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Abodh vs The State (Nct Of Delhi) on 20 March, 2017

* IN THE HIGH COURT OF DELHI AT NEW DELHI

RESERVED ON : 7th MARCH, 2017
DECIDED ON : 20th MARCH, 2017

+ CRL.A.364/2016
ABODH ….. Appellant
Through : Ms.Sunita Arora, Advocate with
Mr.Krishan Kumar, Advocate.
VERSUS
THE STATE (NCT OF DELHI) ….. Respondent
Through : Ms.Meenakshi Dahiya APP.
CORAM:
HON’BLE MR. JUSTICE S.P.GARG
S.P.GARG, J.

1. Aggrieved by a judgment dated 30.01.2016 of learned Addl.
Sessions Judge in Sessions Case No.80/2012 arising out of FIR No.251/2012
PS S.P. Badli by which the appellant – Abodh was held guilty for
committing offences punishable under Sections 376/318 IPC, instant appeal
has been preferred by him. By an order dated 03.02.2016, he was sentenced
to undergo RI for seven years with fine `10,000/- under Section 376 IPC and
RI for two years with fine `10,000/- under Section 318 IPC. Both the
sentences were to operate concurrently.

2. Briefly stated, the prosecution case as reflected in the charge-
sheet was that the prosecutrix ‘X’ (changed name) aged around 15 years was
resident of A-354, Raja Vihar, S.P.Badli. The appellant, a married man,
lived in the said premises in an adjacent room. In 2011, he established
physical relations with the victim and threatened her not to disclose it to
anyone; he continued to ravish her for about a year. Due to fear, ‘X’ did not
reveal anything and eventually became pregnant. After carrying baby for 5

Crl.A.364/2016 Page 1 of 7

– 6 months, on 20.07.2012 she felt pain in her abdomen and the baby got
aborted. She threw the foetus in the dumping area nearby; some passerby
noticed it. Information was conveyed to the police and DD No.16A
(Ex.PW-4/A) came into existence on 21.07.2017 at around 09.00 a.m.
Finally, it was found that the foetus belonged to the prosecutrix ‘X’. The
Investigating Officer after recording victim’s statement (Ex.PW-2/A) lodged
First Information Report. ‘X’ was medically examined; she recorded 164
Cr.P.C. statement. The appellant was arrested and medically examined.
Statements of the witnesses conversant with the facts were recorded. Upon
completion of investigation, a charge-sheet was filed against the appellant in
the Court. To prove its case, the prosecution examined fourteen witnesses.
In 313 Cr.P.C. statement, the appellant denied his involvement in the crime
and pleaded false implication. The trial resulted in conviction as aforesaid.
Being aggrieved and dissatisfied, the instant appeal has been preferred.

3. Learned counsel for the appellant urged that the Trial Court did
not appreciate the evidence in its true and proper perspective and fell into
grave error to base conviction on the sole testimony of the prosecutrix. No
independent public witness was associated at any stage of investigation. The
prosecutrix has given divergent statements at different stages of
investigation / trial and she cannot be relied upon. The prosecution was
unable to establish as to what was the exact age of the prosecutrix on the day
of crime. Learned APP urged that no valid reasons exist to disbelieve the
prosecutrix who was a child aged around 15 years prior to the commission
of offence.

4. Police machinery came into motion on 21.07.2012 after receipt
of information recorded vide DD No.16A (Ex.PW-4/A). The investigation

Crl.A.364/2016 Page 2 of 7
was assigned to SI Bhupesh who along with Const.Sandeep reached the spot
and found a foetus lying there. Upon investigation, it revealed that the
prosecutrix had thrown the said foetus. In her complaint (Ex.PW-2/A),
forming basis of the FIR, the victim implicated the appellant to have
committed rape upon her. She further disclosed that due to fear she
maintained silence and did not apprise her parents. She became pregnant
and at the appellant’s instance had thrown the foetus in the garbage. The
appellant was named in the FIR to be the individual who had defiled her.

5. In her 164 Cr.P.C. statement (Ex.PW-2/B) recorded on
23.07.2012, ‘X’ deviating from her previous statement (Ex.PW-2/A),
introduced a new version and stated that she loved the appellant and had
physical relations with him with her free consent. In her Court statement as
PW-2, ‘X’ gave wavering statement about her relationship with the
appellant. In examination-in-chief, she testified that the accused committed
rape in his room in the absence of her mother and threatened to kill her
parents if she narrated the incident to them. Subsequent to that, the accused
used to call her in his room in the absence of her parents and establish
physical relation with her; it continued for around a year. She became
pregnant and when she apprised the accused about it, he brought medicine
on consumption of which, the foetus came out and she threw it in the
garbage on 20.07.2012 at around 02.30 a.m. In the cross-examination, she
admitted to have friendly relations with the appellant as both of them
considered themselves ‘friends’. She further volunteered to add that
physical relationship with the appellant for the first time was with her
consent. She was, however, not a willing party to the subsequent acts.

Crl.A.364/2016 Page 3 of 7

6. On perusal of the statement of the prosecutrix and other
materials on record, it can well be inferred that ‘X’ was willing and
consenting party throughout. At no stage, she raised any alarm or hue and
cry. In her 164 Cr.P.C. statement, she categorically claimed to have
established physical relations with the accused with her free consent. After
lodging of the FIR, she declined to go with her parents and preferred to be
lodged at an Orphanage Home. She was specific to state before the learned
Presiding Officer that she did not want any action against the appellant. The
prosecutrix and the appellant were in physical relationship for about a year
and at no stage, the prosecutrix brought it to the notice of her parents. There
was no real apprehension in X’s mind to remain mum as the accused lived in
the neighbourhood and was not armed with any weapon. Even after she
became pregnant, she suppressed it from her parents and clandestinely
consumed medicine to get the foetus aborted endangering her own life.
Even after the foetus came out, she without informing her parents went to
throw it alone in the garbage at odd hours. She did not lodge any complaint
with the police against the accused for violating her body. Only when the
police came into motion on getting information about a foetus being thrown
in a garbage-bin, they came to know the appellant’s involvement in the
crime. Apparently, ‘X’ never wanted to implicate the appellant for the
crime.

