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The State Of Nct Of Delhi vs Sumit Kumar on 12 October, 2018

$-
* IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment reserved on: 07.08.2018

% Judgment delivered on: 12.10.2018

+ CRL.A. No. 223/2018
THE STATE OF NCT OF DELHI ….. Petitioner
Through: Mr. Rajat Katyal, APP for State with
Mr. Ashray Behura, Advocate with SI
Raj Kumar, PS-KM Pur.
Mr. Bharat S. Kumar and Ms. Ankita
Goswami, Advocates for Minor
Victim.

versus

SUMIT KUMAR ….. Respondent
Through: Mr. Sundeep Sehgal, Advocate

CORAM:
HON’BLE MR. JUSTICE VIPIN SANGHI
HON’BLE MR. JUSTICE I.S. MEHTA

JUDGMENT

VIPIN SANGHI, J.

1. The State has preferred this appeal upon grant of leave to assail the
judgment dated 15.12.2016 rendered by the learned ASJ-01, (Designated
Special Court Under The Protection of Children From Sexual Offences Act,
2012 (POCSO Act)) District South East, New Delhi, Shri Sunil Chaudhary
in Case No. 1434/16, Sessions Case No. 93/13, arising out of FIR No.49/13,

CRL.A.No.223/2018 Page 1 of 48
registered at PS Kotla Mubarakpur under Section 376IPC and 6 POCSO
Act, 2012 against the respondent accused.

2. By the impugned judgment the Trial Court has acquitted the
respondent accused on the ground that there are contradictions and
inconsistencies in the testimonies of the prosecution witnesses which raise a
doubt on the case of the prosecution, and probablise the possibility of false
implication.

3. On 25.02.2013 telephonic information was received by the police at
2.40 PM about “wrong act” being done with a girl, aged 15 years. The
information was diarized vide DD No. 21A. Inquiry was assigned to SI
Sunil PW13. He along with a lady constable- Pooja PW12 and constable-
Arvind PW10 reached the address of the prosecutrix where the prosecutrix
“S”- PW1 along with her mother- PW5 met the police party. Accused
Sumit was also produced, and they (PW1 and PW5) alleged that the accused
had committed “wrong act” with the prosecutrix “S”. The accused was
apprehended. The statement of the prosecutrix was recorded on 25.02.2013
by SI Rita- PW14 vide Ex. PW1/A. In the said statement, the prosecutrix
gave her age as 11 years. She, inter alia, stated that she resides at her given
address which was a tenanted premises, along with her parents. She was
studying in MCD School in III Class. She stated that her father puts up a
fruit rehdi at Sewa Nagar. She has three younger sisters and two brothers.
One of her brother is elder to her, while the other brother is the youngest.
She stated that about 10 days ago, her father had gone to Mathura for some
work. Since he did not return, her mother had gone to bring him back from
Mathura. She stated that on 20.02.2013- Wednesday, her brother- Rahul

CRL.A.No.223/2018 Page 2 of 48
PW2 had gone in the afternoon to participate in the Budh Bazar at Sadik
Nagar. Since her brother- Rahul returns late from Budh Bazar, the
prosecutrix and her sisters slept at about 11.00 P.M., leaving the door of the
room open. Thereafter, the accused, aged 21 years came over to the house
of the prosecutrix. She stated that she knew the accused from before and he
used to put up a pan bidi shop on the corner of the street. The accused woke
up the prosecutrix and removed her pant. He also removed his pant and
thereafter he raped her (did galat kaam with her), which also caused pain to
the prosecutrix. She also stated that some hot fluid (garam paani) was
released by the accused. Thereafter, the accused gave her Rs.10/- and told
her not to speak about the same to anyone. She stated that her Sister- Divya
PW7, aged 7 years, witnessed the incident. The prosecutrix stated that she
did not inform about the incident to anyone. On the date when her statement
was recorded i.e., 25.02.2013, she informed her mother of the incident. The
mother then made a complaint on number 100. Thereafter the police arrived
and the accused was apprehended.

4. The prosecutrix- accompanied by her mother, and the accused were
taken by the police party to AIIMS for medical examination of the
prosecutrix and the accused. After medical examination of the prosecutrix
“S” vide MLC No. 1833/13 (Ex. PW8/A), the exhibits were seized vide
seizure memo Ex. PW12/B and were taken into possession. The sealed
exhibits in relation to the medical examination of the accused- Sumit were
also duly taken into possession vide Ex. PW 13/A.

5. The MLC Ex. PW8/A records the history as given, that the
prosecutrix was sexually assaulted by Sumit, who lived in the neighborhood.

