Delhi High Court
State Of Nct Of Delhi vs Gaurav @ Sanjay on 24 May, 2018
Author: Vipin Sanghi
Bench: Vipin Sanghi, P.S. Teji
$-
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Judgment delivered on: 24.05.2018
% CRL.A. 511/2018
STATE OF NCT OF DELHI ..... Petitioner
Through: Ms. Aasha Tiwari, APP for the State
with SI Maneesa, PS Sangam Vihar
versus
GAURAV @ SANJAY ..... Respondent
Through: Mr. Ashwani Kumar Sood with
Mr.Vishal Vimal, Advocates
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
HON'BLE MR. JUSTICE P.S. TEJI
VIPIN SANGHI, J. (ORAL)
1. The State has preferred the present appeal upon grant of leave to assail the Judgment rendered by the Ld. ASJ-01, South East District, New Delhi in Sessions Case No. 64/2012 arising out of FIR No. 251/2012 registered at PS Sangam Vihar under sections 376/363/506 IPC titled State vs. Gaurav @ Sanjay. By the impugned judgment the Ld. ASJ has acquitted the accused/respondent of the charge.
2. On 26.06.2012, an information about eve teasing was received vide DD No. 43A (Ex. PW-16/DA) at 7.45 PM. Inquiry was assigned to ASI CRL. A. 511/2018 Page 1 of 32 Rajender, who reached the disclosed place. Considering the seriousness of the call, he intimated the SHO of the facts and W/SI Sushma Saxena PW-16 was called from PS Ambedkar Nagar, and the statement of the victim (name withheld) was recorded by PW-16 vide Ex. PW-8/A, on the basis of which the rukka (Ex. PW-16/A) was prepared. In the said statement she stated that on that day around 2 PM she had gone near Panchwati Mandir to take water from the tap. A boy named Gaurav, who lived in her neighborhood, and now resides in lane no. 10 - whom she knew well; was standing near the tap. He called her and told her that her sister 'N' had called and she wants to speak with her. On this, she went with him to talk to her sister. Gaurav took her to his house. There was no one else except Gaurav there. After reaching the house, Gaurav bolted the door from inside and started kissing her and forcefully removed her clothes and removed his clothes too. When she screamed, he put his hand over her mouth and forcefully put his private part into her private part and raped her against her will. He threatened her that if she discloses about the incident to anyone, he will kill her mother and rape her sister. She somehow managed to run back home and informed her sister about the incident; who then called their mother. When her mother came back home she called on 100 number.
3. The prosecutrix was thereafter sent for her counseling and thereafter taken to AIIMS along with her mother. Her Medico Legal Examination was got conducted on 27.06.2012 at 4 AM, and the report Ex. PW-8/B was prepared. The doctor advised conduct of bone age test.
CRL. A. 511/2018 Page 2 of 324. Exhibits were collected by the IO after the medical examination of the prosecutrix, containing vaginal smear of the prosecutrix in a sealed pullanda sealed with the seal of CMO AIIMS Hospital vide Ex. PW-15/A.
5. The accused was arrested on 27.06.2012 at 10:30 AM from his house vide Ex. PW-5/A and sent for medical examination to AIIMS. His MLC dated 27.06.2012 conducted at 2:30 PM is Ex. PW-4/A. Thereafter, exhibits of accused containing penile swab, control swab, underwear and blood in gauze; sealed with the seal of Department Of Forensic Medicine were seized vide Ex. PW-7/A. On 27.06.2012 a red coloured salwar, a white coloured shirt and a light blue underwear were produced by the mother of the prosecutrix PW-5, stating them to be the clothes worn by the prosecutrix during the incident, and the same were seized vide Ex. PW-5/C. On pointing out by the prosecutrix, a bedsheet and a towel were seized from the house of the accused vide Ex. PW-8/C on 27.06.2012.
6. On 28.06.2012, statement of prosecutrix under section 164 CrPC (Ex. PW-6/B) was recorded by PW-6 Ms. Tyagita Singh, Ld. Metropolitan Magistrate. Charge was framed under section 363/376/506 IPC on 28.01.2013, to which the accused pleaded not guilty and claimed trial.
7. To prove its case, the prosecution examined a total of 17 witnesses, the key witness being PW-8, the prosecutrix; PW-9, the sister of the prosecutrix, and; PW-5 the mother of the prosecutrix. In his statement recorded under section 313 CrPC, the accused stated that a false case has been concocted against him by the mother of the prosecutrix, and all the CRL. A. 511/2018 Page 3 of 32 witnesses have falsely deposed against him. The accused chose not to lead any evidence.
8. By the impugned judgment the trial court has acquitted the accused/respondent primarily by disbelieving the case of the prosecution that the prosecutrix was about 12 years of age i.e. below 16 years old. The learned ASJ has disbelieved the statement of the prosecutrix on the premise that there were contradictions therein. We consider it appropriate to extract the relevant portion of the impugned judgment, before we proceed to discuss the submissions and examine the correctness of the reasoning given by the learned trial court.
"8. Thus, for the offence of ‗kidnapping' and ‗rape', determination of the age of the victim girl at the time of incident is very important. The prosecution to prove the age of the victim has called the record from her school which is produced by PW2. As per this witness the victim took admission in the school in class 3rd on 21.04.2009 and as per record her date of birth is 28.02.2002. The victim was also radiologically examined to ascertain her age by a doctor who is examined as PW3. As per this witness on 27.06.2012 he radiologically examined the X-Ray plates pertaining to the victim for the purpose of determining her age and that upon medical examination, he opined that the age of the victim is between 10.2-14.9 years. The witness in his cross-examination admitted that there is a cutting at point X at Ex. PW3/A and that it is correct that at point X earlier it was 15.8 years and subsequently it was replaced with 14.9 years. The witness has not given any reason of the cutting and change in the figure.
