Delhi District Court
Babu vs The State on 3 July, 2023
IN THE COURT OF MS. SHEFALI SHARMA:
ADDL. SESSIONS JUDGE-02( NORTH ):
ROHINI DISTRICT COURTS : DELHI
In the matter of:-
New CA No. 31/2020
Babu
S/o Sh. Mohan Lal
R/o H-1/423, Jahangir Puri
Delhi
..... Appellant
Versus
The State
N.C.T. of Delhi
..... Respondent
Date of institution 14.02.2020
Arguments concluded on 03.07.2023
Judgment Pronounced on 03.07.2023
JUDGMENT
1. The present appeal has been filed by the appellant/convict under Section 374 Cr.P.C. against the judgment of conviction dated 24.12.2019 and order on sentence dated 18.01.2020 passed by Ld. MM, North District, Rohini Courts thereby appellant/convict was convicted to undergo imprisonment for a period of 02 years alongwith fine of Rs. 10,000/- and in default of payment of fine to further undergo an CA No. 31/2020 Babu Vs. State (NCT of Delhi) Page No. 1 of 25 imprisonment for a period of 03 months.
2. Brief facts of the case are that on 30.01.2012 at H. No. G-1524, Jahangir Puri, Delhi, accused allegedly kidnapped victim 'M' (identity withheld although was informed to the accused during the course of trial) who was then around 17 years of age, from the custody of her father without his consent and permission. There are also allegations that on 01.02.2012 the accused consumed poison with an attempt to commit suicide. The father of the victim made a complaint about the incident and on the basis of his complaint eventually an FIR had been registered under Section 363/309 IPC.
CHARGE
3. Vide order dated 30.05.2013, charge for the offence punishable under Section 363/309 IPC was framed against the appellant/convict to which he pleaded not guilty and claimed trial. Thereafter, the matter was fixed for prosecution evidence and in order to prove its case, the prosecution has examined 10 witnesses.
EVIDENCE
4. PW-1 is Sh. Madan Lal. He deposed that on 31.01.2012 his daughter namely 'M' went to her school, however, she did not return home in the evening, therefore, he tried to trace CA No. 31/2020 Babu Vs. State (NCT of Delhi) Page No. 2 of 25 out his daughter but all in vain. He went to PS to lodge a complaint regarding missing of his daughter and there he was told to come at PS on the next day and he was advised to trace out his daughter in between the period. He stated that on the next day, he lodged his complaint vide DD NO. 23A. After about one or two days, he received a call of accused Babu and he told PW1 that his daughter is with him and they would not come at his house. After about 4-5 days, he was informed by the friends of accused Babu that his daughter and accused were admitted in BJRM Hospital as they consumed some poison. On hearing the said news, he went to BJRM Hospital where his daughter and the accused Babu were found. His daughter told him that she was happy and asked to return home.
PW1 was cross examined by Ld. Counsel for the accused.
PW-2 is retired SI Balwan. He deposed that on 31.01.2012 DO handed over him the computer generated copy of the present FIR and the copy of DD No. 23A. He got flashed the wireless message regarding kidnapping of the daughter of complainant Madan Lal namely Meenkshi.
He alongwith complainant Madan Lal went to different places to trace out his daughter but all in vain. Documentary proof regarding the age of 'M' was collected from the complainant. On the next day, DO informed about the CA No. 31/2020 Babu Vs. State (NCT of Delhi) Page No. 3 of 25 admission of accused and 'M' in BJRM Hospital. Thereafter, he went to BJRM Hospital from where he collected the MLC of accused Babu.
He recorded the statement of 'M' under Section 161 Cr.P.C on 03.02.2012. Accused was arrested and personally searched vide Ex. PW2/A and Ex. PW2/B. The statement of 'M' under Section 164 Cr.P.C was got recorded vide Ex. PW2/C. PW2 was cross examined by ld. Defence Counsel for the accused.
