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[Cites 7, Cited by 0]

Delhi District Court

State vs . on 21 July, 2010

   IN THE COURT OF SH. RAKESH TEWARI  ASJ­VI(OUTER), 
                 ROHINI COURTS, DELHI

SC NO.72/10
FIR NO. 769/07
PS  Sultan Puri
Unique Case ID No. : 02404R0356022007

              State 

              Vs. 

   1. Mohd. Yamin s/o Mohd. Ikramudin

      r/o A­4/472, S. Puri, Delhi.

   2. Mukesh s/o Sh. Sunder Singh

      r/o AB Extn., H.No.42, 

      S.Puri, Delhi.



Date when committed to the court of Sessions :25.07.2007
Date when case reserved for judgment        : 14.07.2010
Judgment pronounced on                        : 21.07.2010

JUDGMENT:

1. The facts of the case are that on 15.05.2007, one Maik Lal came to the Police Station Sultan Puri along with his grand daughter, the prosecutrix, and got recorded the DD No.22A to the effect that he was residing at Sultan Puri, and his grand daughter, the prosecutrix, aged about 14/15 years was also residing with him and one neighbour namely Mohd. Yamin had done a wrong act with his SC No.72/10 Page 1/19 grand daughter. This DD No.22A was marked for investigation to WSI Nisha, who took her for medical examination to SGM Hospital and got recorded the statement of the prosecutrix.

2. As per statement of the prosecutrix, she was 14 years of age and was residing with her maternal grand father (Nana) namely Sh. Maik Lal for about four years and she was a student of 5th class and was studying at MCD Primary School situated at A­2, Sultan Puri and that in her neighbourhood one Mohd. Yamin was residing as a tenant along with his family and that her maternal grand parents were of old age and that her maternal grand father had suffered injury in his foot and in January 2007, her maternal grand parents had gone to the hospital for the said injury in the foot of maternal grand father when the said neighbour Mohd. Yamin came to her house and started doing obscene acts with her and when she started crying, he closed her mouth and at the point of knife her clothes were put off and committed rape on her against her consent and when she raised alarm, he threatened not to disclose the said fact to anyone otherwise her maternal grand parents would be put to fire and she did not disclose the said fact to her maternal grand parents due to the fear but when on the day of the complaint said Mohd. Yamin again tried to commit rape on her, she disclosed the said facts and got recorded her said statement before the police.

3. On the basis of the said statement, the FIR was got registered and during the investigation, the site plan of the spot was prepared at SC No.72/10 Page 2/19 the instance of the prosecutrix and at her instance, the accused Mohd. Yamin was arrested and on 23.05.2007, the prosecutrix was produced before the concerned MM for getting her statement recorded u/s 164 Cr.PC.

4. In her statement before the Magistrate u/s 164 Cr.PC, the prosecutrix further disclosed that the accused Mukesh had also come to her house and finding her alone in the house committed rape on her for four times and threatened her not to disclose his name to her maternal grand parents failing which she would be cut to pieces and would be thrown and she disclosed about her rape by the accused Mukesh before the Magistrate.

5. At the instance of the prosecutrix, accused Mukesh was also arrested and the medical examination of both the accused was got conducted. The proof regarding date of birth of the prosecutrix from Nigam School A­2/1, Sultan Puri, Delhi was obtained which mentioned the date of birth of the prosecutrix as 01.08.1996. The doctors who medically examined the prosecutrix as well as the accused had handed over six parcels which were sent to FSL for expert opinion and subsequently the result was filed before the court and the charge sheet was forwarded against the accused.

6. On the basis of the said charge sheet and the evidence on the record, my Ld. Predecessor, vide his order dated 11.09.2007 framed a charge u/s 376(g) and 506 IPC against both the accused to which they pleaded not guilty and claimed trial.