CRL.A.No.223/2018 Page 3 of 48

The history records that Sumit undressed the prosecutrix and then undressed
himself and did sexual intercourse with the prosecutrix on Wednesday-
21.02.2013 at the home of the prosecutrix. The prosecutrix was found not to
have attained menarche i.e., the first occurrence of menstruation yet. It
further records that the prosecutrix had taken bath twice and defecated since
Wednesday. There was no sign of external injury. Pertinently, the hymen
was found torn upon local examination. The vaginal smear was taken.

6. FIR Ex. PW9/A was accordingly registered. The accused was
arrested on 25.02.2013 at 9.00PM vide Ex.PW10/A. The statement of the
prosecutrix was got recorded under Section 164 Cr.P.C. before the Ld. MM
(vide Ex. PW4/B PW4/C) on 27.02.2013.

7. Upon completion of investigation the charge sheet was filed. The
charge was framed against the accused on 24.09.2013 which reads as
follows:

― That on 21.02.2013 at about 01.00A.M at House No. F-
211, Ist Floor Sewa Nagar, New Delhi within the
jurisdiction of police stateion Kotla Mubarakpur you
committed aggravate penetrative sexual assault upon the
prosecutrix Ms. ―S‖, a minor girl aged around 11 years
and you thereby committed an offence punishable under
Section 6 of Protection of Children from Sexual Offences
Act, 2012, within my cognizance.

In the alternative, on aforesaid date, time and place, you
raped Ms. ―S‖, a minor girl aged around 11 years and
thereby committed an offence punishable under Section
376 of the I.P.C., 1860 and within my cognizance.‖

CRL.A.No.223/2018 Page 4 of 48

8. The accused pleaded not guilty and was, consequently, tried. The
prosecution examined 14 witnesses which include the prosecutrix PW1, her
brother Rahul as PW2, her mother Simla as PW5, her younger sister- Baby
Divya as PW7. The other witnesses examined were Dr. Runchen as PW8,
Ms. Chetna, the learned MM who recorded the statement of the prosecutrix
under Section 164 Cr.P.C as PW4, and Ms. Seema Sharma, Principal,
S.D.M.C. Primary School, Seva Nagar East as PW6, apart from the formal/
police witnesses.

9. The Ld. ASJ has, firstly, returned the finding that the prosecution had
failed to prove with certainty that the age of the prosecutrix was below 12
years on the date of occurrence.

10. The learned APP has submitted that, firstly, the said finding returned
by the learned ASJ is irrelevant, since POCSO Act is attracted where the age
of the victim is below 18 years on the date of occurrence. The relevance of
the victim being below 12 years of age, is only that if the victim is below
the said age, the offence of sexual assault (defined in Section 7 of POCSO
Act) tantamounts to aggravated sexual assault, as defined in Clause (m) of
Section 9 of the said Act. The learned APP points out that the Trial Court
has proceeded on the basis that, if the age of the prosecutrix was not
established to be below 12 years on the date of occurrence of the offence, no
offence would be made out. Mr. Katyal submits that this approach of the
learned ASJ is completely mindless, perverse and laconic.

11. Mr. Katyal submits that the finding returned by the Trial Court that
the prosecution had not established, with certainty, the age of the prosecutrix

CRL.A.No.223/2018 Page 5 of 48
to be below 12 years on the date of occurrence, is also patently incorrect.
He submits that the Trial Court has brushed aside the evidence in the case on
the specious ground that the age of the victim had not been established by
production of school record from the school first attended by the
prosecutrix. Since the school record produced by the witness PW6 is in
respect of the admission sought by the prosecutrix in second class, the same
has not been believed. Mr. Katyal submits that the learned ASJ has failed to
appreciate that the age of the prosecutrix was disclosed in the Rukka Ex.
PW1/A as 11 years; it was disclosed before the doctor who medically
examined the prosecutrix vide MLC Ex.PW8/A as 11 years; the doctor
found that the prosecutrix had not even attained menarche yet i.e., she had
not yet had her first menstruation; the prosecutrix disclosed her age before
the Ld. MM PW4- while recording her statement under Section 164 Cr.P.C.
as 11 years; PW6- the principal of SDMC Primary School, Seva Nagar East,
New Delhi had brought the original pasting register containing the
application form regarding the admission of the prosecutrix in the said
school, coupled with the affidavit given by her father showing her date of
birth and the original admission register; the prosecutrix was admitted in
class II on 10.05.2011 i.e, nearly two years before the date of occurrence of
the incident. PW6 stated that the date of birth of the prosecutrix as per the
school record was 02.02.2005; PW6 exhibited the application form made by
the father of the prosecutrix as Ex. PW6/A; the affidavit given by the father
of the prosecutrix as Ex. PW6/B; copy of the admission register containing
the relevant entry of admission of the prosecutrix as PW6/C; the prosecutrix
was examined before the Court on 29.10.2013 when she gave her age as 11
years; She was described by the Ld. ASJ as Baby “S”; the prosecutrix gave