8.1 The Hon'ble Apex Court in the case of Mahadeo Vs. State of Maharashtra and Anr., (2013) 14SCC 637, has held that Rule 12(3) of the Juvenile Justice (Care and Protection of Children) Rules, 2007 is applicable in determining the age of CRL. A. 511/2018 Page 4 of 32 the victim of rape. In the State of Delhi separate rules have been framed and the same are Delhi Juvenile Justice (Care and Protection of Children) Rules, 2009. Rule 12(3) provides procedure to be followed in determination of Age and it runs as under:
In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the Court or the Board or, as the case may be, the Committee by seeking evidence by obtaining-
(a) i. the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;
ii. the birth certificate given by a corporation or a municipal authority or a panchayat;
iii. the matriculation or equivalent certificates, if available;
(b) and only in the absence of either (i)(ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child.
Thus, in view of the rule the age opined by PW3 is not considerable as it is not given by the Medical Board and that it is not the case of the prosecution that the age certificate as mentioned in the rule were absent.
8.2 The record produced by PW2 is showing that the victim took admission in that school in 3rd class. It is not the case of the prosecution that this school is the first attended school of the victim as her mother has deposed that prior to this school, her daughter had studied in government school in Sangam Vihar and she had not brought any document from the previous school for getting her admitted in subsequent school. The mother claimed during her cross-examination that she has birth certificates of all her children and she has produced birth certificates in the Court but none from these certificates shows date of birth as 28.02.2002 of any of her child. Further as per CRL. A. 511/2018 Page 5 of 32 statement of PW11 he had also asked from the parents of the prosecutrix in respect of the birth certificate on which they replied that they are not having any birth certificate. Thus, on the basis of the evidence oral and documentary adduced by the prosecution to prove the age of victim it can be said that the prosecution is not able to prove that the victim was below the age of 16 years on the day of incident beyond doubt.
9. In regard to the incident it is deposed by the victim during the trial that ―on 26.06.2012 at about 02.00PM, I had gone to take water from near Panchwati Mandir. At that time, accused Gaurav resident of gali no. 10 in our neighbourhood was also standing there. He called me on the pretext that my sister ( name withheld to conceal the identity of the victim) had made a phone call and wanted to talk to me. For this reason, I accompanied the accused. The accused took me to his house. Nobody else was there in the house. The accused kissed on my lips and removed my clothes forcefully. Thereafter, the accused started kissing my body. The accused also removed his clothes. The accused came over my body. The accused sucked my breasts also and rubbed my vagina. Thereafter, the accused inserted his penis into my vagina. Thereafter, the accused said that he knows my mother and that I should daily visit him otherwise he would kill my mother. Thereafter, put on my clothes and went home and narrated the entire incident to my sister. She (name withheld to conceal the identity of victim) informed my mother on phone. My mother came back home and made a call at number 100. Police came to our home. The police inquired from me about the incident and recorded my statement.‖ The victim stated that her mother came at 3.30 PM. She stated that she disclosed the entire incident to her mother. But in the cross-examination she stated that she did not disclose the entire incident to her mother when she reached home and that she told her that one boy namely Gaurav had misbehaved with her, removed her clothes, she state that on hearing this, her mother called the police. The call was made by the mother from her phone about eve-teasing. If the victim had told entire facts to her then it remains unexplained as to why the call was not made with true facts. The prosecution has examined elder CRL. A. 511/2018 Page 6 of 32 sister of the victim to whom she narrated the incident and who made call to her mother as PW9 and she stated that her mother made call to police in her presence and she has also not explained the reason why the call was made only of eve-teasing if rape was committed upon the victim. It is also not explained if mother had come to know about the incident upon her arrival to home at 3.30 PM then why she made call to the police at 7.45PM.
10. Moreover the version given by the victim in her statement recorded by PW6 was that on 26.02.2012 she went to tap for taking water and Gaurav, who is electrician and is aged about 21/22 years and she knows him as he used to come to her house to repair the electricity, was standing there and was watching her. He called many a times to her but she did not go to him. The he told her from a short distance that there is her didi on her mobile phone so on his asking to take phone she went to him and he by putting his hand and holding her hand took her to his home and bolted the door from inside. She bite him on his hand but he did not leave her. He was alone at his house so he using the occasion started forcing her and removed her and also his cloths and first kissed on lips and then sucked her breast and then touched her urinal part by his finger. She stated that he started inserting his penis into her urinal part. She freed herself very hardly and prated to let her go as she is feeling sever pain. Then he told her to come tomorrow and if she will not then he will pick up her sister and will got killed her mother. She put on her cloths hurriedly and ran away from there and told the entire incident to her sister upon asking and to her mother when she returned to home.
11. The doctor who examined the accused medically has not found any bite mark on the hand of accused. It is not explained that if the victim has gone to bring water from tap and her sister was at home then why she made a call to her on the mobile of the accused and how she came to know that the accused is near to the tap particularly in the facts where sister of victim has deposed as PW9 that they were not having visiting terms with the family of the accused and that accused never CRL. A. 511/2018 Page 7 of 32 visited her house prior to the incident nor she visited the house of the accused prior to the incident. The testimony of the victim in this regard is that ― The accused was known to my family prior to the incident as he was doing the electrical repairing work in my house at times of need and I and my sister both regarded him as our brother. ‖
12. The victim stated that ―I had narrated the entire fats in my statement under Section 164 CrPC to the Magistrate. My statement made to the Magistrate is correct wherein I have stated that the accused was trying to insert his penis into my vagina and that with efforts I tried to save myself as asked him ‗Bhaiya mujhe jane do please, mujhe bahut dard ho raha he.' Thus it is clear from the statement of the victim that there were no penetration and accused only tried to insert his penis into her vagina. But as per statement made to the police as well as made in the Court there was full penetration.
