Delhi District Court
State vs . Pradeep on 11 May, 2012
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IN THE COURT OF MS. ILLA RAWAT : ADDL. SESSIONS JUDGE
(NORTHWEST)01, ROHINI : DELHI
(Sessions Case No. 34/09)
Unique ID case No. 02404R0195732009
State Vs. Pradeep
FIR No. : 09/09
U/s : 452/376/506 IPC
P.S. : Swaroop Nagar
State Vs. Pradeep
S/o Sh. Kishan Lal
R/o A3/40, J.J. Colony,
Bhalswa Dairy, Delhi.
Date of institution of case 13.03.2009
Date on which, judgment has been reserved08.05.2012
Date of pronouncement of judgment 11.05.2012
JUDGMENT:
1 The case of the prosecution briefly, as stated in the charge sheet, is that on 13.01.2009 an information was received through Wireless Operator at PS Swaroop Nagar that a 14 years old girl had been raped at House No. A3124, Resettlement Colony, near Gurudwara, Bhalswa Dairy. This information was reduced to writing vide DD No.28 A and was marked to ASI Daya Nand, who S.C No. 34/09 State vs. Pradeep Page Nos. 1/21 2 proceeded to the place of incident along with Ct. Krishan Kumar. Lady Ct. Poonam was also requisitioned at the said place. At the place of incident, prosecutrix, aged about 14 years met IO and deposed that on the night of 13 / 14.11.2009, she was at her home and was cooking food at about 7:00 PM. She had kept the door of the house open on account of electricity failure. The mother of prosecutrix had gone to Nanital to visit sister of prosecutrix while her brother had gone to market and her father was sitting near a bonfire at the corner of the Gali. All of a sudden, accused Pradeep entered the house of the prosecutrix. When prosecutrix questioned him about his presence, accused Pradeep did not respond and appeared to be under influence of some drug. When prosecutrix went to room inside the house to bring rice, accused Pradeep followed her and bolted the door of the room from inside. Thereafter he forcibly raped the prosecutrix and when she tried to free herself, he gagged her mouth and threatened to kill her. In the meantime, father of prosecutrix returned back. The prosecutrix raised alarm and unbolted the door. The father of the prosecutrix closed the door from outside confining Pradeep inside the room. After some time, brother of prosecutrix also came back and informed the Police. Prosecutrix prayed that action be taken against accused Pradeep, who had forcibly raped her.
2 On the basis of this complaint, case FIR u/s.452/376/506 IPC was registered against the accused Pradeep vide FIR No.09/09 at PS Swaroop Nagar. During the course of investigations, IO inspected the place of incident, prepared the S.C No. 34/09 State vs. Pradeep Page Nos. 2/21 3 site plan, got the prosecutrix as well as accused medically examined, got the statement of prosecutrix recorded u/s.164 CrPC, sent the exhibits to FSL for examination, recorded the statement of witnesses and after completing investigations, prepared the charge sheet and filed the same in the Court. 3 Upon committal of this case to the court of Sessions, charges for the offence under Sections 376/506 IPC were framed against the accused Pradeep. However, accused pleaded not guilty and claimed trial and thereafter, the case was fixed for prosecution evidence.
4 In order to prove its case, prosecution has examined 15 witnesses. 5 The prosecutrix has been examined as PW1 and she deposed as per her complaint Ex.PW1/A with certain improvements inasmuch as she added that accused had removed her clothes and he had also removed his clothes and committed 'Balatkar' (rape) upon her and that when her father came inside the house, he bolted the room as a result of which accused Pradeep was confined in the room. During her further examination, prosecutrix stated that she had given consent for her medical examination vide endorsement on MLC Ex.PW1/B and had also given her statement u/s.164 CrPC to learned MM vide Ex.PW1/C. She also identified the case property i.e. her underwear and salwar, which were exhibited as Ex.P1 and Ex.P2 respectively. A leading question was put to the witness S.C No. 34/09 State vs. Pradeep Page Nos. 3/21 4 regarding her statement u/s.164 CrPC, in response to which PW1 deposed that she had not stated about factum of rape in her statement u/s.164 CrPC before learned MM as she was threatened on behalf of accused that her family members would be killed if she stated so before the Court.
