Delhi District Court
State vs . on 15 May, 2010
IN THE COURT OF SH. RAKESH TEWARI ASJVI(OUTER), ROHINI
COURTS, DELHI
SC NO.109/10
FIR NO. 299/07
PS Jahangir Puri
State
Vs.
Sheikh Ravibul s/o Sheikh Roshan Ali
r/o C104, CD Park,
Jahangir Puri, Delhi.
Date when case reserved for judgment : 12.05.2010
Judgment pronounced on : 15.05.2010
JUDGMENT:
1. The case of the prosecution in brief is that on 4.5.2007, one Aziza Bibi came to the Police Station Jahangir Puri and got recorded her statement that she was residing at C563, Jahangir Puri, Delhi and on 2.5.2007, her daughter Tara aged about 12 or 13 years had gone to purchase some articles from the shop at about 9 p.m but had not returned back to the home by that time and she had searched for her daughter but could not find her and she suspected over the accused who was residing in the jhuggies of CD Park, to have kidnapped her daughter and on the basis of the said statement, the FIR was registered at the PS.
2. That on 5.5.2007, the prosecutrix as well as the accused were apprehended near CD Park of CBlock, Jahangir Puri, Delhi and medical examination of both the prosecutrix as well as the accused was got SC No.109/10 Page 1/8 conducted and the underwear and vaginal swab of the prosecutrix and semen sample and pubic hair of the accused were seized by the respective doctors and handed over the same to the IO of the case and the bony age of the prosecutrix as well as of the accused was got determined and the said exhibits were sent to the FSL, the result was obtained, the statement of the prosecutrix was got recorded u/s 164 Cr.PC on 26.5.2007, wherein the prosecutrix stated that she was about 15 years of age and she has never gone to school and she knew the accused for about six months and that on 2.5.2007, her mother had sent her to the market for purchasing potatoes and in the way, accused met her and induced her to go to Seema Puri where she was kept in a dilapidated jhuggi for two days and the accused forcibly committed rape with her but did not marry her and her mouth was kept shut due to which she could not raise alarm and after two days she escaped and reached her house and the charge sheet was filed against the accused.
3. On the basis of the said material on the record, my Ld. Predecessor vide his order dated 28.4.2008, framed the charge against the accused u/s 363/366/376 IPC to which accused pleaded not guilty and claimed trial.
4. The prosecution, in order to prove its case, examined 9 witnesses out of which relevant witnesses have been discussed below. Thereafter the statement of the accused was recorded u/s 313 Cr.PC wherein he pleaded his innocence and did not lead any defence evidence.
5. I have heard the Ld. APP for the state and Ld. Defence Counsel Ms. Bindiya Malhotra, Amicus Curie for the accused.
6. The MLC of the prosecutrix has been proved by PW5 Dr. Shakuntala Rani who has identified the signatures of Dr. Indira who SC No.109/10 Page 2/8 examined the prosecutrix internally. Although Dr. Indira never appeared in the witness box, but it is not a disputed fact that the prosecutrix was examined medically. As per MLC, the hymen of the prosecutrix was found torn and healed and vagina was admitting two fingers which go to establish that prosecutrix was used to sexual intercourse and it is also mentioned in the MLC that the prosecutrix was brought for medical examination with the alleged history of run away with Sheikh Ravibul (the accused) with her consent on 2.5.2007 and that sexual assault by him with her consent was made.
