State (Gnct Of Delhi) vs Mohd. Irfan on 13 July, 2017

$~34
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 13th July, 2017
+ CRL.L.P. 382/2017
STATE (GNCT OF DELHI) ….. Appellant
Through : Ms. Radhika Kolluru, APP
versus
MOHD. IRFAN ….. Respondent
Through : Nemo

CORAM:
HON’BLE MR. JUSTICE G.S.SISTANI
HON’BLE MR. JUSTICE P.S. TEJI

G.S.SISTANI, J. (ORAL)

Crl. M.A. 10831/2017 (exemption)

1. Exemption allowed, subject to all just exceptions.

2. Application stands disposed of.

Crl.M.A. 10873/2017 (delay)

3. This is an application under Section 5 of the Limitation Act filed by
the petitioner seeking condonation of 41 days‟ delay in filing the
present leave to appeal.

4. Heard. For the reasons stated in the application, delay of 41 days in
filing the leave to appeal is condoned.

5. The application stands disposed of.

CRL.L.P. 382/2017

6. The present leave to appeal has been filed by the State under Section
378(1) of the Code of Criminal Procedure, 1973 („Cr.P.C.‟) against
the order of acquittal dated 17.01.2017. The case of the prosecution
as noticed by the Trial Court is as under:

Crl.L.P. 382/2017 Page 1 of 13

“1. The victim, aged about 17 years was working in a hanger
manufacturing factory where accused Irfan was also working.
On 27.08.2014, she was on leave but had gone to the said
factory to provide lunch to her brother Rubel, who was also
working in the same factory. While she was returning back
after giving lunch and reached at the Pushta Road, Irfan met
her there on a bike and offered to talk to her and further
offered to marry her and on that pretext, he took her on his
bike to 5 th Pushta where they both got down and walked
towards the Yamuna river for about 2-3 kilometers towards a
jungle. While they were talking, suddenly four boys came out
of the bushes out of which one was Farukh, brother of accused
Irfan and three were unknown boys out of whom one was
having his fact covered with a handkerchief. One of the boys
placed a knife at the neck of the victim and then all five of
them committed rape with the victim turn by turn. They also
threatened her not to disclose their acts to anyone or else she
would be killed. Accused Irfan then dropped her at Loni on
his own motorcycle near the house of her sister. The victim
did not tell anyone about the incident out of fear but when he
started harassing and threatening her and refused to marry
her, she disclosed about the incident to her sister Sultana.
Thereafter, the victim alongwith her sister Sultana and her
cousin Rajia Begum approached the police at PS New
Usmanpur and the victim lodged her complaint on which the
present FIR was registered for the offences punishable under
Section 376-D/506 IPC and 6/10 POCSO Act. The victim was
subjected to medical examination. She was also produced
before the Ld. MM where her statement under Section 164
Cr.PC was recorded. Only accused Irfan was arrested and the
other accused/offenders could not be arrested due to lack of
particulars including Farukh. After completion of
investigation, chargesheet was filed against accused Irfan for
the said offences.”

7. Charges were framed against the accused/respondent for the offences
punishable under Section 376-D of the Indian Penal Code, 1860
(„IPC‟) and alternatively for offences punishable under Section 6 of
the Protection of Children from Sexual Offences Act, 2012 and also
under Section 506/34 IPC, to which he pleaded not guilty and claimed

Crl.L.P. 382/2017 Page 2 of 13
trial. To bring home the guilt of the accused, the State examined 10
witnesses. No evidence was led by the defence. The statement of the
accused was recorded under Section 313 of the Code of Criminal
Procedure.

8. Learned counsel for the State submits that the Trial Court has based
the judgment on surmises and conjectures and acquitted the accused
without taking into consideration that the prosecution has been able to
prove its case beyond any shadow of doubt. Ms.Kolluru further
contends that since the victim was a minor, her consent would be
meaningless and the learned Trial Court has failed to take into account
the presumption of law as per Section 29 of POCSO Act and Section
114-A of the Indian Evidence Act, 1872 in cases of gang rape.
Learned counsel submits that the Trial Court has failed to appreciate
that gang rape was committed on the victim by the five persons
including the accused/respondent Irfan. She was threatened not to
inform the guilt of the accused to anyone or else she would be killed.
Counsel submits that the delay of four months in making a complaint
has been satisfactorily explained and, thus delay in filing the
complaint and registration of FIR cannot be a ground in itself to acquit
the accused. Reliance is placed on State of Himachal Pradesh v.
Prem Singh, 2009 Crl.L.J. 786.