13. The victim stated that ‗ I left the utensil taken by me for filling the water in the custody of one of the friend of my brother namely Chotu. Chotu is residing in our gali. The prosecution has not produced said Chotu in the Court.
14. As per the police witnesses mother of the victim handed over the cloth to the police stating that she has worn the same at the time of the incident. The cloths were sealed by the police but were not sent for examination to FSL. No explanation have come on file in this regard. It is also not explained when the girl changed her cloths and why. As per memo Ex. PW5/C, mother of victim while handing over the cloth stated that her daughter has washed the underwear. But neither the victim not her mother and sister stated so while deposing in the Court.
15. The prosecution has given more weight to the DNA report and it is stated that the as per PW17 DNA samples of the accused are found matching with the semen marks of the bed sheet. But the matching of the DNA samples is of no use and on its basis culpability of the accused cannot be decided as it is the bed sheet which was recovered from the room of the accused CRL. A. 511/2018 Page 8 of 32 and there is every possibility that a bed sheet pertaining to a young boy of the age 20/22 years might have his semen marks. If the semen marks had been found on the cloths of the victim and were found matching with the DNA of the accused then there would have other case. The DNA samples of the accused are not found matching with the samples of vaginal smears of the victim as they were not found having any semen. The absence of the semen on the vaginal smears of the victim belies the case of the victim.
16. Considering the above stated lacunas in the case of the prosecution the inconsistent, uncorroborated testimony of victim is considered not trustworthy and reliable. On the basis of unreliable and inconsistent testimony of the victim the accused can not be held guilty. Accordingly the accused Gaurav @ Sanjay is acquitted from the charge framed against him as the prosecution is not able to prove its case‖.
9. Ms. Aasha Tiwari, Ld. APP for the State submits that the prosecution has been able to establish its case beyond reasonable doubt and the impugned judgment is perverse and suffers from manifest errors. She submits that the impugned judgment is not sustainable in the eyes of law as the learned ASJ has ignored the material evidence brought on record and he has failed to appreciate the evidence in the case.
10. Ms. Tiwari submits that the learned ASJ has fallen into perversity in disbelieving the case of the prosecution that the age of the prosecutrix was about 12 years at the time of the incident. She submits that the learned ASJ has erroneously disbelieved and ignored the evidence brought on record with regard to the age of the prosecutrix, even though the prosecutrix had disclosed that she was 12 years old and studying in 5 th class at the time of the incident, and even the bone age test disclosed the age of the prosecutrix CRL. A. 511/2018 Page 9 of 32 to be between 10.2-14.9 years. He has also disbelieved the birth certificate of the prosecutrix Ex.PW-5/DA on completely erroneous basis.
11. Ms. Tiwari submits that the prosecutrix was consistent in her stand throughout the investigation, as well as at the trial. She submits that the testimony of the prosecutrix is consistent and reliable; and the same is enough to convict the respondent.
12. Ld. Counsel drew our attention to Ex. PW-6/B - which is the statement of the prosecutrix recorded under section 164 CrPC, in which she stated that on 26.06.2012, she went to take water on the tap. Gaurav - the accused, who does the work of electrician and is aged 21/22 years, whom she knows because he used to visit her house when needed to fix electric problem, was standing there watching her. He called out to her many times but she didn‟t go close to him. Then from some distance he said to her that her sister had called on his mobile phone and called her to attend the same. So the prosecutrix went with him to do the same, but Gaurav put his hand on her mouth, held on to her arm and took her to his house. He bolted it from inside. She bit him on his hand, but he still didn‟t let go of her. He was alone at home, and he seized the opportunity and started forcing himself upon her. He took off her clothes as well as his own. Thereafter he started kissing her on her lip and thereafter on her breasts. He thereafter rubbed her private part (peshaab karne ki jagah) with his fingers. Thereafter he tried inserting his private part inside her private part. With much difficulty, the prosecutrix freed herself and pleaded him to let her go as she was in immense pain. Then, he told her to come the next day as well, or else he will pick up her sister and get her mother murdered. She quickly put on her clothes and ran CRL. A. 511/2018 Page 10 of 32 away from there to her home, where she started crying. On asking by her sister, she revealed all that had transpired with her, and when her mother returned, they informed her everything too. Thereafter, they reported the matter to the police and got Gaurav arrested.
13. In her testimony, the prosecutrix (PW-8) stated that on 26.06.2012 at about 2 PM she had gone to take water near Panchwati Mandir. At that time, accused Gaurav - who was a resident of Gali no.10 in her neighbourhood was also standing there. He called her on the pretext that her sister had made a phone call and wanted to talk to her. She accompanied the accused, who took her to his house. Nobody else was there in the house. The accused kissed her on her lips and removed her clothes forcefully. Thereafter he started kissing her body, and also removed his clothes. The accused then came over her body. The accused sucked her breasts and also rubbed her vagina. Thereafter the accused inserted his penis into her vagina. The accused told the prosecutrix that he knows her mother, and that she should visit him daily, otherwise he will kill her mother. Thereafter, she put on her clothes and went home and narrated the entire incident to her sister, PW-9, who informed their mother PW-5, on the phone. PW-5 came back home and made a call at number 100. Police came to their house and inquired from her about the incident and recorded her statement. The police took her to the hospital, and got her medically examined. The police also got her lodged in a children‟s home. The police also took her before the Magistrate where her statement was recorded.
14. Ms. Tiwari submits that the testimony of the prosecutrix in Court is consistent with her statement made u/s 164 CrPC. She submits that the CRL. A. 511/2018 Page 11 of 32 prosecutrix has corroborated the contents of Ex. PW-6/B in material particulars, and the trial court has erroneously held her testimony as not reliable on account of assumed improvements/ contradictions. She submits that the trial court has failed to appreciate that a reliable and credible statement of the prosecutrix does not require corroboration, and the same can be basis of conviction in a case under section 376 IPC. Ld. Counsel places reliance on Raj Kumar Singh @ Raju @ Batya Vs. State of Rajasthan (2013) 5 SCC722; Animireddy Venkata Ramana And Others Vs. Public Prosecutor, High Court of Andhra Pradesh AIR 2008 SC 1603; A. Shankar Vs. State of Karnataka (2011)6 SCC 279; and Leela Ram Vs. State of Haryana (1999) 9 SCC 525.
