Delhi High Court
Om Prakash Alias Kalia vs State on 7 January, 2011
Author: Mukta Gupta
Bench: Mukta Gupta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL. APPEAL No.358/1999
% Reserved on: 23rd November, 2010
Decided on: 7th January, 2011
OM PRAKASH ALIAS KALIA ..... Appellant
Through: Mr. Sudershan Rajan with Md. Qamar
Ali, Advocates.
versus
STATE ..... Respondent
Through: Mr. Pawan Bahl, App.
Coram:
HON'BLE MS. JUSTICE MUKTA GUPTA
1. Whether the Reporters of local papers may
be allowed to see the judgment? Not necessary
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported
in the Digest? Yes
MUKTA GUPTA, J.
1. A case FIR No.191/1992 under Section 363/366 IPC was registered at P.S. Roop Nagar on 3rd September, 1992 on the complaint of one Meena wherein she alleged that on 30th August, 1992 at about 7.00 a.m., her daughter aged 15 years, who used to work in the houses as a cook had left her house without telling anybody. She further alleged that a boy named Om Prakash @ Kalia who resides in their neighbourhood and often came to their house, is Crl.App.358/1999 Page 1 of 10 also missing from his house since 30th August, 1992. She has been making efforts to trace her daughter and she apprehends that the said Om Prakash @ Kalia has enticed away her daughter on the pretext of marrying her. On the said FIR, investigations were carried out and the girl was finally traced on 10 th September, 1992 while going on an auto rickshaw along with the Appellant for the registration of their marriage. The girl was medically examined and her statements were recorded both under Section 161 and 164 Cr.P.C., wherein she stated that the Appellant had taken her away on 30 th August, 1992 on the point of knife, confined and raped her. After investigation a charge sheet was filed against Kamlesh, Hari Chand, Bal Chand and Om Praksah @ Kalia, the present Appellant for offences punishable under Sections 363/366/376/368 IPC. After recording of evidence, all the other co-accused were acquitted except the Appellant who was convicted for offences punishable under Section 366 and 376 IPC and sentenced to undergo rigorous imprisonment for a period of three years and a fine of `1,000/- and in default to further undergo rigorous imprisonment for three months for offence punishable under Section 366 IPC and to undergo rigorous imprisonment for 7 years and to pay a fine of `5,000/- and in default to further undergo rigorous imprisonment for six months for offence punishable under Section 376 IPC. This judgment of conviction and sentence is impugned in the present appeal. Crl.App.358/1999 Page 2 of 10
2. Learned counsel for the Appellant contends that the statement of the prosecutrix that she was enticed at the point of knife or that she was raped is not trustworthy. The evidence on record shows that she had willingly accompanied the Appellant, lived with him and got married. Only after the Appellant was arrested and the prosecutrix was sent to live with her parents, she gave this statement against the Appellant. The consent of the prosecutrix is evident from the fact that she admits her signature on the marriage certificate Ex. PW5/DA. This marriage of the Appellant and prosecutrix is witnessed by two relations of the prosecutrix that is Bal Chand DW2 and Anu Devi DW4. The prosecutrix has also admitted the photographs of marriage Ex. PW5/D1 to D-11. Reliance is placed on Sadhu Ram @ Dalip v. The State (Govt. of NCT of Delhi), Crl. Appeal No.836/2009, Manu/DE/2230/2010 wherein it has been held that once the photographs are admitted then the same are not required to be proved as an admitted document needs no proof. Though the Appellant is alleged to have taken the prosecutrix from Chandrawal to Sultan Puri in an auto rickshaw, through a crowded area, at a distance of about 15-20 km., however, she raised no alarm. Further though she lived with the Appellant and on 3rd September, 1992 she was taken to a temple at Mandir Marg for the marriage, however, she did not raise any alarm either on the way or at the temple. Thereafter also the prosecutrix was staying with Crl.App.358/1999 Page 3 of 10 the Appellant till the 10th September, 1992 and was travelling in a TSR, however she raised no alarm. In her cross examination on a question as to why she did not raise any alarm, once she stated that she was under constant threat on the point of knife, whereas later she stated that she was threatened by showing knife only on the 29th August, 1992. The defence witnesses have clearly deposed about the marriage and her willingness for the marriage, which evidence has