Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.A. 282/2011 & Crl. M.B. 188/2013
th
% Reserved on: 13 February, 2013
th
Decided on: 25 April, 2012
RAMESH PATEL @ RAHUL ..... Appellant
Through: Mr. B.L. Goswami, Advocate.
versus
STATE ..... Respondent
Through: Mr. Manoj Ohri, APP with SI Anil
Kumar, PS Sangam Vihar, Delhi.
Coram:
HON’BLE MS. JUSTICE MUKTA GUPTA
th
1. By the present petition the Appellant impugns the judgment dated 6
January, 2011 whereby the Appellant was convicted for offence under
th
Sections 376/506 IPC and the order on sentence dated 11 January, 2011
whereby he was directed to undergo Rigorous Imprisonment for seven years
and to pay a fine of Rs. 2,000/- for offence punishable under Section 376
IPC and in default of payment of fine to further undergo Simple
Imprisonment for six months and Rigorous Imprisonment for two years and
a fine of Rs. 1,000/- for offence under Section 506 IPC and in default of
payment of fine to further undergo Simple Imprisonment for two months.
2. Learned counsel for the Appellant contends that since the school
certificate of the prosecutrix was not sufficient proof of the age, the
prosecution ought to have got the ossification test conducted. At the time of
incident the prosecutrix was above 18 years of age even as per the statement
of the witnesses. PW5, father of the prosecutrix stated that he was settled in
Delhi in 1989 and thus the prosecutrix was above 18 years. Neither any
Crl. Appeal No. 282 of 2011 Page 1 of 6
record from the hospital nor the MCD was asked to verify the factum of age
nor was any witness from neighbourhood examined. Further the prosecutrix
admitted that she performed intercourse with the Appellant 12-14 times.
Since she never disclosed this incident to anybody else and kept silent it is
clear that she was a consenting party. The FIR was registered belatedly. The
prosecutrix did not allege that she was threatened with knife by the
Appellant either in the FIR or in her statement under Section 161 Cr.P.C. and
thus the statement before the Court was a clear improvement. The learned
Trial Court noticed that there were contradictions in the testimony however,
ignored them as trivial in nature though they were material contradictions.
Further as per the statement of PW5 there were complaints about number of
other boys who were teasing his daughter however, the Appellant was never
named in them. Reliance is placed on Jabar Singh vs. Dinesh and another,
2010 (3) SCC 757 and Sunil Kumar Sharma vs. State of NCT of Delhi, 2011
Crl. L.J. 4996.
3. Learned APP for the State on the other hand contends that the hymen
was torn, PW1 has not been cross-examined by the Appellant and thus his
testimony has gone unchallenged. The prosecutrix was pregnant when she
revealed the entire incident to her mother who took her to the police and got
th
her statement recorded on 27 September, 2006 Ex. PW1. The DNA of the
foetus matched with that of the Appellant and the prosecutrix and thus it has
been established beyond reasonable doubt that the Appellant committed
sexual intercourse with the prosecutrix. Further the Appellant in his
statement under Section 313 Cr.P.C. has nowhere admitted commission of
sexual intercourse however, his defence was that the prosecutrix compelled
him to satisfy her desire of having sex with him. As regards the age of the
Crl. Appeal No. 282 of 2011 Page 2 of 6
th
prosecutrix, the school certificate clearly mentions the date of birth as 24
November, 1990 which showed that she was less than 16 years of age at the
relevant time. The prosecutrix being a minor her consent was immaterial.
There is overwhelming evidence against the Appellant and thus no case of
acquittal is made out and the appeal be dismissed.