PW-3 Ms. 'M'. She deposed that she does not remember the exact date, month and year of the incident, however, she had given her statement under pressure. In fact, the accused kidnapped her from her school Rajkiya Varishth Ucch Madyamik Vidhyalay No. 1, which was situated at Adarsh Nagar, Delhi and at that time, she was around 17 years of age and studying in 10th class. She further deposed that accused took her to Agra. At Agra, the accused received the phone of his family members and thereafter she alongwith accused returned at Delhi at PS Jahangirpuri (outside the complex of PS), police official advised her and the accused to consume poison and then they would be protected from legal action. On the advice of police officials, she and accused consumed poison and thereafter they were shifted to hospital where they both were admitted for about four days and after that they both were discharged. Thereafter, CA No. 31/2020 Babu Vs. State (NCT of Delhi) Page No. 4 of 25 she was taken before the court where she gave her statement vide Ex. PW3/A and from the court she was shifted to Nirmal Chaya and after that she was released to her parents. PW3 was cross examined by ld. Defence Counsel for the accused.
PW-4 is HC Nanhe Lal Mishra. He deposed that on 31.01.2012, he was working as Duty Officer and complainant Madan Lal came at PS at about 05:30 PM and gave his complaint and on the basis of same, he registered the present case FIR Ex. PW4/A. PW4 was cross examined by ld. Defence Counsel for the accused.
PW5 is Ct. Jitender. He deposed that on 01.02.2012 an information was received at PS regarding the admission of two persons, who had consumed some poison in BJRM Hospital, where he found the accused Babu and a girl namely 'M' who had consumed poison. There accused and 'M' were admitted in the hospital and on 03.02.2012, they were discharged from the hospital. The custody of accused was taken by SI Balwant who prepared arrest and personal search memos in this regard vide Ex. PW2/A and Ex. PW2/B. PW5 was cross examined by ld. Defence Counsel for the accused.
PW-6 is W/Ct. Ram Pyari. She deposed that on 03.02.2012, she was posted at PS Jahangirpuri. On that day, she joined the investigation of the present case with SI Balwant. On that day, the statement of the prosecutrix 'M' was got recorded CA No. 31/2020 Babu Vs. State (NCT of Delhi) Page No. 5 of 25 under Section 164 Cr.P.C. The medical examination of the prosecutrix was sent to PS Bharat Nagar after her statement. PW6 was cross examined by ld. Counsel for the accused.
PW-7 Dr. Sudesh Kumar. He deposed that on 01.02.2012 he was on emergency duty at BJRM Hospital. At about 01.02.2012, he was on emergency duty at BJRM Hospital. At about 08:10 PM, one patient namely Babu was brought to the casualty with alleged history of unknown poison taken. The patient was administered by Dr. Shyam and in this regard, the prepared the MLC No. 37330 Ex. PW7/A. The patient was referred to SR Medicine and SR Surgery. At about 08:20 another patient namely 'M' @ Meenu was brought to the casualty with alleged history of unknown poison taken. That patient was also administered by Dr. Shyam and in this regard MLC was prepared by him vide Ex. PW7/B. The patient was also referred to SR Gynae and SR medicine for further management. Dr. Shyam prepared the above mentioned MLCs under his supervision and he identified his writing and signature. PW7 was cross examined by Ld. Counsel for the accused.
PW-8 is Dr. P. Kappu, MO BJRAM Hospital. He deposed that he was deputed by MS BJRM Hospital to appear on behalf of Dr. Mamta, who has left the hospital and her whereabouts were not known. He has gone through the MLC Ex. PW7/A. Endorsement from point X to X1 has been made by Dr. CA No. 31/2020 Babu Vs. State (NCT of Delhi) Page No. 6 of 25 Mamta. According to the endorsement child/prosecutrix was referred to Dr. Mamta, SR Gynae. Prosecutrix refused to get herself internally medically examined. According to report mark A, UPT test of prosecutrix was negative. PW8 was cross examined by Ld. Counsel for the accused.