15. Ms. Tiwari further submits that the testimony of the prosecutrix is duly corroborated by the testimony of her mother PW-5. This information derived by PW-5 - the mother was also admissible in evidence and that it points to the guilt of the accused. PW-5 in her testimony dated 09.10.2013 stated that she is working in a private factory in Okhla. She does not remember the exact date, but more than one year had passed. She was present in her factory. Her elder daughter made a phone call to her at about 2:30 pm and asked her to come home immediately and started weeping. With the permission of her supervisor, she left the factory and came back at her home at about 4.00/4.30 PM. She inquired from „R‟- the prosecutrix as to what happened. She then narrated the incident consistently, as narrated by the prosecutrix. She made a call at number 100. The police came there. The police had taken into possession the bed-sheet etc. The police had also taken her daughter to the hospital and got her medically examined. Reliance is CRL. A. 511/2018 Page 12 of 32 placed on Nannu Gupta @ Bablu Vs. State 2010 SCC OnLine Del 167 and Madan Lal Vs State of Jammu and Kashmir (1997) 7 SCC 677.
16. Ms. Tiwari submits that the statement of the prosecutrix is also corroborated by the medical evidence viz. the MLC of the prosecutrix. The trial court did not appreciate the MLC of the prosecutrix Ex. PW-8/B dated 27.06.2012 made at 4 AM, at all. The history given by the prosecutrix to the examining doctor, which stands recorded in the MLC, reads:
"History is given by girl herself and seems to be reliable. According to her, girl was ... ... ... (illegible)... ... Gaurav age 20 years who live in neighborhood yesterday morning. Boy took her to some lonely place and removed her clothes. Start kissing and breast manipulation and sucking. He first does some finger manipulation of vagina but incomplete penetration of penis. According to girl, he tried to penetrate the penis but could not be done completely. Girl ran away from the place. He threatens to kill the girl's mother and sister. No history of physical assault or intoxication. Girl has taken bath and changed her clothes.‖ On examination, the following observations were made by the doctor:
―B/C breast- swollen, some teeth mark on chest; cut mark around 1 cm at L cheekbone.
L/E No Bleeding No Bruise, teeth bite, scratch over perinerum area Hymen torn, admitting tip of finger‖
17. Ms Tiwari submits that the trial court has failed to appreciate that the DNA samples of the accused were found matching with the semen marks on the bed sheet which was recovered at the instance of the prosecutrix, as the one on which the accused had committed the act. Attention is drawn to Ex.
PW-17/A, the FSL Report.
CRL. A. 511/2018 Page 13 of 3218. Ms. Tiwari submits that the prosecutrix was subjected to medical examination to determine her bone age. The prosecution examined PW-3, Dr. Sonia, Senior Resident, Department of Radiology, AIIMS Hospital. In her testimony, PW-3 has stated that on 27.06.2012 she radiologically examined the X-Ray plates pertaining to the prosecutrix for the purpose of determining her age. Upon medical examination, she opined that the age of the prosecutrix was between 10.2-14.9 years. She prepared a report to this effect, which is on record as Ex. PW-3/A. Thus, the minority of the prosecutrix was established beyond any shadow of doubt.
19. Ms. Tiwari submits that keeping in view the evidences brought on record, the prosecution had sufficiently established the guilt of the accused for the offences punishable under sections 376, 363, and 506 IPC; and the Ld. Trial court failed to appreciate that there is absolutely no demonstrable reason brought on record as to why the victim, or her mother, would falsely implicate the accused. Ld. Counsel further submits that the trial court failed to appreciate that in cases of child victims, the Courts ought to examine their evidence with a sensitive approach when dealing with cases of sexual offences. Ld. Counsel thus submits that the trial court‟s judgment ought to be set aside, and the accused be convicted. Ld. Counsel places reliance on State of MP Vs. Ramesh (2011) 4 SCC 786; State Vs Om Prakash (2002) 5 SCC 745; Shivasharanappa And Others Vs. State of Karnataka (2013) 5 SCC 705; State of Uttar Pradesh Vs. Munshi (2008) 9 SCC 390; O.M. Baby Vs. State of Kerala (2012) 11 SCC 362 and Madan Gopal Kakkad Vs. Naval Dubey And Another (1992) 3 SCC 204.
CRL. A. 511/2018 Page 14 of 3220. Per contra, Mr. Ashwani Kumar Sood, Ld. Counsel for the respondent submits that the prosecution was not able to prove its case beyond reasonable doubt. He submits that the testimony of the prosecutrix is contrary to the evidence brought on record. He submits that the testimony of the prosecutrix has been improved in court and, as such, deserves to be discarded.
21. Mr. Sood further submits that the first complaint was made by the mother of the prosecutrix PW-5 to the police vide DD No. 43A (Ex. PW- 16/DA). According to this DD entry, information was received at 7:45 in the night that some boy had eve teased the caller‟s daughter. He, therefore, submits that the complaint was only of eve teasing, and not of rape. Thus, the subsequent allegation of rape is an afterthought.
22. Mr. Sood submits that the prosecutrix had stated that she bit the hand of the accused to release herself when her statement was recorded u/s 164 Cr PC vide Ex. PW-6/B. However, the MLC of the accused, i.e. Ex. PW-4/A did not disclose any such injury.
23. We have carefully examined the evidence brought on record in the light of the submissions advanced before us. We have also perused the impugned judgment and scrutinized the reasoning adopted by the learned ASJ while rendering the impugned judgment.
