Full Text
HIGH COURT OF DELHI
Date of Hearing & Decision: 26th August, 2011
STATE NCT OF DELHI ..... Petitioner
Through: Ms. Richa Kapoor, APP for the State.
Through: None.
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
1. Whether reporters of local papers may be allowed to see the Order?
2. To be referred to the Reporter or not?
3. Whether the Order should be reported in the Digest?
JUDGMENT
G. P. MITTAL, J (OPEN COURT)
1. The State seeks leave to file an appeal against a judgment dated 30.04.2010 passed by the Addl. Sessions Judge in Sessions Case No.139/2009 whereby the Respondent Rishi Pal (the accused) was acquitted of the charge for the offences punishable under sections 376/ 328/ 506/ 363 Indian Penal Code (IPC).
2. In a nut shell, the prosecution case is that on 27.06.2006 the complainant Ranbir Singh (prosecutrix’s father) reached Police Station (PS) Narela reported that his 2011:DHC:4375-DB daughter aged about 14 years had left the home on 21.06.2006 at about 6 P.M. He (the complainant) searched for his daughter but without any success. He informed the Duty Officer that he suspected that his daughter had been kidnapped by said Rishi Pal, a boy living in the neighbourhood.
3. The investigation was assigned to SI Mahender Singh PW-11 (IO). The IO received a secret information that the prosecutrix “S” and the accused (Rishi Pal) were likely to come to old Delhi railway station (the railway station). He (the IO) along with the complainant reached the railway station. At about 3:30 P.M. Rishi Pal and “S” were seen coming out of the railway station. “S” was recovered from the accused. Statement under section 161 Criminal Procedure Code (Cr.P.C.) of “S” was recorded. The accused was interrogated and then arrested. The prosecutrix and the accused were medically examined. On medical examination the doctor did not notice mark of any struggle. The hymen was not seen. Ossification test of “S” was conducted and the bone age of the prosecutrix was estimated to be between 16 to 17 years. After completion of the investigation a report under Section 173 Cr.P.C. was filed against the accused.
4. On accused’s pleading not guilty to the charge, the prosecution examined 13 witnesses.
5. PW-1 Ranbir Singh is the complainant and prosecutrix’s father. He deposed that on 21.06.2006 at about 6:00 P.M. his daughter “S” went to Narela to buy some vegetables. She did not return till 8:30 P.M. He made inquiries from his wife’s sister and in the market. It was revealed that the prosecutrix was seen in the market (at Narela) at 9:00 P.M. Thereafter she was not seen. He testified that on 21.06.2006 at about 11:00 A.M., he went to PS Narela and lodged a report suspecting the accused. The complainant then deposed about arrest of the accused and recovery of the prosecutrix from the railway station.
6. PW-2 is the prosecutrix. She deposed that one day perhaps it was 27th, she went to Narela Mandi to purchase vegetables. The accused met her and gave her prasad in the form of a Rasgulla, after eating which she became unconscious. The accused took her to his aunt’s (Bua’s) house at Shamli (U.P.). He did galat kaam with her. After one day the accused took her to Dehradun and kept her there for 2 – 3 days in a rented room and had sexual intercourse after threatening her with a knife. She deposed that the accused took her to the jungle/ hilly area and raped her. He spent his money and brought her back to Delhi by a train. At the railway station, they were apprehended by the police.
7. In order to give him an opportunity to explain the incriminating evidence produced by the prosecution, the accused was examined under Section 313 Cr.P.C. He denied the prosecution allegation, and stated that he was in love with the prosecutrix. On 21.06.2006 the prosecutrix herself expressed her desire to go out and spend some holidays together. On 21.06.2006 they went to Shamli. On 22.06.2006 on the prosecutrix desire they went to village Khusalpur District Saharanpur at his friend’s house. They returned to Delhi on 26.06.2006. On reaching Narela Shiv Bhagwan, Pradhan informed them that the prosecutrix’s father (the complainant) was about to lodge a false complaint against them. They went to Police Station Narela. The police called the prosecutrix’s father, who asked him to marry the prosecutrix. He refused as he was already married. The prosecutrix was threatened and scolded by her father at the Police Station. She was also slapped by the police official. The accused took the plea that the prosecutrix had deposed falsely against him under pressure of her father and that she had accompanied him of her own free will and consent.
8. The accused examined Smt. Darshan (the accused’s Bua) as DW-1. She testified that on 21.06.2006 the accused came at her house with the prosecutrix. He told her that he was in love with the prosecutrix. They were served dinner. Next morning the accused and the prosecutrix went to Dehradun. She deposed that prosecutrix was fully conscious and active while she was at her house.