CRL.A.No.223/2018 Page 6 of 48
the class in which she was studying as class IV; the Ld. ASJ recorded her
satisfaction that “the child is intelligent‖; the Ld. ASJ observed ― However,
she is only 11 years of age and therefore cannot be expected to understand
the purpose and consequences of oath. I, therefore, dispense with
administration of oath to the witness”; the Ld. ASJ, thus, was satisfied about
the age of the prosecutrix as being 11 years (and certainly not above 18
years).

12. Mr. Katyal points out that PW6 was not cross examined at all to raise
a doubt on the school record. It was not suggested that the age of the
prosecutrix at the time of grant of admission to her in the year 2011 was not
correctly recorded in the school record. He further submits that in the
affidavit tendered by the father at the time of the admission of the
prosecutrix, he had stated that there was no documentary proof of the correct
and true age of birth of his daughter i.e., the prosecutrix.

13. Mr. Katyal points out that neither the prosecutrix, nor her mother
PW5- who had deposed that the age of the prosecutrix was 11 years on the
date of occurrence, were cross examined on the said aspect of age. Thus, the
age of the prosecutrix as being 11 years, on the date of occurrence, was not
contested by the accused. The testimonies of the prosecutrix and her mother
went uncontested.

14. Mr. Katyal submits that in the aforesaid background, for the learned
ASJ to raise a doubt with regard to the age of the prosecutrix being below 12
years on the date of occurrence, was completely uncalled for and reflects a
patently erroneous approach.

CRL.A.No.223/2018 Page 7 of 48

15. On merits, the Ld. ASJ has held that there are inconsistencies in the
statements of the material witnesses, which raise doubts on the case of the
prosecution. The accused has been given the benefit of the doubt and,
consequently, acquitted.

16. Mr. Katyal submits that the learned ASJ has doubted the statements of
the material prosecution witnesses by resort to an extremely erroneous and
misdirected approach in the matter of appreciation of evidence. In this
regard, he has read the statements of the material prosecution witnesses-
being the prosecutrix PW1, her brother Rahul- PW2, her mother Simla-
PW5 and Baby Divya PW7, her sister. Mr. Katyal has made his submissions
in respect of the said statements, in the context of appreciation of these
statements by the trial Court. We shall deal with his submissions a little later
while examining and appreciating the evidence. He has drawn the attention
of the Court to paragraph 13 of the impugned judgment which reads as
follows;

―Thus, as per testimony of mother the incident was told
to her by the victim on 25.02.2013 after her return from
village but as per testimony of sister it was told on next
morning. The victim has deposed that she narrated the
incident to her brother while weeping but her brother has
deposed that when he returned to home his sister was
sleeping and she on next morning narrated the incident
to him. As per brother he shared the incident with one
tailor who told it to his mother. Thus all the four
witnesses have deposed contrary to each other and the
same is sufficient to raise doubt on the case. The
prosecution has not brought any evidence to support the
version that the parents of victim were not present on the
day of incidence at home. Admittedly the offence of rape

CRL.A.No.223/2018 Page 8 of 48
is very shameful for the victim and the family and there is
possibility of non reporting it to the police promptly but
in the case in hand there is doubt that such an offence
has happened as when brother of the victim returned to
home, as per testimonies, he found her sister sleeping
and that he met with the accused in the stairs while he
was coming to home. If the offence had been occurred it
would have been observed by him in the night itself. It is
not possible that a girl with whom the offence of rape has
occurred and another girl who has seen the occurrence
will sleep within minutes.‖

17. Mr. Katyal submits that the so called inconsistencies and
contradictions highlighted by the learned ASJ are neither material, nor
relevant, and do not go to the root of the matter. Minor inconsistencies are
normal and natural. They are bound to creep in, in normal circumstances.
They are not relevant, unless they impinge on the core of the case of the
prosecution. He submits that the prosecutrix and her two siblings i.e., PW2-
Master Rahul and PW7- Baby Divya were consistent and corroborative in
their statements. Moreover, the statement of the prosecutrix stood duly
corroborated by her MLC Ex. PW8/A, which showed that her hymen was
torn. The core of the case of the prosecution was intact, and was duly
established. Mr. Katyal, thus, submits that the impugned judgment is
patently laconic, borders on perversity, and has led to grave miscarriage of
justice. The same suffers from glaring errors in the matter of appreciation of
evidence on account of the misdirected approach of the Ld. ASJ. The same
deserves to be set aside, and the accused convicted as charged.

