State v. Irfan

9. After examination of the prosecution witnesses, the Accused/Respondent was examined under Section 313, Cr.P.C, wherein he stated that he was innocent and that he was falsely implicated in the present case at the instance of the complainant in connivance with his step-father and the father of the prosecutrix.

10. DW-2, Smt. Shehnaz @ Sunita, the mother of the Accused/Respondent, deposed that Anil Kumar was the stepfather of the Accused/Respondent and that her relations with him had become strained since August 2010. She stated that Anil Kumar had threatened to falsely implicate her son in a criminal case on account of disputes between them, as the Accused/Respondent had objected to his misbehaviour with her. According to her, the present case was lodged at the instance of Anil Kumar in connivance with PW-2, the father of the prosecutrix, thereby falsely implicating the accused.

11. The Accused/Respondent examined Roshni (DW-1) and Shehnaz @ Sunita (DW-2) in his defence. The ld. Trial court discussed them as under:

12. The ld. Trial Court, upon perusal of the material placed on record and after considering the submissions advanced on behalf of the parties, proceeded to hold as under:

13. In view of the material contradictions and inconsistencies in the prosecution evidence, vide judgement dated 6th December, 2012, the ld. Trial Court acquitted the Respondent by extending benefit of doubt. The relevant portion of the Judgement is reproduced hereinbelow:

14. Vide order dated 17th January, 2014, this Court was pleased to grant leave in CRL.L.P. 198/2013 and directed its registration as Criminal Appeal No. 64/2014. Pursuant thereto, the present appeal was admitted.

15. The aforesaid impugned judgment dated 6th December, 2012 is under challenge in the present appeal.

SUBMISSIONS ON THE BEHALF OF THE STATE

16. At the outset, the ld. APP for the Appellant (State) submitted that conviction can be based on the sole testimony of the prosecutrix. Ld. APP contends that the ld. Trial Court has erred in discarding the testimony of PW- 1 on account of minor inconsistencies as the alleged discrepancies, such as whether the prosecutrix was dragged or lifted, are trivial in nature and do not go to the root of the matter. Such variations are natural and bound to occur in the testimony of a victim of a traumatic incident.

17. Ld. APP submits that the ld. Trial Court has placed undue reliance on medical and forensic evidence. The medical evidence is merely corroborative in nature and cannot override the direct and reliable ocular testimony of the prosecutrix. With respect to the medical evidence, it is contended that PW-9 has clearly noted that the hymen of the prosecutrix was ruptured. The absence of a specific opinion as to whether the rupture was fresh or old does not negate the allegation of rape.

18. Ld. APP further submits that absence of injuries or marks of violence is not a decisive factor, particularly in cases of sexual assault wherein resistance may be minimal due to fear or coercion. It is further submitted that the absence of blood or semen on the clothes of the prosecutrix, as per the FSL report, is not fatal to the prosecution case. Such absence cannot be treated as conclusive proof of absence of sexual assault.

19. It is further submitted by the ld. APP on the aspect of age, that PW-4 has duly proved the date of birth of the prosecutrix as 1st March, 1999 from the school records, thereby establishing that she was a minor at the time of the incident. It is contended that the non-production of the bone age test report does not discredit the documentary evidence on record.

SUBMISSIONS ON THE BEHALF OF THE RESPONDENT / ACCUSED

20. Per contra, ld. counsel for the Respondent submits that the entire prosecution case hinges upon the sole testimony of PW-1, which is riddled with material contradictions and inconsistencies. The prosecutrix has made divergent statements at different stages, namely in the FIR, her statement under Section 164 CrPC, and her deposition before the Court.

21. It is further submitted that there are material contradictions regarding the manner in which the prosecutrix was allegedly taken by the Accused/Respondent, as in one version she states that she was dragged, whereas in another she deposes that she was lifted. It is further pointed out that the prosecutrix has given inconsistent statements regarding resistance and raising of alarm.

22. In addition, thereto the ld. counsel further submits that the medical evidence does not support the prosecution case. As per the MLC proved by PW-9, there were no external injuries on the body of the prosecutrix, nor were there any signs of force or struggle. It is argued that the hymen was found to be ruptured, but there is no opinion as to whether the rupture was fresh or old. In cross-examination, it has come on record that in case of a fresh rupture, the same is ordinarily noted, which has not been done in the present case.