PW9 is Dr. Deepak. Who was deputed by MS BJRM Hospital to depose on behalf of Dr. Shyam. Dr. Shyam had left the services of the hospital and current whereabouts were not known. He had worked with him during the course of his official duty and he had seen him writing and signing during the official course of duty. He had seen MLC No. n37731 of 'M' @ Meenu, she was brought to casualty with alleged history of intake of unknown poison. She was examined by Dr. Shyam (JR Casulty). On examination, the patient was found drowsy and there was no fresh external injury. Gastric lavage was done and the sample of gastric lavage handed over to IO for forensic lab examination. The MLC 37331 Ex. PW7/B. Patient was further referred to Sr. Gynae and Sr. Medicine for further treatment. Patient had refused her internal examination. He had seen MLC No. 37330 of Babu, he was brought to casualty with alleged history of intake of unknown substance. He was examined by Dr. Shyam (JR Casualty). On examination the patient was found drowsy and there was no fresh external injury. Gastric lavage was done and the sample of gastric lavage was handed over to IO for CA No. 31/2020 Babu Vs. State (NCT of Delhi) Page No. 7 of 25 forensic lab examination. The MLC 37330 Ex. PW7/A. Blood sample was taken and handed over to IO. Patient was further referred to SR. Gyne and SR. Medicine for further treatment. PW9 was cross examined by Ld. Counsel for the accused.
PW10 is Ravi Dutt, Teacher of Govt. Girls Sr. Sec, School, Adarsh Naar, Delhi. He produced the record. As per record, 'M' D/o Sh. Madan Lal got admission in the above mentioned school on 24.07.2003 and left the school on 26.03.2007. As per school leaving certificate of 'M' d/o Madan Lal, her date of birth is 13.09.1995. Copy of school leaving certificate attested by Vide Principal, Govt. Girls Sr. Sec. School, Adarsh Nagar vide Ex. PW10/A.
5. After closure of prosecution evidence, statement of under Section 313 Cr.P.C was recorded on 18.09.2019 in which appellant pleads innocence and false implication. DE was not led by the appellant.
Accused admitted under Section 294 Cr.P.C. the statement of complainant 'M' recorded by the Ld. MM on 03.02.2012 vide Ex. A1.
GROUNDS OF APPEAL
6. Aggrieved by the judgment of conviction dated 24.12.2019 and order on sentence dated 18.01.2020 passed by Ld. MM, Rohini Courts, the present appeal has been preferred on CA No. 31/2020 Babu Vs. State (NCT of Delhi) Page No. 8 of 25 the ground that the said judgment has been passed in mechanical manner without appreciating the cross-examination of the material witnesses. It is stated that the findings of the Ld. Trial Court are contrary to the record and the facts / evidence placed on the record does not warrant conviction, as there are number of contradictions in the testimonies of the material witnesses. Therefore, it is prayed that the judgment of conviction and order on sentence are liable to be set aside and appellant is liable to be acquitted.
7. On the other hand, Ld. Addl. PP for the State has strongly controverted the above arguments of the Ld. Counsel for the appellant/convict and has argued that there is no illegality or infirmity in the judgment under challenge, which has been passed after considering all the evidence on the record.
8. I have heard Mr. Gautam Singh, Ld. Counsel for the appellant/convict and Ld. Addl. PP for the State and perused the record carefully.
FINDINGS
9. It is pertinent to mention herein that appellant has been acquitted for the offence under Section 309 IPC. Thus, the present appeal is only against the conviction U/s 363 IPC.
CA No. 31/2020Babu Vs. State (NCT of Delhi) Page No. 9 of 25 SECTION 363 IPC
363. Punishment for kidnapping.
--Whoever kidnaps any person from 1[India] or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
Point of determination:-
(1). Whether victim M was a minor at the time of the incident.
(2) Whether the accused kidnapped or entice her away. (3) Out of the lawful guardianship of the father without his consent and permission.