9. Mr.Radhika has also contended that reading of the testimony of the
victim would show that her stand has been constant in all the
statements made by her from time to time. It is also contended that it
was only on the advice of the doctor that no fresh medical
examination was conducted as there was a gap of four months and no
purpose would have been achieved in such an examination. Learned
counsel contends that the Trial Court has ignored the settled position

Crl.L.P. 382/2017 Page 3 of 13
of law that the testimony of the prosecutrix alone can be the basis of
conviction without any corroboration as her testimony stands on a
higher footing. The learned counsel has also relied upon the judgment
in the cases of State of U.P. v. Munshi, 2009 Crl.L.J. 393 (SC);
Mohd Imran Khan v. State of Delhi, (2011) 10 SCC 192; and O.M.
Baby by LR v. State of Kerala, 2012 Crl.L.J. 3794 (SC). The learned
counsel has strenuously urged this Court that on account of fault and
insensitive investigation, the benefit should not accrue in favour of the
accused persons.

10. We have heard the learned counsel for the appellant and perused the
judgment of the Trial Court.

11. The following questions arise for our consideration:

(i) Whether the Trial Court erred in holding that the prosecutrix
was not a minor on the date of the incident?

(ii) Whether the delay in lodging the FIR was satisfactorily
explained by the prosecutrix?

(iii) Whether the sole testimony of the prosecutrix could have been
relied upon to convict the accused/respondent herein?

(iv) Whether the Trial Court was correct in doubting the story of the
prosecutrix owing to her refusal to undergo internal medical
examination?

12. We proceed to analyse issue (i). In respect of ascertaining the age of a
victim of crime, the law is well settled. The Supreme Court in Jarnail
Singh v. State of Haryana, (2013) 7 SCC 263 (paragraph 20) has
held that Rule 12 of the Juvenile Justice (Care and Protection of
Children) Rules, 2007 though strictly applicable to a child in conflict
with law, would also be applicable to determine the age of a child who

Crl.L.P. 382/2017 Page 4 of 13
is a victim of a crime. Accordingly, Rule 12 (3) is applicable for
determining the age of the prosecutrix, which reads as under:

“12. Procedure to be followed in determination of Age.-

(3) In every case concerning a child or juvenile in conflict
with law, the age determination inquiry shall be conducted
by the court or the Board or, as the case may be, the
Committee by seeking evidence by obtaining:–

(a) (i) the matriculation or equivalent certificates, if
available; and in the absence whereof;

(ii) the date of birth certificate from the school
(other than a play school) first attended; and in the
absence whereof;

(iii) the birth certificate given by a corporation or a
municipal authority or a panchayat;

(b) and only in the absence of either (i), (ii) or (iii) of
clause (a) above, the medical opinion will be sought
from a duly constituted Medical Board, which will
declare the age of the juvenile or child. In case
exact assessment of the age cannot be done, the
Court or the Board or, as the case may be, the
Committee, for the reasons to be recorded by them,
may, if considered necessary, give benefit to the
child or juvenile by considering his/her age on
lower side within the margin of one year and, while
passing orders in such case shall, after taking into
consideration such evidence as may be available, or
the medical opinion, as the case may be, record a
finding in respect of his age and either of the
evidence specified in any of the clauses (a)(i), (ii),

(iii) or in the absence, whereof, clause (b) shall be
the conclusive proof of the age as regards such
child or the juvenile in conflict with law.”

(Emphasis Supplied)

13. At the same time, it has been held in Birad Mal Singhvi v. Anand
Purohit, 1988 Supp SCC 604 (paragraph 15) that an entry relating to
date of birth made in a school register is not of much evidentiary value
to prove the age of the person in the absence of the material on which

Crl.L.P. 382/2017 Page 5 of 13
the age was recorded. [See also State (Govt. of NCT of Delhi) v.