23. Insofar as the FSL report is concerned, ld. counsel for the Respondent submitted that no blood or semen was detected on the clothes of the prosecutrix, the Accused/Respondent, or the bed sheet. This, it is argued, completely belies the allegation of recent sexual assault, particularly in light of the claim of bleeding made by the prosecutrix.

24. On the aspect of age, ld. counsel submits that although a bone age test was advised and conducted, the Investigating Officer failed to place the report on record. This omission, it is argued, is fatal to the prosecution case and gives rise to an adverse inference. It is contended that in the absence of such crucial evidence, the age of the prosecutrix has not been proved beyond reasonable doubt.

25. It is further submitted that the conduct of the prosecutrix is unnatural, inasmuch as there was no resistance or injury despite the alleged use of force. The inconsistencies in her testimony, coupled with the absence of medical and forensic corroboration, render her evidence unreliable.

26. The ld. counsel thus submits that the ld. Trial Court has rightly appreciated the evidence and has taken a plausible view in granting the benefit of doubt to the Accused/Respondent. It is argued that an order of acquittal ought not to be interfered with unless the findings are perverse, which is not the case here.

FINDINGS AND ANALYSIS

27. This Court has heard both the parties.

28. The issue before this Court is whether the testimony of the prosecutrix inspires confidence so as to warrant interference with the order of acquittal, particularly in light of the material contradictions.

29. Upon a careful scrutiny of the testimony of the prosecutrix, both in her examination-in-chief and cross-examination, this Court finds material contradictions emerging with respect to the incident in question. The relevant statements are reproduced hereinbelow: PW-1 Examination-In-Chief Cross- Examination On 12-01-11 I went to the bathroom to answer the call of the nature and when I was returning, accused Irfan who used to reside in our neighbourhood, suddenly came there and closed my mouth with his hands. Thereafter, he lifted me and took me to his room, thereafter he removed my pajami and underwear and unzipped his trouser. Thereafter, accused committed rape upon me. After committing rape upon me the accused ran away from there. I worn my clothes and screamed for help upon which my father reached there and I by Shri I. S. Kapur, counsel for accused. I was born in Bihar. I studied in Bihar in a school till 1st class. It is wrong to suggest that I studied upto 3rd class in Bihar. We are five brothers and sisters. My younger brother is two years younger than me. My other younger brother is 3-4 years younger than my younger brother. I am also having an elder brother who is one year elder than me. I am having a sister who is two years younger than the brother who comes after me. Only my elder brother and myself used to study in Bihar. My father was unemployed when we were in told about the incident to him. My father made a call to police by dialling 100. Bihar. All of siblings were born in Bihar. We shifted to Delhi about 10 years ago…… Accused lifted me in both of his arms and my back was facing and was parallel the ground when he took me to his room. I did not raise any resistance nor try to scratch the accused on his face or arms when he was carrying me away. I had raised noise when he was carrying me. He had carried me for 5–6 paces when he reached his house. The door of the house of the accused was open. There was a single bed in the room. There was no other furniture in the room. XXX I did not raise any noise even when the accused lay me on the bed. Vol.- He had pressed my mouth. He pressed my mouth after about half an hour of having reached his room. I had stated before the police as also before the Ld. MM about the accused carrying me in his arms. Confronted with the statement Ex. PW1/A and Ex. PW1/B wherein it is not so recorded. What I have stated today about the accused carrying me in the arms is correct. Then said the statement made by me before the police about the accused taking me away forcibly by dragging/pulling me was correct. The statement made by me before the Ld. MM is also correct about the accused having dragged me away. He had dragged me for about 10 paces. I did not sustain any injury, abrasion or scratch marks due to this dragging by the accused. Accused was dragging me by my hand. I did not raise any noise at that time when accused was dragging me. People gathered at the spot after about half an hour. There were number of people XXX Accused and I were at home when my parents and parents of accused reached there. My family members did not apprehend the accused. I did not receive any injury of any kind on any part of my body. I had bleeding like water from my private parts. My clothes were soaked with blood. I had not changed my clothes when I went to the hospital. Accused was taken away by the police. Police had reached the spot after about one hour of the incident. There was no blood stains on the clothes of the accused. Accused and I were taken to the PS first and then to the hospital. The statement given by me earlier about the accused having run away from the spot after raping me is correct. What I have stated today is also correct. Court question Q: Then how do you co-relate the two contradictory statements? A: The witness remained silent despite the question being explained to her in Hindi in different forms.

