Full Text
HIGH COURT OF DELHI
JUDGMENT
RAVINDER @ KALU .....Appellant
RAGHUNATH @ CHHOTU .....Appellant
For the Appellant(s) : Mr. Madhav Khurana, Senior Advocate with Mr. Mohd. Faraz, Mr. Intkhab Alam, Mr. Abhinav Kumar, Mr. Asees Kaur and
Mr. Amit Badesra, Advs. for the appellant in
Mr. Harsh Prabhakar (DHCLSC) with Mr. Dhruv Chaudhary & Mr. Shubham Sourav, Advs. for the appellant in CRL.A. 441/2023.
For the Respondent : Mr. Ajay Vikram Singh, APP for the State
Inspector Sandeep & SI Paramjeet, PS- Ranhola
Ms. Dipika Saxena, Adv. for victim (through VC)
1. The present appeal is filed against the judgment dated 20.12.2022 (hereafter ‘impugned judgment’) and order on sentence dated 07.02.2023 (hereafter ‘impugned order on sentence’), passed by the learned Additional Sessions Judge (‘ASJ’), Tis Hazari Courts, Delhi, in SC No. 58007/2016 arising out of FIR No. 346/2016, registered at Police Station Ranhola (‘FIR’).
2. By the impugned judgment, the learned ASJ convicted the appellants for offences under Sections 328/324/376D/34 of the Indian Penal Code, 1860 (‘IPC’) and Section 6 of the Protection of Children from Sexual Offences Act, 2012 (‘POCSO Act’).
3. By the impugned order on sentence, the learned ASJ sentenced the appellants to undergo rigorous imprisonment of twenty years for the offence under Section 376D of the IPC and to pay a fine of ₹5,000/- each; to undergo rigorous imprisonment of three years for the offence under Section 328 of the IPC and to pay a fine of ₹1,000/each; and to undergo rigorous imprisonment of one year for the offence under Section 324 of the IPC and to pay a fine of ₹1,000/each. In default of payment of fine, the appellants were directed to undergo simple imprisonment for a period of ten days. The sentences were directed to run concurrently, however, imprisonment in default of sentence was directed to run consecutively.
4. The brief facts of the case are as follows: a. On 10.05.2016, at the instance of the prosecutrix, the FIR was lodged at Police Station Ranhola for offences under Sections 376D/328/323/342/365/363 of the IPC and Section 4 of the POCSO Act. b. It is the case of the prosecution that about six months before the registration of the FIR, when the prosecutrix was going to the market from her home, two unknown boys (that is, the appellants) forcefully made her drink a cold drink after which she started feeling dizzy and fell unconscious. c. It is alleged that when the prosecutrix regained consciousness, she was in a room and she felt slightly intoxicated. On being asked, the appellants told the prosecutrix that they were in Jhansi, Uttar Pradesh. The appellants allegedly committed rape upon the prosecutrix there for a period of 10-12 days. It is alleged that the prosecutrix found out in the meantime that she was being confined in a rented room in Panchwati, Gwalior. After a few days, the prosecutrix also learnt about the identity of the appellants and that they were cousins. d. From Gwalior, the appellant Raghunath allegedly took the prosecutrix to his village Khajri, Mohtala, Pachan District, Tikamgarh, Madhya Pradesh. During this time, the appellant Raghunath allegedly raped the prosecutrix multiple times. It is alleged that while staying in Tikamgarh, the appellant Raghunath got the signatures of the prosecutrix on some papers and told her that they had entered into a court marriage. The appellant Raghunath further established physical relations with the prosecutrix on a daily basis. It is alleged that the prosecutrix lived in the house of the appellant Raghunath like a married lady and the parents, brother and sister of the appellant Raghunath were also living in the same house. It is alleged that the appellant Raghunath used to take the prosecutrix to his work everyday. e. On 02.05.2016, the appellant Raghunath had beaten the prosecutrix very badly and tied her in the room. The prosecutrix cried a lot and was saved by the neighbours. The neighbours also took the number of her father from the prosecutrix and called him. Thereafter, on 03.05.2016, the father of the prosecutrix took her back home. f. During medical examination, multiple bruises and laceration marks were found on both legs of the prosecutrix. The date of birth of the prosecutrix was found to be 09.02.2000 as per her school certificate. g. The learned ASJ, by the impugned judgment, acquitted the appellants of the offences under Sections 363/365/366 of the IPC and held them guilty for the offences under Sections 328/324/376D/34 of the IPC and Section 6 of the POCSO Act. The learned ASJ found the school admission register which mentioned the date of birth of the prosecutrix as 09.02.2000 