7. PW6 is the prosecutrix, who has deposed that she was illiterate and it was about 2½ years ago in the summer season one day at about 9 p.m she went to market to purchase potatoes and in the market the accused met her and induced her to go with him and she was taken to Seema Puri where she was kept in a jhuggi and the jhuggi was in a dilapidated condition and accused removed his clothes and thereafter he forcibly removed her clothes and put his urinary organ in her urinary organ forcibly against her wish and without her consent and when she tried to raise alarm, accused pressed her mouth with his hand and threatened to kill her and that the accused was residing in the same area where she was residing and he used to roam in gali in front of her house and that accused committed rape upon her two times between two days for which she was kept in the said jhuggi and thereafter she managed to free herself from the confinement of the accused and left that jhuggi and accused also followed her up to Subzi Mandi Jahangir Puri, Delhi where the accused was apprehended by the police and that at that time her mother was also with the police and thereafter she was medically examined at BJRM Hospital, SC No.109/10 Page 3/8 Jahangir Puri, Delhi, and her bony age was also conducted vide report Ex.PW6/B and her statement given to the magistrate is Ex.PW6/A and she identified her underwear which she was wearing at the time of the incident.
8. In her cross examination, she answered that the accused was residing near her house in the same gali and he frequently visited her gali. She further replied that accused had come to the Subzi Market in an auto rickshaw and she was taken in the same to Seema Puri. She further answered that there was movement of the public at the place where accused had met her on that day and that accused had put his hand on her mouth while taking her away in TSR and that as the accused had threatened to kill her, she did not raise alarm. She could not tell as to in how much time she reached Seema Puri but she did not raise alarm on the way up to Seema Puri because accused had kept her mouth shut with his hand all the way. She further answered that she did not tell any person around the jhuggi where she was kept at Seema Puri because accused had tied a cloth on her mouth. She further answered that she did not go out of jhuggi during the said period of two days and that she did not go for attending call of nature there nor she eat anything during the said two days. There was no source of light in the jhuggi and it was a filthy place having no cot to sleep and that she slept on the ground. She further answered that there was no system of bolting or locking the said jhuggi nor there was any arrangement of drinking water in the jhuggi and she did not take any water during her stay of two days. She further answered that on the third day, when accused had gone out of jhuggi at Seema Puri, she got an opportunity and ran away from the jhuggi and that she came back in the bus but she did not tell in the bus to anybody about the incident and that SC No.109/10 Page 4/8 the bus conductor had asked her for bus fare but she told him that she was not having money and she continued to weep. She further answered that accused did not accompany her in the said bus to Jahangir Puri. She further replied that when police and her mother met at Subzi Mandi, the accused was also behind her. She further answered that she got married two years back.
9. From the said medical evidence and deposition of the prosecutrix as PW6, it is clear and well established that accused used to visit the gali where the prosecutrix was residing much prior to the alleged incident but she never complained or reported the matter against the said conduct of the accused. Going to Seema Puri in an auto rickshaw from a busy place such as Subzi Market and remaining in a dilapidated jhuggi for more than three days and the jhuggi not having any bolting or locking device, no allegation on the accused of having some weapon with him, not raising alarm or trying to escape from the said jhuggi for said long period, the jhuggi not having light, drinking water or a cot to sleep and remaining there for three days in such circumstances and the apprehension of the accused at the same time and at the same place when the prosecutrix was apprehended, all go to establish beyond doubt that prosecutrix was a consenting party and whatever she has done or the accused has done was with the active connivance and the consent of the prosecutrix. In the said circumstances, the version of the prosecutrix that she was threatened to be killed and that the accused gagged her mouth with his hand throughout the way or tying a cloth at her mouth, are the facts difficult to swallow.
10. Now the question arises as to whether the prosecutrix was a minor so that her consent becomes immaterial.
SC No.109/10 Page 5/8
11. Ld. APP for the state has argued that deposition of father or the mother or both with regard to the age of the prosecutrix is the best evidence and the judgments of the Hon'ble Supreme Court were relied in this regard. On the other hand, Ld. Defence Counsel has submitted that in the present case the mother of the prosecutrix could not depose with regard to the exact age of the prosecutrix and she has given contradictory version at different places with regard to the age of the prosecutrix and there is no corroboration on the record as per deposition of the mother of the prosecutrix and as such, the ossification test conducted in the present case may be relied.