18. On the other hand learned counsel for the respondent accused had
defended the impugned judgment. He submits that there are material

CRL.A.No.223/2018 Page 9 of 48
contradictions and inconsistencies in the story narrated by the prosecution
witnesses, namely, PW1- the prosecutrix, PW2, Master Rahul, PW5- the
mother of the prosecutrix and PW7- Baby Divya. He submits that the
forensic examination of the samples did not find presence of semen in the
vaginal swab, or the clothes of the prosecutrix. The FIR was highly belated
in as much, as, the incident was allegedly of 20.02.2013 night, and the FIR
was registered only on 25.02.2013.

19. The principles applicable to examination of the judgment of acquittal,
in appeal, were laid down in Sheo Swarup Ors. v. The King Emperor,
AIR 1934 PC 227 (2) in the following words;

“… … … the High Court should and will always give
proper weight and consideration to such matters as (1.)
the views of the trial judge as to the credibility of the
witnesses; (2.) the presumption of innocence in favour of
the accused, a presumption certainly not weakened by the
fact that he has been acquitted at his trial; (3.) the right
of the accused to the benefit of any doubt; and (4.) the
slowness of an appellate Court in disturbing a finding of
fact arrived at by a judge who had the advantage of
seeing the witnesses. To state this, however, is only to say
that the High Court in its conduct of the appeal should
and will act in accordance with rules and principles well
known and recognized in the administration of justice.‖

20. The Supreme Court crystallized the principles that the High Court
should follow while examining a judgment of acquittal passed by the Trial
Court in Ghurey Lal v. State of U.P., (2008) 10 SCC 450. The Supreme
Court observed;

CRL.A.No.223/2018 Page 10 of 48

―70. In light of the above, the High Court and other
appellate courts should follow the well-settled principles
crystallised by number of judgments if it is going to
overrule or otherwise disturb the trial court’s acquittal:

1. The appellate court may only overrule or otherwise
disturb the trial court’s acquittal if it has ―very
substantial and compelling reasons‖ for doing so.

A number of instances arise in which the appellate court
would have ―very substantial and compelling reasons‖ to
discard the trial court’s decision. ―Very substantial and
compelling reasons‖ exist when:

(i) The trial court’s conclusion with regard to the facts is
palpably wrong;

(ii) The trial court’s decision was based on an erroneous
view of law;

(iii) The trial court’s judgment is likely to result in
―grave miscarriage of justice‖;

(iv) The entire approach of the trial court in dealing with
the evidence was patently illegal;

(v) The trial court’s judgment was manifestly unjust and
unreasonable;

(vi) The trial court has ignored the evidence or misread
the material evidence or has ignored material documents
like dying declarations/report of the ballistic expert, etc.

(vii) This list is intended to be illustrative, not exhaustive.

2. The appellate court must always give proper weight
and consideration to the findings of the trial court.

3. If two reasonable views can be reached–one that
leads to acquittal, the other to conviction–the High

CRL.A.No.223/2018 Page 11 of 48
Courts/appellate courts must rule in favour of the
accused.‖

21. We have duly considered the rival submissions in the light of the
evidence brought on record, and the law relevant to the subject. We now
proceed to examine and appreciate the evidence in the aforesaid light.

22. The approach of the Ld. ASJ in dealing with the aspect of the age of
the prosecutrix is completely flawed. Firstly, we may observe that whether
the prosecutrix was below 12 years of age or above 12 years of age, and less
than 18 years of age – or even above the age of 18 years, is not relevant
insofar as the offence of rape is concerned. The law deals with rapes
involving below 18 years of age under the special enactment, namely, the
Protection of Children against Sexual Offences Act (POCSO ACT). The
offences of rape of a child below 12 years are treated with greater severity.
However, even in respect of a person who is above 18 years of age, the
offence of rape does not get obliterated only on account of age of the
prosecutrix. However, from the discussion found in the judgment, it is
evident that the ld. ASJ appears to be reeling under the impression that
unless the age of the prosecutrix is established to be under 12 years, the
offence of rape would not be made out.

23. We now proceed to consider whether the finding returned by the Ld.
ASJ that the prosecution has not been able to establish that the prosecutrix
was below 12 years of age can be sustained.

