* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 9th August, 2018
% Delivered on: 17th August, 2018
+ CRL.A. 835/2016
JITENDER SINGH ….. Appellant
Represented by: Mr. Anurag Jain, Mr. Vinit
Malhotra, Ms. Ayush Sharma,
Mr. Tarun Khanna and Mr.
Rahul Dubey, Advocates
versus
STATE OF NCT OF DELHI ….. Respondent
Represented by: Mr. Ashok K. Garg, APP for
State.
CORAM:
HON’BLE MS. JUSTICE MUKTA GUPTA

1. By the present appeal Jitender Singh challenges the impugned
judgment dated 26th July 2016, whereby he was convicted for offences
punishable under Sections 363/366/342/376 IPC and the order on sentence
dated 1st August 2016 directing him to undergo rigorous imprisonment for
the period of three years and to pay a fine of ₹3000/-, in default whereof to
undergo simple imprisonment for a period of fifteen days for the offence
punishable under Section 363 IPC, rigorous imprisonment for a period of
five years and to a fine of ₹3000/- , in default whereof to undergo simple
imprisonment for a period of fifteen days, for the offence punishable under
Section 366 IPC, rigorous imprisonment for the period of one year and a
fine of ₹1,000/- in default whereof to undergo simple imprisonment for a
period of seven days for the offence punishable under Section 342 IPC and
rigorous imprisonment for a period of eight years and to a fine of ₹5000/- ,
in default whereof to undergo simple imprisonment for a period of one

CRL.A. 835/2016 Page 1 of 9
month, for the offence punishable under Section 376 IPC.

2. Assailing the conviction, learned counsel for the appellant submits
that since the date of birth of the prosecutrix has been proved to be 1 st
September 1995, the alleged offences are not made out as the prosecutrix
was not a minor on the date of incident.

3. Per contra, learned APP for the State submits that the impugned
judgment and order on sentence suffers from no illegality and the appellant
has been rightly convicted on the testimony of the prosecutrix, her father,
Dr. Nishu Dhawan (PW-18) who proved the MLC of the prosecutrix and
DNA report (Ex.PX).

4. Process of law was set into motion on 26th June 2012 at around 9:50
P.M. when information was received regarding the missing of prosecutrix S
@ D from her house at around 6:30 P.M. Aforesaid information was
recorded vide DD No. 53-A (Ex.PW6/A) which was handed over to HC Raj
Kumar (PW-6). On 4th July 2012, father of the prosecutrix (PW-2) got his
statement recorded with HC Raj Kumar (PW-6) vide Ex.PW-2/A wherein he
stated that on 26th June 2012 at about 6:30 P.M., his daughter/prosecutrix
had gone to the nearby tailor to get her suit altered and when she did not
come back, he went to the police station to get a missing complaint
registered but since he did not have any proof of her age as she has always
been staying with her maternal grandfather in his village and had also
studied there, only a DD Entry was lodged. He had called for her proof of
age which shows that she was born on 9th July 1996. He stated that he tried
looking for his daughter but could not find her. She was 16 years old, height
was 5’3″, fair complexion, thin, black eyes, long black hair, face was longish
and was wearing a salwar-suit of green colour with black slippers. He

CRL.A. 835/2016 Page 2 of 9
expressed his apprehension that someone had taken away his daughter.

5. On the basis of the aforesaid statement, FIR No. 148/12 (Ex.PW1/A)
was registered for the offence punishable under Section 363 IPC. Further
investigation was handed over to SI Ram Chander (PW-12) who searched
for the prosecutrix but he could not find her. On 14th July 2012, father of the
prosecutrix (PW-2) came to the police station with the prosecutrix. SI Ram
Chander (PW-12) recorded the statement of father of the prosecutrix under
Section 161 Cr.P.C. who stated that Jitender had done ‘galat kaam’ with the
prosecutrix.

6. Thereafter, investigation was handed over to SI Sarita (PW-15) who
recorded the statement of the prosecutrix and her father under Section 161
Cr.P.C. Prosecutrix was then sent to DDU Hospital where she was medically
examined and the doctor on duty handed over four sealed parcels containing
clothes and sample of prosecutrix and one sample seal of DDU Hospital,
CMO. The same were taken in possession vide seizure memo Ex.PW-12/A.
The prosecutrix was then produced before Child Welfare Committee (CWC)
and on 17th July 2012 her statement under Section 164 Cr.P.C. was recorded
vide Ex.PW-3/A.

7. On 19th July 2012, Jitender surrendered before the court. After taking
permission from the court, he was interrogated and arrested vide arrest
memo Ex.PW-8/A. His personal search was conducted vide Ex.PW-8/B and
disclosure statement was made vide Ex.PW-8/C. Jitender was medically
examined at Sanjay Gandhi Hospital and his samples were collected from
the hospital in sealed condition with sample seal. SI Sarita (PW-15)
prepared site plan at the instance of Jitender vide Ex.PW-15/A.

