her as she was unconscious but for the next four days when she was in her senses, the respondent did not do anything with her.

11. In this behalf, it could also be germane to observe that the trial Court came to a conclusion that the fact that the respondent had sexual intercourse with the prosecutrix has not been specifically stated by her but she stated that when she regained her consciousness, she was feeling pain in her private parts. In this behalf, it was correctly observed by the trial Court that the scientific evidence in the form of the FSL report Ex.PW16/1 clearly reflects that the respondent had sexual intercourse with the prosecutrix, therefore, begging the question as to whether the same was tantamount to rape or was consensual intercourse. In this behalf, the victim had deposed that she had been conscious for four days during her allegedly illegal CRL.L.P. 683/2018 page no.10 of 12 custody by the respondent from 28.01.2016 but the respondent did not have sexual intercourse with her during that time. The prosecutrix, however, testified that during the preceding four days subsequent upon her abduction she was unconscious and did not remember whether she had been raped by the respondent.

12. In this regard, the trial Court came to the following findings:-

"47. However, as discussed above, the allegations of victim that she was administered some stupefying substance and she remained unconscious are under a cloud of doubt. It is not clear when and how accused had administered any stupefying substance to victim because as per the victim, during her examination in chief, immediately on coming out of the house, she was made to smell something and then she lost her consciousness. However, as per her initial statement Ex.PW4/PA, she went to different places with accused in a train and in the train, accused administered some stupefying substance to her. However, she also admitted that during the period, they were journeying in the train, they got down to have food and therefore, during that period, she could not have been unconscious. She also admitted that they remained at the platform and during the period they were at platform, they consumed food and also admitted that she did not raise alarm and did not seek any help from anyone. Therefore, it has not been proved beyond all reasonable doubts that victim remained unconscious for about 04 days.

48. The conduct of victim in staying with accused, allowing the accused to put vermilion on her head as a symbol of a marriage and eloping with accused of her own will, all point towards the voluntariness of victim.

49. I accordingly find that the possibility of sexual CRL.L.P. 683/2018 page no.11 of 12 intercourse with victim's consent cannot be ruled out and therefore, the prosecution has failed to prove beyond all reasonable doubts that accused had sexual intercourse with victim against her will or consent."

13. A plain reading of the above findings, with which we agree, leave no manner of doubt that the prosecution has been unable to establish the factum of the sexual intercourse between the prosecutrix and the respondent, and further the conduct of the prosecutrix unwaveringly point towards voluntariness on the part of the former, in the entire affair.

14. Even otherwise, a perusal of the evidence on record leads us to one unescapable conclusion, that the prosecution has failed to prove beyond reasonable doubt, the commission of the offence by the respondent against the prosecutrix against her will or without her consent.

15. In view of the aforegoing discussion, we are of the considered view that the impugned judgment does not call for any interference. The application for grant of leave to appeal, being devoid of merits in the facts and circumstances of the case, is accordingly dismissed.

                                               SIDDHARTH MRIDUL, J


                                               ANU MALHOTRA, J
APRIL 24, 2019
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CRL.L.P. 683/2018                                                page no.12 of 12