10. The most crucial of all the witnesses examined in the present case is PW3 i.e. 'M' i.e. the victim herself, who was kidnapped as per the case of the prosecution from the lawful guardianship of her father. It is categorically stated by the PW3 'M' in her examination in chief that the accused kidnapped her from her school i.e. Rajkiya Varishth Ucch Madhyamik Vidhalaya No. 1, which is situated at Adarsh Nagar and it is further stated by her in the court that at the time of the incident she was of 17 years and was studying in class 10 th meaning thereby, that on the fateful day, the victim was kidnapped by the CA No. 31/2020 Babu Vs. State (NCT of Delhi) Page No. 10 of 25 accused from her school without the consent of her lawful guardian and further at the relevant point of time she was a minor and the age of the victim is not disputed by the accused/defence and same is matter of record.
PW3 herself stated in her examination in chief that accused took her to Agra, where only after receiving the phone call of his family members, they decided to return to Delhi. She stated that on her return to Delhi, she gave her statement Ex. PW3/A, thereafter, she was shifted to Niraml Chaya and eventually released from there and taken away by her parents.
Further it is material to mention that though in her examination in chief, the victim did not remember the exact date of the incident but on cross-examination being conducted by the Ld. APP for the State she acceded to the date of the incident being that on 30.01.2012.
At the very outset it is pertinent to mention that the victim has been changing her stand and has been inconsistent in her versions. In her statement U/s 164 CrPC Ex. PW3/A recorded on 03.02.2012 she had categorically stated that she on her own free Will had gone with the accused to a hotel Arial and stayed with him on 30.01.2012. Thereafter, on her own free Will she went to a temple on 31.01.2012 and got married to the accused. She categorically stated that there was no force or pressure upon her (mujh per kisi ka bhi dawab nahi tha) and CA No. 31/2020 Babu Vs. State (NCT of Delhi) Page No. 11 of 25 infact it was her parents who were forcing her to get married to some other boy whereas she was having a relationship with the accused and therefore she got married to him. She further stated that there is no fault of the accused and infact she is afraid of her own father and cousin brother Kamal who may kill the accused. She further made a statement that she did not want to complain and rather wanted to reside with the accused and his family members. Thus, in a voluntary statement recorded before Ld. Magistrate, the victim completely resiled from the prosecution story.
Thereafter in her testimony as PW3 she again took a stand that she was kidnapped by the accused from her school who took her to Agra. But at Agra the accused received the phone of his family members and thereafter they returned to Delhi. She further deposes interestingly that she was advised to consume poison to be protected from any legal action and not only the accused even she consumed poison. This is an admitted fact and from the conduct it appears that she was herself a party to the incident and afraid of the consequences she took a stand to consume position along with accused.
Again in her cross-examination by the Ld. Counsel for the accused she takes a stand that initially that she would not reply if she again went away with the accused from Nirmal Chaya or that there is another case of going away with the CA No. 31/2020 Babu Vs. State (NCT of Delhi) Page No. 12 of 25 accused which was pending. But the Ld. Counsel for the accused during the course of arguments has placed on record the certified copy of in judgment in another FIR No. 114/12 PS Mahindra Park U/s 363/376 IPC which was filed within 02 months from the present case and the accused was acquitted by the Ld. Sessions Court on 12.12.2013. It is highly improbable that if the accused had forcibly kidnapped the victim she would again go with him two months hence and in the said judgment it had been categorically deposed by the victim as PW10 that she on her own made telephonic call to the accused and then slipped away from the market without the knowledge of her parents to a metro station at Kashmere Gate and she herself called the accused and they went to Haiderpur and she lived with the accused for a period of 03 months till she was brought back by her parents. In the said deposition she categorically stated that the accused never pressurized her to marry him and rather asked her to continue with her studies. Judicial notice can be taken of the certified judgment and the cross-examination of the prosecutrix where she admitted that in the present FIR No. 32/12 she had stated that she wanted to live with the accused and did not want to go with her parents. She further admitted that it was correct that it was instead her who had pressurized the accused for marriage.