to be reliable and observed that the prosecutrix would have been about 15 years old at the time of the incident on the basis of the same. The appellants were acquitted of the charge for offences under Sections 363/365/366 of the IPC by the learned ASJ after considering the depositions of the defence witnesses and observing that the same seem to suggest that there was a possibility that the appellant Raghunath had known the prosecutrix prior to the incident. Furthermore, it was observed that it was incomprehensible as to why the father of the prosecutrix had failed to take any action in relation to his daughter being missing for over six months. The learned ASJ was also weighed by the fact that the prosecutrix had not raised any hue and cry and it was unbelievable that no one would come to the aid of the prosecutrix. h. The learned ASJ observed that the testimony of the prosecutrix had stood the test of cross-examination and considering that the prosecutrix was a minor at the time of the incident, her consent to sexual relations would have been immaterial. Taking note of the presumptions under Section 29 and 30 of the POCSO Act, the learned ASJ convicted the appellants for aggravated penetrative sexual assault, as is punishable under Section 6 of the POCSO Act, as no staunch evidence had been put forth by the appellants to show that they had not raped the prosecutrix. On the basis of the same observations, the appellants were also found guilty for the offence under Section 376D of the IPC. The appellants were also convicted for the offence under Section 324/34 of the IPC after taking into account the injuries suffered by the prosecutrix as per her MLC and her deposition in this respect. i. Aggrieved by the same, the appellants have preferred the respective appeals.
5. It is the case of the appellants that they were the learned ASJ had erred in convicting them without appreciating the inconsistencies in the case of the prosecution, especially in relation to the age of the prosecutrix.
6. The learned counsel for the appellants submitted that there were contradictions in respect to the age of the prosecutrix as she had stated that she was sixteen years old in her police complaint and claimed to be seventeen in her complaint to Mahila Ayog. They further submitted that no birth certificate was exhibited by the prosecution and the school register adduced by the prosecution is also insufficient as the same was based on the school leaving certificate of the previous school. They submitted that PW[4] had admitted during her crossexamination that she did not if the birth certificate of the prosecutrix was submitted at the time of her admission in the previous school.
7. They placed reliance on the exhibited voter ID card and notarized marriage affidavit which show that the age of the prosecutrix was nineteen years old at the time of the alleged incident. They also submitted that if the prosecutrix was being restrained against her will, it is unbelievable that she would support in making the voter ID which mentions her name as the wife of the appellant Raghunath.
8. They submitted that even though the learned ASJ came to the conclusion that the offence of kidnapping was not made out against the appellants, however, the defence evidence was not properly appreciated in relation to the consent of the prosecutrix on account of the erroneous assumption that the prosecutrix was a minor at the relevant time.
9. They further submitted that there is an unexplained delay in filing the FIR and it is implausible that the parents of the prosecutrix did not lodge any complaint after she allegedly went missing. They submitted that the explanation tendered by the father of the prosecutrix that he did not know where the police station is also illogical.
10. They submitted that the version of the prosecutrix belies logic and does not inspire confidence as it is unfathomable that the prosecutrix was not able to find a single person who was willing to help her for 6 months. They further submitted that even the learned Trial Court has observed that it is not believable that everybody who came in contact with the prosecutrix was taken into confidence.
11. They also pointed at the discrepancy in the version of the prosecutrix and her father wherein while the prosecutrix stated that the appellant Raghunath who had kept her in his home and got the papers signed for marriage, however, her father stated that it was appellant Ravinder who had kept the prosecutrix as his wife. They further submitted that there is discrepancy in the statement of the prosecutrix and her father in relation to the date when she was given beatings as well.