30. It is significant to note that in her examination-in-chief, the prosecutrix stated that the Accused/Respondent had fled immediately after the commission of the offence. However, in her cross-examination, she deposed that both she and the Accused/Respondent were present at the house when their respective parents arrived. These two versions are inconsistent and cannot be reconciled. Moreover, when questioned by the ld. Trial Court about these contradictory versions, the prosecutrix remained silent and offered no explanation. Such silence, in the face of material contradictions, assumes significance and casts a serious doubt on the reliability of her testimony. Relevant portion of the testimony in cross-examination of prosecutrix is extracted hereinbelow: “The statement given by me earlier about the accused having run away from the spot after raping me is correct. What I have stated today is also correct. Court question Q: Then how do you co-relate the two contradictory statements? A: The witness remained silent despite the question being explained to her in Hindi in different forms.”

31. Furthermore, even within her cross-examination, the prosecutrix has given inconsistent versions regarding the raising of alarm. At one stage, she stated that she raised noise while being carried away by the Accused/Respondent; however, she subsequently deposed that she did not raise any alarm even when she was allegedly dragged by him. These versions are mutually inconsistent and cannot be reconciled, thereby rendering her conduct doubtful on a material aspect of the incident.

32. One of the material inconsistencies in the testimony of the prosecutrix pertains to the very manner in which she was allegedly taken away by the Accused/Respondent. In her examination-in-chief, she stated that the Accused/Respondent lifted her and took her to his room. In crossexamination, she deposed that he carried her in both his arms with her back remaining parallel to the ground. However, in her earlier statement under Section 164 Cr.P.C. (Ex. PW-1/B), she had stated that she was dragged by the Accused/Respondent after being gagged. The relevant portion of the statement under 164 CrPc is as under: “कल रात समय तकरीबन एक बजे जब म अपने घर क े बाथ म से वापस अपने कमरे म जा रही थी तो पड़ोस का एक लड़का िजसका नाम इरफान मेरे र े म आ गया और मेरे मुंह बंद करक े मुझे घसीट कर क े अपने कमरे म ले गया। XXX मने शोर मचाया तो मेरे पापा आ गए, िज देखकर वह भाग गया।“

33. These three versions are mutually inconsistent and cannot stand together. The manner in which the prosecutrix was taken away forms the foundational part of the prosecution story, and such contradictions go to the root of the incident, thereby rendering her testimony unreliable on a material aspect.

34. In light of the aforesaid contradictions, it becomes necessary to examine whether the medical evidence lends any support to the prosecution case. The relevant portion of the MLC is extracted hereinbelow: “As stated by girl Vibha student of Class VII 13 yrs old was allegedly kindnapped from her house at 1:30 A.M. when she went to bathroom by a boy living in her neighbourhood & was raped after taking her in boys room no H/o intoxication, physical assault XXXXX Breast tanner Stage III No injury marks Pubic hairs White stain marks Hymn ruptured, No BVP Introitus easily admits one finger, Cervix backward nulliparous uterus normal size,……. No bruises no bite marks”

35. A perusal of the MLC of the prosecutrix shows that no external injuries were found on her. This assumes significance in light of her allegation that she was forcibly dragged or carried away. In the ordinary course, such an incident would be expected to leave at least some visible marks, such as scratches or abrasions. However, the MLC does not record any bruises or signs of physical assault.

36. It is also to be noted that the prosecutrix has stated that she was bleeding profusely, and that she had not changed her clothes before reaching the hospital. The relevant portion of her statement in cross-examination is reproduced herein below: “I had bleeding like water from my private parts. My clothes were soaked with blood. I had not changed my clothes when I went to the hospital”

37. The above statement of the prosecutrix stands contradicted by the MLC. While she has alleged that she was “bleeding like water” and that her clothes were soaked with blood, the MLC records no such finding, including no indication of bleeding per vagina. Moreover, as per the FSL report, no blood was detected on the clothes of the prosecutrix and no semen was detected on the relevant exhibits. The medical and forensic evidence, therefore, directly undermines her version on a material particular.

