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Kamal vs State (Nct Of Delhi) on 12 September, 2018

* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment Reserved on: January 16 , 2018
% Judgment Delivered on: September 12, 2018
+ CRL.A. 426/2017
KAMAL ….. Appellant
Represented by: Mr.Anwesh Madhukar, Mr.Pranjal
Shekhar and Mr.Pravesh Misra,
Advocates

versus

STATE (NCT OF DELHI) ….. Respondent
Represented by: Mr.Ashok Kumar Garg, APP for the
State with SI Ajay Kumar, PS
Bawana

CORAM:
HON’BLE MS. JUSTICE MUKTA GUPTA
MUKTA GUPTA, J.

1. By the present appeal, the appellant challenges the impugned
judgment dated 15th December, 2016 convicting him for offence punishable
under Section 4 of Protection of Children against Sexual Offences Act, 2012
(in short ‘POCSO Act’) and in the alternative under Section 376 IPC and
offences punishable under Sections 363/366/368/34 IPC and the order on
sentence dated 21st December, 2016 directing him to undergo rigorous
imprisonment for a period of seven years and to pay a fine of ₹5,000/-, in
default whereof to undergo simple imprisonment for a period of 30 days for
the offence punishable under Section 4 of POCSO Act and rigorous
imprisonment for a period of three years and to pay a fine of ₹5,000/- and in
default to undergo simple imprisonment for a period of 30 days for the

Crl.A.426/2016 Page 1 of 6
offences punishable under Sections 363/366/368 IPC.

2. Learned counsel for the appellant, while placing reliance on the
decision reported as AIR 2011 SC 715 Alamelu and Anr. v. State,
Represented by Inspector of Police, submits that the learned Trial Court
erred in returning a finding on the date of birth of the victim on a transfer
certificate without the basis on which age was entered in the certificate. As
per the prosecution, the victim was 13 years old at the time of incident,
however, no witness knew about the exact age of the victim. Victim has
exonerated the appellant in her statement recorded under Section 164
Cr.P.C. The landlord of the place where she was residing has not been
examined. It is nowhere reflected in the testimony of the victim that she was
kept in confinement, rather she was moving freely. Further as per the
testimony of Dr.Geetanjali (PW-13), there was no sign of sexual assault
belying the prosecution version.

3. Learned APP for the State on the other hand contends that there is no
illegality in the impugned judgment and order on sentence. Appellant has
been rightly convicted on the basis of testimony of the victim. Victim was
recovered from the house of the appellant. There was no ulterior motive to
falsely implicate the appellant. No question was put to the prosecutrix
regarding her age in her cross-examination, hence her version in the
examination in chief has gone unrebutted.

4. Briefly stated, prosecution case is that a missing complaint was
lodged by the father of the victim stating that on 8 th November, 2012 at
about 7:00 AM, victim ‘S’ went to school and did not return. On the basis of
the aforesaid statement, FIR No.378/2012 was registered at PS Bawana
under Section 363 IPC. Efforts were made to search the victim. Hue and

Crl.A.426/2016 Page 2 of 6
cry notices were published. During investigation, it was revealed that
accused persons (Kamal and Sonu) who were neighbours of victim were
also missing. Address of Kamal was obtained from his call records. On 16th
January, 2013, a raiding team went to the house of the accused persons and
recovered the victim. Accused persons namely Kamal and Sonu were
arrested. Victim was medically examined. Her statement was recorded
under Section 164 Cr.P.C. After completion of investigation, charge sheet
was filed. Charge was framed for the offences punishable under Sections
376/363/366/368/34 IPC and in alternative under Section 6 of POCSO Act
against the appellant. Charge for offences punishable under Sections
363/366/368/34 IPC was framed against Sonu. Sonu was also convicted for
the offences punishable under Sections 363/366/368/34 IPC, however, she
was released on the period undergone.