12. They submitted that the father of the prosecutrix did not make any complaint or inform the local police even after receiving the call about the whereabouts of the prosecutrix which suggests that he had prior knowledge that the prosecutrix was living with the appellant Raghunath.
13. They further submitted that the investigation was defective with significant gaps and no investigation was conducted in Jhansi and Tikamgarh. They further submitted that the relatives of the appellant Raghunath and the co-workers of the prosecutrix were also not examined to substantiate the case of the prosecution.
14. The learned counsel for the accused Ravinder further submitted that no charge under Section 324 of the IPC was ever framed against the accused Ravinder and his conviction for the aforesaid offence is unsustainable.
15. The learned Additional Public Prosecutor for the State and the learned counsel for the prosecutrix submitted that the impugned judgment is reasoned and warrants no interference.
16. They contested that the school admission register was sufficient to establish that the prosecutrix was a minor at the time of the incident. They submitted that in such circumstances, the presumptions under Section 29 and 30 of the POCSO Act are also in favour of the prosecution.
17. They further submitted that the discrepancies in the case of the prosecution are minor in nature and the deposition of the prosecutrix is sufficient to prove the case of the prosecution beyond reasonable doubt.
ANALYSIS
18. At the outset, it is relevant to note that while dealing with an appeal against judgment on conviction and sentence, in exercise of Appellate Jurisdiction, this Court is required to reappreciate the evidence in its entirety and apply its mind independently to the material on record. If the Appellate Court thinks it necessary, it can take additional evidence on record before disposing of the appeal as well.
19. In the present case, a number of arguments have been agitated on behalf of the appellants to impress upon this Court that their conviction is erroneous.
20. A bare perusal of the impugned judgment indicates that the issue of consent has been brushed over as immaterial on the ground that the prosecutrix was a minor. The defence adduced by the appellants to show that the prosecutrix was voluntarily living with the appellant Raghunath as his wife has not been considered, even though, the appellants have been acquitted of the offences under Sections 363/365/366 of the IPC on the basis of the same. The learned ASJ has also been heavily weighed by the presumptions prescribed in Sections 29 and 30 of the POCSO Act, and it has been observed that the appellants have been unable to displace the said presumptions.
21. As the minor age of the victim has evidently colored the opinion of the learned ASJ in returning a finding of guilt against the appellants, before the question of whether the offences are even made out can be evaluated, it is imperative to first tackle the arguments raised in relation to the age of the victim.
22. The learned ASJ had assessed the age of the prosecutrix by placing reliance upon the copy of the admission register (exhibit PW4/A), which indicates the date of birth of the prosecutrix as 09.02.2000. A sweeping observation has also been made by the learned ASJ that nothing contradictory has come out in the examination of PW[4].
23. It is argued that the prosecution has failed to establish that the prosecutrix was a minor at the relevant time. Much emphasis has been laid on the argument that the admission register, on the basis of which the age of the prosecutrix was determined, is based on the prosecutrix’s school leaving certificate of previous school. It is argued that the same is not credible as PW[4] (Ms. Taruna, TGT Science, GGSSS, AI' Block, Shalimar Bagh, Delhi), who deposed in relation to the authenticity of the admission register, has admitted that she does not know if the birth certificate of the prosecutrix was adduced at the time of admission. The appellants also placed reliance on the voter ID of the prosecutrix (Exhibit PW1/D[2]) and the notarised marriage affidavit (Exhibit PW1/D[1]), which show that the prosecutrix was allegedly nineteen years of age at the relevant time.
24. In the case of Jarnail Singh v. State of Haryana: (2013) 7 SCC 263, it was held that insofar as the issue of minority is concerned, it would be reasonable to apply the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000 [now replaced with the Juvenile Justice (Care and Protection of Children) Act, 2015 (‘JJ Act’)].