CRL.A.No.223/2018 Page 12 of 48

24. The record shows that in the first telephonic information given to the
police on 25.02.2013 at 2:40 P.M vide DD No.21A, it was reported that
“wrong act had been done with a girl aged 15 years.”

25. PCR Form entries are invariably recorded (and in this case it was
recorded) on the basis of telephonic communication. Accurate transmission
of such telephonic information may, or may not take place- particularly in
respect of names and numbers. The information travels from mouth to
mouth, before it gets recorded. Thus the possibility of inaccuracies creeping
into the details of the recording made in the Daily Diary on the basis of
telephonic calls cannot be ruled out, and is inconsequential.

26. We may refer to the judgment of the Division Bench in Rakesh @
Toni v. State (NCT of Delhi), 2014 SCC Online (Del) 6986. In Rakesh
(supra) information was received on Number 100 that somebody was
stabbed at the disclosed location. That information was entered in the Police
Control Room (PCR) Form Ex.15/A.

27. The discussion in the judgment shows that the information contained
in Ex.15/A was inaccurate. While dealing with entries made in the PCR
form, the Division Bench observed as follows;

―15. A perusal of the information relayed
contemporaneously to the Police Control Room and
recorded in the PCR Form would reveal that W/Ct.Soni
Kumari has recorded that injured Suraj S/o Raju was
accompanied by his maternal uncle Manoj who informed
that Suraj and his maternal uncle Titu had gone to
purchase All Out when somebody stabbed Suraj. That

CRL.A.No.223/2018 Page 13 of 48
Suraj and the man who stabbed him were on foot and had
collided with each other.

16. Entries in the Police Control Room form are cryptic
because there is hardly any time for the In-charge of
the Police Control Room van to redictate what was
conveyed and there is hardly any time for the operator
to seek clarifications. Information received, with its
accompanying aberrations, are recorded in the PCR
form, but it contains vital information, as in the present
case. The accompanying aberration in the instant case
is a reference to Manoj as the maternal uncle of Suraj.
Manoj referred to in the information recorded is not the
maternal uncle of Suraj. He is Ct.Manoj Kumar PW-12,
who in his deposition has stated that the area in question
where the incident took place fell in his beat and that he
was on patrolling duty when he learnt about a stabbing
incident at Shani Bazar near Primary School and he
reached the spot. He saw Suraj lying in an injured
condition. A PCR van reached. He removed the injured
in the PCR van to the hospital. One Om Prakash and
another person whose name he did not remember
accompanied them. The person Om Prakash referred to
in his testimony by Ct.Manoj is Om Prakash PW-4, the
maternal uncle of the deceased and his pet name is Titu.
The reference in the information recorded in the PCR
form to Titu is to Om Prakash. It is apparent that it was
Om Prakash who told Ct.Manoj as to what had happened
because Ct.Manoj was the first police officer to reach the
spot. As Ct.Manoj, Om Prakash, Rajesh Kumar and the
deceased were travelling in the Police Control Room van
to take the deceased to the hospital, Ct.Vinod passed on
the information to the In-charge of the PCR van „Libra-
39‟, who in turn conveyed the same to W/Ct.Soni
Kumari. When information is relayed from person to
person there is bound to be discrepancies here and
there. But at its core, the vital information conveyed is
that Om Prakash and Rajesh Kumar were in the
company of the deceased when the deceased collided

CRL.A.No.223/2018 Page 14 of 48
with the assailant who then stabbed the deceased. Om
Prakash and Rajesh Kumar would thus be natural
witnesses to the incident.‖ (emphasis supplied)

28. Thus, on the basis of the other evidence brought on record, the Court
read the information contained in Ex. 15/A in a meaningful way by taking
notice of the inaccuracy which had crept into the recording of the PCR form.

29. Similarly, in Om Parkash @ Omla v. State of Delhi 1971 (3) SCC
413, the appellant sought to raise an argument before the Supreme Court- on
the basis of the entry in the roznamcha maintained at the control room (the
information recorded was that the victim had been stabbed with a knife by a
badmash inside Dharam Kanta Gali near Airlines Hotel), that the police had
shifted the place of offence from the place mentioned in the roznamcha, to
the shop of the deceased. The information was conveyed telephonically in
that case. The Supreme Court observed that the name of the accused or the
name of the deceased would not be very important in the message received
at the control room. The control room is not concerned with the actual
investigation of the offence. The object of information was to call the police
to the scene of occurrence. That is why Dharam Kanta Gali near Airlines
Hotel is mentioned for facility of location of the place of occurrence. Thus,
in Om Parkash (supra) as well, the entry made in the roznamcha maintained
at the police control room was not accepted by the Supreme Court as the
gospel truth in all respects.