24. The learned ASJ has disbelieved the case of the prosecution with regard to the age of the prosecutrix on the premise that the date of birth as recorded in the first school attended by the prosecutrix had not been brought on record, and on the premise that the radiological examination of the x-ray CRL. A. 511/2018 Page 15 of 32
- which opined that the age of the victim was between 10.2 - 14.9 years, had not been prepared by a medical board in terms of the Delhi Juvenile Justice (Care & Protection of Children) Rules, 2009. The opinion given by the doctor PW-3 was, therefore, rejected.
25. We are shocked at the manner in which the learned ASJ has proceeded to consider the aspect of the age of the prosecutrix. The prosecutrix had disclosed in her statement recorded u/s 161 Cr PC (Ex. PW- 8/A) that she was studying in 5th class. The prosecution had also led in evidence the birth certificate of the prosecutrix Ex. PW-5/DA, apart from producing the entry in the relevant school register where the prosecutrix was studying i.e. Ex. PW-2/A and Ex. PW-2/B. The affidavit given by the mother of the prosecutrix at the time of seeking admission at Nigam Pratibha Vidyalay, C-Block, Sangam Vihar, New Delhi was also produced as Ex. PW-2/DA, where the date of birth of the prosecutrix had been noted as 28.02.2002. PW-5, the mother of the prosecutrix had stated in her cross examination that she had six children, namely, Neetu, Sujit, Richa, R (the prosecutrix), Prahlad and Vishal. She had stated that the prosecutrix was the fourth child. She had also stated that at the time of the incident, the prosecutrix was 12 years of age. She had stated that prior to her admission to her current school, she was studying in a government school in Sangam Vihar.
26. During her further cross examination conducted on 19.11.2013, she brought the original birth certificate/ Janampatri issued by the Registrar (Birth & Death), West Zone, MCD regarding the birth of the prosecutrix. She also brought the Aadhar Card of the prosecutrix got issued on the CRL. A. 511/2018 Page 16 of 32 strength of the birth certificate. These documents were exhibited as Ex. PW-5/DA and Ex. PW-5/DB respectively. She stated that "may be in the school records the year of birth of ―R‖ might have been recorded as 2002 instead of 2000, but she was born on 28.02.2000". She denied the suggestion that the birth certificate Ex. PW-5/DA did not pertain to the prosecutrix. She even volunteered that she could produce the birth certificates of all her children. Her cross examination was deferred and she was asked to produce the birth certificates of all the children. On 13.01.2014, PW-5 produced all the birth certificates of her six children, which were Ex. PW-5/D-1 Colly. The said birth certificates show that Neetu - the eldest sister of the prosecutrix, was born in the year 1993. Thereafter, there is a son Sujeet who was born in the year 1995, followed by Richa born in the year 1998. Thereafter, the prosecutrix was born in the year 2000, followed by two sons born in 2002 and 2004. Pertinently, even if the suggestion given by the defence - that Ex. PW-5/DA pertained to the elder sister Richa and not to the prosecutrix, were to be accepted, the same does not advance the defence of the accused. This is for the reason that even if the year of birth of the prosecutrix is taken as 1998 (which was the year of birth of the elder sister Richa), even then the age of the prosecutrix on the date of the incident i.e. 26.06.2012 was well below the age of 16 years.
27. The learned ASJ has disregarded the birth certificate Ex. PW-5/DA of the prosecutrix, which records her date of birth as 28.02.2000, on the premise that the date of birth of the prosecutrix recorded in the school was 28.02.2002. However, he omits to take note of the cross examination of PW-5, wherein she stated that the year of birth of the prosecutrix was CRL. A. 511/2018 Page 17 of 32 wrongly recorded as 28.02.2002 and that it is 28.02.2000 as evident from the birth certificate Ex.PW-5/DA.
28. Even with regard to the radiological examination, the report has been disbelieved on two counts. The first was that there was a cutting and the figure 15.8 years had been changed to 14.9 years. The learned ASJ has observed that the witness has not given any reason for the cutting and change in the figure. However, what he has plainly omitted to observe is that the witness PW-3 was not asked as to why there was cutting in the report. In the absence of cross examination on the said aspect, there was no question of the witness disclosing the reason for the cutting and change in the figure. The second reason given by the learned ASJ is that PW-3 had prepared the report herself, and the same had not been prepared by a "medical board". In our view, this reason is completely laconic. The understanding of learned ASJ in relation to the judgment in Mahadeo v. State of Maharashtra, (2013) 14 SCC 637 is incomplete and shallow. We had the occasion to deal with the approach of the same learned ASJ on the said aspect in State of NCT of Delhi v. Dharmender, Crl A No.1184/2017 decided on 23.03.2018. In that decision, we observed as follows:
"35. The learned ASJ has observed in the paragraph 6 of the impugned judgment, which is extracted hereinabove, that ―as per rules the birth certificate of the school first attended is required which has not been produced‖. The learned ASJ has made no reference to any specific ―rule‖ in this regard. However, we take it, that the learned ASJ had Rule 12 of the Juvenile Justice (Care & Protection of Children) Rules 2007 (JJ Rules for short) in his mind.CRL. A. 511/2018 Page 18 of 32
36. Firstly, we may observe that the Juvenile Justice (Care & Protection of Children) Act 2015 (JJ Act for short) and the JJ Rules have been framed with the object of ―catering to the basic needs through proper care, protection, development, treatment, social reintegration, by adopting a child-friendly approach in the adjudication and disposal of matters in the best interest of children and for their rehabilitation through processes provided, and institutions and bodies established, ... ... ...‖ (emphasis supplied) (See preamble to the JJ Act). The expression ―child-friendly‖ is defined in Section 2(15) of the JJ Act to mean ―any behavior, conduct, practice, process, attitude, environment or treatment that is humane, considerate and in the best interest of the child;‖. Under Section 7, the Juvenile Justice Board constituted under the JJ Act is obliged to observe its rules in regard to transaction of business, and to ensure that all procedures are child-friendly. The whole approach adopted by the authorities under the JJ Act, in the administration of the said Act, is to lean in favour of the accused/ juvenile in conflict with law. It is in this context that Rule 12 of the JJ Rules - which prescribes the procedure to be followed in determination of the age of the juvenile in conflict with law, has to be understood and applied. The said Rules, insofar, as it is relevant reads as follows:
―12. Procedure to be followed in determination of Age.― (1) In every case concerning a child or a juvenile in conflict with law, the court or the Board or as the case may be the Committee referred to in rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose.