9. By impugned judgment the Trial Court acquitted the accused of all charges holding that there was no documentary evidence regarding the prosecutrix’s age. The oral evidence adduced was contradictory and as per ossification test her age was between 16 to 17 years. The Trial Court held that the prosecutrix had accompanied the accused of her free volition and had sexual intercourse with him of her free will. The Trial Court disbelieved the prosecutrix that she was given any Rasgulla (laced with any sedative). The Trial Court opined that if the prosecutrix was not a consenting party, she had the opportunity to raise an alarm while she was travelling in a Jeep, in a Tractor and on foot from one place to another i.e. at Shamli, Dehradun, etc. The Trial Court further held that as per ossification test, the age of the prosecutrix was between 16 to 17 years. The accused was entitled to the benefit of two years as per the law laid down by the superior courts. The Trial Court relied on Narender Singh v. State of M.P., (1996) Crl. L. J. 198; Jaya Mala v. Home Secretary, Government of J & K, AIR 1982 SC
1297.
10. Ms. Richa Kapoor, learned APP argues that the Trial Court committed an error in drawing an inference that the prosecutrix was a consenting party simply on the ground that the prosecutrix had travelled from one place to another in the accused’s company. It is contended by the learned counsel that once the doctor said that the margin of age was between 16 to 17 years, no further concession could have been given to the accused and, therefore, even if the accused was not guilty for the offence punishable under Section 376 IPC, he was surely liable under Section 363 IPC as a girl cannot attain majority before completion of the age of 18 years for the purpose of Section 363 read with Section 361 IPC. The reasoning given by the Trial Court for disbelieving the prosecution version is extracted hereunder: -
15. The testimony of the prosecutrix is inconsistent. She has not only made improvements but has also contradicted herself by changing her statement time and again. In court, she states that she knew the accused one and a half months prior to the incident but in the statement before the police, she stated that accused was known for the last 5-6 months to her. At one place in cross examination, she stated that she had gone to Narela Mandi without informing her parents but in the same breath, she states that her mother had given ` 100/- to her for purchasing vegetables. While lodging FIR, the father of the prosecutrix stated that prosecutrix had left the house without informing anyone but in his cross examination in court, he stated that he had given ` 100/- to his daughter for the purchase of vegetables. PW-1 states in cross examination that her daughter and accused were not known to each other but the prosecutrix states that she knew the accused since last about one and a half months of the incident. The statement given by prosecutrix in her cross examination that no one was present in the Mandi at about 6.00 – 6.30 pm at the cloth shop of the accused, appears to be improbable. It is difficult to accept that at the evening time, no person was present in Mandi which usually bristles with lot of crowd. At one place in her cross examination, prosecutrix states that she does not know as to how the accused took her from Mandi and that she had gained consciousness after two days but thereafter, changed her version by stating that she was taken to the house of Bua of accused in a jeep. At one place, she states that she came to know that accused had taken her to his Bua’s house after three days when the accused himself stated so to her but in further cross examination, she stated that she had seen a lady aged about 40-45 years at the house of Bua of accused. She admits in cross examination that when she had left the house of Bua of accused in the morning, she was fully conscious but despite this, she did not tell the Bua of the accused that she was kidnapped by accused or he was threatening her. She made no resistance against accused taking her to Dehradun in a tractor. As per her own admission, the tractor was taken from the bus stand and that they had gone on foot to the bus stand. It appears that she made no effort to escape and made no hue and cry against her taking by the accused. There is a long distance between Shamli and Dehradun. She continued travelling with accused without any resistance. It appears that she did not complain to any person at Dehradun or at hills where she was kept by the accused. She made no complaint even to the two police personnels who were only at a distance of about 4-5 feet when she noticed them in Shamli. Her explanation that she was threatened by accused by showing her knife is not acceptable as the prosecutrix had sufficient opportunity to escape and complain against accused to the police officials and other people. The conduct of the prosecutrix is suspicious and it appears that she herself was willing to accompany the accused. On scrutiny of her evidence, it becomes clear that she neither offered any resistance or raised any alarm. On the contrary, it appears that she accompanied the accused in the jeep, tractor and train……..”
11. PW-6 Dr. Shipra Rampal conducted ossification test to determine the prosecutrix’s age. After examining the X-ray plates, she estimated prosecutrix’s bone age to be between 16 to 17 years. Her testimony was not challenged in cross-examination. It was not put to her that any further concession could be given in the estimation of the age. In the case of State of U.P. v. Chhotey Lal, 2011 (2) SCC 550, the Supreme Court deprecated the practice of adding two years in the age of the prosecutrix opined on the basis of radiological examination. In para 13 the Supreme Court observed as under: -
15. Similar observations were made by the Supreme Court in Lalta Prasad v. State of
16. It is evident that the prosecutrix herself left the guardianship and willingly went with the accused to have his company. Applying the ratio of S. Varadarajan, Lalta Prasad, Raja Ram and Shyam (supra) it cannot be said that the prosecutrix was taken out of the lawful guardianship. Thus the finding of the Trial Court on this count too cannot be faulted.
17. The conclusion reached by the Trial Court is based on correct appreciation of law and does not call for any interference. It is well settled that the High Court entertain a review and a second look against an order of acquittal where there are substantial and compelling reason i.e. where the High Court finds that there is gross misreading of the evidence and non-application of law resulting into miscarriage of justice. None is found here. We are, therefore, not inclined to entertain the leave petition. The same is accordingly dismissed.
G. P. MITTAL, J. S. RAVINDRA BHAT, J.
AUGUST 26, 2011 hs