5. Victim was examined as PW-1 in Court. She deposed that two/three
months before the incident, Kamal was also residing in another room near
their room in the same building along with his wife/co-accused Sonu. She
knew them since then. Thereafter, they left the said room and started
residing somewhere else. Sonu used to talk to her on phone thereafter.
Two/three days prior the incident, Sonu gave her a call and stated that she
cannot live without her and that she was coming to pick her up from the
school. Victim also asked her to come to the school. On 8th November,
2012, she left for school at about 6:45 AM. Sonu came at about 8:00 AM
and took her to her house in Mangolpuri. She stayed with Sonu in her house
for two days when behaviour of Kamal and Sonu was cordial with her.
Thereafter, Kamal started doing ‘galat kaam’ with her. Upon being asked
what does she mean by ‘galat kaam’, she stated that Kamal committed

Crl.A.426/2016 Page 3 of 6
sexual intercourse with her. Thereafter, Kamal again tried to do sexual
intercourse with her but she did not allow. She told him that she wanted to
go back to her house, however, he stated that in case she would go back to
her mother’s house, then her mother would beat her. She further stated that
Kamal and Sonu kept on changing houses because of fear of police.
However, after two months, she was recovered by her father and police
officials. She also stated that accused persons used to make her do
household work.

6. Raj Singh (PW-2) proved the date of birth of the victim as 15th March,
2000 as per school records Ex.PW-2/A and Ex.PW-2/C.

7. Father of the victim (PW-3) proved the missing complaint of the
victim lodged by him vide Ex.PW-3/A. He stated that the victim was
recovered on 16th January, 2013.

8. Mother of the victim (PW-6) deposed that the victim went missing
and was recovered nearly after two months, however, she did not support the
prosecution case.

9. Dr.Geetanjali (PW-13) proved medical examination of the victim vide
MLC Ex.PW-13/A. She deposed that on local examination, no signs of
external injury (fresh) were found.

10. Dr.Saroj Aggarwal (PW-17) proved medical examination of victim as
per MLC Ex.PW-17/A. As per the MLC, hymen was ruptured and
penetration on victim was attempted by penis/finger.

11. Contention of learned counsel for the appellant that the evidence of
age of the prosecutrix cannot be relied upon in view of the decision in
Alamelu (supra) deserves to be rejected. In Alamelu (supra), the prosecution
only proved a transfer certification without the examination of the

Crl.A.426/2016 Page 4 of 6
headmaster of the school, who made the entry. Further in the said case
though the witness therein was examined however he made no reference to
the transfer certificate and did not mention the age or date of birth as noted
in the certificate. Further even the prosecutrix made no reference to her age
or to the transfer certificate. The said document surfaced after an application
under Section 311 Cr.P.C. was filed by the complainant seeking permission
to produce transfer certificate and recall the witness. On being recalled the
witness merely stated that she had signed the transfer certificate issued by
the school and accordingly her date of birth was noted as 15th June, 1977.

12. In the present case Raj Singh appeared in the witness box along with
the school records Ex.PW-2/A and Ex.PW-2/C to prove that the victim got
admitted in the said school in Class VI and her date of birth recorded therein
was 15th March, 2000. Further though the victim in her statement under
Section 164 Cr.P.C. stated that no sexual intercourse took place with her
however in her deposition in the Court she was categorical that sexual
intercourse was performed with her daily which fact is corroborated by the
statement of the victim recorded by the doctor in the MLC by Dr.Saroj
Aggarwal vide Ex.PW-17/A. The version of the victim recorded therein on
16th January, 2013 immediately after recovery and even prior to the
recording of the statement under Section 164 Cr.P.C. was ‘patient was taken
by some lady, sexual assault done by that lady and by some male person.
She was residing with them since 2-3 months, sexual contact against her
once daily, last intercourse 3 days back.’

13. This version of the prosecutrix is also corroborated by her MLC
EX.PW-17/A and opinion of Dr.Saroj Aggarwal who stated that the hymen
of the victim was ruptured and the penetration on the victim was from a

Crl.A.426/2016 Page 5 of 6
penis and not by a finger.

14. Considering the evidence on record, this Court finds no illegality in
the impugned judgment of conviction and order on sentence. Appeal is
accordingly dismissed.

15. Copy of this order be sent to Superintendent Central Jail Tihar for
updation of the Jail record and information to the appellant.

16. TCR be returned.

(MUKTA GUPTA)
JUDGE
SEPTEMBER 12, 2018
mamta

Crl.A.426/2016 Page 6 of 6

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