Charan Singh, 2017 SCC OnLine Del 8186 (paragraphs 16-21)]

14. We may also notice a judgment of the Punjab and Haryana High Court
in Jaipal Singh v. State of Haryana, (2003) 2 RCR (Cri) 310 (DB):
2002 SCC OnLine PH 598 (paragraphs 11 and 12) wherein the
Court had disbelieved the school certificate stating the age of the
prosecutrix to be 15 years which was conflicting with the age
mentioned in the FIR, MLC and as stated by the prosecutrix herself
and her father and the entry was not based on any birth certificate but
upon a statement from her father and held the prosecutrix to be a
major on the date of the incident.

15. The present case is also to be decided on the aforegoing principles of
law. Ruby Baghel (PW-1), teacher in EDMC Primary School had
produced the school records (Ex.PW-1/A – Ex.PW-1/D) of the
prosecutrix, as per which the date of birth of the victim was
15.03.2003. The entry was inturn based upon an affidavit dated
23.07.2009 (Ex.PW-1/C) allegedly given by the mother of the
prosecutrix. However, the prosecutrix (PW-3) had deposed that her
mother had died about 6 years ago and hence, she had passed away
before swearing the affidavit. Additionally, the Trial Court noticed a
discrepancy in the name of the deponent that the affidavit was sworn
by one Sultana, while the prosecutrix deposed that the name of her
mother was Jubeda. We may also notice that as per the school
records, the age of the prosecutrix would be 11 years, however, the
prosecutrix at every stage alleged to be 17 years‟ old. Thus, the
entries in the school record cannot be said to be based upon any
material and are in conflict with the age stated by the prosecutrix

Crl.L.P. 382/2017 Page 6 of 13
herself. Accordingly, the prosecution was unable to prove that the
prosecutrix was less than 18 years of age on the date of the incident.

16. Prior to dealing with the contention regarding the delay in lodging
FIR, we deem it appropriate to analyse issue (iii). Though there is no
quarrel with the proposition that the sole testimony of the prosecutrix
can be relied upon to base an order of conviction, however, the same
should be of beyond reproach and not leaving any shadow of doubt
over her veracity. [State v. Wasim, 2017 SCC OnLine Del 8502
(paragraphs 19-21)]

17. Accordingly, the testimony of the prosecutrix (PW-3) is to be tested
on the same yardstick. The prosecutrix (PW-3) deposed that at the
time of the incident, she was working in hangar factory situated at
Gamri, Bhajanpura, Delhi and the accused/respondent was also
working in the factory. In the month of August, 2014 on 26th day, she
was on leave and had gone to the factory to supply food to her brother
Rubel, who was also working in the factory. On her way back at 5th
Pusta, the respondent arrived on his motorbike. The respondent asked
the prosecutrix to sit on his bike saying that he had to talk to her on
the issue of her marriage. The respondent told her he wanted to marry
her and PW-3 sat on his bike. The respondent then drove down Pusta
road towards Yamuna river and then halted the bike taking her on
foot. They walked for about 10-15 minutes and reached near the
jungle. They sat down and started discussing about the marriage. In
the meanwhile, four boys came out from the bushes. Out of whom
was Farukh, brother of the respondent; while the PW-3 had seen two
other boys previously and the third had covered his face. Farukh
placed a knife on her neck. Thereafter, the boys and the respondent
committed rape upon the prosecutrix and threatened to kill the

Crl.L.P. 382/2017 Page 7 of 13
prosecutrix if she disclosed the incident. After that, the respondent
left the prosecutrix on his bike at the house of her sister Suman. PW-3
deposed that she did not disclose the incident to anyone out of fear.
Later, the respondent started harassing the prosecutrix and threatened
to repeat the incident, if she disclosed it to anyone and also refused to
marry the prosecutrix. However, after about one month of the
incident, the prosecutrix got fed up and disclosed the incident to her
sister Sultana. Thereafter, she came to the police station along with
her cousin Seema and brother Ravinder and lodged the report to the
police. Police recorded her statement.