(2) The court or the Board or as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima CRL. A. 511/2018 Page 19 of 32 facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail.
(3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining -
(a) (i) the matriculation or equivalent certificates, if available; and in the absence whereof;
(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;
(iii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child.
In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year.
and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age CRL. A. 511/2018 Page 20 of 32 as regards such child or the juvenile in conflict with law.‖ Pertinently, in cases falling under sub-rule (3)(b), the Court/ Board/ Committee shall, for reasons to be recorded, give benefit to the child or juvenile by considering his/ her age on the lower side within the margin of one year.
37. No doubt, the Supreme Court in Mahadeo (supra) held that the same yardstick could be followed by the Court for the purpose of ascertaining the age of a victim, as is prescribed in Rule 12 of the JJ Rules, however, in our considered view, the said observations of the Supreme Court have to be viewed, firstly, in the factual context in which they were made, and also while keeping in mind the fact that stricto sensu Rule 12 of the JJ Rules is framed with a view to provide protection to the accused who may be juveniles, and not with a view to cause prejudice to a victim of a crime who may be a minor.
38. In Mahadeo (supra), the appellant was convicted of the offence punishable under Section 363, 506 & 376 IPC. The High Court dismissed the appeal of the appellant. The two Courts affirmed the finding of fact that the prosecutrix was 15 years and 4 months of age when the offences were committed. The said findings were premised on the evidence led by the prosecution in the form of school leaving certification of the prosecutrix proved on record by the Headmistress of the school, which disclosed her date of birth 20.05.1990 as also the admission form and the transfer certificate issued by the primary school where the prosecutrix had studied, led in evidence by the Headmaster of the primary school. In the records of both the schools the date of birth of the prosecutrix was recorded as 20.05.1990. On behalf of the appellant, it was argued that the prosecutrix was not below the age of 18 years at the time of occurrence. In this regard, the appellant relied upon the evidence of doctor PW-8 who examined the prosecutrix. She deposed that the age of the prosecutrix could have been between 17 to 25 years at the relevant time. The Trial Court rejected the reliance placed by the defence on the CRL. A. 511/2018 Page 21 of 32 version of PW-8, since the same was not premised on scientific examination of the prosecutrix by conduct of tests such as the ossification test. The mere opinion of PW-8 - the doctor, could not be acted upon. The Supreme Court agreed with the said finding of the Trial Court and in that context made reference to Rule 12 of the JJ Rules. The Supreme Court in the light of Rule 12(3)(b) observed that: ―only in the absence of alternative methods described under Rules 12(3)(a)(i) to (iii), the medical opinion can be sought for. In the light of such a statutory rule prevailing for ascertainment of the age of a juvenile, in our considered opinion, the same yardstick can be rightly followed by the courts for the purpose of ascertaining the age of a victim as well.‖
29. In Dharmender (supra), like in Mahadeo (supra), the birth certificate of the prosecutrix had not been produced. As noticed herein above, in the present case, the birth certificate of the prosecutrix has been led in evidence as Ex. PW-5/DA. In Dharmender (supra), we further observed as follows:
"39. Pertinently, in Mahadeo (supra) as well - like in the present case, the birth certificate of the prosecutrix had not been produced. What had been produced were the school records from the primary school and the Daneshwar Vidyalaya which recorded the date of birth of the prosecutrix consistently as 20.05.1990. The Supreme Court accepted the said evidence as good evidence to prove the minority of the prosecutrix as on the date of the offence. Thus, though the priority/ procedure laid down in Rule 12 of the JJ Rules would be attracted to determine the age of the victim/ prosecutrix, the tendency to lean in favour of the accused (in the case of a juvenile in conflict with the law) would, in such situations, be to lean in favour of the minority of the victim/ prosecutrix while determining the age of the victim/ prosecutrix.
40. In our view, in the context of the evidence led by the prosecution, there was no occasion for the learned ASJ to hold that the birth certificate of the school first attended not having CRL. A. 511/2018 Page 22 of 32 been produced by the prosecution, the age of the victim could not be said to have been proved to be below 12 years of age on the date of the incident, and to ignore the evidence of the school record produced by the prosecution. The approach of the learned ASJ in disbelieving the prosecution evidence with regard to the age of the victim on the date of occurrence is completely laconic, to say the least. There was no occasion for the learned ASJ not to believe the fact that the victim was below 12 years of age, i.e. he was only 10 years of age on the date of the incident‖.
30. The date of birth of the prosecutrix was disclosed as 28.02.2002 when her daughter was admitted in the school i.e., back in the year 2009, which was much before the incident took place and thus, there was no occasion for the mother to falsely declare the date of birth of the prosecutrix. Pertinently, in the present case, there was no evidence to the contrary led by the defence to show that the date of birth of the prosecutrix recorded in the school register as 28.02.2002 was not correct. We may also observe that the prosecutrix was studying in 5th class at the relevant time, which is also age appropriate. In view of the above discussion, we fail to understand how the learned ASJ returned the finding that age of the prosecutrix could not be proved to be below 16 years. Thus, we reject the same and hold that the prosecutrix was below the age of 16 years at the relevant time.