6 From the crossexamination of PW1, it is brought out that she was accompanied by Police officials, her father and mother when her statement u/s.164 CrPC was recorded and that her statement u/s.164 CrPC was recorded on 14.01.2009, soon after her complaint Ex.PW1/A had been recorded. PW1 admitted that her statement u/s.164 CrPC had been read over to her by learned MM and that she had stated that she was making her statement voluntarily and that she had admitted the same to be correct before signing it and that she had stated therein that she knew accused Pradeep and loved him and had called him to her house at 7:00 PM as none was present in her house and that she had also stated that he had not done anything with her and that when neighbours saw them, she raised alarm and called the Police and that she had also stated that she was making her statement without any pressure from accused Pradeep or her family members. The prosecutrix volunteered to state that she was under pressure and threat. She also stated that at that time she had told her age as 14 years and not 17 years, as was recorded in Ex.PW1/C. During her further crossexamination, PW1 admitted that her family and family of accused had been residing in a locality for some time and knew each other as they were residing in the same Gali. She also admitted that S.C No. 34/09 State vs. Pradeep Page Nos. 4/21 5 there were houses on both sides of Gali as well as at the back of their houses. She, however, denied that on the day of incident, persons were coming and going in the Gali and volunteered to state that since it was winter season, all the persons were inside their houses. The PW1 could not state if she had bleeding after accused committed rape upon her. However, she stated that she had sustained injuries on her head and that she had told about the same to the doctor at the time of her medical examination but had not told about it to the Police. 7 From the further crossexamination of PW1, it is brought out that she did not raise alarm when accused Pradeep entered in the house. She also stated that she could not raise alarm when accused bolted the room from inside as he had kept hand on her mouth. PW1 denied that she had falsely implicated the accused in the case at the instance of her father or that she was more than 18 years of age as on the date of incident or that the version given by her before learned MM was correct and that given by her to Police was not correct. The PW1 also denied that she used to like accused Pradeep or that she had called him to her house when nobody was present but when her father came, she shouted and lodged a false complaint against the accused with the Police.
8 PW2 Ram Lakhan is the father of the prosecutrix. He deposed that on 13.01.2009 at about 8:00 - 8:30 PM, he was present in the Gali and was sitting near the bonfire and that he heard noise of his daughter Babli, aged about 14 years and S.C No. 34/09 State vs. Pradeep Page Nos. 5/21 6 also saw accused Pradeep coming out of his house and apprehended him and that the prosecutrix also came out in the meantime and informed him that accused Pradeep had committed rape upon her without her consent. The PW2 further deposed that in the meantime, his son Bablu also reached there and they informed the Police. After Police came, they were taken to BJRM Hospital where prosecutrix was medically examined. On returned back to spot, prosecutrix and PW2 showed the place of occurrence to the Police. The PW2 identified his thumb impression on arrest memo and personal search memo of the accused which were exhibited as Ex.PW2/A and Ex.PW2/B respectively.
9 During his crossexamination, PW2 was asked to state the year of his marriage but could not tell the same except that he had been married about 20 - 25 years ago. He could not even give the year of birth of his first child. The PW2 deposed that there was an age gap of 10 to 12 years between his elder daughter and prosecutrix. PW2 denied that prosecutrix was more than 18 years of age as on the date of incident.
10 PW4 Bablu is the brother of the prosecutrix. He deposed that on 13.01.2009 when he returned to his house, he saw many public persons gathered outside his house and on inquiry from his father, was told that accused Pradeep had committed rape upon his sister Babli, aged about 14 years. Police was called and accused was handed over to the Police.