18. During cross-examination, the prosecutrix (PW-3) stated that the
respondent was known to her for 6 months prior to the date of the
incident. She also stated that the respondent had proposed to her for
marriage for the first time about a week prior to the incident. She
deposed that her family consists of four sisters and one brother. The
name of her mother was Zubeda and she died about six years ago. In
respect of the request for internal examination before the doctor, PW-
3 stated that she did not deny internal examination, but it was the
doctor who suggested that nothing would come out in the internal
examination.

19. The testimony of the prosecutrix does not inspire confidence and is on
the whole improbable. The whole story is also suggestive of it being a
consensual act. We may notice the judgment of the Supreme Court in
Tameezuddin v. State (NCT of Delhi), (2009) 15 SCC 566, wherein
the Supreme Court found it improbable that the husband of the victim
of rape, after coming to know of the incident, would have gracefully
told the accused/appellant therein that everything was forgiven and
forgotten but had nevertheless lured him to the police station and thus,

Crl.L.P. 382/2017 Page 8 of 13
wanting supporting evidence. The relevant portion of the judgment
reads as under:

“9. It is true that in a case of rape the evidence of the
prosecutrix must be given predominant consideration, but
to hold that this evidence has to be accepted even if the
story is improbable and belies logic, would be doing
violence to the very principles which govern the
appreciation of evidence in a criminal matter. We are of
the opinion that the story is indeed improbable.

10. We note from the evidence that PW 1 had narrated the
sordid story to PW 2 on his return from the market and he
had very gracefully told the appellant that everything was
forgiven and forgotten but had nevertheless lured him to
the police station. If such statement had indeed been made
by PW 2 there would have been no occasion to even go to
the police station. Assuming, however, that the appellant
was naive and unaware that he was being led deceitfully
to the police station, once having reached there he could
not have failed to realise his predicament as the trappings
of a police station are familiar and distinctive. Even
otherwise, the evidence shows that the appellant had been
running a kirana shop in this area, and would, thus, have
been aware of the location of the police station. In this
view of the matter, some supporting evidence was
essential for the prosecution’s case.”

(Emphasis Supplied)

[Also see State (Govt. of NCT of Delhi) v. Mohd. Rihan, 2017 SCC
OnLine 8549 (paragraphs 27 – 29)]

20. In the present case, the prosecutrix never resisted the respondent nor
refused to sit on the bike of the respondent. Even after getting off, she
walked with the respondent to Yamuna Khadar, where they were
sitting when the other four boys attacked. When the other boys left
after the incident, the prosecutrix did not raise any alarm nor
attempted to flee. She quietly returned back to her sister‟s house with
the respondent on her motorcycle. Even after meeting her sister she
did not disclose anything. It is also not believable that after the
Crl.L.P. 382/2017 Page 9 of 13
prosecutrix was gang raped by five persons, her own sister did not
find her in an abnormal state. The conduct of the prosecutrix is
extremely unbelievable as even if it is assumed that the prosecutrix
was lured under the pretext of discussing about marriage, there was no
reason for her to stay mum after the other boys had left and she
returned on the motorcycle of the respondent, i.e. one of her alleged
rapists. Another aspect to be noticed is that the prosecutrix (PW-3)
claims to have disclosed the incident to her sister Sultana after about 1
month from the incident, however, the FIR was registered on
05.12.2014, i.e. after a delay of three months nine days. There is no
explanation for waiting for another 2 months prior to approaching the
police. This unusual and improbable conduct of the prosecutrix
renders relying upon her sole testimony quite dangerous and thus,
wanting corroboration.

21. Nothing has come in evidence to support the testimony of the
prosecutrix. During the investigation neither the identity of the other
3 boys was established nor was Farukh traced even with the assistance
of the respondent. The person in whom the prosecutrix had first
confided in, i.e. her sister Sultana , was dropped from the array of
witnesses for which also there is no explanation. There is confusion
as to who accompanied the prosecutrix to the police station. As per
the prosecutrix (PW-3), she was accompanied by her cousin Seema
and brother Ravinder; while as per Seema (PW-4) she and Sultana had
accompanied the prosecutrix; as per SI Vandana (PW-5), she was
accompanied by her two sisters; and as per SI Santosh (PW-10), only
PW-3 and Seema had come. Ravinder was not examined as a witness
and Sultana was dropped. No support can be drawn from the
deposition of PW-4 as she has deposed that she was informed on

Crl.L.P. 382/2017 Page 10 of 13
05.12.2014 only, i.e. the date of the registration of the FIR and hence,
her deposition is merely hearsay. Further, it has also been noticed by
the Trial Court in paragraph 17 that even the basic facts relied upon by
the prosecution could not be proved like the fact that she was on leave
on the day of the incident or had gone to serve lunch to her brother
Rubel.