4. I have heard learned counsel for the parties.
th
5. Briefly the case of the prosecution is that on 27 September, 2006 the
prosecutrix reported to the police post Sangam Vihar along with her parents
that she was sexually abused by the Appellant. Thus Ms. Aparna from NGO
Prayas was called and the prosecutrix was taken for medical examination by
ASI Nirmala. As per the MLC Ex. PW1/A the prosecutrix was reported to
be pregnant. The statement of the prosecutrix was recorded vide Ex. PW3/A
wherein she alleged that the Appellant used to come to her house for
charging mobile being a neighbour. During March, 2006 when the
Appellant came to her house, none was present. He wanted to establish
physical relations with her however, she refused. The Appellant threatened
her that if she did not do so he would kill her brother. On the next day, the
Appellant again came, threatened her and forcibly established physical
relation. Thereafter whenever the Appellant found the prosecutrix alone at
home he would come and threatened her not to open her mouth and
established physical relationship. The prosecutrix stated that from March to
May-June, the Appellant established relations with her 12-14 times. Since
rd
she developed some problem she consulted the doctor on 23 September,
2006 when she came to know that she was pregnant and then she told the
entire incident to her family members. The prosecutrix PW3 reiterated her
statement made to the police before the Court. The prosecutrix has been
Crl. Appeal No. 282 of 2011 Page 3 of 6
cross-examined at length by the learned defence counsel. In her cross-
examination she reiterated that she was born in the year 1990 and she studied
th
upto 5 class in Nagar Nigam Prathmik Kanya Vidhayala, F-2 Block,
Sangam Vihar, New Delhi. In sixth class she took admission in Senior
Secondary Delhi School, Deoli, New Delhi. She clarified that her mother
used to go to Anganwadi to do her job and when the Appellant found her
alone, he would come to their house.
6. PW5, the father of the prosecutrix stated that the date of birth of his
th
daughter was 24 November, 1990 and she had studied up to fifth class in a
Government School at Sangam Vihar. He brought the original school
leaving certificate which was taken on record. PW11 Kamleshwar Prasad
from MC Primary Girls School-I Deoli was examined who stated that as per
th
the school record the date of birth of the prosecutrix was 24 November,
1990. He has produced all the original records including the affidavit filed
by the father of the prosecutrix at the time of admission. Thus from the
evidence of PW3, PW5 and PW9 it is established beyond reasonable doubt
that the prosecutrix was below 16 years of age when the alleged offence was
committed by the Appellant. Reliance of the learned counsel for the
Appellant on Sushil Kumar Sharma (supra) is misconceived. In the said case
the date of birth was sought to be proved on the basis of an entry in the
school record two months prior to the incident. The case of the prosecutrix
and her mother therein was that the prosecutrix was for the first time
th
admitted directly in class 8 that too in the mid session where her mother
was working as Aya. From the letters written by the prosecutrix it was
evident that she was well conversant with Hindi and English writing and it
could not be possible that she was for the first time admitted in the school
Crl. Appeal No. 282 of 2011 Page 4 of 6
th
that too in class 8 in mid session two months prior to the alleged incident
and thus this Court was compelled to discard the evidence of age based on
the said certificate.
7. In the present case the offence of rape committed by the Appellant has
been established beyond reasonable doubt in the present case. When the
prosecutrix was examined she was pregnant, thus the foetus was aborted.
The aborted foetus was examined along with the fresh blood samples of the
Appellant and the prosecutrix. Doctor Anupama Raina, who examined the
foetus and gave DNA report, has not been cross-examined by the Appellant.
The report of the DNA states as under:
“1. DNA extracted from the Ex.199 (aborted foetus), Ex.200
(Fresh blood sample of Ramesh), Ex. 201 (fresh blood
sample of Shashi) and has amplified at all loci.
2. DNA profile obtained from Ex. 199 (aborted foetus),
shares the maternal alleles with DNA profile obtained
from Ex. 201 (fresh blood sample of Ms. Shashi Bala).
3. Also, on comparison of DNA profile obtained from the
Ex.199 (aborted foetus) shares the paternal allele with
DNA profile obtained from the exhibit 200 (fresh blood
sample of Ramesh Patel @ Rahul).”
8. Thus the DNA profile of the aborted foetus matched with the DNA
profile of the Appellant. Further the Appellant in reply to question Nos. 7, 8
and 10 asked to him under Section 313 Cr.P.C. has admitted sexual
intercourse however, his explanation is that the prosecutrix herself
compelled him to satisfy her desire of having sex with him. As noted above
even taking the defence of the Appellant that the prosecutrix was a
consenting party the same is of no help to the Appellant. It has been proved
Crl. Appeal No. 282 of 2011 Page 5 of 6
beyond reasonable doubt that the prosecutrix was less than 16 years of age at
the time of alleged incident and thus her consent was immaterial.
9. In view of the aforesaid discussion, I find no infirmity in the
impugned judgment of conviction and order on sentence. The appeal
and application are accordingly dismissed.
