Delhi District Court
State vs . Santosh Kumar Jha S/O Shri Haari ... on 26 May, 2010
1
IN THE COURT OF SH. ATUL KUMAR GARG,
Ld.ADDL.SESSIONS JUDGE :DELHI
Sessions Case No. 26/10
Date of institution:- 2.3.10
Date of reserving for order:- 21.5.2010
Date of delivery :-- 26.5.2010
State Vs. Santosh Kumar Jha S/o Shri Haari Krishan Jha r/o village Misra
Maniyari, P.S. Mani yare Distt Majaffar Pur Bihar.
FIR No. 221/07
PS. Shakarpur
U/s 376 IPC
JUDGMENT
On 17.3.2007, prosecutrix had appeared in the P.S. Shakarpur and presented the complaint which disclosed the offence u/s 376 I PC. Complaint was got endorsed by one ASI Aizaz Ahmed. In this complaint, prosecutrix had stated that she studied in 10th std and her date of birth was 30.05.1991. In a room at the ground floor of her house accused Santosh Kumar Jha was living as tenant. Santosh kumar Jha instigated her and tried to impress her by writing 'Sheroshari'. He used to give her toffee as well as sweets and forcibly got eaten the same. Due to fear of shame and defame she had not complained of Santosh kumar Jha. Taking advantage of the situation, Santosh kumar Jha had committed rape in the parking of the ground floor adjoining to the room of the Santosh kumar Jha. He had also committed rape on 05.02.2007 when she had returned back after leaving her brother to school. He has also committed rape 6-7 times. Santosh kumar Jha want to elope her and he has also got her written many 2 letters to her. He had also written number of letters to her but the same was written under pressure.
During the course of investigation, police collected the evidence, recorded the statement of the witnesses, arrested the accused. After completing the investigation, the police had filed the charge sheet u/s 376 IPC against the accused and brought the accused before this court for facing trial.
After being heard, the accused was charged u/s 376 IPC vide order dated 25.7.07, to which accused pleaded not guilty and claimed trial.
The prosecution has relied upon the testimonies of eleven witnesses i.e. Kumari Sudha Mishra, Dev kant Mishra, Ct Ramvir, CtPankar Rana, Smt Lalita Mishra, Ct Abhey Deep Singh, Dr Deep Sethi, Dr Rajni Lohia, DO Mohd Sajid, IO ASI Aizaz Ahmed and Dr Sushil kumar. In fact, the prosecution has examined all the witnesses.
The prosecution evidence consists of three sets of evidence. First set of evidence consists of ocular testimonies of Lalita Mishra , Dev Kant Mishra and Sudha Mishra examined as PW -1, PW -2 and PW-3. The second set of evidence consists of medical evidence of Dr. Samta Gupta and Dr. Rajni Lohia examined as PW -8 and PW-5 respectively. The remaining evidence are of police officials who were associated with the investigation of the crime.
PW -4 being the Duty officer recorded the FIR bearing no. 221/07 and proved the carbon copy of the same as EXPW4/A. PW 6 collected the exhibits of this case from Malkhana, P.S. Shakarpur vide RC no. 34/21 and deposited the same at FSL Rohini in intact condition. PW-7 had taken the copy of 3 FIR and rukka from duty officer and handed over the same to the IO at the spot I.e house no. 3/111 A Lalita park, DELHI. PW -11 Ajay kumar had brought the original record pertaining to the admission of Sudha d/o Sh Dev kant Mishra . He deposed that as per admission and withdrawal register Sudha was admitted into his school on 16.4.2001 vide sl. no. 2030. As per record her date of birth is 30.5.91. he proved the photocopy of the same as EXPW11/A. PW- 9 and PW-10 are the police officials who are associated with the investigation of the case. They both on presentation of the complaint by the complainant on 17.3.2007 had reached to the spot alongwith her . At the instance of complainant PW-10 prepared site plan. PW-10 recorded the statement of the mother of the prosecutrix. They searched the house of the accused at 3/111 A Lalita park. Two boys found standing outside the house in the lane. The proseucutrix had pointed out towards Santosh. IO had apprehended the accused and interrogated him. His disclosure statement was recorded vide disclosure statement EXPW9/A bearing his signature at pt X. Arrest memo was prepared and his personal search memo was also prepared.