S.C No. 34/09 State vs. Pradeep Page Nos. 6/21
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11 During his crossexamination, PW4 stated that Police had not recorded
his statement. He termed it correct that no incident had taken place in his presence. 12 PW5 Sh. P.R. Sharma is the Principal of the school where prosecutrix was studying. He produced the record pertaining to date of birth of prosecutrix and stated that as per school record, her date of birth was 01.11.1996. He proved the photocopy of the school certificate on record of the judicial file as Ex.PW5/A by producing the original record. He also proved the relevant entry of the admission register as Ex.PW5/B. The pasting file was also produced by PW5. He deposed that at the time of admission of the student, an affidavit regarding date of birth of the said student was submitted along with the admission form. He proved the photocopy of the said affidavit as Ex.PW5/C and photocopy of the admission form as Ex.PW5/D. 13 During his crossexamination, PW5 deposed that he had joined the school in July, 2010. He also stated that no birth certificate of prosecutrix was submitted by her father at the time of admission in the school and that affidavit Ex.PW5/C was not got verified and that the writing on the said affidavit appeared to be that of Sh. Gajender Pal Singh, Teacher in his school.
14 PW11 Dr. Shipra Ram Pal is the Radiologist, who had examined the X
S.C No. 34/09 State vs. Pradeep Page Nos. 7/21
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ray Plates of the prosecutrix for determination of her estimated bone age. She proved her report as Ex.PW11/A and stated that in her opinion, the estimated bone age of the prosecutrix, as on the date of examination, was between 17 to 18 years. 15 PW9 Dr. Neeraj Chaudhary was deputed by MS BJRM Hospital to depose about MLC Nos. 2167 and 1934 as concerned doctors had left the hospital by the time of the trial. The PW9 deposed that as per MLC No.2167 (inadvertently mentioned as 1187), prosecutrix was examined by Dr. Avdesh and no fresh external injury was seen and that the patient was referred to gynae SR for further examination.
16 The MLC No.1934 was prepared by Dr. Avdesh, after examination of patient Pradeep, and as per local examination, no fresh external injury was seen and the patient was referred to SR (Surgery) for further opinion. The patient was then examined by Dr. Anil, who did not find any external injury, blood or semen stains. He also found sexual organs of the patient well developed and opined that possibility of sexual intercourse could not be ruled out. The PW9 proved the MLC No.2167 as Ex.PW1/B and MLC No.1934 as Ex.PW9/A. 17 PW13 Dr. Shakuntala was deputed by MS BJRM Hospital to depose on behalf of Dr. Anjali Vaishya, SR (Gynae), who had left the services of the hospital. She proved the observations made by Dr. Anjali Vaishya on MLC Ex.PW1/B of S.C No. 34/09 State vs. Pradeep Page Nos. 8/21 9 prosecutrix as Ex.PW13/A. 18 PW14 Sh. Neeraj Gaur, learned MM had recorded the statement of prosecutrix u/s.164 CrPC. He proved the proceedings pertaining to the same as Ex.PW14/A to Ex.PW14/C and also proved his signatures on the statement of prosecutrix u/s.164 CrPC, Ex.PW1/C and stated that same was recorded by him after satisfying himself that prosecutrix was ready to make statement voluntarily. 19 PW3 HC Jai Singh, who was working as duty officer at PS Swaroop Nagar, proved the computerized copy of the FIR as Ex. PW3/A and his endorsement on the rukka as Ex. PW3/B. 20 PW12 SI Daya Nand is the first Investigating Officer of the present case. He deposed that in the intervening night of 13 /14.01.2009 at about 11:55 PM, he received DD No.28A from Duty Officer and proved the copy of said DD No.28A as Ex.PW12/A. He further deposed that after receiving the said DD, he along with Ct. Krishan Kumar went to the spot i.e. A3/29, JJ Colony, near Gurudwara, Bhalswa Dairy, Delhi, where Ram Lakhan, father of prosecutrix along with public persons met them and Ram Lakhan told them that he had confined the accused, who had committed wrong act (rape) upon his daughter Babli, after bolting the door from outside. He further deposed that after opening the door, he found accused Pradeep present inside the room and he made inquiry from accused and prosecutrix.