(MUKTA GUPTA)
JUDGE
APRIL 25, 2013
‘vn’
Crl. Appeal No. 282 of 2011 Page 6 of 6
+ CRL.A. 282/2011 & Crl. M.B. 188/2013
th
% Reserved on: 13 February, 2013
th
Decided on: 25 April, 2012
RAMESH PATEL @ RAHUL ..... Appellant
Through: Mr. B.L. Goswami, Advocate.
versus
STATE ..... Respondent
Through: Mr. Manoj Ohri, APP with SI Anil
Kumar, PS Sangam Vihar, Delhi.
Coram:
HON’BLE MS. JUSTICE MUKTA GUPTA
th
1. By the present petition the Appellant impugns the judgment dated 6
January, 2011 whereby the Appellant was convicted for offence under
th
Sections 376/506 IPC and the order on sentence dated 11 January, 2011
whereby he was directed to undergo Rigorous Imprisonment for seven years
and to pay a fine of Rs. 2,000/- for offence punishable under Section 376
IPC and in default of payment of fine to further undergo Simple
Imprisonment for six months and Rigorous Imprisonment for two years and
a fine of Rs. 1,000/- for offence under Section 506 IPC and in default of
payment of fine to further undergo Simple Imprisonment for two months.
2. Learned counsel for the Appellant contends that since the school
certificate of the prosecutrix was not sufficient proof of the age, the
prosecution ought to have got the ossification test conducted. At the time of
incident the prosecutrix was above 18 years of age even as per the statement
of the witnesses. PW5, father of the prosecutrix stated that he was settled in
Delhi in 1989 and thus the prosecutrix was above 18 years. Neither any
Crl. Appeal No. 282 of 2011 Page 1 of 6
record from the hospital nor the MCD was asked to verify the factum of age
nor was any witness from neighbourhood examined. Further the prosecutrix
admitted that she performed intercourse with the Appellant 12-14 times.
Since she never disclosed this incident to anybody else and kept silent it is
clear that she was a consenting party. The FIR was registered belatedly. The
prosecutrix did not allege that she was threatened with knife by the
Appellant either in the FIR or in her statement under Section 161 Cr.P.C. and
thus the statement before the Court was a clear improvement. The learned
Trial Court noticed that there were contradictions in the testimony however,
ignored them as trivial in nature though they were material contradictions.
Further as per the statement of PW5 there were complaints about number of
other boys who were teasing his daughter however, the Appellant was never
named in them. Reliance is placed on Jabar Singh vs. Dinesh and another,
2010 (3) SCC 757 and Sunil Kumar Sharma vs. State of NCT of Delhi, 2011
Crl. L.J. 4996.
3. Learned APP for the State on the other hand contends that the hymen
was torn, PW1 has not been cross-examined by the Appellant and thus his
testimony has gone unchallenged. The prosecutrix was pregnant when she
revealed the entire incident to her mother who took her to the police and got
th
her statement recorded on 27 September, 2006 Ex. PW1. The DNA of the
foetus matched with that of the Appellant and the prosecutrix and thus it has
been established beyond reasonable doubt that the Appellant committed
sexual intercourse with the prosecutrix. Further the Appellant in his
statement under Section 313 Cr.P.C. has nowhere admitted commission of
sexual intercourse however, his defence was that the prosecutrix compelled
him to satisfy her desire of having sex with him. As regards the age of the
Crl. Appeal No. 282 of 2011 Page 2 of 6
th
prosecutrix, the school certificate clearly mentions the date of birth as 24
November, 1990 which showed that she was less than 16 years of age at the
relevant time. The prosecutrix being a minor her consent was immaterial.
There is overwhelming evidence against the Appellant and thus no case of
acquittal is made out and the appeal be dismissed.