38. On the question of the condition of the hymen, PW-9, Dr. Uruj Jahan, was cross-examined. The relevant portion of her testimony is reproduced herein below: “There is no history of intoxication and physical assault. The menarche was two months back. LMP was 16.12.2010. The girl is unmarried. On examination patient is conscious and oriented, breast tanner stage 3, no injury marks, per abdomen soft. On local examination pubic hair present, white stain marks present, hymen was ruptured, no bleeding per vagina. Introitus easily admits one finger, cervix backwards, nulliparous, uterus normal size, bilateral fornices non tender. There were no bruises and bite marks. Swaps from posterior fornix three slides and underwear of girl handed over to ASI XXX by Sh. S. K. Rai, Advocate for accused. On perusal of the MLC it is clear that it has not been mentioned that the hymen is old ruptured or fresh ruptured. It is correct that in the MLC the Doctor had advised for X-ray for boneage. In response to court question:- It is possible for the Doctor examining the patient to opine whether the hymen is freshly torn or whether the same was old tear and if it was fresh tear, the same is noted on MLC”

39. After perusal of this testimony, it is evident that the MLC is silent on the aspect whether the alleged rupture of the hymen was recent or old. In view of the clarification given by the doctor-PW-9 that a fresh tear is usually recorded, the absence of such a note assumes significance and seriously undermines the allegation of recent forcible sexual intercourse.

40. The forensic evidence does not support the conviction because as per the FSL report, no blood was detected on the underwear and pyjami of the prosecutrix (Exhibits 1a and 1b), despite her categorical assertion that she was “bleeding like water” and that her clothes were soaked with blood. Further, no semen was detected on the clothes of the prosecutrix or on the vaginal swabs (Exhibits 2a, 2b and 2c). The absence of both blood and semen on the material exhibits, when read in conjunction with the medical evidence which records no bleeding, stands in direct contradiction to the version put forth by the prosecutrix. This inconsistency between the ocular testimony, medical findings, and forensic evidence strikes at the root of the prosecution case and renders the testimony of the prosecutrix unreliable on a material aspect. The relevant portion of FSL is reproduced herein below: “Parcel ‘1’: One sealed cloth parcel sealed with the seal of “CMO AIIMS HOPT ND” containing exhibits ‘1a’ & ‘1b’. Exhibit ‘1a’: One underwear having dirty stains. Exhibit ‘1b’: One pyjami having dirty stains. Parcel ‘2’: One sealed cloth parcel sealed with the seal of “CMO AIIMS HOPT ND” containing exhibits ‘2a’, ‘2b’ & ‘2c’. Exhibits ‘2a’, ‘2b’ & ‘2c’: Three microslides having faint whitish smear. Parcel ‘3’: One sealed cloth parcel sealed with the seal of “MSL DEPARTMENT OF FORENSIC MEDICINE AIIMS NEW DELHI” containing exhibit ‘3’. Exhibit ‘3’: One underwear. Parcel ‘4’: One sealed plastic container sealed with the seal of “MSL DEPARTMENT OF FORENSIC MEDICINE AIIMS NEW DELHI” containing exhibit ‘4’. Exhibit ‘4’: Cotton wool swab described as ‘Penile swab’. Parcel ‘5’: One sealed plastic container sealed with the seal of “MSL DEPARTMENT OF FORENSIC MEDICINE AIIMS NEW DELHI” containing exhibit ‘5’. Exhibit ‘5’: Cotton wool swab described as ‘Control swab’. Parcel ‘6’: One sealed envelope sealed with the seal of “MSL DEPARTMENT OF FORENSIC MEDICINE AIIMS NEW DELHI” containing exhibit ‘6’. Exhibit ‘6’: Gauze cloth piece having brown stains described as ‘Blood in gauze’ RESULTS OF ANALYSIS

1. Blood was detected on exhibit ‘6’.

2. Blood could not be detected on exhibits ‘1a’, ‘1b’, ‘3’, ‘4’ and ‘5’.

3. Semen could not be detected on exhibits ‘1a’, ‘1b’, ‘2a’, ‘2b’, ‘2c’, ‘3’, ‘4’ and ‘5’.

4. Report of serological analysis in original is attached herewith.”

41. The aforesaid inconsistencies, when read in conjunction with the medical and forensic evidence on record, substantially weaken the prosecution case. The MLC of the prosecutrix does not record any external injuries or signs of bleeding, despite her categorical assertion that she was “bleeding like water” and that her clothes were soaked with blood. This version is further contradicted by the FSL report, which does not detect any blood on her clothes or any semen on the material exhibits. While the hymen was found to be ruptured, there is no indication as to whether the rupture was recent, and the medical evidence does not support the allegation of recent forcible sexual assault. These contradictions are not minor or trivial in nature but go to the root of the prosecution case, rendering the testimony of the prosecutrix unreliable and incapable of forming the sole basis for conviction.