30. In the present case as well, there is absolutely no evidence whatsoever
brought on record to suggest that the age of the prosecutrix was indeed 15
years at the time of the commission of the offence. If the age of the

CRL.A.No.223/2018 Page 15 of 48
prosecutrix was 15 years on the date of occurrence, there was no reason for
the mother of the prosecutrix PW5 to claim that she was 11 years of age in
her subsequent statement. Similarly, there was no reason for the prosecutrix
PW1, her brother PW2 or the other witnesses to claim that she was 11 years
of age. Even the school record regarding admission granted to the
prosecutrix, does not support the inaccuracy in the statement recorded vide
DD No. 21A with regard to the age of the prosecutrix.

31. The statement of the prosecutrix was recorded on the same day i.e.,
25.02.2013 vide Ex.PW1/A wherein she disclosed her age as 11 years and
that she studies in 3rd class in MCD School. The prosecutrix was medically
got examined vide MLC PW8/A. The age of the prosecutrix was disclosed
to the doctor as 11 years by the mother who accompanied her. Pertinently,
the prosecutrix had not even attained menarche when she was examined by
the doctor and her hymen was found torn. On the basis of the rukka, a FIR
Ex.PW9/A was registered on 25.02.2013 under Section 376IPC. The FIR
also records the age of the prosecutrix as 11 years. The statement of the
prosecutrix was got recorded before the Ld. MM under Section 164 Cr.P.C.
on 27.02.2013 vide Ex. PW4/B and Ex. PW4/C. Even before the Ld.
Magistrate the prosecutrix gave her age as 11 years. She disclosed that she
was a student of 3rd class, which is age appropriate. The statement of the
prosecutrix was recorded before the Court as PW1 on 29.10.2013. The Ld.
ASJ described the prosecutrix as “Baby S” looking to her tender appearance.
She disclosed that she was studying in class 4th and gave her age as 11 years.
The Ld. ASJ then recorded that she was satisfied that the “child is
intelligent”. She further recorded that “however she is only 11 years of age

CRL.A.No.223/2018 Page 16 of 48
and, therefore, cannot be expected to understand the purpose and
consequences of oath.” Therefore, administration of oath to the witness was
dispensed with. Pertinently, no doubt arose in the mind of the Ld. ASJ with
regard to the age of the prosecutrix being 11 years when the statement of the
prosecutrix was recorded on 29.10.2013. No such suggestion was given by
the accused to PW1, that she was not 11 years of age, or that she was either
more than 12 years of age, or more than 18 years of age.

32. The mother of the prosecutrix- Ms. Shimla was examined as PW5.
She stated that she has 6 children, including the victim. The victim “S” is
her second child and her age is about 11 years. On the date when her
statement was recorded i.e., 31.05.2014, she stated that the prosecutrix was
studying in 4th standard. However, she could not tell the date of birth of the
prosecutrix, being illiterate. Cross examination of PW5 shows that on behalf
of the accused, though certain questions were put with a view to elicit the
age of the prosecutrix, it was not suggested to her that the prosecutrix was
not below 12 years of age or that she was a major. In fact, her answers
given in her cross examination are consistent with her testimony in her
examination in chief.

33. The prosecution examined Ms. Seema Sharma, Principal, S.D.M.C
School, Seva Nagar East, New Delhi as PW6. She produced the school
record as per which the prosecutrix was admitted in second class on
10.05.2011 vide Serial No. 4589 and was still studying in the school. As per
the school record her date of birth was 02.02.2005. The copy of the
application form was exhibited as Ex. PW6/A and the affidavit of Mukesh
Chand- the father of the prosecutrix was Ex. PW6/B. The said affidavit was

CRL.A.No.223/2018 Page 17 of 48
affirmed and attested on 09.05.2011 i.e., nearly 2 years before the date of the
incident. PW6 also exhibited the admission register containing relevant
entry of the admission of the prosecutrix which is Ex. PW6/C. Pertinently,
PW6 was not cross examined on behalf of the accused and it was not
suggested to the Principal PW6 that the date of birth recorded in the school
qua the prosecutrix was incorrect, or that the record was not duly made or
maintained.

34. The cross examination of PW13, SI Sunil Kumar, who was entrusted
with the enquiry of DD No. 21A, shows that, for the first time, the accused
sought to raise a defence that the prosecutrix was not a minor. The
suggestion given to PW13 that the prosecutrix was a major at the time of the
incident is neither here nor there. PW13 neither had any personal
knowledge with regard to the age of the prosecutrix, nor had he collected the
evidence in that respect from the SDMC School- where the prosecutrix was
studying. In any event, he denied the said suggestion. Thus, this suggestion
given to PW13 was pointless.