Relevant portion is reproduced herein:
"....I was married with accused Sujit when I first CA No. 31/2020 Babu Vs. State (NCT of Delhi) Page No. 13 of 25 time eloped with him. It is correct that I had pressurized accused for marriage. It is correct that in my first statement U/S 161 Cr.PC, in case FIR No. 32/12 PS Jahangir Puri I had stated that I want to live with the accused and do not want to go with my parents. It is correct that at that time due to tender age I was sent to Nirmal Chhaya".
11. It is highly improbable that a girl who was admittedly a class 10th student was forcibly taken away to Agra and she did not raise any alarm at any stoppage of a train or red light if they had used a bus, which ought to have come between the place of occurrence and upto Agra. She must have boarded the bus or shared the train compartment with many other persons. But no alarm was raised. There are various improvements and contradictions in her different versions. It is not the case of the prosecution that the accused ever used any element of force or threatened her while she was with him. On the contrary as can be noted above she herself went away with the accused and married him with her own Will and did not want to come back to her parents rather even when she was recovered she chose to stay at Nirmal Chaya.
12. At this stage, it would be relevant to quote the case law of AMAR PAL YADAV & ORS VS. STATE CRL.M.C. 3370/2009 (DATE OF ORDER: 17TH FEBRUARY 2010) CA No. 31/2020 Babu Vs. State (NCT of Delhi) Page No. 14 of 25 decided by our own High court, wherein "it was observed that minor herself abandoning the guardianship of her parents without any role played by the boy, no offence punishable u/s 363 IPC would be made out".
4. In 'Shyam & Another vs State of Maharashtra', 1995 Criminal Law Journal 3974, the prosecutrix was a grown-up girl, though she had not touched 18 years of age. She claimed during trial that she was kidnapped under threat. The evidence produced during trial showed that she was seen going on the bicycle of the accused. The Hon'ble Supreme Court noted that it was not unknown to her with whom she was going and therefore, it was expected of her then to jump down from the bicycle or put up the struggle and in any case raise an alarm to protect herself. As no such steps were taken by her, the Hon'ble Supreme Court felt that she was a willing party to go with the appellants of her own and, therefore, there was no taking out of the guardianship. The appellants were acquitted of the charge under Section 366 of IPC.
5. In 'State of Karnataka vs Sureshbabu, 1994 Crl.L.J.1216(1), it was found that the girl went with the accused voluntarily. It was held by the CA No. 31/2020 Babu Vs. State (NCT of Delhi) Page No. 15 of 25 Hon'ble Supreme Court that the requirement of Section 366 of IPC is that taking or enticing away a minor out of the keeping of the lawful guardianship was an essential ingredient of the offence of kidnapping. It was held that in such a case, it is difficult to hold that the accused had taken her away from the keeping of her lawful guardian and something more has to be shown in a case of this nature, like inducement.
6. In 'Mahabir vs State', 55(1994) DLT 428, the appellant and the prosecutrix were known to each other. The appellant took the prosecutrix to a place outside Delhi where they stayed for about fifteen days and had sexual intercourse with each other. The appellant was convicted under Sections 366 and 376 of I.P.C. A learned Single Judge of this Court noticed that she had gone to Railway Station, had stood there with the appellant who also went to purchase tickets and then she had travelled with him in a compartment shared by other persons. She had then gone to a house in a tonga and yet she did not lodge any protest and made no attempt to flee despite having ample time and opportunity. The learned Single Judge noted that on the day of reckoning, she surely had crossed mark of sixteen years and since she was all along a willing party, the appellant was acquitted of both CA No. 31/2020 Babu Vs. State (NCT of Delhi) Page No. 16 of 25 the charges against him. Thus, despite the prosecutrix being less than eighteen years of age, the appellant was acquitted not only of charge under Section 376 but also of the charge under Section 366 of I.P.C.
8. In 'Bala Saheb vs State of Maharashtra', 1994 Criminal Law Journal 3044, it was found that the prosecutrix accompanied the appellant/ accused from her village and stayed with him for two to three days. It was held that these circumstances clearly show that offence under Section 363 or 366 of I.P.C. was not made out."