PW- 5, Dr. Rajni Lohia detailed the facts that on 18.3.2007 Santosh kumar Jha was brought in hospital by ASI Aizaz Ahmed around 1.00 am for medical examination and collection of semen and blood sample. On examination, no fresh external injuries were seen all over the body. She proved her report on the MLC as EXPW5/A bearing her signature at pt A. Blood and pubic hair were presented and handed over to IO. Semen sample was not provided by Accused.
PW- 8 Dr Samta Gupta had seen the MLC no. 20/07 of LBS Hospital 4 bearing case no. 2113/07 dated 18.3.2007 prepared by Dr. Deepa Seth Sr. Resident. She identified the handwriting and signature of Dr. Deepa Seth who was not working in LBS Hospital. Patient Sudha was examined by Dr. Deepa Seth who had complained of being raped. On examination, Dr. Deepa Seth had found the patient as conscious oriented. Her last mensuration period was 24 of February 2007. On local examination, Dr. Deepa seth had found presence of pubic hair, hymen was not intact. Pervaginal examination, vagina was easily admitting one finger, patient was very uncooperative on examination. There was no localize inflammation or redness. There was possibility of intercourse. Vaginal swab sample and vagina smear slide and pubic hair were taken as sample.
PW-1 Lalita Mishra detailed the facts about Santosh Kumar Jha who was residing as tenant of Kamal Kant Mishra at the ground floor of his house. on 06.2.2007 at about 8 am he gave him a letter at the ground floor as he was coming to his home at first floor after leaving his child to school. He also told him to hand over that letter to her husband. Her husband was sitting on the roof of her house and she went there and handed him over that letter. Her daughter Sudha Mishra date of birth is 30.5.91. Santosh Kumar Jha had a bad eye on her daughter as he used to stare her. Whenever her daughter Sudha used to leave her younger son Atul to School accused would prompt her daughter for 'Sharoshairi'. She also deposed about the fact that under pressure of Santosh kumar Jha her daughter also wrote letter to Santosh kumar Jha. On 16.2.2007 Accused admitted his guilt before her husband and Jeth Kamal kant Mishra. On 5 19.2.07, her husband made a complaint to police commissioner in the matter. There was delay in making the complaint due to social fear. She identified the accused Santosh kumar Jha in the court. She also deposed about the commission of rape upon her daughter by accused between 01.12.2006 to 05.02.2007.
PW- 2 also detailed the facts as deposed by PW 1 , the wife of the PW 2. he deposed hat on 04.02.2007 he was sitting alongwith his daughter at the roof of his house. Accused came there from other side and started staring his daughter for 2-3 minutes although simultaneously he was talking to him. His daughter sensed that accused was staring her so she went downstairs. He thereafter, enquired from his daughter as to why did she came down and why Santosh was staring her, her daughter stated that there was nothing. Thereafter his daughter conveyed regarding his suspicion to accused either verbally or in writing regarding his staring to her. On 06.02.2007 Accused handed over his wife a letter for being given to him. His wife had given to him that letter while he was sitting on the roof. He read that letter and was shocked. He was disturbed . Photocopy of the letter was on record. His daughter told him that accused used to write letter. She further told that between 01.12.2006 to 05.02.2007 accused continuously raped her forcibly . On 16.2.2007 he and her elder brother K N Mishra asked accused about the rape which he refused. He further told that he and his daughter were in love with each other and he and his daughter used to write letters to each other. On 19.02.2007 he had written a complaint to the commissioner of Police . He had seen EXPW2/A which bears his signature at pt 6 A. On 08.03.2007, police officials of P.S. Shakarpur visited his house. They interrogated them and asked about he whereabouts of accused. They told the police that accused had already vacated the house and they do not know his present whereabouts. On 17.03.2007, he alongwith his daughter Sudha went to P.S. Shakapur. Thereafter police came alongwith then near house no. 3/133, house of Gyanchand, lalita park Delhi where accused was standing outside the house alongwith his friend. Police apprehended him and took him to P.S. PW-3 Sudha also deposed above said facts to commission of rape . She deposed that in December 2006 when she had come back to her house after dropping his brother to school, accused was waiting for her at the main gate of her house. At about 1 pm, when she was inside her house accused chased her and apprehended her in front of basement. Accused gagged her mouth with big handkerchief and caught hold of her and there he took her inside the basement. When she tried to run away accused forcibly caught hold of her and committed rape on her by lying her on the ground after removing her salwar. After committing rape accused enticed her to run away with him for two days. Accused used to write letters to her daily forcibly. On 06.02.07 accused had written a letter to her father. In fact accused had committed rape on her 6-7 times in