4. I have heard learned counsel for the parties.
th
5. Briefly the case of the prosecution is that on 27 September, 2006 the
prosecutrix reported to the police post Sangam Vihar along with her parents
that she was sexually abused by the Appellant. Thus Ms. Aparna from NGO
Prayas was called and the prosecutrix was taken for medical examination by
ASI Nirmala. As per the MLC Ex. PW1/A the prosecutrix was reported to
be pregnant. The statement of the prosecutrix was recorded vide Ex. PW3/A
wherein she alleged that the Appellant used to come to her house for
charging mobile being a neighbour. During March, 2006 when the
Appellant came to her house, none was present. He wanted to establish
physical relations with her however, she refused. The Appellant threatened
her that if she did not do so he would kill her brother. On the next day, the
Appellant again came, threatened her and forcibly established physical
relation. Thereafter whenever the Appellant found the prosecutrix alone at
home he would come and threatened her not to open her mouth and
established physical relationship. The prosecutrix stated that from March to
May-June, the Appellant established relations with her 12-14 times. Since
rd
she developed some problem she consulted the doctor on 23 September,
2006 when she came to know that she was pregnant and then she told the
entire incident to her family members. The prosecutrix PW3 reiterated her
statement made to the police before the Court. The prosecutrix has been
Crl. Appeal No. 282 of 2011 Page 3 of 6
cross-examined at length by the learned defence counsel. In her cross-
examination she reiterated that she was born in the year 1990 and she studied
th
upto 5 class in Nagar Nigam Prathmik Kanya Vidhayala, F-2 Block,
Sangam Vihar, New Delhi. In sixth class she took admission in Senior
Secondary Delhi School, Deoli, New Delhi. She clarified that her mother
used to go to Anganwadi to do her job and when the Appellant found her
alone, he would come to their house.
6. PW5, the father of the prosecutrix stated that the date of birth of his
th
daughter was 24 November, 1990 and she had studied up to fifth class in a
Government School at Sangam Vihar. He brought the original school
leaving certificate which was taken on record. PW11 Kamleshwar Prasad
from MC Primary Girls School-I Deoli was examined who stated that as per
th
the school record the date of birth of the prosecutrix was 24 November,
1990. He has produced all the original records including the affidavit filed
by the father of the prosecutrix at the time of admission. Thus from the
evidence of PW3, PW5 and PW9 it is established beyond reasonable doubt
that the prosecutrix was below 16 years of age when the alleged offence was
committed by the Appellant. Reliance of the learned counsel for the
Appellant on Sushil Kumar Sharma (supra) is misconceived. In the said case
the date of birth was sought to be proved on the basis of an entry in the
school record two months prior to the incident. The case of the prosecutrix
and her mother therein was that the prosecutrix was for the first time
th
admitted directly in class 8 that too in the mid session where her mother
was working as Aya. From the letters written by the prosecutrix it was
evident that she was well conversant with Hindi and English writing and it
could not be possible that she was for the first time admitted in the school
Crl. Appeal No. 282 of 2011 Page 4 of 6
th
that too in class 8 in mid session two months prior to the alleged incident
and thus this Court was compelled to discard the evidence of age based on
the said certificate.
7. In the present case the offence of rape committed by the Appellant has
been established beyond reasonable doubt in the present case. When the
prosecutrix was examined she was pregnant, thus the foetus was aborted.
The aborted foetus was examined along with the fresh blood samples of the
Appellant and the prosecutrix. Doctor Anupama Raina, who examined the
foetus and gave DNA report, has not been cross-examined by the Appellant.
The report of the DNA states as under:
“1. DNA extracted from the Ex.199 (aborted foetus), Ex.200
(Fresh blood sample of Ramesh), Ex. 201 (fresh blood
sample of Shashi) and has amplified at all loci.
2. DNA profile obtained from Ex. 199 (aborted foetus),
shares the maternal alleles with DNA profile obtained
from Ex. 201 (fresh blood sample of Ms. Shashi Bala).
3. Also, on comparison of DNA profile obtained from the
Ex.199 (aborted foetus) shares the paternal allele with
DNA profile obtained from the exhibit 200 (fresh blood
sample of Ramesh Patel @ Rahul).”
8. Thus the DNA profile of the aborted foetus matched with the DNA
profile of the Appellant. Further the Appellant in reply to question Nos. 7, 8
and 10 asked to him under Section 313 Cr.P.C. has admitted sexual
intercourse however, his explanation is that the prosecutrix herself
compelled him to satisfy her desire of having sex with him. As noted above
even taking the defence of the Appellant that the prosecutrix was a
consenting party the same is of no help to the Appellant. It has been proved
Crl. Appeal No. 282 of 2011 Page 5 of 6
beyond reasonable doubt that the prosecutrix was less than 16 years of age at
the time of alleged incident and thus her consent was immaterial.
9. In view of the aforesaid discussion, I find no infirmity in the
impugned judgment of conviction and order on sentence. The appeal
and application are accordingly dismissed.
(MUKTA GUPTA)
JUDGE
APRIL 25, 2013
‘vn’
Crl. Appeal No. 282 of 2011 Page 6 of 6