22. In the aforegoing background, guilt of the respondent/accused could
not have been founded solely in the testimony of the prosecutrix,
corroboration was required and none was forthcoming. Hence, we
find no infirmity on this count as well.

23. The final aspect to be considered is whether the delay in filing of the
FIR was reasonably explained? We think not. As already noticed the
incident was alleged to have taken place on 27.08.2014 and the FIR
was registered on 05.12.2014, i.e. after about 3 months 9 days. The
prosecutrix (PW-3) in this regard deposed as under:

“…I did not disclose the incident to anyone out of fear.
Later accused Irfan started harassing me and threatened
me to repeat the incident, if I disclosed the fact to anyone
and also refused to marry me. However, after about one
month of the incident after being fed up, I disclosed the
above facts to my sister Sultana. Then I came to the police
station alongwith my cousin Seema, brother Ravinder and
lodged the report to the police. …”

24. From the aforegoing, it is clear that the prosecutrix (PW-3) claimed to
have remained mum under fear and after about one month informed
the incident to her sister Sultana as “being fed up”. Even if that is
presumed to be true, there was no reason for her to wait for another
two months to approach the police. Such delay has not been
explained and hence, casts a doubt upon the whole case of the
prosecution. the Apex Court in Surjan v. State of M.P., (2002) 10

Crl.L.P. 382/2017 Page 11 of 13
SCC 214 found unexplained delay of 10 days in approaching the
police without even a question being put to her to raise a doubt over
the case of the prosecution. The relevant portion reads as under:

“4. The inordinate delay in lodging the complaint before
the police i.e. 10 days, has not even been attempted to be
explained. Even when she was examined as a witness in
the court, no question was put to her on that long delay. In
a case where six indicted persons should be visited with a
minimum sentence of 10 years’ RI, the court cannot afford
to act on the uncorroborated testimony of the prosecutrix
unless the said evidence is wholly reliable. Looking at the
testimony of PW 1 from all the different angles highlighted
above, we are unable to hold that the testimony is wholly
reliable. In such a situation, materials for corroborating
the testimony of PW 1 could not be obviated. But
unfortunately there is none.”

(Emphasis Supplied)

25. The final contention of Ms.Kolluru was that no adverse inference
should have been drawn in respect of the medical examination as the
prosecutrix (PW-3) had clarified that she did not deny internal
examination “but it was the doctor who suggested that nothing would
come out in the internal examination.” At the same time, Dr.Neha
Chandra (PW-7) has categorically deposed that the “victim did not
allow for her internal examination and also did not allow for
collection of samples” and hence, we are unable to rely on the
testimony of the prosecutrix.

26. Accordingly, we find no ground to interfere in the judgment of the
Trial Court. Even otherwise, it is settled law that the appellant court
may only interfere in an appeal against acquittal when there are
substantial and compelling reasons to do so [See Sheo Swarup v.
King-Emperor, AIR 1934 PC 227 (2); M.G. Agarwal v. State of
Maharashtra, AIR 1963 SC 200 (paragraph 16 and 17); Tota Singh

Crl.L.P. 382/2017 Page 12 of 13
and Anr. v. State of Punjab, AIR 1987 SC 108: (1987) 2 SCC 529
(paragraph 6); State of Rajasthan v. Raja Ram, (2003) 8 SCC 180
(paragraph 7); Chandrappa v. State of Karnataka, (2007) 4 SCC 415
(paragraph 42); Ghurey Lal v. State of U.P., (2008) 10 SCC 450
(paragraph 73); and Muralidhar @ Gidda v. State of Karnataka,
(2014) 5 SCC 730 (paragraph 12)].

27. The leave to appeal is dismissed.

G. S. SISTANI, J.

P.S. TEJI, J.

JULY 13, 2017
// pst

Crl.L.P. 382/2017 Page 13 of 13

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