December 2006. After going through the letter of accused her father asked her mother to ask her what is the matter. Accused used to stare her thereafter her father had suspicion on him. On 16.03.2007 her father asked from accused that he had committed rape on Sudha and Sudha told this fact to him. Santosh refused the allegations and told to her father that he was in love with her and she 7 was also in love with him. And he used to write letters to her and She also used to write letters to him. On 06.02.07 She accepted before her parents that accused had committed rape upon her. On 19.02.07 her father had sent a letter to Commissioner of Police mentioning all these facts. On 08.03.07, one police official namely Aijaj Ahmed had come to her house and asked the place of occurrence. He had asked whereabouts of Santosh kumar Jha as accused had left his room. On 17.3.2007, her statement was recorded by the police. He had seen her statement EXPW3/A bearing her signature at pt A. Accused was examined u/s 313 CrPC to which he pleaded his innocence and false implication . He however had plead that prosecutrix proposed for marriage with him. He was ready but her parents were not agreed. He was implicated by the father and mother in connivance of the Prosecutrix.
Ld APP Shri A K Mishra, had presented the facts and submitted that prosecutrix is minor as on date of commission of rape. Her date of birth has been proved which shows that she was below 16 yrs of age as on the date of incident. So far so EXPW11/A is concerned the date of birth of prosecutrix is 30.05.91 which is not disputed and it is PW 1,2 and 3 who had deposed categorically that her daughter had been raped by the accused. Not only once but 6-7 times between December 2006 to February 2007.
On the other hand, counsel of the defence had advanced his arguments that in fact it was love affair between the accused and the prosecutrix and both of them used to write letters to each other and it is only when the matter had come into the knowledge of parents then this complaint has been 8 made by parents. Earlier on 19.02.07 and later on prosecutrix had made complaint under pressure of her father which she had admitted in cross examination. Ld counsel had drawn the attention of the court towards cross examination of PW 3 dated 16.2.08 where she had admitted that she had seen complaint EXPW3/DA14 which was written by her in her handwriting but same was written due to fear of parents and Tau K L Mishra. She further admitted that Complaint EXPW2/A is in the handwriting of her father. She further admitted that her father had already made complaint EXPW2/A then she was not having any option except to follow the direction of her parents and she did the same as per their wishes. She further drawn the attention of this court towards the cross examination where she admitted that she was ready to marry with the accused. She had denied that her date of birth is 28.02.89. He further admitted that accused Santosh had never forced her for physical relations. Ld counsel further drawn the attention of this court towards cross examination of PW 3 dated 18.08.09 where she had admitted that FIR was not registered between 08.03.07 to 16.03.07 and nothing wrong was done by the accused with her. She further admitted that she was in love with Santosh kumar Jha. She further admitted that she celebrate her birth day on 28th of February and she was major as on date. And as per version of her father she was 20 yrs old as on date. Counsel further drawn attention of this court towards cross examination dated 17.11.2007 where she had admitted that she did not raise alarm when accused caught hold of her . She had drawn attention of the court where she had admitted that EXPW3/DA is in her handwriting and said document was written on both sides of the page. She 9 further admitted that document EXPW3/DA-2 to EXPW3/DA-12 are in her handwriting. She further admitted said letters were written by her on different dates. She admitted all these letters were sent by her through her brother Atul. She admitted that she had mentioned date of birth as 28th February in EXPW3/DA-7 at pt Z. Ld counsel submitted that from the above said letters it appears that it was love affair between accused and prosecutrix.
He had relied upon the judgment titled as Jamuna Chaudhary and ors Vs. State of Bihar, AIR 1974 SC 1822 where it was held that :-
'The duty of the Investigation officers is not merely to bolster up a prosecution case with such evidence as may enable the court to record a conviction but to bring out the real unvarnished truth.' He further relied upon judgment titled as Devanand v.State ( NCT of Delhi ) RCR (2003) CrL A No. 104 of 2002 dated 5.8.2002 Delhi High court where it was held that ' Section 376- Rape- Proof of age- Age of prosecutrix 13 years as per school leaving certificate- Entry in school recored not based on birth certificate- Prosecutrix 14-1/ 2, to 16.4 years as per ossification test with 2 years margin on either side- Held- Prosecution failed to prove that prosecutrix was below age of 16 years.' She further relied upon judgment titled as Brij Mohan Vs. State. Crl A nos 140,151, and 154 of 1987 dated 30.1.1989 Delhi High court where it was held that .