8. Age certificate of the prosecutrix was collected from her school. By

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the order of CWC vide Ex.PW-14/A, MTP of the prosecutrix was conducted
and samples of prosecutrix from DDU Hospital along with sample seal of
DDU Hospital, CMO were seized vide seizure memo vide Ex.PW-9/A. The
samples duly sealed with sample seals were sent to FSL. After completion of
investigation, charge-sheet was filed and vide order dated 19th December
2012 charge for offences punishable under Sections 363/366/328/342/376/
506 IPC was framed.

9. Prosecutrix (PW-3) deposed that in the year 2012 she was studying in
10th class in a school at Firozabad, Uttar Pradesh. She was born on 9th July
1996 and had come to Delhi about 2-3 months prior to the incident. Jitender,
who had come to Delhi and was living in Dwarka, used to teach in her
school in Uttar Pradesh. On 26th June 2012, she had gone from her house to
Saraswati Stitching Center. Jitender called her from the center and gave her
some sweet to eat and after eating it she became a little drowsy. Jitender
then took her to Dwarka at a house where he had sexual intercourse with her
against her wish. She requested Jitender not to rape her but he raped her. She
was kept in that house for about 8 days and during that period Jitender had
sexual intercourse with her against her will. Jitender used to give her some
medicines with water after which she used to remain unconscious.
Thereafter, Jitender took her to a house in Meerut and kept her there for 2-3
days where also he continued to rape her. From Meerut, he took her to Etah
where a friend of her maternal grandfather saw her and when she told him
everything, he took her to her maternal grandparents’ house at Sonie
Village, Uttar Pradesh. Her maternal grandparents informed her parents and
brought her to Delhi. In her cross-examination, she stated that she had
known Jitender for the last 2-3 years from the date of incident. She used to

CRL.A. 835/2016 Page 4 of 9
take tuition from Jitender in her house and Jitender was known to her
family. In the month of March 2012, she came to know about her pregnancy.
She denied the suggestion that Jitender had not met her on 26 th June 2012 or
that no such incident had ever taken place. She stated that in her statement to
the police she did not mention the fact of the first forced sexual intercourse
by Jitender on her. When the occurrence of this case was reported to the
police, she had already come across the factum of her pregnancy which was
four months old at that time.

10. Praveen Kumar (PW-4), Clerk, Inter College, Post Office Nangla
Dheer, Distt. Firozabad, Uttar Pradesh brought the summoned record
pertaining to the date of birth of the prosecutrix and as per her school record
(Ex.PW-4/A), her date of birth was 9th July 1996.

11. Dr. Nishu Dhawan (PW-13), CMO, DDU Hospital stated that she was
deputed to prove the MLC Ex.PW-13/A. On 14th July 2012, Dr. Kirti Rana
Dey had examined the prosecutrix and prepared her MLC. No injuries were
found on the body of the prosecutrix. She was referred to Department of
Gynecologist for detailed examination. She identified the handwriting and
signatures of Dr. Kirti Rana Dey.

12. Dr. R.K. Sarin (PW-16), Director FSL conducted the examination of
samples and proved the detailed report as Ex.PW-16/A. He also proved the
report for DNA Analysis vide Ex.PX and as per the DNA profiling (STR
analysis) performed on the exhibits ‘A’ (blood sample of Jitender) and ‘4’
(Fetus of prosecutrix), it was sufficient to conclude that the source of exhibit
‘A’ was the biological father of the source of exhibit ‘4’.

13. Dr. Sunita Seth (PW-17), Specialist (Obs. Gyne.), DDU Hospital
was deputed to depose on behalf of Dr. Parul Mehra who conducted the

CRL.A. 835/2016 Page 5 of 9
gynecological examination of the prosecutrix. As per the examination, vitals
were stable, per abdomen soft, uterus just palpable. As per local
examination, hymen admitted two fingers, no fresh injuries were found, no
bleeding. As per vaginal examination, uterus 12 weeks anti-verted soft.
MLC was proved vide Ex.PW-13/A. During her cross-examination, she
stated that it was correct that there was no external or internal injury or mark
of struggle seen on any part of the prosecutrix. There were no bite marks or
lacerations seen on the body of the prosecutrix.

14. Jitender in his statement recorded under Section 313 Cr.P.C. stated
that he had been falsely implicated in the present case on the complaint of
the father of the prosecutrix as he found out that prosecutrix and he had a
love affair since the time when prosecutrix was a student and he was a
teacher at the Inter College. Father of the prosecutrix got the information
that the prosecutrix and Jitender wanted to marry each other and were both
regularly in touch through mobile phones 8010456421 and 8010283115.
They were in conversation through mobile numbers 8800184374 and
9711997482 and other mobile number which started from 92. He stated that
these three numbers belonged to the father of the prosecutrix who personally
met him and told him to end relations with the prosecutrix. When the father
of the prosecutrix came to know that the prosecutrix was pregnant and she
wanted to get married to him, father of the prosecutrix asked the prosecutrix
to file false and frivolous criminal case against him. When the prosecutrix
remained adamant on her wish, father of the prosecutrix got registered a DD
entry to falsely implicate him in criminal case and to avoid social stigma on
the family as his unmarried daughter was pregnant. Father of the prosecutrix
did not approve of it because of the caste and status difference between the

CRL.A. 835/2016 Page 6 of 9
two families.