S.C No. 34/09 State vs. Pradeep Page Nos. 9/21 10 He further deposed that accused Pradeep was got medically examined through Ct. Krishan vide MLC Ex.PW9/A and Ct. Krishan handed over two parcels containing undergarments and blood sample sealed with the seal of BJRM CMO Delhi along with same sample seal to him and he took the same into possession vide seizure memo Ex.PW6/A. He further deposed that prosecutrix Babli was got medically examined through W/Ct. Poonam vide MLC Ex.PW1/B and W/Ct. Poonam handed over three parcels containing undergarment, Salwar, Swab sealed with the seal of BJRM CMO Delhi along with a sample seal to him and he took the same into possession vide seizure memo Ex.PW7/A. He further deposed that he recorded the statement of prosecutrix vide Ex.PW1/A at the spot and on the basis of her statement, he prepared rukka Ex.PW12/B and sent it to PS for registration of the case through Ct. Krishan and that he prepared the site plan Ex.PW12/C at the instance of prosecutrix and her father. He further deposed that in the meantime, Ct. Krishan came back to the spot after registration of the case and handed over the carbon copy of FIR Ex.PW3/A and original rukka to him. He further deposed that he arrested accused Pradeep vide arrest memo Ex.PW2/A and his personal search memo was also conducted vide personal search memo Ex.PW2/B. 21 PW6 Ct. Krishan Kumar had joined investigations of case with IO and deposed as per the prosecution case and on the lines of PW12 ASI Daya Nand. He proved his signatures on various memos on which he had signed as a witness.
S.C No. 34/09 State vs. Pradeep Page Nos. 10/21
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22 PW7 Lady Ct. Poonam had also joined investigations of the case and
got medical examination of prosecutrix conducted upon the directions of IO and deposed regarding the same.
23 PW10 Ct. Arvind Kumar had deposited the pullandas in the case at FSL Rohini and deposed regarding the same.
24 PW8 HC Shripal Singh deposed that on 14.01.2009 he was working as MHCM and ASI Daya Nand had deposited five pullandas duly sealed with the seal of CMO BJRM along with two sample sealed with him and he took the same and made entry in Register No.19 vide Sr. No.277. Photocopy of the said entry was proved as Ex.PW8/A. He further deposed that IO ASI Daya Nand had also deposited the personal search articles recovered from the personal search of accused Pradeep with him and he took the same and made entry in Register No.19 vide Sr. No.277 and photocopy of the said entry was proved as Ex.PW8/B. 25 He further deposed that on 03.03.2009 the above mentioned five pullandas and sample seals were sent to FSL Rohini through Ct. Arvind Kumar vide RC No.73/21/09 and he made entry in Register No.19 vide entry Ex.PW8/C. He further deposed that on the same day, Ct. Arvind handed over the acknowledgment receipt to him regarding the depositing the abovesaid pullandas in FSL Rohini and S.C No. 34/09 State vs. Pradeep Page Nos. 11/21 12 the photocopies of the aforesaid RC and acknowledgment receipt were proved as Ex.PW8/D and Ex.PW8/E respectively.
26 PW15 SI Sushila Rana is the second Investigating Officer of the present case. She deposed that on 15.01.2009 further investigation of the present case was assigned to her and that on 03.03.2009 after seeking permission from DCP Crime and Railway, the exhibits of present case were sent to FSL Rohini through Ct. Arvind Kumar vide RC No.73/21/2009. The FSL reports on record are Ex.PW15/A and Ex.PW15/B. 27 After completion of prosecution evidence, statement of the accused Pradeep was recorded u/s 313 Cr.P.C, wherein he denied the entire prosecution case and stated that he is innocent and has been falsely implicated in this case. He further stated that he and prosecutrix were known to each other and they used to like each other. He further stated that on alleged date of incident on asking of prosecutrix, he reached at her house at around 7:00 PM when none of her family members were present and he did not commit any wrongful act against her without her consent. He further stated that when the father of prosecutrix reached the house and neighbours of the locality saw them together, they shouted and called the Police and the present false case has been registered against him and both of them were planning to get married with the consent of their family members. He further stated that it was only due to the pressure exerted by the father of prosecutrix and the S.C No. 34/09 State vs. Pradeep Page Nos. 12/21 13 Police officials, that the prosecutrix deposed against him. As accused did not wish to lead evidence in his defence and the matter was fixed for final arguments. 28 Arguments have been addressed by learned Additional PP as well as learned defence counsel.
