Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
RESERVED ON : MARCH 10, 2015
DECIDED ON : MARCH 24, 2015
+ CRL.A. 586/2003
LOVE KUMAR @ BITTOO ..... Appellant
Through : Mr.M.L.Yadav, Advocate.
versus
STATE OF DELHI ..... Respondent
Through : Ms.Kusum Dhalla, APP.
CORAM:
HON’BLE MR. JUSTICE S.P.GARG
S.P.GARG, J.
1. Aggrieved by a judgment dated 16.08.2003 of Additional
Sessions Judge in Sessions Case No.618/2002 arising out of FIR 211/02
registered at Police Station Ambedkar Nagar by which the appellant Love
Kumar @ Bittoo was held guilty for committing offences under Section
376/452 IPC, the instant appeal has been filed by him. By an order dated
18.08.2003, RI for three years with fine ` 500/- under Section 452 IPC and
RI for seven years with fine ` 500/- under Section 376 IPC was awarded to
him.
Crl.A.586/2003 Page 1 of 8
2. Briefly stated, the prosecution case as projected in the
charge-sheet was that the appellant sexually assaulted ‘M’ (assumed
name), aged about 13 years after putting her in fear at the point of knife at
the roof of her House No.1/359 Dakshinpuri, New Delhi at about 3:00
p.m. before 1.5.2002. The police machinery swung into action when the
incident was reported vide daily diary (DD) No.31 B (Ex.PW-8/A)
recorded at 1:22 p.m. on 1.5.2002 at Police Station Ambedkar Nagar. FIR
was lodged after recording victim’s statement (Ex.PW-1/A). The
prosecutrix was medically examined. The accused was arrested and
medically examined. Statements of witnesses conversant with the facts
were recorded. After completion of investigation, a charge-sheet was
filed against the appellant for the commission of aforesaid offences. To
establish appellant’s guilt, the prosecution examined ten witnesses in all.
In 313 statement, the appellant denied his complicity in the crime and
pleaded false implication. He examined DW-1 (Udai Singh) and DW-2
(Deepak) in defence. The trial resulted in his conviction as aforesaid.
Being aggrieved and dissatisfied, the instant appeal has been preferred.
3. I have heard the learned counsel for the parties and have
examined the file. The incident occurred about six months prior to the
lodging of the report. Exact date when the occurrence took place has not
Crl.A.586/2003 Page 2 of 8
been established. Undisputedly, there is inordinate delay of about six
months in lodging the report with the police. No cogent and plausible
explanation has been offered by the prosecution witnesses for the delay.
‘X’in her Court statement attempted to justify it and deposed that she
suspected the appellant’s hand in the disappearance of her cousin for the
last five or six months and due to fear, she did not lodge the report. No
such reason finds mention in her initial statement given to the police
(Ex.PW-1/A). PW-2 (Vijay Kumar), ‘M’s cousin who was allegedly
present at the time of occurrence contradicted her and in the cross-
examination disclosed that he had apprised his mother about the incident
same day. Her mother had scolded the accused after calling him. The
prosecution did not examine prosecutrix’s uncle and aunt to ascertain as to
what had prevented them not to lodge the report with the police at the
earliest. PW-8 (SI Kailash Chand), the Investigating Oficer, revealed that
he had inquired from the prosecutrix about delay in lodging the complaint
and her reply was that she was under threat extended by the accused.
Inconsistent version has been given by the prosecution witnesses and the
delay has remained unexplained. The prosecutrix and her cousins were
not expected to be under threat for long six months and not to lodge the
report with the police. It is unclear if the appellant had given threat to ‘M’
Crl.A.586/2003 Page 3 of 8
on any specific date. The appellant lived in their neighbourhood. Nothing
has come in record if at the time of occurrence he was armed with knife;
no such knife was recovered in the instant case. The prosecutrix and her
family members had no real apprehension not to lodge the report with the
police. It is true that delay in lodging the First Information Report cannot
be used as a ritualistic formula for discarding the prosecution case and
doubting its authenticity. It, however, puts the court on guard to search
for and consider if any explanation has been offered for the delay. In
case, the prosecution fails to satisfactorily explain the inordinate delay and
there is possibility of embellishment or exaggeration in the prosecution
version on account of such delay it is a relevant factor.
4. Findings of the trial court that the appellant established
forcible physical relation with the prosecutrix against her wishes after
putting her in fear cannot be accepted. The prosecutrix and the appellant
were acquainted with each other before the incidence. The appellant lived
in her neighbourhood. On the day of incidence ‘M’s aunt was sleeping in
the house on the ground floor and her two cousin were with her on the
roof. The appellant came on the roof through the staircase of the house.