SC No.72/10 Page 3/19

7. The prosecution, in order to prove its case, has examined PW1 who is the Duty Officer and recorded the FIR as Ex.PW1/A, PW2 the W/Ct. Babita, who took the sealed parcels from the doctor of the hospital who medically examined the prosecutrix which were seized by the IO vide seizure memo Ex.PW2/A. PW3 is the prosecutrix, PW4 is the maternal grand father of the prosecutrix, PW5 is the Principal of the school of the prosecutrix, whose deposition have been discussed in detail below. PW6 HC Ramesh Kumar is the MHC(M) who deposited the case property in the Malkhana and he proved the relevant entries. PW7 is the police official who deposited the exhibits of the case with the FSL. PW8 is Ct. Satender who accompanied the IO during the investigation. PW9 is the concerned Magistrate who recorded the statement of the prosecutrix u/s 164 Cr.PC as Ex.PW3/B. PW10 is the IO who deposed regarding the investigation conducted by her. PW11 is the doctor who prepared the MLC of the prosecutrix Ex.PW10/A. PW12 is the doctor who proved the handwriting and signatures of Dr. Garima Trivedi on the MLC Ex.PW10/A as the said doctor has left the services of the hospital. PW13 is the expert from FSL who proved his reports as Ex.PW13/A and Ex.PW13/B. PW14 and PW15 are the doctors who medically examined both the accused with regard to their capability of performing sexual intercourse.

8. The statements of both the accused were recorded u/s 313 Cr.PC wherein they denied the incriminating evidence against them, SC No.72/10 Page 4/19 pleaded their innocence and produced the defence evidence in the shape of witness Om Prakash as DW1 who deposed regarding false implication of accused Mukesh in the case by the maternal grand father of the prosecutrix, who demanded Rs.20/­ per day from accused Mukesh for selling the vegetables near to his house.

9. I have heard Ld. APP for the State and Sh. S.U. Mirza, Ld. Counsel for accused Mohd. Yamin and Sh. Aseem Bhardwaj, Amicus Curie for accused Mukesh and perused the record.

10. PW3, the prosecutrix, has deposed that she has studied up to 5th class in the MCD school situated at A­2, Sultan Puri and left her studies in the year 2007 and she was residing in January 2007 with her maternal grand parents and that her mother was residing at the Village and her father had expired and that accused Mohd. Yamin, present in court, was residing in her neighbourhood and accused Mukesh used to sell the vegetables in her locality and in the month of January 2007, she was present alone in her house when her maternal grand parents had gone to the hospital as leg of her maternal grand father was fractured and that at about 7 or 7.30 p.m, accused Mohd. Yamin came at her house and committed sexual intercourse forcibly with her and threatened not to disclose the same to anybody otherwise he would kill her and her maternal grand parents and when she tried to raise an alarm, at the time when accused Mohd. Yamin was committing sexual intercourse with her, he gagged her mouth with a piece of cloth and she had not narrated SC No.72/10 Page 5/19 the whole facts to her maternal grand parents due to the said fear and that after about 2/3 days of committing sexual intercourse with her by accused Mohd. Yamin, the accused Mukesh present in court, also committed sexual intercourse with her at her house and when both the accused again tried to commit sexual intercourse with her, she narrated the whole fact to her maternal grand parents and that her maternal grand mother took her to the police station where her statement was recorded which is Ex.PW3/A and that she was taken to SGM hospital for medical examination by police and she identified her statement before the Magistrate as Ex.PW3/B and her underwear as Ex.P1.

11. In her cross examination on behalf of both the accused, she replied that her mother was residing in Village Bara Banki in January 2007 and that she had two brothers and one sister who were residing with her mother at the said village and that her maternal grand parents had brought her to Delhi to live with them and that the age of her elder brother was 21 years and she was youngest among her brothers and sister. She further replied that she did not know her exact date of birth and she could not say if any certificate of birth was submitted at the time of her admission in the school. Her maternal grand father was running a beetle shop and accused Mohd. Yamin was running a Tea shop near to the shop of her maternal grand father. She further answered that her maternal grand father received injury on his leg about one month prior to the incident SC No.72/10 Page 6/19 which was caused by her brother. She did not remember the exact date or month of sexual intercourse with her by accused Mohd. Yamin. She further replied that she did not tell to the police about the time when the said rape was committed with her. She was confronted with her previous statement Ex.PW3/A where the gagging of the mouth with a piece of cloth was not found recorded but it was recorded that accused Mohd. Yamin closed her mouth.