15. Onkar Singh (DW-3), Head Master, Prathmik Vidhyalaya, District
Firozabad, Uttar Pradesh deposed that as per the Original Admission
Register, prosecutrix was admitted in Class 1st on 13 th September 2002. As
per school records (Ex.DW-3/A), her date of birth was 1st September 1995.

16. Chander Shekhar (DW-5), Nodal Officer, Bharti Airtel Ltd, New
Delhi deposed that he was unable to produce the call record for the number
8800184374 for the period from 1st January, 2012 to 1st July, 2012 as the
same had been destroyed. He stated that the records remain saved in their
system for one year only and thereafter it is destroyed. Photocopy of the
customer application form relating to mobile No. 8800184374 was exhibited
vide Ex.DW-5/A and as per the form mobile No.8800184374 was allotted in
the name of the father of the prosecutrix.

17. Yogesh Tripathi (DW-7), Nodal Officer, Reliance Communication
Ltd., New Delhi proved the CDR of the mobile number 8010283115 for the
period from 1st May 2012 to 30th June 2012 vide Ex.DW-7/1 and proved that
the mobile number was issued in the name of Sanjeev Singh. He also stated
that application form for the mobile No. 8010456421 was in the name of
Sanjeev Singh but the call detail record could not be produced as the same
had already been destroyed.

18. Dr. Sachidanand (DW-8) deposed that he was working as Consultant
Radiology at N-2 Imaging Center since December, 2011. He reported the
skiagram of left elbow AP view of the prosecutrix vide Ex.DW-8/A and as
per the report, external and internal epicondyles fused and bone age was
more than 17-18 years.

19. Pradeep Singh (DW-10), Alternate Nodal Officer, Vodafone Mobile

CRL.A. 835/2016 Page 7 of 9
Services Pvt. Ltd. deposed that the mobile number 9711997482 was in the
name of father of the prosecutrix. Customer Application form was proved
vide Ex.DW-10/A. The call detail record from 1st January 2012 to 1st July
2012 were not available as the same had been destroyed.

20. As opposed to the prosecution demonstrating that the date of birth of
the prosecutrix was 9th July, 1996 the appellant in his defence examined
Onkar Singh, Head Master of the school where the prosecutrix was first
admitted in class 1st on 13th September, 2002 where her date of birth was
mentioned as 1st September, 1995. The prosecution has not been able to
elicit anything from the cross-examination of Onkar Singh to show that the
records proved by the appellant’s witnesses were incorrect or tampered with.
Hence the date of birth of the prosecutrix as mentioned in the first school
attended being 1st September, 1995 has to be accepted as the correct date of
birth. The alleged offence as per the case of the prosecution took place on
26th June, 2012 when the prosecutrix went missing from her house. Thus as
on the date of alleged offence the age of the prosecutrix was more than 16
years and she could have in terms of the law applicable as on 26th June, 2012
consented to sexual intercourse and the offence would not be rape. Though
in her evidence the prosecutrix stated that the appellant forcefully took her
away and committed intercourse against her will and forcibly, in her
examination the prosecutrix admitted that in the month of March, 2012 she
came to know about her pregnancy. As per medical examination of the
prosecutrix conducted on 14th July, 2012 the fetus was 12 weeks old thus
conceived in early April.

21. From the evidence on record it is thus apparent that the sexual
intercourse between the prosecutrix and the appellant took place not only

CRL.A. 835/2016 Page 8 of 9
after she was allegedly kidnapped on 26 th June, 2012 but prior thereto. In
her evidence the prosecutrix is silent as to whether the appellant committed
rape on her contrary to her wishes prior to 26th June, 2012. Further the
version of the prosecutrix that she was taken from one place to another is
also not trustworthy for the reason even as per the prosecutrix the two of
them moved to different places and lived in different houses giving
sufficient time to the prosecutrix to object to the act of Jitender. There is no
allegation of the prosecutrix that Jitender committed rape on her on the
threat to kill her or any of her family members.

22. In view of the defence evidence led by the appellant and his stand that
after the father of the prosecutrix came to know about the pregnancy of the
prosecutrix he cooked up a story appears to be a plausible defence, the
appellant is entitled to the benefit of doubt and is thus acquitted of the
charges framed.

23. Impugned judgment of conviction and order on sentence are set aside.
Appeal is disposed of.

24. Copy of this order be sent to Superintendent Central Jail Tihar for
updation of record. Superintendent, Jail is also directed to release the
appellant forthwith if not required in any other case.

25. TCR be returned.

(MUKTA GUPTA)
JUDGE
AUGUST 17, 2018
‘vn’

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