' Rape and abduction- question of age of prosecutrix- Age recorded in school record not supported by birth register of Municipal Committee- In such a case determination of age by ossification test should 10 be preferred to other evidence.' He further relied upon the judgment titled as Ashok Kumar Jha vs. State of Bihar, 2002 (3) JCC 2004 where it was held that :-
' Delayed FIR- Sec. 154 of Cr.P.C- 1973- FIR for offence udner secs 366,376 of IPC lodged after 12 days- No reason for delay has been given - Though delay in lodging FIR is not fatal in all cases but in presence of other suspicious circumstances, it assumes importance- Further in this case the prosecutrix ladies have n ot supported their FIR in full in court which shows that the FIR not having genuine facts- accused persons thus have been given benefit of doubt.' By citing above judgments he had submitted that story as projected by the prosecution was never happened and it was love affair between the prosecutrix and accused . So far so age is concerned that has not been truly reflected as per document EXPW11/A PW 11 had categorically stated in the cross examination that in his record there is no other document which proves that Date of birth of the prosecutrix is 30.5.91 except the date mentioning there in. He has no affidavit in this regard nor MCD certificate has been issued. Moreover prosecutrix herself admitted her date of birth as 28th February and she was 20 yrs of age. Moreover, no ossification test has been conducted by the prosecution in order to assess age of the prosecutrix.
I have heard the arguments at bar and gone through records of the present case.
The offence of rape in its simplest term is ' the ravishment of a woman, without her consent, by force, fear or fraud', or as 'the carnal knowledge of a woman by force against her will'.11
" Rape' or 'Raptus' is when a man hath carnal knowledge of a woman by force and against her will. In the crime of rape,' carnal knowledge' means the penetration to any the slightest degree of the organ alleged to have been carnally known by the male organ of generation. It is stated that even the slightest degree of penetration is sufficient to prove sexual intercourse. It s violation with violence of the private person of a woman- an-outrage by all means. By the very nature of the offence it is an obnoxious act of the highest order.
Prosecution in order to prove the charges against the accused has to prove that rape has been committed by the accused with the prosecutrix without her consent. The element of consent is an important ingredient in constituting the offence of rape particularly, when both male and female are major. Consent has no meaning if age of prosecutrix is below 16 years of age on that day.
First of all, court has to asses from the evidence adduced whether there was any consent. The medical evidence which has gone un -rebutted regarding the position of hymen which was not found intact. As per EXPX, coupled with the testimony of PW 3 that accused had committed sexual intercourse, it appears that there was physical relation between the accused and the prosecutrix. Whether it was consensual as pleaded by the accused counsel, the court has to see PW- 3 categorically admitted that there was love affair with accused in cross examination . complaint dated 17.3.07 was got written by her father and she did it under pressure of her father as she had no other option as his father has already sent Complaint EXPW3/DA to Commissioner of Police and police had reached to her house on 8.3.07. The testimonies of PW-1, and PW-2 Lalita and Dev kant Mishra, at least establishes that it was love affair because 12 accused used to stare the prosecutrix. They both had deposed that accused Santosh Kumar Jha had given a letter to PW 1 which was meant to PW 2 and when PW 2 had read that letter he become perturbed and inquired from the accused as to what was the matter. This fact clearly suggests that it was love affair otherwise accused could not give letter to PW 1 after he had committed any rape. Moreover, prosecutrix version that she had been gagged when accused had committed rape in December 2006 further falsifies the case because she had not raised any alarm and kept silent . She had admitted that she want to marry with the accused and she was in love affair with accused. In fact it was a love affair. The physical relations if any by the accused with the prosecutrix that is consensual relations not forcible relations as alleged by the prosecutrix.