12. The prosecutrix, in her further cross examination, has answered that the house in question was having three stories and the rape was committed with her in a room on the ground floor. She admitted it as correct that the house in question was surrounded by other residential houses. She further replied that accused Mohd. Yamin removed her clothes on pointing out a knife but he had not inflicted knife and no injury was caused to her and that the knife was vegetable cutting knife. She further replied that she made statement before the Magistrate after about one month of lodging the FIR and from the day of FIR till her statement was recorded by the Magistrate, she lived in the said house of her maternal grand parents and that she had not given the name of accused Mukesh when her statement was recorded by the police as the name of accused Mukesh was not known to her. She categorically admitted that she had not disclosed to police, when her statement was recorded for the first time, about the second person along with accused Mohd. Yamin who had committed sexual intercourse with her as accused Mukesh SC No.72/10 Page 7/19 also threatened her not to disclose his name. She further answered that accused Mukesh used to sit at the shop of her maternal grand father. She further replied that two tenants along with their family were living in the house in question and accused Mukesh committed sexual intercourse with her at about 8 p.m. when there was no electricity in the locality and that accused Mukesh committed sexual intercourse with her for four times. She further replied that the tenants who were living in the house in question had gone for their work when the accused Mukesh committed sexual intercourse with her and that she lifted a danda and wanted to stop the accused who threatened her but she had not hit danda on accused Mukesh as he ran away after committing sexual intercourse with her. She further replied that when she lifted danda and cried, the accused Mukesh ran away. She further answered that on other three occasions accused Mukesh came and forcibly committed sexual intercourse with her and on said occasions he had bolted the door from inside.

13. In her further cross examination, when she was recalled u/s 311 Cr.PC on behalf of accused Mukesh, she admitted that members of the NGO were present at the PS when her statement was being recorded by the police and that she met several times with the IO of the case between her statement given to the police and to the Magistrate. She admitted that members of NGO had made her understood as to how she had to record her statement. She categorically admitted that her age at the time of her admission in SC No.72/10 Page 8/19 the MCD school was 11 years. She further admitted it as correct that from the houses in her neighbourhood, ingress and egress of a person in her house could be seen. She further admitted it as correct that her X­rays were taken at SGM Hospital.

14. PW4, Maik Lal, has deposed that in the year 2007 he was having a fracture in his leg and used to take treatment from SGM Hospital and that prosecutrix had passed 4th class and thereafter she left studies in 5th class and that accused Yamin used to run a Tea shop in his locality and also used to supply bakery goods at the shops and accused Mukesh used to sell vegetables in his locality and that on 15.05.2007, his wife told him that prosecutrix had told her that accused Mohd. Yamin and Mukesh had committed sexual intercourse upon her in the month of April 2007 and that name of accused Mukesh was not known to the prosecutrix and she disclosed that one vegetable seller had committed sexual intercourse upon her. He further deposed that he took prosecutrix to PS Sultan Puri where her statement was recorded and thereafter she was taken to SGM Hospital for medical examination and at the pointing out of the prosecutrix, both the accused were apprehended by the police and that statement of the prosecutrix was also recorded by the magistrate.

15. In his cross examination, PW4 has replied that prosecutrix is the daughter of Smt. Vidya Wati who is his daughter. He admitted that he had married second time with one Surja and that Smt. Vidya SC No.72/10 Page 9/19 Wati is daughter of his real brother, namely Devi Prasad, who had expired and that the mother of Smt. Vidya Wati is living with him after the death of her husband as his wife and that mother of Smt. Vidya Wati was aged about 22/23 years when she started living with him. He further replied that prosecutrix has two brothers and one sister. The elder son of Smt. Vidya Wati was aged about 30/32 years and age of her second son was about 27 years and that the prosecutrix is aged about 12 years then (on the day of deposition i.e 24.09.2008). He admitted it as correct that a person who used to go to his house is visible from the counter of his shop. He further answered that his house has three stories and there were two tenants. He further admitted that during winter season the ladies of his tenants used to sit in the gali in the noon time. He further answered that there were 3/4 vegetable vendors in the area who were called but one of them did not turn up due to which he became suspicious and took the prosecutrix to the bridge of Sultan Puri and Mangol Puri and the prosecutrix identified Mukesh as the person who committed sexual intercourse with her but he could not tell the date and month when the prosecutrix identified the said accused. He further answered that he alone took the prosecutrix to the said bridge. He denied the suggestion that brother of the prosecutrix caused injuries on his leg.