13. In well known case of S. VARADARAJAN V. STATE OF MADRAS, (SC) 1965(1) SCR 243, it has been observed that:
"it must be borne in mind that there is a distinction between "taking"
and allowing a minor to accompany a person. The two expressions are not synonymous and it was observed that where the minor alleged to have been taken by the accused person left her father's protection knowing and having capacity to know the full import of what she was doing voluntarily joins the accused person, in such a case accused can be said to have taken her away from the keeping CA No. 31/2020 Babu Vs. State (NCT of Delhi) Page No. 17 of 25 her lawful guardian. Something more has to be shown in a case of this kind and that is some kind of inducement held out by the accused person or an active participation by him in the formation of the intention of the minor to leave the house of the guardian. It was also observed that the part played by the accused could be regarded as facilitating the fulfillment of the intention of the girl which falls short of an inducement to the minor to slip out of the keeping of her lawful guardian and was, therefore, not tantamount to "taking".
14. Regarding the testimony of the child witness, time and again, the Hon'ble Superior Courts in their wisdom, in catena of judgments, have guided the trial courts about the reliability of the testimony of the child witnesses. In Rakesh Kumar Vs. State, CRL.A. 513/1998 decided on 30.05.2014, the Hon'ble High Court, following the observations of the Hon'ble Apex Court in case Nivrutti Pandurang Korkte & Ors. Vs. State of Maharashtra, AIR 2008 SC 1460, has observed that :
"The testimony of the child witness has to be carefully scrutinized, before the same is believed by the court and if the court comes to a conclusion that the testimony of the child is reliable, trustworthy and truthful, then the same cannot be discarded, on the mere premise that the witness happened to be a child witness.
The only precaution, which the courts CA No. 31/2020 Babu Vs. State (NCT of Delhi) Page No. 18 of 25 are required to take, is to ensure that the said child witness is free from any kind of tutoring or influence and his / her testimony also finds adequate corroboration. Once the testimony of the child witness is supported by other evidence on record, then the same can be accepted without any kind of obstacle or hesitation."
15. In the case of Rai Sandeep alias Deepu Vs. State of NCT of Delhi Crl. Appeal No. 2486/2009 decided on 07.08.2012, the Hon'ble Supreme Court had an occasion to consider who can be said to be a "sterling witness". In paragraph 22, it is observed and held as under:
"22 In our considered opinion, the "sterling witness" should be of a very high quality and caliber whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The CA No. 31/2020 Babu Vs. State (NCT of Delhi) Page No. 19 of 25 witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co-relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all 12other such similar tests to be applied, can it be held that such a witness can be called as a "sterling witness" whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged."CA No. 31/2020
Babu Vs. State (NCT of Delhi) Page No. 20 of 25
16. In the case of Krishna Kumar Malik v. State of Haryana (2011) 7 SCC 130, it is observed and held by Supreme Court that no doubt, it is true that to hold an accused guilty for commission of an offence of rape, the solitary evidence of the prosecutrix is sufficient provided the same inspires confidence and appears to be absolutely trustworthy, unblemished and should be of sterling quality.
17. In view of the highly inconsistent versions of the victim on material aspects it can be safely inferred that her testimony is not that of a sterling quality and requires corroboration as a matter of caution.
18. It is pellucid to mention that the victim went with the accused out of her own free will. In the light of the case laws of Amar Pal Yadav (Supra), Shyam & Anr (Supra), Bala Saheb (Supra) as laid down by the Superior Courts and discussed above, it appears that no active role was played by the accused and owing to the inconsistency in the versions of the victim and the fact that she admitted going with the accused on her own in another FIR registered within two months on similar allegations, whereby the accused was acquitted, the prosecution has failed to prove beyond reasonable doubt that offence under CA No. 31/2020 Babu Vs. State (NCT of Delhi) Page No. 21 of 25 Section 363 IPC is made out against the accused.
Yet since it is a settled proposition of law that the consent of a minor is immaterial, this brings us to the next point of determination which was a foundational fact to be proved by the prosecution that the victim was minor.