25. Section 94 of the JJ Act deals with the presumption and determination of age. The relevant portion of the same is reproduced hereunder: “(2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining —
(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof;
(ii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board: Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order”
26. Although the dictum in the case of Jarnail Singh v. State of Haryana (supra) and the aforesaid provision have been aptly considered in the impugned judgment, however, the learned ASJ erred in not appreciating that the documents adduced by the prosecution to establish the age of the prosecutrix are insufficient for the said purpose. In the case of P. Yuvaprakash v. State: 2023 SCC OnLine SC 846, the Hon’ble Apex Court had opined that school transfer certificate and extracts of admission register do not satisfy the mandate of documents mentioned in Section 94(2)(i) of the JJ Act, and they cannot be the basis of determining the age of the victim. The relevant portion of the judgment is reproduced hereunder:
Corporation or Municipal Authority or Panchayat and it is only thereafter in the absence of these such documents the age is to be determined through “an ossification test” or “any other latest medical age determination test” conducted on the orders of the concerned authority, i.e. Committee or Board or Court. In the present case, concededly, only a transfer certificate and not the date of birth certificate or matriculation or equivalent certificate was considered. Ex. C[1], i.e., the school transfer certificate showed the date of birth of the victim as 11.07.1997. Significantly, the transfer certificate was produced not by the prosecution but instead by the court summoned witness, i.e., CW-1. The burden is always upon the prosecution to establish what it alleges; therefore, the prosecution could not have been fallen back upon a document which it had never relied upon. Furthermore, DW-3, the concerned Revenue Official (Deputy Tahsildar) had stated on oath that the records for the year 1997 in respect to the births and deaths were missing. Since it did not answer to the description of any class of documents mentioned in Section 94(2)(i) as it was a mere transfer certificate, Ex C-1 could not have been relied upon to hold that M was below 18 years at the time of commission of the offence. xxx
18. Reverting to the facts of this case, the headmaster of M's School, CW-1, was summoned by the court and produced a Transfer Certificate (Ex.C-1). This witness produced a Transfer Certificate Register containing M's name. He deposed that she had studied in the school for one year, i.e., 2009-2010 and that the date of birth was based on the basis of the record sheet given by the school where she studied in the 7th standard. DW-2 TMT Poongothoi, Headmaster of Chinnasoalipalayam Panchayat School, answered the summons served by the court and deposed that ‘M’ had joined her school with effect from 03.04.2002 and that her date of birth was recorded as 11.07.1997. She admitted that though the date of birth was based on the birth certificate, it would normally be recorded on the basis of horoscope. She conceded to no knowledge about the basis on which the document pertaining to the date of birth was recorded. It is stated earlier on the same issue, i.e., the date of birth, Thiru Prakasam, DW-3 stated that the birth register pertaining to the year 1997 was not available in the record room of his office.
19. It is clear from the above narrative that none of the documents produced during the trial answered the description of “the date of birth certificate from the school” or “the matriculation or equivalent certificate” from the concerned examination board or certificate by a corporation, municipal authority or a Panchayat. In these circumstances, it was incumbent for the prosecution to prove through acceptable medical tests/examination that the victim's age was below 18 years as per Section 94(2)(iii) of the JJ Act. PW-9, Dr. Thenmozhi, Chief Civil Doctor and Radiologist at the General Hospital at Vellore, produced the X-ray reports and deposed that in terms of the examination of M, a certificate was issued stating “that the age of the said girl would be more than 18 years and less than 20 years”. In the cross-examination, she admitted that M's age could be taken as 19 years. However, the High Court rejected this evidence, saying that “when the precise date of birth is available from out of the school records, the approximate age estimated by the medical expert cannot be the determining factor”. This finding is, in this court's considered view, incorrect and erroneous. As held earlier, the documents produced, i.e., a transfer certificate and extracts of the admission register, are not what Section 94(2)(i) mandates; nor are they in accord with Section 94(2)(ii) because DW-1 clearly deposed that there were no records relating to the birth of the victim, M. In these circumstances, the only piece of evidence, accorded with Section 94 of the JJ Act was the medical ossification test, based on several X-Rays of the victim, and on the basis of which PW-9 made her statement. She explained the details regarding examination of the victim's bones, stage of their development and opined that she was between 18-20 years; in cross-examination she said that the age might be 19 years. Given all these circumstances, this court is of the opinion that the result of the ossification or bone test was the most authentic evidence, corroborated by the examining doctor, PW-9.” (emphasis supplied)
27. In the present case, as noted above, the age of the prosecutrix was sought to be established essentially on the basis of the admission register of the prosecutrix. PW[4] has deposed that the at the time of admission, the School Leaving Certificate (Exhibit PW4/C) of the previous school of the prosecutrix had been submitted. PW[4] has admitted during cross examination that she could not tell whether the birth certificate of the prosecutrix had been deposited at the time of her admission in the school from where the School Leaving Certificate of the prosecutrix was issued. The prosecution has not examined anyone from the previous school of the prosecutrix or adduced any evidence to clarify the basis of the date of birth mentioned in the School Leaving Certificate. The same creates a doubt on the veracity of the mentioned date of birth in the admission register, especially in view of the inconsistent claims of the prosecutrix, who has stated that she is sixteen (in complaint to Mahila Ayog) and seventeen (in police complaint) on different instances. As also noted by the Hon’ble Apex Court in the case of P. Yuvaprakash v. State (supra), the reliance on such school records for determining age is unsustainable as they do not fall under any of the listed categories in Section 94(2)(i) of the JJ Act.