42. This court places reliance upon the judgement of the Supreme Court in Ved Pal v. State of Haryana, 2023 SCC OnLine SC 1611, where it was observed that the testimony of the prosecutrix is not borne out by the surrounding circumstances, and the medical as well as forensic evidence fails to lend support to the prosecution case, the benefit of doubt must necessarily enure to the Accused/Respondent. The relevant portion of the judgement is reproduced hereinbelow:

43. In Santosh Prasad v. State of Bihar, (2020) 3 SCC 443, the Supreme Court held that where the testimony of the prosecutrix suffers from material contradictions, lacks credibility, and is not supported by medical or forensic evidence, it cannot be treated as a sterling piece of evidence to sustain conviction. The relevant portion of the judgment is extracted hereinbelow: “5.2. From the impugned judgments and orders passed by both the courts below, it appears that the appellant has been convicted solely relying upon the deposition of the prosecutrix (PW 5). Neither any independent witness nor even the medical evidence supports the case of the prosecution. From the deposition of PW 1, it has come on record that there was a land dispute going on between both the parties. Even in the cross-examination even PW 5, prosecutrix had admitted that she had an enmity with Santosh (accused). The prosecutrix was called for medical examination by Dr Renu Singh, Medical Officer and PW 7 Dr Renu Singh submitted injury report. In the injury report, no sperm as well as RBC and WBC were found. Dr Renu Singh, PW 7 Medical Officer in her deposition has specifically opined and stated that she did not find any violence marks on the body of the victim. She has also categorically stated that there is no physical or pathological evidence of rape. It is true that thereafter she has stated that possibility of rape cannot be ruled out (so stated in the examinationin-chief). However, in the cross-examination, she has stated that there was no physical or pathological evidence of rape.

5.3. As per the FSL report, the blood group on the petticoat and the semen on the petticoat are stated to be inconclusive. Therefore, the only evidence available on record would be the deposition of the prosecutrix. It cannot be disputed that there can be a conviction solely based on the evidence of the prosecutrix. However, the evidence must be reliable and trustworthy. Therefore, now let us examine the evidence of the prosecutrix and consider whether in the facts and circumstances of the case is it safe to convict the accused solely based on the deposition of the prosecutrix, more particularly when neither the medical report/evidence supports nor other witnesses support and it has come on record that there was an enmity between both the parties.

5.4. Before considering the evidence of the prosecutrix, the decisions of this Court in Raju [Raju v. State of M.P., (2008) 15 SCC 133: (2009) 3 SCC (Cri) 751] and Rai Sandeep [Rai Sandeep v. State (NCT of Delhi), (2012) 8 SCC 21: (2012) 3 SCC (Cri) 750], relied upon by the learned advocate appearing on behalf of the appellantaccused, are required to be referred to and considered. 5.4.1. In Raju [Raju v. State of M.P., (2008) 15 SCC 133: (2009) 3 SCC (Cri) 751], it is observed and held by this Court in paras 11 and 12 as under: (SCC p. 141)

5.5. With the aforesaid decisions in mind, it is required to be considered, whether is it safe to convict the accused solely on the solitary evidence of the prosecutrix? Whether the evidence of the prosecutrix inspires confidence and appears to be absolutely trustworthy, unblemished and is of sterling quality?

6. Having gone through and considered the deposition of the prosecutrix, we find that there are material contradictions. Not only there are material contradictions, but even the manner in which the alleged incident has taken place as per the version of the prosecutrix is not believable. In the examination-in-chief, the prosecutrix has stated that after jumping the fallen compound wall the accused came inside and thereafter the accused committed rape. She has stated that she identified the accused from the light of the mobile. However, no mobile is recovered. Even nothing is on record that there was a broken compound wall. She has further stated that in the morning at 10 o'clock she went to the police station and gave oral complaint. However, according to the investigating officer a written complaint was given. It is also required to be noted that even the FIR is registered at 4.00 p.m. In her deposition, the prosecutrix has referred to the name of Shanti Devi, PW 1 and others. However, Shanti Devi has not supported the case of the prosecution. Therefore, when we tested the version of PW 5, prosecutrix, it is unfortunate that the said witness has failed to pass any of the tests of “sterling witness”. There is a variation in her version about giving the complaint. There is a delay in the FIR. The medical report does not support the case of the prosecution. FSL report also does not support the case of the prosecution. As admitted, there was an enmity/dispute between both the parties with respect to land. The manner in which the occurrence is stated to have occurred is not believable. Therefore, in the facts and circumstances of the case, we find that the solitary version of the prosecutrix, PW 5 cannot be taken as a gospel truth at face value and in the absence of any other supporting evidence, there is no scope to sustain the conviction and sentence imposed on the appellant and the accused is to be given the benefit of doubt.”