AGE OF THE VICTIM
19. As per Section 94 of The Juvenile Justice (Care and Protection of Children), Act 2015, the process of age determination requires a date of birth certificate from the school or matriculation, and in absence thereof, a birth certificate given by a corporation of municipal authority and in absence of the above, the age shall be determined by an Ossification Test. The onus to prove the age of child victim lies on the prosecution.
In the present case, in order to ascertain the age of the victim 'M', the prosecution has relied on the testimony of PW10 Sh. Ravi Dutt, Teacher Government Girls School who deposed that the date of birth of the victim is 13.09.1995 as per her school leaving certificate Ex. PW10/A. Ld. counsel for the accused had argued that the victim has not been proved as a minor by the prosecution and there is a discrepancy in the date of birth since as per the school records, only a school leaving certificate was produced of a school which she attended for a short period of four years from CA No. 31/2020 Babu Vs. State (NCT of Delhi) Page No. 22 of 25 24.07.2003 to 26.03.2007.
On the cross examination of PW-10, he categorically testified that "it is correct that the school leaving certificate was not prepared in the presence of the said witness."
Further, there is no evidence to show if any certificate issued from MCD or any other government agency was given by the parents of the student at the time of her admission.
Therefore, it is evident and an admitted fact that except the school leaving certificate proved as Ex. PW10/A, there is no other record available regarding the age of the victim, which has been proved by the prosecution. At this stage, it is relevant to quote the case law of Ashwani Kumar Saxena Vs State of MP (2012) 9 SCC 750 and in Vinod Kumar Jatav Vs. State of MP in CR (R) 843/2015 dated 01.10.2015, the Hon'ble High Court reiterated that an admission in the school register cannot have the finality for the purpose of determination of age as there is tendnecy of the parents to underestimate the age or sometimes to enhance the age.
In the present case, the school leaving certificate Ex. PW10/A was produced of a school which she attended for a short period of four years from 24.07.2003 to 26.03.2007. There is no document regarding the first attended school or any affidavit or CA No. 31/2020 Babu Vs. State (NCT of Delhi) Page No. 23 of 25 undertaking which may have been given by the parents nor any birth certificate of the concerned authority which has been proved by the prosecution before the Ld. Trial Court.
The victim in her testimony as PW3 although stated that she was around 17 years at the relevant time but as seen above she has been constantly changing stands and solely based on her testimony the accused cannot be convicted.
A grave doubt is raised regarding the age of the victim and there is no cogent document produced by the prosecution which could prove the age of the victim was below 18 years on the date of alleged offence. There is no Ossification Test report filed on record and the prosecution has failed to prove the foundational fact that victim was below 18 years of age.
OTHER WITNESS
20. Another material witness whose testimony needs to be examined is PW1 i.e. Madan Lal, who stated that on 31.01.2012, his daughter i.e. 'M' went to her school and from there she did not return home and after the gap of day or two he received the call from accused regarding the fact of his daughter being with him. No phone records have been proved by the prosecution. There is no CDR or any mobile call details which could corroborate the fact that it was the accused who made any call to the father of the victim.
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21. In view of the above-said discussions, I am of the opinion that prosecution has failed to prove the guilt of the accused beyond reasonable doubt. Hence, the judgment dated 24.12.2019 and order on sentence dated 18.10.2020 passed by the Ld. Trial Court convicting the accused U/s 363 IPC are set aside and appeal is allowed. Appellant Babu is hereby acquitted in the FIR No. 32/2012 PS Jahangir Puri.
22. Nothing stated herein shall tantamount to an expression of opinion on the merits of the case.
23. TCR, if any be sent back to the concerned court with copy of this judgment.
24. In view of the above discussion, the appeal is disposed off accordingly.
25. Appeal file be consigned to record room.
Pronounced in open (SHEFALI SHARMA)
Court on 03.07.2023 ADDITIONAL SESSIONS JUDGE-02,
NORTH DISTRICT,
ROHINI COURTS, DELHI
CA No. 31/2020
Babu Vs. State (NCT of Delhi)
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