7. Victim’s age to infer the appellant’s guilt is crucial.
Throughout, the prosecution case was that ‘X’ was aged around 15 years on
the day of occurrence. In the complaint (Ex.PW-2/A) the prosecutrix
claimed herself to be aged around 15 years. She reiterated this age at the
time of her medical examination vide MLC (Ex.PW-3/A). In her 164

Crl.A.364/2016 Page 4 of 7
Cr.P.C. statement, she disclosed her age as 15 years. In her testimony before
the Court as PW-2 recorded on 26.08.2013, she gave her age 16 years. She
was born in Bihar where she had studied up to 2nd class. She was admitted
in class 2nd by her father in Delhi. She denied that her age was under-
mentioned by her father at the time of her admission. PW-8 (Meena Devi) –
victim’s mother also claimed that ‘X’ was aged around 15 – 16 years at the
time of recording her statement on 30.01.2014 and was a student of class 7th.
She denied if ‘X’ was above 18 years of age. PW-9 (Julahi Singh) –
victim’s father also informed that the age of the prosecutrix was 15 years. It
remained unchallenged in the cross-examination.

8. Material testimony is that of PW-13 (Raj Kumar), Lab
Assistant, Govt. Girls Senior Secondary School, who brought the requisite
school record and proved various documents (Ex.PW-13/A, Ex.PW-13/B,
Ex.PW-13/C Ex.PW-11/K). He deposed that ‘X’ was admitted in their
school in 6th class on the basis of admission form and school leaving
certificate of the primary school and date of birth recorded therein was
03.01.2001. He brought the original pasting file containing the original
admission form as well as SLC of the primary school (Ex.PW-13/A
Ex.PW-13/B). He also brought the original admission register containing
relevant entry pertaining to the child at Sl.No.9461; photocopy of which was
Ex.PW-13/C. On seeing the original certificate (Ex.PW-11/K) issued by
school, giving details of the date of birth of the child, he deposed that it was
issued by Smt.Chander Prabha Bajaj, Principal and he could identify her
handwriting and signatures. This Court has no sound reasons to disbelieve
the date of birth recorded in the school register long back when the victim’s
parents had not anticipated any such unfortunate incident to happen in future

Crl.A.364/2016 Page 5 of 7
to manipulate her age. The appellant did not suggest any other specific date
of birth of the prosecutrix. Merely because, no birth certificate came to be
collected during investigation, date of birth recorded in the school certificate
in the absence of any evidence to the contrary cannot be discarded. It is
relevant to note that the victim was born in Bihar. The Investigating Officer
did not make sincere efforts to collect any such record from the native place
of the victim or from the school where she had studied first. For negligence
of the investigating agency, the date of birth claimed by the victim and her
parents cannot be discredited. The appellant did not ask for ossification test
during trial. He did not summon any witness in defence to prove that the
child was aged above 16 years of age on the day of occurrence. The Court
has no plausible reasons to disbelieve the prosecutrix regarding her age
given in her complaint (Ex.PW-2/A) and in her statement recorded under
Section 164 Cr.P.C. as she herself did not desire any action against the
accused. She was fair to admit that physical relationship with the accused
was with her consent.

9. Since the prosecutrix was below 16 years of age at the time of
commission of offence, her consent to have physical relationship with the
appellant is of no consequence. ‘X’ being an immature girl of tender age
was incapable to take informed decision and submitted herself to sexual
intercourse without understanding its consequence. She was unaware even
of her pregnancy. Conviction under Section 376 IPC cannot be faulted.

10. Regarding Section 318 IPC since the prosecutrix has given
divergent versions at various stages of investigation, I am of the view that
the prosecution has failed to establish beyond reasonable doubt that the
appellant was instrumental in getting the pregnancy terminated or that he

Crl.A.364/2016 Page 6 of 7
had brought the medicine for its consumption by the prosecutrix. Nothing
has come on record to show from where the medicine / pill was arranged,
and if so, by whom. Conviction under Section 318 IPC, thus, cannot be
sustained and is set aside.

11. Regarding sentence, the punishment awarded by the Trial Court
cannot be modified / altered as the victim was a minor child aged around 15
years. The appellant was a married man aged around 26 years. He exploited
the innocence of the child and allured her to have physical relationship for
about a year. She even became pregnant and had aborted the child. The
appellant had put the victim’s life in danger by his nefarious activities. The
Court can well understand the trauma of victim’s parents who had to suffer
humiliation in society due to an unmarried child, student of 7th standard,
becoming pregnant. The appellant betrayed the trust of victim’s parents who
used to provide him food in the absence of his wife.

12. The appellant shall undergo RI for seven years with fine
`10,000/- for commission of offence under Section 376 IPC; default
sentence being SI for one month. Conviction and sentence recorded under
Section 318 IPC is set aside.

13. The appeal stands disposed of in the above terms. Trial Court
record be sent back forthwith with the copy of the order. Intimation be sent
to the Superintendent Jail.

(S.P.GARG)
JUDGE
MARCH 20, 2017 / tr

Crl.A.364/2016 Page 7 of 7

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