12. The Hon'ble Supreme Court in the case titled Vishnu @ Undrya Vs. State of Maharashtra reported as 2006 (1) JCC 78 has held that the best evidence with regard to age of the prosecutrix is of the father and the mother and the ossification test is really of an advisory character and not binding on the witness of fact. The said holding was given by the Hon'ble Supreme Court where the parents of the prosecutrix appeared in the witness box as PW1 and PW13 and deposed that the date of birth of the prosecutrix was 29.11.1964 and the said date of birth was duly recorded in the date of birth register, Municipal Corporation, and also in the School Leaving Certificate. The said date of birth was further corroborated by the hospital where the prosecutrix was born and it was in this background that the ossification test was discarded by the Hon'ble Supreme Court and they relied on the version of the parents with regard to age of the prosecutrix duly corroborated by the institutional recording of the date of birth.
13. Similarly, the Hon'ble Supreme Court in the case titled State of Punjab Vs. Gurmeet Singh and others reported as (1996) 2 SCC 384 SC No.109/10 Page 6/8 relied upon the age of the prosecutrix as below 16 years on the date of incident as deposed by father and mother of the victim which was fully corroborated by medical evidence and School Leaving Certificate.
14. In both the said cases, the Hon'ble Supreme Court declared the deposition of the parents as the best evidence qua the age of the prosecutrix but in both the cases, the deposition was duly corroborated by independent documentary evidence and it was in this context that Hon'ble Supreme Court has held the deposition of parents to be the best evidence.
15. Let me now analyze the deposition of the mother of the prosecutrix who has appeared as PW7 in the witness box. PW7 has deposed that on the day of incident, the prosecutrix was aged about 12/13 years. In the FIR Ex.PW8/A, she has given the age of the prosecutrix as 12/13 years and in the MLC Ex.PW4/A, the age of the prosecutrix was given as 15 years.
16. In her cross examination, PW7 has answered that she had six children and the eldest son was of 18 years, second son was about 17 years of age, third number was that of prosecutrix who was 16 years of age, another daughter at fourth number was of 12 years of age and fifth number was again a daughter 10 years of age and the daughter at sixth number was 5 years of age. She has further answered that none of her children had attended any school and that there is no record of birth of her daughter, the prosecutrix.
17. The prosecutrix herself has given her age before the magistrate in her statement Ex.PW6/A as 15 years on 26.5.2007. The ossification test with regard to the age of the prosecutrix, which is Ex.PW3/A at the back of the form Ex.PW6/B, mentions the age of the prosecutrix between 17 years SC No.109/10 Page 7/8 to 18 years on 16.5.2007.
18. In the said circumstances, the said two judgments of the Hon'ble Supreme Court do not come to the help of the prosecution because in the said judgments the deposition of the parents with regard to the age of the prosecutrix was definite, specific and was corroborated by other written record of the independent agencies. In the present case, the mother of the prosecutrix PW7 has deposed in general terms without any specification and even she has not mentioned her age in her deposition and same can be deciphered only by the FIR Ex.PW8/A which mentions the year of birth of the mother PW7 as 1967. Thus, no assistance was rendered by the mother of the prosecutrix to this court in ascertaining the age of the prosecutrix at the time of alleged incident. Consequently, this court is left with no opinion but to rely upon the ossification test report mentioning the age of the prosecutrix between 17 to 18 years on 16.5.2007. Needless to repeat the law that two years variation can be there in the age of a person as given in the ossification test report meaning thereby that the prosecutrix may be of 15 years or may be of 20 years on the date of ossification test and the interpretation or the inference which is favourable to the accused must be accepted. Hence, the benefit of doubt is given to the accused and accordingly he is acquitted of the charges u/s 363/366/376 of IPC. He be released forthwith, if not wanted in any other case. The file be consigned to the Record Room.
(Announced in the open court on 15.05.2010) (RAKESH TEWARI) ASJ06(OUTER) ROHINI COURTS, DELHI SC No.109/10 Page 8/8