been overlooked by the learned trial court. The defence witnesses are also entitled to the same credence as the prosecution witnesses. The fact that she was a consenting party is also evident from the MLC Ex. PW12/A which shows no external marks of injury and the history given by the prosecutrix is "she is living with a man willfully since 29th August, 1992." The MLC further observes history of "contact present". These evidences on record clearly prove that the prosecutrix was a consenting party. The age of the prosecutrix as per the radiological examination Ex. PW9/B is more than 18 years. The mother of the prosecutrix has given the age of the prosecutrix as 15 years on the date of incident. As per the school leaving certificate Ex. P1, the date of birth of the prosecutrix is 1st June, 1978, thus giving her age as 14 years and three months on the date of incident. However, the school leaving certificate cannot be relied upon as it is not based on any documentary proof of registration with the authorities at the time of birth. Reliance is Crl.App.358/1999 Page 4 of 10 placed on Rakesh Kumar v. State, 109 (2004) DLT 826. Even the learned trial court has arrived at a finding in this regard in favour of the Appellant that the age of the prosecutrix was more than 18 years on the date of incident. The judgment of the learned trial court is based on presumptions and in a criminal trial the conviction can be based only if the prosecution has proved the case beyond reasonable doubt against the accused and not on preponderance of the probabilities. Since the prosecutrix is more than 18 years and there is ample evidence on record to show that she was a consenting party, the judgment of the learned trial court being based on presumptions, the Appellant is entitled to be acquitted. In the alternative it is prayed that the Appellant has undergone imprisonment for a period of more than 4 months and thus he be released on the period already undergone.
3. Learned APP, on the other hand, contends that on the basis of the testimony of the prosecutrix, it is evident that she was taken away under threat and the purpose of marriage was to commit sexual intercourse with her. The learned trial court erred in discrediting the age given in the school leaving certificate as the same is the primary evidence. According to the school leaving certificate the age of the prosecutrix is 14 years, thus her consent is irrelevant for the offences punishable under Section 366 IPC and 376 IPC. It is, therefore, prayed that the appeal be dismissed being devoid of merit. Crl.App.358/1999 Page 5 of 10
4. The two issues to be determined on the basis of evidence adduced are the age of the prosecutrix and whether she was a consenting party. As regards the age of the prosecutrix, the mother of the prosecutrix PW2 in her statement has stated that she was aged about 15 years at the time of incident and the prosecutrix when she was examined in the court in the year 1996 gave her age as 18 years. In the school leaving certificate the date of birth was shown as 1st June, 1978. PW-11 Smt. Sumitra Arora, working as a teacher in Roop Nagar School has proved this school leaving certificate Ex.P-1. She had brought the register Ex.PW-11/A wherein the entry at serial number 2093 depicts the date of birth of the prosecutrix as 1st June, 1978. However, this entry is not co- related to the date of birth recorded with the Registrar of the Births in the municipal records. PW11 has not stated the basis on which the date of birth of the prosecutrix was recorded in the school register. Hence, the same is not infallible. As per the report of the ossification test Ex.PW9/B, the age of the prosecutrix is above 18 years. Undoubtedly, there is a possibility of an error of plus minus two years in the opinion rendered by radiological examination. The Hon'ble Supreme Court in Jaya Mala v. Home Secretary, of Govt. J&K, AIR 1982 SC 1296, held that there can be two years' margin either way in radiological examination. The relevant portion of the report states:
".....It is notorious and one can take judicial notice that the margin of error in age ascertained by radiological examination Crl.App.358/1999 Page 6 of 10 is two years on either side"
Even on reducing two years, the age of the prosecutrix would be more than 16 years, thus capable of consenting to sexual intercourse. However, when two opinions are possible, the one favouring the accused have to be taken. Thus, I find no error in the finding of the learned trial court that the prosecutrix was above 18 years of age at the time of the incident.