16. PW5 is the Principal of Nigam School who proved the admission register and file of the prosecutrix with regard to her SC No.72/10 Page 10/19 admission in the school which are Ex.PW5/A, Ex.PW5/B and Ex.PW5/C, as per which the date of birth of the prosecutrix was 01.08.1996. He also proved the certificate issued by him in this regard which is Ex.PW5/D.

17. In his cross examination, PW5 admitted that it was the maternal grand father of prosecutrix who submitted form Ex.PW5/B and affidavit Ex.PW5/C at the time of admission in the school. He further replied that except the affidavit Ex.PW5/C, no other affidavit was submitted to the school. He admitted it as correct that affidavit Ex.PW5/C is not attested by any person as the same is required to be filled and submitted by student at the time of admission. He further answered that a student who is proposing to take admission in the school, is required to submit necessary birth certificate issued by the competent authority but in the absence of any birth certificate, a student is required to file affidavit and that the admission is given to a student on the basis of information filled in admission form and annexed affidavit.

18. It is necessary here to reproduce some of the answers given by PW10, the IO of the case, in her cross examination. The IO has answered that she did not apply for conducting the ossification test of prosecutrix as she had obtained school certificate of the prosecutrix but she could not tell the exact date when she obtained the said certificate. She further replied that she did not remember as to whether the concerned doctor had advised for ossification test of SC No.72/10 Page 11/19 the prosecutrix but further admitted it as correct that the doctor in MLC Ex.PW10/A had advised for conducting the bony age X­ray of prosecutrix and she denied the suggestion that the bone age X­ray of prosecutrix was not got conducted for the reason that prosecutrix was of more than 17 years of age.

19. From the said deposition, it is clear that the prosecutrix has the courage of lifting a danda in protest of her rape being committed by accused Mukesh and she did cry and make the accused Mukesh to run away from the spot, as per her own claim by the prosecutrix PW3. On earlier occasions also, as per her own version, she tried to raise alarm but her mouth was shut or it was gagged with a piece of cloth. This courage of her lifting a danda is in sharp contract with her deposition of remaining under threat while she was being repeatedly raped by both the accused, as alleged. Assuming for the sake of argument that on each occasion she was alone in her house, it has not been established on record by way of evidence as to how both the accused came to know of the prosecutrix being alone at the house which facilitated them for raping her. It has not been the case of the prosecutrix that the tenants and their families residing within the same house were absent on each occasion of alleged rape. The topography of the house is admitted by the prosecutrix as well as PW4 that one can be seen easily while going inside the house and coming out of the house. Even the PW4 is sitting on his beetle shop which was situated in front of the house and within the house. It is SC No.72/10 Page 12/19 not the case of the prosecutrix that she was removed outside her house by the accused so as to remain under their control, who did not allow her to make any protest against their act or she may be taken as under the constant threat to her life if she was in the custody of both the accused. This is admitted case of the prosecutrix that accused Mukesh used to sit on the beetle shop of her maternal grand father, the PW4, and accused Mohd. Yamin was having his Tea shop at a little distance from her house. It is not at all appreciable by the common sense as to why only on 15.05.2007, when the accused again tried to commit rape to her, that she raised alarm and disclosed everything to her maternal grand mother and as to why this raising of alarm was not raised earlier or as to whether alleged threat to her life as well as to the life of her maternal grand parents has ceased to exist on 15.05.2007 when the matter was ultimately reported to the police. Disclosing the name of accused Mukesh for the first time before the Magistrate in her statement u/s 164 Cr.PC on 23.05.2007 as one of the culprits, is contradicted by cross examination of PW4, the maternal grand father of the prosecutrix who answered in his cross examination that there were 3/4 vegetable vendors in the area out of which one did not turn up giving rise to suspicion against him and he (the maternal grand father) took the prosecutrix to the bridge of Sultan Puri and Mangol Puri where the prosecutrix identified Mukesh as the person who committed sexual intercourse with her also. Even if we assume that the prosecutrix was not sure about the SC No.72/10 Page 13/19 name of accused Mukesh, she could very well have given the fact of another person committing rape with her to the police in her statement Ex.PW3/A but the same was not disclosed by her. The torn hymen of the prosecutrix, as given in the MLC Ex.PW10/A, further gives a jolt to the version of rape with her, as alleged by the prosecutrix. All the said circumstances uproot the story of remaining under constant threat of the accused and that of forcible sexual intercourse with her, as alleged by the prosecutrix, which is highly improbable in the circumstances of the case as established on the record. The irresistible conclusion is that possibility of the consent of the prosecutrix cannot be ruled out.