35. Pertinently, a pointed question was put to the accused while recording
his statement under Section 313 Cr.P.C. vide question No. 13 “that PW6
produced the admission register of PW1 Ex.PW6/C containing application
form Ex. PW6/A regarding admission of PW1 coupled with the affidavit Ex.
PW6/B of her father who was admitted in SDMC Primary School in Class
IInd on 10.05.2011 vide serial number 4589 showing her date of birth as
02.02.20058. What do you have to say?” The accused answered the said
question by stating that “it is a matter of record”. Even on that stage, he did
not set up a defence that the school record was incorrect, or that the

CRL.A.No.223/2018 Page 18 of 48
prosecutrix was more than 12 years of age on the date of incident, or a
major.

36. We have had several occasions to deal with decisions rendered by the
same Ld.ASJ wherein, in similar circumstances, he has held that the
prosecution has not been able to establish the age of the victim/ prosecutrix
to be below 12 years, and on that basis, he acquitted the accused. We may
take note of our decision in State (GNCT OF DELHI) v. Hargovind in
Crl.a. 334/2018, decided on 02.07.2018, wherein we referred to our earlier
decision in State of NCT of Delhi V. Sonu Kumar in Crl.A.1137/2017,
decided on 07.03.2018, and State of NCT of Delhi V. Dharmendra in
Crl.A. 1184/2017, decided on 23.03.2018. The relevant extract of decision
in Hargovind (supra) reads as follows;

“19. The issue that arises for consideration is, as to what approach
the Court should adopt in the matter of determination of age of the
prosecutrix, if the prosecution – while claiming that the prosecutrix/
victim is below the age of 16 years, or 12 years – as the case may be,
does not prove her birth certificate on record. Would the Court be
justified in presuming and proceeding on the basis that the
prosecutrix/ victim is a major, or above the age of discretion, i.e. 16
years, or the Court is obliged to call for the medical examination of
the victim/ prosecutrix to determine her age?

20. Recently, we had occasion to consider some aspect about the
age of the victim in our decision rendered in State of NCT of Delhi v.
Dharmendra, Crl. A 1184/2017 decided on 13.03.2018. In that case
the age of the victim was disclosed by prosecution as 9 years. The
learned ASJ held that the prosecution had not established that the
victim was below 12 years of age- which is relevant for the purpose of
Section 9 of the POCSO Act. This Court, inter alia, observed as
follows in the said decision:

CRL.A.No.223/2018 Page 19 of 48

―26. The birth certificate of a child may not have been
got made; it may not be available/ preserved, or; it may
not have been led in evidence in a given case. In either
of these situations, can it be said that the age of the
victim would be presumed to be above 12 years or 18
years, even though the other circumstances contra-
indicate such an assumption? In our view, no such
presumption can be drawn and the Court would have to
examine the circumstances and evidence in each case to
arrive at its own conclusion on the aspect of age of the
victim.

27. The learned ASJ has held that the age of the
victim has not been proved to be below 12 years on the
premise that the victim’s birth certificate issued by an
agency empowered under the law to issue the same has
not been brought on record. No other similar document
has been placed on record.

28. Section 35 of the Indian Evidence Act, 1872
(the Evidence Act) states that ―An entry in any public or
other official book, register or record or an electronic
record, stating a fact in issue or relevant fact, and made
by a public servant in the discharge of his official duty,
or by any other person in performance of a duty specially
enjoined by the law of the country in which such book,
register, or record or an electronic record is kept, is
itself a relevant fact‖.

29. As noticed hereinabove, PW-2 the school
principal produced the admission register Ex.PW-2/C;
the school application form Ex.PW-2/A and the copy of
the affidavit of the mother of the victim Ex.PW-2/B, on
the basis of which the date of birth of the victim in the
school record was recorded 16.06.2013 when the victim/
child was admitted in Class-II on 18.08.2010.
Pertinently, the incident in question is of 15.08.2013.
Firstly, the affidavit had been given by the mother of the

CRL.A.No.223/2018 Page 20 of 48
victim/child and not by a stranger who may not be aware
of his date of birth. Secondly, the affidavit and the
application form were processed and acted upon by the
school, and the date of the birth of the victim/ child
recorded in the school record by the school authorities in
the discharge of the official duty. Thirdly, the date of
birth of the child was disclosed by the mother as
16.07.2013 much before the incident took place and thus,
there was no occasion for the mother to falsely declare
the date of birth of her child/ victim.