No alarm, whatsoever, was raised either by the prosecutrix or her cousins
to attract the attention of her aunt or neighbours when allegedly the
Crl.A.586/2003 Page 4 of 8
appellant was armed with a knife and had confined the children in an
adjacent room. Even after sexual assault when the appellant left the spot
and the prosecutrix came out of the room, she did not raise hue and cry.
She rather kept mum and did not inform her close family members. She
remained silent for about six months. Though she felt pain due to sexual
assault, yet she was not taken to any doctor for medical examination. She
did not suffer any visible injury/struggle marks on her body. When she
was medically examined after about six months, there was least possibility
of any such injury to be noticed/detected on her body. Her hymen was
found ‘torn’; vagina admitted two fingers with difficulty as reflected in
the MLC (Ex.PW-7/A). It seems that the prosecutrix and the appellant
were in regular touch and it led to the lodging of DD No.31 B (Ex.PW-
8/A) where it was disclosed that the appellant was sexually assaulting the
prosecutrix for the last 5/6 months. PW-2 (Vijay Kumar) her cousin did
not find any injury on her body. Blood stained clothes of the prosecutrix
were not seized. In fact, the whole evidence which could have been
collected to confirm sexual assault washed away due to inordinate delay
in lodging the report. PW-2 too did not suffer any injury on his body. He
also did not shout when allegedly pushed into a room. The other cousin
Krishan KUmar did not appear for evidence. From the circumstances
Crl.A.586/2003 Page 5 of 8
referred above, it can be inferred that physical relations (if any) were the
result of free consent of the prosecutrix.
5. To infer appellant’s guilt, age of the prosecutrix on the day of
incident is of utmost relevance. Admitted position is that the prosecutrix
th
had studied upto V Standard in a school in her native place. However,
no school record depicting her date of birth was produced before the
Investigating Officer. The IO did not collect any birth certificate of the
prosecutirx from her native village. ‘M’ lived in her native village before
coming to reside with her uncle and aunt in Delhi after the death of her
parents. She alone shifted to Delhi whereas her real sister and brother
continued to stay in the village. No reasonable explanation has been
offered by the Investigating Officer as to why the best piece of evidence
to ascertain the age of the prosecutrix was not collected during
investigation. ‘M’s close relatives including her uncle and aunt who could
have requisite knowledge about her birth/studies were not produced for
examination. The prosecutrix claimed herself of 13 years old without any
proof. Ossification test was conducted to ascertain her age and as per
ossification report (Ex.PW-10/A) given by Dr.Levina Varma (PW-10) her
age was in between 13 to 14.9 years. No positive evidence regarding the
exact date of birth of the prosecutrix surfaced. Ossification test is not a
Crl.A.586/2003 Page 6 of 8
sure test as to the age of the prosecutrix. It gives only an approximate age
which may vary by two years on either side. This Court in Akil Ahmad
vs.State 2014 (3) JCC 1543 held the prosecutrix therein to be major
considering the X-ray report where her age was opined to be 14 to 17
years. It relied upon Jayamala v.Home Secretary, Govt. of J& K AIR
1982 SC 1297 where it was observed “However, it is notorious and one can
take judicial notice that the margin of error in age ascertained by radiological
examination is two years on either side” . Reliance was also placed on
Mahabir Prasad vs.State 1999(1) Crimes 1 where it was held “ On
consideration of the entire evidence on record and the judgment cited at
the bar, if there can be difference of two years, even in thë ossification
tests, in that event, the benefit of doubt has to go to the accused”. In Ram
Suresh Singh vs.Prabhat Singh @ Chhotu Singh and Anr. AIR 2009 SC
2805, similar view was taken. Under these circumstances, considering the
age determined in the ossification report and the variation of two years to
be given on either side, it can be inferred that the prosecutrix was above
16 years of age on the day of occurrence and was capable to give consent.
6. In the light of the above discussion, the appeal is allowed.
Conviction and sentence recorded by the trial court are set aside. Copy of
this order be sent to the concerned Jail Superintendent for information and
Crl.A.586/2003 Page 7 of 8
necessary action. Trial court record be sent back along with a copy of this
order. Bail bond and Surety bond furnished by the appellant stand
discharged.
(S.P.GARG)
JUDGE
MARCH 24, 2015
sa
Crl.A.586/2003 Page 8 of 8