28. Moreover, concededly, the actual birth certificate of the prosecutrix has not been exhibited by the prosecution. It is relevant to note that the father of the prosecutrix (PW[2]) has deposed that no birth certificate of his daughters (including the prosecutrix) was ever prepared in his village or in Delhi. The mother of the prosecutrix (PW[7]) has also deposed that she does not remember the age of her children and their birth certificates were not obtained from MCD office. Even the prosecutrix has stated during cross examination that she does not know whether she has a birth certificate issued by MCD.
29. Even though the voter ID as well as the marriage affidavit adduced by the appellants creates doubt in relation to the age of the prosecutrix, however, it cannot be ignored that the said documents also do not fall under either of the class of documents mentioned in Section 94 of the JJ Act.
30. It is argued on behalf of the appellants that since the prosecution has failed to establish that the prosecutrix was a minor at the time of the incident, the benefit of doubt ought to be granted to the appellants.
31. While the case of the appellant Ravinder stands on a slightly different footing, it cannot be ignored that the appellant Raghunath has taken the defence that the prosecutrix was living with him as his wife and that she had represented herself to be an adult. The defence has also examined certain witnesses to establish the voluntary and consensual nature of the relationship between the appellant Raghunath and the prosecutrix. One of such witnesses was the friend of the prosecutrix (DW[1]), who deposed that the prosecutrix wanted to marry the appellant Raghunath. Another defence witness is their landlord (DW[3]), who deposed that the prosecutrix and the appellant Raghunath had lived in his house for 5-6 months as a married couple.
32. In the peculiar facts of the case, where one of the convicts is admitting to a marital relationship with the prosecutrix, the Court cannot act as a mere spectator and opt for a lethargic approach by conferring the benefit of the prosecution’s folly on the appellants. Consent of a minor is irrelevant and if the prosecutrix was indeed a minor at the relevant time, the same would have a significant bearing on the case, especially since the learned Trial Court has found that the prosecutrix had not been kidnapped and gone willingly with the accused persons. Moreover, the prosecutrix being a minor would also lead to the statutory presumptions coming into play.
33. It is the duty of the Court to proactively ensure, within the bounds of law, that complete and absolute justice is done, and to make sure that an accused who is guilty is not allowed to get off scot-free. The failure of the prosecution to lead cogent proof, which establishes that the prosecutrix was a minor at the time of the incident, does not preclude the Court from getting to the root of the matter and calling for evidence to satisfy itself on this aspect.
34. In the case of State (GNCT of Delhi) v. Hargovind: 2018 SCC OnLine Del 9607, wherein the learned Trial Court had acquitted the accused therein by observing that the prosecution had failed to establish that the prosecutrix was a minor at the time of the incident, the Division Bench of this Court considered as to whether the Court would be justified in presuming the prosecutrix was a major or if it was obliged to call for medical examination of the witness. It was noted that considering that the victim had eloped with the accused therein voluntarily, the learned Trial Court should have resorted to medical examination of the prosecutrix to determine her age in terms of Rule 12 of the Juvenile Justice (Care & Protection of Children) Rules, 2007 (‘JJ Rules’). Pursuant to the said observations, the mater was sent to the learned Special Court for recording additional evidence. In the opinion of this Court, the said approach needs to be adopted in the present case and it is incumbent on this Court to pass similar directions in light of the ambiguity surrounding the age of the victim.