Now court has to look what is the effect of EXPW11/A. Ex. PW11/A is the record attested by Principal Govt. Co ed S S School Lalita park Delhi 92 where Sudha had studied . As per Serial no. 2030 date of Birth was entered in the column of Date of birth as 30.5.91. not only, in figure but also in words. EXPW11/B is the School leaving certificate. She had joined above said school on 01.04.2000 and left said school on 31.3.2001. Admittedly , as per School leaving certificate, the age of the prosecutrix is less that 16 years as on the date of commission of offence. Prosecutrix had alleged that 6-7 times in the month of December 2006, accused had committed rape upon her in her house. She also alleged that accused had committed rape in February 2007 also. This court had already held that it was love affair not forceful sexual intercourse made by the accused .13
Section 376 of IPC had said that consent has no meaning if the sexual intercourse has been committed by the male with a female who is below 16 years of age at that time.
Now, court has to look at the reliability of this document particularly, in view of the admission of the IO that he has not got conducted ossification test in order to determine the age of the prosecutrix. Further the court has to look at the MLC EXPX where the age of the Sudha has been mentioned as 16 Years not 15 years as per School leaving certificate. It is not the case of the prosecution that suddenly rape has been committed upon the prosecutrix and she was brought to the hospital and where she had disclosed her age approximately 16 years. Here her father had already lodged the report on 17.2.2007 to the Commissioner of Police and as per PW-10 IO ASI Aizaz Ahmed he had been assigned complaint dated 17.02.2007. IO had no explanation as to why the complainant had appeared in the P.S., on 17.3.2007 when the complaint dated 17.2.2007 EXPW2/DA was pending with him. PW- 10 also admitted that he had not got recorded statement of the prosecutrix u/s 164 CrPC nor he had got conducted ossification test nor he has seized the clothes of the prosecutrix. PW- 11 Ajay Kumar UDC deposed that there is no other proof of Date of Birth of Sudha in School Record except the above said entry mentioned . The birth certificate issued by MCD is not in his school.
Here, the IO, PW- 10 admitted that he has not visited the school for verification of the age. It is also matter of common knowledge that age given at the time of admission of children to schools in quite a large number of cases did 14 not use to be correct and precise. The parents or guardians used to give these dates by approximation.
It is well settled law that in the absence of cogent evidence such as of birth entry, the determination of age scientifically, i.e by ossification test should be preferred to other evidence, including an entry in the school register, unless that is found to be flawless and convincing so as to place implicit faith therein.
According to the counsel of the defence , date of birth in the school leaving certificate EXPW1/B is not correct as it has not been supported by any birth or death register maintained by MCD or an affidavit to this regard. In the present scenario, IO should have preferred to conduct ossification test in order to determine the age.
Now, her ossification test has not been carried out by the IO. IO had admitted that he had not visited the school for verification of age. As per PW-11 NO entry of birth in any register of birth and death register has been placed at the time of admission in the school. Moreover, prosecutrix herself had told that at the time of deposition she was 20 yrs of age. She further admitted that as per EXPW3/DA 7 her date of birth is 28th February not 30.5.91 as disclosed in the EXPW11/A and EXPW11/B. Here, prosecution has not budged from their stand that she was not minor at the time of commission of rape upon her. She had admitted in the cross examination, that her age was 20 years and date of birth as 28th February not 30.05.91.
In view of above detailed discussion, EXPW11/A cannot be relied in 15 order to determine the real age of the prosecutrix at the time of commission of offence because EXPW11/A and EXPW11/B has not been supported by any cogent evidence. Cogent evidence shall be either in the form of date of birth entry in the birth register maintained by MCD or by any affidavit and circumstances where child was born. Here prosecution has no other evidence except school leaving certificate where the age of the prosecutrix has been shown as 30.5.91. same cannot be relied upon. In the absence of the any cogent evidence. It is matter of highly concern that Doctor had also not advised the police to go for ossification test particularly, when the doctor had come to know about the age of the prosecutrix that she is about 16 yrs of age.
In view of the above detailed discussion, the prosecution has failed to prove its case against the accused beyond the shadow of all reasonable doubts. Therefore, by giving of benefit of doubt, the accused Santosh kumar Jha is acquitted of charge u/s 376 IPC. His bail bond is cancelled and surety bond stands discharged. File be consigned to Record Room.
Announced in open court.
Dated 26.05.2010 (ATUL KUMAR GARG)
Addl.Sessions Judge,
KKD, Delhi.