29 It has been submitted by Ld. Addl. PP that accused Pradeep has committed rape upon a 14 years old minor girl taking advantage of the fact that she was all alone in her house on the day of the incident and that the prosecution witnesses have fully supported the prosecution case and that prosecutrix has sufficiently explained why she had not stated correct facts when her statement u/s. 164 CrPC was recorded by learned MM. In view of the evidence and material brought on record by the prosecution, it is contended that the guilt of the accused Pradeep has been proved beyond reasonable doubt and he prayed that accused be held guilty of the charged offences.
30 On the other hand, it has been submitted by the Ld. defence counsel that the prosecution has miserably failed to prove the guilt of the accused Pradeep beyond the reasonable doubt. It is further submitted that there is a doubt as to the age of the prosecutrix and that the correct age of the prosecutrix was 17 years as had been stated by her in her statement u/s.164 CrPC. He has contended that the record produced from school to prove the date of birth of the prosecutrix is unreliable and, S.C No. 34/09 State vs. Pradeep Page Nos. 13/21 14 therefore, the ossification report is to be looked into to determine the correct age of the prosecutrix and that as per the ossification report Ex.PW11/A, the age of prosecutrix was 17 years as on the date of incident and she was of legal age to give consent. It is contended that prosecutrix and the accused were known to each other and that prosecutrix had herself called accused to her house, on the day of the incident and that accused never acted against the consent of the prosecutrix. It is also submitted that from the material on record, no offence is made out against accused. He prayed that accused Pradeep be acquitted of the charged offences. He has relied upon following judgments in support of his contentions : 1 Jaya Mala Vs. Home Secretary, Government of Jammu and Kashmir and Others, AIR 1982 Supreme Court 1297.
2 State of Uttar Pradesh Vs. Ram Veer Singh & Ors., AIR 2007 Supreme Court 3075.
3 Nand Kishore Vs. State of Rajasthan, 2002 Cri. L. J. 4157. 4 Kulbhushan Kumar Vs. State of Punjab, 2011 (1) C.C. Cases (HC)
291. 5 Vipin Kumar Vs. The State of Haryana, Punjab And Haryana High Court.
6 Sushil Kumar Vs. Rakesh Kumar, AIR 2004 Supreme Court 230. 31 Arguments have been heard. File as well as judgments relied upon and filed by learned counsel for accused also perused. In the present case, as per case of the prosecution accused committed rape upon prosecutrix, Ms. Babli, aged about 14 years, against her will and without her consent and also threatened to kill her. The Section 375 CrPC, which is punishable u/s.376 CrPC, reads as under : S.C No. 34/09 State vs. Pradeep Page Nos. 14/21 15 "375. Rape. A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions : First. Against her will.
Secondly. without her consent.
Thirdly - with her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
Fourthly. with her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly. with her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
Sixthly. with or without her consent, when she is under sixteen years of age.