44. A similar view has been taken by the Supreme Court in Dola v. State of Odisha, (2018) 18 SCC 695. The relevant portion of the aforesaid judgment is reproduced hereinbelow:

45. Insofar as the question concerning the age of the prosecutrix is concerned, in our considered opinion, the material placed on record by the prosecution to establish her age, particularly the entry in the school register, was insufficient to conclusively hold that the prosecutrix was below sixteen years of age, especially so in light of the contradictory evidence available before this court as in the present case, the only material placed on record to establish the age of the prosecutrix is the school record produced by PW-4, Brij Lal Sharma, PGT (Sanskrit), Government Co-educational Senior Secondary School, Delhi. Relevant portion of PW-4 statement is reproduced hereinbelow: “Today, I have brought the original record pertaining to Vibha Kumari who was the student of 7th standard in our school. As per the school record her date of birth is 1.03.99. Her date of birth was entered in our record on the basis of her previous SLC. Certificate issued to this effect by our Vice Principal is on Ex. PW 4/A bearing signature of Vice Principal Satpal Singh at point A. Copy of SLC is on Ex. PW 4/B and copy of admission register is on Ex. PW 4/C which are correct as per the original brought by me. XXXX by Sh. I.S. Kapur, counsel for accused. It is correct that there is an overwriting on the year of admission in the school in column in Ex. PW 4/B. Court observation: Originally the year was written as “08” but was overwritten as “05”. As per our procedure we had not taken any birth certificate from the student as he had furnished the school leaving certificate (Ex. PW4/B) from the previous school. It is correct that we do not get the said date of birth furnished by the student, verified from the records of MCD. We did not verify for how long student had studied in the previous school. We do not get the school leaving certificate furnished by the student, verified from the said school. Vol- If the same is from Government school, we do not get it verified. Transfer certificate is attested by the Education Department of the State Government only if the student is seeking transfer to another State and if the student is in senior school. It is incorrect to suggest that I am deposing falsely about this fact. This cutting/overwriting on the said TC Ex.PW4/B was there when the same was produced in our school records. This certificate was taken in school records by another teacher at that time. It is incorrect to suggest that I am deposing falsely about this fact as I was not present at the time when this document was produced in the school. I cannot admit or deny the correctness of the school leaving certificate produced by the girl as the same was not verified by our school. It is incorrect to suggest that age of the girl depicted in the school records is not correct. It is incorrect to suggest that school record is wrong and is not depicting the correct age of the girl.”

46. On a perusal of the aforesaid testimony, it is evident that the stated date of birth was not obtained from the records of the Municipal Corporation. The witness has further admitted that no verification was conducted regarding the period for which the student had studied in the previous school. It has also come on record that the school leaving certificate furnished by the student was not verified from the concerned previous school.

47. Furthermore, as has been rightly observed by the ld. Trial Court, PW- 2, in his testimony, specifically stated that the family had migrated from Bihar approximately twenty years prior to the incident and that his youngest son was three years old. This statement assumes significance as it materially affects the prosecution’s case with respect to the determination of age and renders the documentary evidence placed on record susceptible to doubt. The relevant portion of the said testimony is reproduced hereinbelow: “When we shifted from Bihar to Delhi my youngest child was 3 years old. I do not remember the name of the school in which my daughter Vibha was studying. My daughter Vibha was born in village. I did not submit date of birth certificate of my daughter Vibha in the school at Delhi. I did not bring School Leaving Certificate of Vibha from Bihar. I do not remember if the School Authority had asked me to furnish school leaving certificate or birth certificate of Vibha. I shifted to Delhi from Bihar about 20 years ago. I do not remember if Vibha was born one or two years after my marriage.”