5. Undoubtedly, a prosecutrix is not an accomplice and conviction can be based on her sole testimony if the same inspires confidence. However, in the present case the testimony of the prosecutrix is full of contradictions and is not corroborated by other evidence on record. The prosecutrix has stated that the Appellant threatened her at the point of knife and made her sit forcibly in the TSR. She further stated that he confined her in a vacant room at Sultanpuri, and when she made noise, the Appellant made her to smell something as a result of which she became unconscious. She further states that the Appellant raped her contrary to her wishes every night and when she raised noise, he would drown her noise in the stereo which he played on a high pitch at the time of committing rape. The version of the prosecutrix does not inspire confidence. The prosecutrix had also implicated Kamlesh, Hari Chand, Bal Chand along with the Appellant. The learned trial court has acquitted them. According to the prosecutrix she was confined in the said Crl.App.358/1999 Page 7 of 10 room till 10th September, 1992 and on 10th September, 1992 in the morning the accused persons performed the marriage ceremony of the prosecutrix with the Appellant forcibly. One pandit was called for this purpose. According to her, a doctor was also called who stated that she would be taken to the court where the marriage would be registered. While they were going in the TSR, on reaching Malkaganj red light she saw her mother and uncle present there and on seeing them she rushed towards them. The prosecutrix admits her signature on the marriage certificate. There is no explanation as to how she agreed to the signing of the marriage certificate. Though admission of signature on the document is not an admission of the contents of the document, but in the present case the photographs which have been admitted by the prosecutrix and the evidence of the defence witnesses including her own relations clearly show that she married the Appellant willingly. In this regard testimony of Bal Chand DW2 her cousin brother and Anu Devi DW2 her aunt is relevant. They both attended the marriage in the temple at Mandir Marg. Though the prosecutrix states that the marriage was performed at the house where she was confined on the 10th however, as per the defence and other evidence on record it is evident that the same was performed in a temple. Bal Chand DW2 states that he performed the kanyadan and identifies his presence in the photographs. DW4 Anu Devi has also stated that both the Crl.App.358/1999 Page 8 of 10 prosecutrix and Appellant knew each other and were in love with each other, however, her sister in law that is her jethani, who is the mother of the prosecutrix did not like the Appellant and thus was opposed to the marriage. In her cross examination she has stated that the marriage was performed at Akhil Bhartiya Hindu Maha Sabha Mandir as parents of the prosecutrix were not agreeable to the marriage. Testimony of DW3 Madan Gopal Dubey is also relevant who is the purohit of the mandir at Mandir Marg. According to him when the marriage took place in his mandir, he issued a certificate to this effect. The marriage was also witnessed by her other cousin brother Mohan Chand DW1 who is the brother of Bal Chand DW2 who also supports the defence version. The prosecution could not elicit anything in their cross examinations. I find the testimony of the defence witnesses creditworthy as the same is duly corroborated by contemporaneous documentary evidence on record especially the photographs. Further, the prosecutrix herself gave her statement in the MLC to the doctor who is an independent witness that she was willfully living with a man since 29 th August, 1992. In view of this overwhelming evidence, the consent of the prosecutrix is evident. I find force in the contention of the learned counsel for the Appellant that the prosecutrix was a major at the time of incident and she willfully married the Appellant by eloping from the house as her mother was not agreeable to this marriage, but Crl.App.358/1999 Page 9 of 10 when she joined her family she leveled allegations of abduction and rape against the Appellant.
6. In view of the findings above, the Appellant is entitled to be acquitted of the charges under Sections 366/376 IPC. Accordingly, the appeal is allowed. The impugned judgment of conviction and sentence is set aside. The bail bond and the surety bond are discharged.
(MUKTA GUPTA) JUDGE JANUARY 7th, 2011/mm Crl.App.358/1999 Page 10 of 10