Explanation. Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
Exception. Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape." 32 The first issue in consideration is whether the prosecutrix was of an age to give her consent and if so, had she given her consent to sexual intercourse with the accused. In order to prove that the age of prosecutrix was about 14 years, as on the date of incident, prosecution has examined PW5, Sh. P.R. Sharma, Principal of S.C No. 34/09 State vs. Pradeep Page Nos. 15/21 16 the school, where prosecutrix had studied. According to record produced by PW5, the date of birth of prosecutrix is 01.11.1996, however, from the crossexamination of PW5, it is clearly brought out that there is no basis or document for recording the said date of birth in the school record. Admittedly, the birth certificate of prosecutrix was neither submitted nor requisitioned by the school authorities and the prosecutrix was admitted in the school on the basis of Ex.PW5/C i.e. an affidavit filed by her parents which too was in the writing of one of the teachers of the school where prosecutrix was studying. The entry of date of birth in the school record was thus made as stated in affidavit Ex.PW5/C. 33 Learned counsel for accused has also relied upon judgment in case of Sushil Kumar Vs. Rakesh Kumar, AIR 2004, SC 230, wherein judgment of Hon'ble Supreme Court in case of Birad Mal Singhvi Vs. Anand Purohit, AIR 1988, Supreme Court 1796, was relied upon wherein it has been held that : " . . . . . . . . . To render a document admissible under Section 35, three conditions must be satisfied, firstly, entry that is relied on must be one in a public or other official book, register or record, secondly, it must be an entry stating a fact in issue or relevant fact, and thirdly, it must be made by a public servant in discharge of his official duty, or any other person in performance of a duty specially enjoined by law. An entry relating to date of birth made in the school register is relevant and admissible under Section 35 of the Act, but the entry regarding to the age of a person in a school register is S.C No. 34/09 State vs. Pradeep Page Nos. 16/21 17 of not much evidentiary value to prove the age of the person in the absence of material on which the age was recorded . . . . . ."
34 In the present case also though entry of date of birth in school record was produced, it is not much of evidentiary value to prove the age of the prosecutrix in the absence of material on which age was recorded. In these circumstances, we have to rely upon the report of medical examination conducted to determine the age of the prosecutrix as has been held in the judgment in Vipin Kumar Vs. The State of Haryana, 1985 (1) Crimes 105.
35 As per the report given by PW11 Dr. Shipra Rampal Ex.PW11/A, the estimated bone age of the prosecutrix is between 17 to 18 years. Since prosecutrix has been examined only radiologically, a margin of error of two years on either side in age ascertained by radiological examination is to be given. It has been held by the Hon'ble Himachal High Court in a case reported in 1987 Crime Law Journal 1266, Paramjit Singh Vs. State of Himachal Pradesh, held that in a case of ossification test, the margin of error on either side varies from 1 ½ to 2 years and benefit shall always go to the accused. In that case, radiologist had determined the age between 16 to 17 years. It was held that in the case of radiological test, hereditary, diet, climate etc. play important role in the fusion of epiphysis. It is normally accepted that fusion of epiphysis takes place early in the case of rich diet S.C No. 34/09 State vs. Pradeep Page Nos. 17/21 18 and hot climate and is usually delayed in the case of poor diet and cold climate. Similar view was taken by Hon'ble Allahabad High Court in the case reported in IV 1993 (1) (Crimes) 1009 and held that margin of error of two years on either side should be given to the accused in determining the age on the basis of ossification test. The Hon'ble Supreme Court has similarly observed in a case reported in AIR 1982 SC 1297 Jaya Mehta Vs. Home Secretary J & K and Others. 36 In the present case, this margin of error has to be given on a higher side in favour of the accused as per well settled law of criminal jurisprudence that when two views are taken on the evidence adduced, then the one which is in favour of the innocence of the accused has to be taken as has been held in State of Uttar Pradesh Vs. Ram Veer Singh, AIR 2007 SC 3075.