20. Next question arises as to whether the consent of the prosecutrix was immaterial as she was below 16 years of age at the time of said repeated rape.

21. The first version with regard to age of the prosecutrix which has come on the record is DD No.22A Ex.PW1/C wherein PW4 got recorded her age as 14/15 years. The second version is that of the prosecutrix herself who categorically answered in her cross examination that she was 11 years of age at the time of her admission in the MCD school. Third is the version again given by the PW4 in his deposition that the prosecutrix was 12 years of age on the day of his deposition i.e 24.09.2008. Further evidence with regard to the age of the prosecutrix has come by way of deposition of the Principal of the concerned school as PW5 who proved the SC No.72/10 Page 14/19 relevant record as Ex.PW5/A, Ex.PW5/B and Ex.PW5/C, as per which her date of birth was 01.08.1996.

22. Let me analyze the other circumstances with regard to the age of the prosecutrix. PW4 Maik Lal has answered that elder brother of the prosecutrix is of 30/32 years and age of the second brother of the prosecutrix is about 27 years and he reduced the age of the prosecutrix to 12 years in his cross examination in the year 2008. The ossification test for determination of the age of the prosecutrix was not got conducted as per IO because she had obtained the school certificate of the prosecutrix. As such, the IO did not feel the necessity of getting the ossification test conducted.

23. Let me not turn to the law laid down by the Hon'ble Supreme Court and High Court with regard to the question of determination of the age of the prosecutrix particularly in the cases of rape and abduction. The Hon'ble Supreme Court in the case titled State of Punjab Vs. Gurmeet Singh & Ors reported as (1996) 2 SCC 384 in para 13 has held that in the said case there was evidence on the record to establish that on the date of occurrence the prosecutrix was below 16 years of age and that the prosecutrix herself and her parents deposed at the trial that her age was less than 16 years on the date of occurrence and that their evidence was supported by the birth certificate Ex.PJ and that both Trilok Singh PW6 and Gurdev Kaur PW7, the father and mother of the prosecutrix respectively, explained that initially they had named their daughter, the SC No.72/10 Page 15/19 prosecutrix, as Mahender Kaur but her name was changed to ....(omitted) and that therefore, in the School Leaving Certificate her name was correctly given and that there was nothing to disbelieve the explanation given by Trilok Singh and Gurdev Kaur in that behalf and that the birth certificate Ex.PJ was not only supported by the oral testimony of PW6 and PW7 but also by that of the School Leaving Certificate Marked B.

24. In the said judgment the Hon'ble Supreme Court took three things into consideration while holding that the prosecutrix was of less than 16 years of age and that was the deposition of parents, the birth certificate and the School Leaving Certificate.