48. The ld. Trial Court has, in our considered view, rightly dealt with and appreciated the issue concerning the age of the prosecutrix. Upon a careful scrutiny of the evidence and the reasoning adopted, this Court concurs with the findings so recorded and finds no reason to take a view different from that taken by the ld. Trial Court. The conclusion reached on the issue of age is well-founded and calls for no interference. The relevant portion is reproduced hereinbelow: “42.In the present case, PW-1 (Prosecutrix) has three brothers and one sister. Her elder brother, who is the eldest child of PW-2 (father of prosecutrix), is one year older to her. The youngest brother of prosecutrix is five-six years younger to her.PW-2 (father of prosecutrix) has deposed that he came to Delhi from Bihar about 20 years ago and his youngest child was three years old. Prosecutrix was born in the village in Bihar. He did not submit date of birth certificate of prosecutrix in the school at Delhi. He did not bring school leaving certificate from Bihar.PW-4, who has proved the date of birth certificate of prosecutrix submitted in the school, has admitted that he did not get the said date of birth certificate verified from the records of MCD.Hence, in the absence of bone-age X-Ray report of prosecutrix, which was however, got conducted as advised by the doctor examining the prosecutrix, and no verification of date of birth certificate of prosecutrix by the school authorities, the judgments referred above are squarely applicable to the facts and circumstances of the present case. Further, from the testimonies of PW-1 and PW-2, it is clear that youngest child of father of prosecutrix was about 23 years old and prosecutrix was 25-26 years old at the time of incident.”

49. From the testimony of PW-2, who is the father of the prosecutrix, it is evident that the family migrated from Bihar approximately 20 years prior to the incident. According to PW-2, his youngest son was three years old at the time of migration. Even for the sake of argument, if it is assumed that the prosecutrix is only one year older than her younger brother, her age would still not be less than 23 years on the date of the incident.

50. PW-4, who is a teacher from the school, stated that the date of birth of the prosecutrix was recorded on the basis of a previous school leaving certificate (SLC). However, the father of the prosecutrix deposed before the Court that he neither submitted any date of birth certificate at the school in Delhi nor brought any school leaving certificate from Bihar. Thus, the authenticity of the school leaving certificate allegedly issued by the Bihar school is doubtful.

51. The view taken by this Court is further fortified by the judgment of the Supreme Court in Manak Chand v. State of Haryana, (2024) 20 SCC 561. The relevant observations are reproduced hereinbelow:

ossification test for determination of the age of the prosecutrix. This has not been done in the present case. On the other hand, as per the clinical examination of the prosecutrix which was done by PW 1 Dr Kulwinder Kaur on 28-10-2000 and which has also been referred to in the preceding paragraph of the present judgment, we find that the secondary sex characteristics of the prosecutrix were well developed. The doctor in her report mentions that the prosecutrix is a “well-built adult female”. At another place it mentions “well developed pubic hair” and “external genitalia were fully developed and normal”. It then records her age as sixteen years as told to her by the mother of the prosecutrix. The report records that there were no external marks of injury over her breast, neck, face, abdomen and thigh. The report then concludes, inter alia, about her age as under: “At the time of medical examination of the patient, no force seems to have been used against her. I cannot opine about the age of the patient on the basis of development of her pubic hairs and genitalia, etc. The patient was habitual to sexual intercourse because her labia minora was hypertrophied and hymen admitted two fingers.”

52. Keeping in view the aforesaid judgments and the material inconsistencies emerging in the testimony of Prosecutrix PW-1, this Court is of the considered view that the prosecution’s case does not inspire confidence and gives rise to a reasonable doubt. Moreover, the medical evidence does not support or corroborate the prosecution story and, therefore, does not lend any assurance to the case set up by the prosecution. Further, the documentary evidence placed on record is not of such a nature as would enable this Court to conclusively determine the age of PW-1 as a minor.

CONCLUSION

53. In the considered opinion of this Court, the prosecution has failed to prove its case beyond reasonable doubt. The view taken by the ld. Trial Court is plausible and no perversity, illegality, or manifest error is made out so as to warrant interference with the order of acquittal.

54. Accordingly, the impugned judgment of acquittal passed by the ld. Trial Court is upheld.

55. The appeal is, accordingly, dismissed. Pending applications, if any, stand disposed of.

MADHU JAIN JUDGE PRATHIBA M. SINGH, J JUDGE APRIL 24, 2026