31. We now turn to the aspect whether the prosecutrix was a credible and trustworthy witness. The relevant aspects of the testimonies of the prosecutrix (PW-8) and her mother (PW-5) have been referred to hereinabove. PW-9, sister of the prosecutrix in her testimony stated that on 26.06.2012 at about 2:30 PM, she was present at her house when her sister „R‟ came home weeping. On her asking, „R‟ told her that Gaurav had called CRL. A. 511/2018 Page 23 of 32 her on the pretext of a phone call from her (PW-9) in a gali, on which her sister „R‟ reached the gali of Gaurav and he took her in his house after pressing her mouth. Gaurav closed the door of his house and took her in a room and started kissing her. Accused had removed the clothes of her sister and forcefully committed rape upon her. Gaurav had put his private part in the private part of her sister against her will. Thereafter, accused Gaurav had threatened her sister that if she discloses about the incident to anyone, he will commit the same with her, and kill her mother. After she received this information, she called her mother, who was at her office. Her mother came at the house and thereafter, she made a call on 100 number. Police officials came to their house. Police officials had also inquired from her sister about the incident and recorded her statement. She alongwith her sister and mother had gone to PS. Her statement was recorded by the police.
32. We have captured the various statements given by the prosecutrix under Section 161 Cr.P.C., before the doctor at the time of her medical examination in Ex.PW-8/B, under Section 164 Cr.P.C. and before the Court. These statements are all consistent in their material part. She has consistently stated the following:
(a) That she went to get water from the tap.
(b) That accused Gaurav was present there.
(c) That accused Gaurav called her on the pretext that her sister had called on his phone and wanted to speak with her.CRL. A. 511/2018 Page 24 of 32
(d) That on that pretext he took her to his house and bolted the door from inside and he was alone in the house.
(e)That he started kissing her on her lips, manipulated her body and removed her clothes forcefully.
(f) That he removed his own clothes and forcefully inserted his private part inside her private part.
(g) That he threatened her that he will cause harm to her mother and sister.
(h) She came back home and narrated the incident to her sister.
(i) Her sister called their mother, who came back home and on being informed by the daughters about the incident, made a call on 100 number.
33. The statements are consistent, duly corroborated by: (a) the statements of PW-5 and PW-9; (b) the medical examination of the prosecutrix Ex. PW- 8/BB., and; (c) the FSL report Ex.PW-17/A, and inspire the confidence of this Court.
34. We are appalled that in the impugned judgment rendered by the trial court, the Ld. ASJ has completely ignored and effaced the MLC (Ex. PW 8/B), even though the same has been exhibited on record. In the MLC, the examining doctor found that the breast of the prosecutrix was swollen and teeth marks were also present on the chest. There was a cut mark around 1 cm on the left cheek bone. The hymen was found to be torn admitting tip of CRL. A. 511/2018 Page 25 of 32 finger. This medical report of the prosecutrix fully corroborates her statement that the accused had sucked her breasts. The fact that the hymen was found torn also corroborates the statement of the victim that she was raped by the accused. Pertinently, she had disclosed that the accused had penetrated her in her statement u/s 161 Cr PC which was recorded on the date of the incident. Even in her statement recorded u/s 164 Cr PC, the prosecutrix had disclosed that the accused had inserted his penis into her vagina. She had also disclosed that she had requested the accused to let her go, as she was experiencing a lot of pain. In her testimony recorded before the court, she had categorically stated that the accused had inserted his penis into her vagina. The statement of the prosecutrix also stood corroborated by the statements of her mother Pinki PW-5 and the statement of her sister Neetu PW-9, to which we have already made reference.
35. The learned ASJ has laid emphasis on the aspect that when the phone call was made to the police, the same related only to eve teasing and not to rape committed upon the victim. In our view, that by itself is no reason to disbelieve the case of the prosecution. The prosecutrix has explained that when her mother came home, to prevent her from receiving a shock, she was not informed of the entire incident and, consequently, the initial compliant was only of eve teasing. Even if it were to be accepted that the mother was informed of the entire incident before she made the phone call, it has to be appreciated that in our society it is not easy - either for the victim, or for the parents of the victim, to easily talk about the offence of rape, since there is shame, stigma, taboo and embarrassment attached to the same. The initial complaint made through phone call on No.100 is not supposed to be the CRL. A. 511/2018 Page 26 of 32 encyclopedia of the entire incident. The fact remains that the prosecutrix made her statement u/s 161 Cr PC on the very same day. In fact, in response to the telephonic complaint, IO/ASI Rajender reached the disclosed place. When he learnt about the seriousness of the offence, he intimated the SHO of the facts and thereupon W/SI Sushma Saxena, PW-16 was called from PS Ambedkar Nagar. Even the medical examination of the prosecutrix was conducted on the same day which, as noticed herein above, disclosed, inter alia, swollen breasts with teeth mark and a torn hymen admitting finger tip.
36. It is clear to us that the learned ASJ has ignored the crucial and relevant evidence brought on record, by diverting his attention to not so relevant aspects. It is not every inconsistency in the case of the prosecution that may be relevant, and result in giving the benefit of the doubt to the accused. It is well settled that some inconsistencies emerge in the normal course, since human conduct and human behavior is unpredictable and it may not be possible to explain each and every aspect of the conduct of a person - since no two persons think or act alike, and the reactions to a given situation may vary. In fact, the same person may not act in the same manner, when confronted with a similar situation at different points of time.