25. The Hon'ble Supreme Court in another case reported as 2006 (1) JCC 78 titled Vishnu @ Undrya Vs. State of Maharashtra in para 24 and 25 held that in the case of determination of date of birth of the child, the best evidence is of the father and the mother and in the said case before the Hon'ble Supreme Court, both parents categorically deposed that the prosecutrix was born on 29.11.1964 which is supported by the unimpeachable documents such as register of the date of birth of the Municipality and the evidence of the doctor who is the proprietor of the concerned Nursing Home where the prosecutrix was born on 29.11.1964. It was further held that normally the age recorded in the school certificate is considered to be the correct determination of age provided the parents furnish the correct age of the ward at the time of admission and it is SC No.72/10 Page 16/19 authenticated. In this background the said deposition of the parents, the birth certificate and the deposition of the doctor was given priority over the ossification test.

26. The Hon'ble High Court of Delhi in the case titled Deewan Singh Vs. State reported as 1998 (2) JCC (Delhi) 122 was faced with a situation wherein in para 14 it was held as follows:

"The question of age of the prosecutrix is always extremely important in the cases under Section, 376 IPC. According to the mother of the prosecutrix, Sushila PW­8, her age at the time of the incident was around 16 years at the time of incident. According to the Radiologist, she was above the age of 15 and less than 16 years. As per PW­12, Smt. Pushpa Sharma, Acting Headmistress of M.C Primary School, Lancer Road, Delhi, stated that according to her date of birth recorded in the school is 14.8.1962. The prosecutrix Arunima herself gave her age as 15 years. In view of the inconsistent and conflicting statements, about the age of the prosecutrix the report of the Radiologist acquires greater importance and significance. According to the Radiologist she was above 15 years and less than 16 years of age. In case the girl is above 16 years then the entire complexion of the case changes. In this case, neither the prosecutrix nor her mother had given the exact age. There is no entry of her birth in any government offices."

27. The situation is worst in the present case if it is to be judged from the said standards of proof required for the determination of the age of the prosecutrix. In the school certificate Ex.PW5/B, it is mentioned that the prosecutrix was got admitted in the school by PW4, her alleged maternal grand father, who mentioned in alleged affidavit Ex.PW5/C, the place of birth of the prosecutrix as that of Sultan Puri Delhi and undertook to deposit birth certificate within SC No.72/10 Page 17/19 one year of the date of admission. But admittedly there is no date of birth certificate of the prosecutrix either filed before the said school or placed on the record or collected by the IO during the investigation of this case.

28. Admittedly the mother of the prosecutrix who could have been the best witness with regard to the age of the prosecutrix has not been produced in the witness box nor even contacted to be a witness in the case as per charge sheet.

29. The prosecutrix herself has given her age as 11 years at the time of her admission in the school and as per Ex.PW5/A, she was admitted to school on 28.08.2003 and if this version is to be taken, she is round about 22 years of age at the time of incident. PW4 has not claimed anywhere that birth of the prosecutrix took place in his presence and he cannot be relied to that effect because as per DD no.22A, he got recorded the age of the prosecutrix at the PS as 14/15 years on 15.05.2007 and when he was deposing before the court in the year 2008 he mentioned the age of the prosecutrix as 12 years.

30. Admittedly the ossification test was not got conducted which could have thrown some light with regard to round about age of the prosecutrix and could have served as the second best evidence with regard to the age of the prosecutrix. The IO took the school certificates Ex.PW5/A, Ex.PW5/B and Ex.PW5/C as the gospel truth with regard to the age of the prosecutrix but the same are not at all reliable in the said circumstances particularly in view of the said SC No.72/10 Page 18/19 judgments of the Hon'ble Superior Courts. As such, the inference must be drawn against the prosecution for withholding the said evidence.

31. In view of the said inconsistent and self contradictory evidence on the record with regard to the age of the prosecutrix, the possibility of the prosecutrix being above the age of 16 years at the time of incident cannot be ruled out and the view which is favourable to the accused must be accepted under the law. Hence, benefit of doubt is extended to the accused and they are acquitted of the charges u/s 376(g)/506 IPC. They be released forthwith, if not wanted in any other case. The file be consigned to the Record Room.

(Announced in the open court on 21.07.2010) (RAKESH TEWARI) ASJ­06(OUTER) ROHINI COURTS, DELHI SC No.72/10 Page 19/19