37 Considering that prosecutrix was about 18 / 19 years of age as on the date of the incident, the possibility of her being a consenting party to sexual intercourse by the accused cannot be ruled out specially when the evidence on record is pointing towards this fact. Firstly, MLC of the prosecutrix Ex.PW1/A as well as the MLC of the accused Ex.PW9/A do not reveal any external injuries to show that any resistance was put up by the prosecutrix resulting in any injuries to either the prosecutrix or the accused. Secondly, in her statement u/s.164 CrPC, recorded by PW14 the prosecutrix has completely exonerated accused of any forcible sexual intercourse with her. She has merely stated that she and accused S.C No. 34/09 State vs. Pradeep Page Nos. 18/21 19 loved each other and they wanted to marry each other and that her parents were also agreeable for it and that she had herself called the accused on her house at 7 PM on the day of the incident and that he had not committed any wrong act with her and that some persons from the locality (gali) had seen her and raised alarm, resulting in registration of case against him. She clearly stated that she was not under any threat, fear or coercion for giving the statement Ex.PW1/C. The PW4 learned MM, who had recorded the statement of prosecutrix has deposed that he had recorded the statement Ex.PW1/C after satisfying himself that prosecutrix was ready to make the statement voluntarily. When prosecutrix appeared before the Court to depose as PW1, she took a different stand and again reiterated the averments made by her in her complaint Ex.PW1/A, on the basis of which case FIR was registered. To explain the discrepancy in Ex.PW1/A i.e. the complaint and Ex.PW1/C i.e. statement u/s.164 CrPC and her statement made in the Court, the prosecutrix stated that she was under threat by accused and his family. However, from the crossexamination of the prosecutrix, it is clearly brought out that she was accompanied by her parents as well as the Police officials on the day she went to give her statement Ex.PW1/C before PW14 and there is no explanation why she did not bring these facts to the notice of learned MM, who had recorded her statement. There was apparently no perception of threat or continued threat to the prosecutrix, after she made her statement Ex.PW1/C and there is no explanation why she did not report the fact, that her statement Ex.PW1/C was made under threat, either to the IO or the learned Judge, who had recorded her statement. The S.C No. 34/09 State vs. Pradeep Page Nos. 19/21 20 bald statement made by the prosecutrix that she was under threat without explaining when and in what manner she was threatened by whom, does not inspire much confidence. The two versions given by the prosecutrix, one given in her statement u/s.164 CrPC and the other given in her complaint Ex.PW1/A, also reiterated in her deposition before the Court, create doubt that if at all accused had acted without the consent of the prosecutrix. As far as the PW2 Sh. Ram Lakha, father and PW4 Bablu, brother of the prosecutrix are concerned, none of them are the eye witnesses to the incident and their testimonies only prove that accused was found present at the house of prosecutrix on the day of the incident which even otherwise has not been denied by him. It has been laid down in Nand Kishore Vs. State of Rajasthan, 2002 Cri. L. J. 4157 and Kulbhushan Kumar Vs. State of Punjab, 2011 (1) C.C. Cases (HC) 291, that where there is no evidence on record to the effect that prosecutrix raised alarm, no injuries were noticed on the person of prosecutrix and no authentic documents regarding age of prosecutrix for determining her correct age are available conclusion can be drawn that prosecutrix was more than 16 years of age at the time of occurrence and was a consenting party. In the present case also it is seen from the testimony of prosecutrix that she is residing in a thickly populated area and when accused enticed her house, she had noticed that he appeared to be behaving strangely, yet instead of rushing to her father, who was at the corner of Gali, she went inside her house, leaving the door of her room, ajar. Further the prosecutrix has stated that she had left the door of her open as there was electricity failure. This fact is not corroborated by any other S.C No. 34/09 State vs. Pradeep Page Nos. 20/21 21 witness and if statement of prosecutrix, that it was winter season is taken to be correct, then even otherwise there is no sufficient justification for prosecutrix to leave the door of her house open specially when she was alone in the house. The facts and circumstances of the case as well as medical evidence on record lead to only one conclusion that prosecutrix, who was aged about 18 / 19 years, was a consenting party.
38 Thus, in view of the above discussion and observations and having regard to the fact and circumstances of the present case, I am of the considered opinion that the prosecution has failed to prove the guilt of the accused on record, beyond the reasonable doubts. Accordingly, I acquit the accusedPradeep of the charged offences, by giving him the benefit of doubt.
Personal bond and bail bonds of the accused Pradeep are cancelled. His surety is discharged.
File be consigned to the record room.
(Announced in the open Court ) (Illa Rawat)
(Today on 11.05.2012) Addl. Sessions Judge
(NorthWest)01
Rohini/Delhi
S.C No. 34/09 State vs. Pradeep Page Nos. 21/21