37. The learned ASJ has doubted the credibility of the prosecution on the premise that during medical examination of the accused, no bite mark was found on the hand of the accused, as had been claimed by the prosecutrix in her statement recorded under Section 164 Cr.P.C. Pertinently, the medical examination of the accused was undertaken on 27.06.2012. However, the statement of prosecutrix was recorded u/s 164 Cr PC on 28.06.2012. It was in her statement recorded u/s 164 Cr PC that the prosecutrix disclosed that CRL. A. 511/2018 Page 27 of 32 she had bit the hand of the accused. That sufficiently explains the lack of any observation by the examining doctor about the presence of any bite marks on the hand of the accused. Had the statement of the prosecutrix u/s 164 Cr PC been recorded before the medical examination of the accused, or had she stated about the biting while recording her statement u/s 161 Cr PC, the situation may have been different. It is also possible that the hand of the accused may not have been bitten with such severity as to leave any marks. In any event, the said aspect, in our view, pales into insignificance in the face of more damning evidence brought on record by the prosecution in the form of consistent statements of the prosecutrix, her mother and sister, and the medical evidence of the prosecutrix.
38. In para 11 of the impugned judgment, the learned ASJ has proceeded to doubt the version of the prosecution that the accused had told the prosecutrix that he had received a call from her elder sister on the mobile of the accused. For doubting the said statement, he has placed reliance on statement of PW-9 - the elder sister of the prosecutrix, who stated that they were not on visiting terms with the family of the accused. It is nobody‟s case that a phone call was actually received on the mobile phone of the accused from PW-9. This was only given as an excuse by the accused to draw the prosecutrix towards him, as the prosecutrix has stated that she had ignored the earlier instructions of the accused to go to him while she was waiting to fill water. The reasoning adopted by the learned ASJ in this respect is, therefore, completely misplaced.
39. The learned ASJ has also proceeded to conclude, on the basis of the statement of the victim recorded u/s 164 Cr PC, that there was no CRL. A. 511/2018 Page 28 of 32 penetration and the accused only tried to insert his penis into her vagina. The learned ASJ on this basis has discredited the victim since she had claimed before the police that there was full penetration, and she had also deposed before the court that she had been raped by the accused.
40. Once again, we find the approach of the learned ASJ to be completely perverse. The victim was only about 12 years of age. She would have had no idea about what is full penetration, or partial penetration. She had described the act committed by the accused upon her. She had stated that he had inserted his penis into her vagina. She had also stated that she had experienced a lot of pain. Pain would result upon the penetration of the penis into the vagina. Pertinently, the hymen was found torn, admitting a finger tip. In any event, whether the penetration was full or partial makes no difference, since the offence is complete even if the penetration were partial. However, the medical evidence on record establishes that the penetration was full, since the hymen of the prosecutrix was torn. Non-examination of Chhotu, the friend of the brother of the prosecutrix with whom the utensil for filing the water was left is neither here nor there, since he was not a witness to the crime.
41. The learned ASJ has disregarded the DNA report which showed that the DNA sample of the accused were found matching with the marks found on the bed sheet. No doubt, it would not be uncommon to find semen mark on the bed sheet of a 20-22 year old young person. However, the said matching assumes significance, since the bed sheet was identified by the prosecutrix as the one used by the accused at the time of commission of the offence, and it was at her instance that the same had been seized. So far as CRL. A. 511/2018 Page 29 of 32 the lack of matching DNA on the vaginal smear of the victim is concerned, the same was on account of the fact that the prosecutrix had taken a bath before her medical examination when the samples were drawn. This aspect has been noticed in the MLC of the prosecutrix, but has been ignored by the learned ASJ. Similarly, the learned ASJ has doubted the case of the prosecution since the clothes of the prosecutrix were not sent for forensic examination. Once again, the learned ASJ has failed to notice that even the clothes of the prosecutrix had been washed before the seizure, and for that reason the same may not have been sent for examination. In any event, the failure of the investigating agency is no ground to let go the accused when there is, otherwise, sufficient evidence to convict him.
42. We are conscious of the principles applicable to examination of a judgment of acquittal in appeal. The Supreme Court has applied the said principles and elaborated further on the same from time to time. In Ghurey Lal v. State of U.P., (2008) 10 SCC 450, after analyzing the earlier decisions, the Supreme Court in para 70 crystallised the principles that the High Court should follow if it is going to overrule, or otherwise disturb the Trial Court‟s acquittal. Para 70 of the said judgment reads:
―70. In light of the above, the High Court and other appellate courts should follow the well-settled principles crystallised by number of judgments if it is going to overrule or otherwise disturb the trial court's acquittal:
1. The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has ―very substantial and compelling reasons‖ for doing so.CRL. A. 511/2018 Page 30 of 32
A number of instances arise in which the appellate court would have ―very substantial and compelling reasons‖ to discard the trial court's decision. ―Very substantial and compelling reasons‖ exist when:
(i) The trial court's conclusion with regard to the facts is palpably wrong;
(ii) The trial court's decision was based on an erroneous view of law;
(iii) The trial court's judgment is likely to result in ―grave miscarriage of justice‖;
(iv) The entire approach of the trial court in dealing with the evidence was patently illegal;
(v) The trial court's judgment was manifestly unjust and unreasonable;
(vi) The trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declarations/report of the ballistic expert, etc.
(vii) This list is intended to be illustrative, not exhaustive.
2. The appellate court must always give proper weight and consideration to the findings of the trial court.
3. If two reasonable views can be reached--one that leads to acquittal, the other to conviction--the High Courts/appellate courts must rule in favour of the accused.‖ In the aforesaid light, we are inclined to interfere with the impugned judgment, since the same satisfies each and every parameter enumerated by the Supreme Court in Ghurey Lal (supra).
43. For all the aforesaid reasons, we are of the view that the impugned judgment cannot be sustained. Accordingly, we set aside the impugned CRL. A. 511/2018 Page 31 of 32 judgment. In our view, the charge against the accused under Section 363 IPC, Section 376 IPC and Section 506 IPC stood adequately proved beyond all reasonable doubt in the light of the evidence led by the prosecution. We, accordingly, convict the accused of the said offences.
VIPIN SANGHI, J.
P. S. TEJI, J.
MAY 24, 2018 CRL. A. 511/2018 Page 32 of 32