35. In view of the above, considering that the prosecution has failed to establish the age of the prosecutrix by adducing the prosecutrix’s birth certificate from the school, her matriculation or equivalent certificate from the concerned examination Board or her birth certificate given by a corporation or a municipal authority or a panchayat, her age is to be determined in terms of Section 94 (2)(iii) of the JJ Act.
36. As done in the case of State (GNCT of Delhi) v. Hargovind (supra), by invoking the powers under Section 348 of the Bharatiya Nyaya Suraksha Sanhita, 2023 (earlier Section 311 of the Code of Criminal Procedure, 1973) read with Section 168 of the Bharatiya Sakshya Adhiniyam, 2023 (earlier Section 165 of the Indian Evidence Act, 1872), this Court considers it apposite to direct the recording of further evidence on the aspect of age of the prosecutrix during the relevant period, including by resorting to Rule 12 of the JJ Rules, if necessary.
37. The learned Special Court is directed to record additional evidence on this limited aspect within a period of 6 months, and to send the same to this Court thereafter. It is made clear that the prosecution and the defence would be entitled to lead additional evidence on the said aspect. Let a digitized copy of the TCR be sent back to the Special Judge forthwith.
38. Let a copy of this order be communicated to the concerned Principal District & Sessions Judge for compliance and listing before the Special Court on 25.08.2025.
39. The parties are directed to appear before the concerned Special Court on 25.08.2025.
40. The hearing in the present appeal is accordingly deferred.
41. List the appeal on 05.03.2026 before this Court.
42. It is clarified that at this stage, this Court has only considered the limited aspect of the age of the prosecutrix and not expressed its opinion in relation to the other arguments advanced by the appellants. CRL.M.(BAIL) 281/2023 & CRL.M.(BAIL) 774/2023
43. The present applications have been filed by the appellants seeking suspension of sentence of the appellants and their release on bail till the disposal of the present appeal.
44. In case the prosecutrix is adjudged to be a major at the time of the incident, considering that the appellants were acquitted of the offences under Sections 363/365/366 of the IPC owing to the delay in lodging the complaint as well as deposition of defence witnesses which indicated that the prosecutrix wanted to marry the appellant Raghunath and lived with him willingly as his wife, prima facie, there is a good probability that the appellant Raghunath will be acquitted in the present case.
45. Insofar as the appellant Ravinder is concerned, as noted above, his case stands at an even better footing than the appellant Raghunath.
46. Moreover, recording of further evidence and the final adjudication of the appeal will take considerable amount of time.
47. The appellant Ravinder has already spent more than five years in custody while the appellant Raghunath has spent more than six years in custody. The appellants were released on bail during the trial and they did not misuse the liberty.
48. The appellants belong to the poor strata of society. It was pointed out during the course of arguments that the appellant Ravinder is a married man with two minor children to take care of and the appellant Raghunath is responsible for taking care of his aged parents.
49. It is also important to note that apart from the present case, the appellants have no other criminal involvements.
50. Considering the same, this Court therefore considers it apposite to suspend the impugned order on sentence till the pendency of the present appeal. The appellants are directed to be released on furnishing a personal bond for a sum of ₹20,000/- with two sureties of the like amount respectively, subject to the satisfaction of the concerned Trial Court, on the following conditions: a. The appellants shall not contact the victim or any other witnesses associated with the case; b. The appellants shall furnish a proof of residence where they shall reside upon their release, which should be at least 5 KM far from the locality where the prosecutrix resides, subject to the satisfaction of the concerned IO/SHO. The appellants shall not change the address without informing the concerned IO/ SHO; c. The appellants shall, under no circumstances, leave the country without the permission of the Court; d. The appellants shall, upon their release, give their mobile number to the concerned IO/SHO and shall keep their mobile phone switched on at all times; e. The appellants shall appear before this Court as and when directed.
51. The present applications are allowed in the aforesaid terms. AMIT MAHAJAN, J AUGUST 14, 2025