30. The learned ASJ has placed reliance on the
judgment of the Supreme Court in Satpal Singh Vs. State
of Haryana, (2010) 8 SCC 714, in support of his
aforesaid conclusion. A reading of the said judgment
shows that the learned ASJ has applied the said decision
mechanically and without appreciation thereof. In fact,
on our reading we find that the said decision supports the
case of the prosecution in the present case. Satpal Singh
(supra) was a case of rape of a girl while she had gone
with her brother to the fields for collecting cattle fodder.
The prosecutrix had raised an alarm and upon hearing
the same, her brother came running to the place of
occurrence, by when the appellant/ convict had escaped
from the scene. The Trial Court convicted the appellant
and the High Court dismissed his appeal. However, his
sentence was reduced by the High Court from 7 years to
5 year Rigorous Imprisonment, apart from fine for the
offence under Section 376 of the IPC. Before the
Supreme Court, the appellant raised primarily two
issues. The first was that the making of the FIR was
belated and, secondly, that the prosecutrix was a major,
and not minor at the time of the incident. We are
concerned only with the second aspect in the present
case. We consider it appropriate to reproduce the
relevant extract from the judgment of the Supreme Court
in Satpal Singh (supra) dealing with the said aspect.
The same reads as follows:

CRL.A.No.223/2018 Page 21 of 48

―19. So far as the issue as to whether the prosecutrix was
a major or minor, it has also been elaborately considered
by the courts below. In fact, the school register has been
produced and proved by the Headmaster, Mohinder
Singh (PW 3). According to him, Rajinder Kaur (PW 15),
the prosecutrix, was admitted in Government School,
Sharifgarh, District Kurukshetra on 2-5-1990 on the
basis of school leaving certificate issued by Government
Primary School, Dhantori. In the school register, her
date of birth has been recorded as 13-2-1975. The
question does arise as to whether the date of birth
recorded in the school register is admissible in evidence
and can be relied upon without any corroboration. This
question becomes relevant for the reason that in cross-
examination, Shri Mohinder Singh, Headmaster (PW 3),
has stated that the date of birth is registered in the school
register as per the information furnished by the
person/guardian accompanying the students, who comes
to the school for admission and the school authorities do
not verify the date of birth by any other means.

20. A document is admissible under Section 35 of the
Evidence Act, 1872 (hereinafter called as ―the Evidence
Act‖) being a public document if prepared by a
government official in the exercise of his official duty.
However, the question does arise as to what is the
authenticity of the said entry for the reason that
admissibility of a document is one thing and probity of it
is different.

21. In State of Bihar v. Radha Krishna Singh [(1983) 3
SCC 118 : AIR 1983 SC 684] this Court dealt with a
similar contention and held as under:

―40. … Admissibility of a document is one thing and its
probative value quite another–these two aspects cannot
be combined. A document may be admissible and yet may

CRL.A.No.223/2018 Page 22 of 48
not carry any conviction and weight or its probative
value may be nil. … (SCC p. 138, para 40)

***

53. … where a report is given by a responsible officer,
which is based on evidence of witnesses and documents
and has a statutory flavour in that it is given not merely
by an administrative officer but under the authority of a
statute, its probative value would indeed be very high so
as to be entitled to great weight. (SCC p. 143, para 53)

***

145. (4) The probative value of documents which,
however ancient they may be, do not disclose sources of
their information or have not achieved sufficient
notoriety is precious little. (SCC p. 171, para 145)‖

22. Therefore, a document may be admissible, but as to
whether the entry contained therein has any probative
value may still be required to be examined in the facts
and circumstances of a particular case. The aforesaid
legal proposition stands fortified by the judgments of this
Court in Ram Prasad Sharma v. State of Bihar [(1969) 2
SCC 359] ; Ram Murti v. State of Haryana [(1970) 3
SCC 21 : 1970 SCC (Cri) 371 : AIR 1970 SC 1029]
; Dayaram v. Dawalatshah [(1971) 1 SCC 358 : AIR
1971 SC 681] ; Harpal Singh v. State of H.P. [(1981) 1
SCC 560 : 1981 SCC (Cri) 208 : AIR 1981 SC 361]
; Ravinder Singh Gorkhi v. State of U.P. [(2006) 5 SCC
584 : (2006) 2 SCC (Cri) 632] ; Babloo Pasi v. State of
Jharkhand [(2008) 13 SCC 133 : (2009) 3 SCC (Cri)
266] ; Desh Raj v. Bodh Raj [(2008) 2 SCC 186]
and Ram Suresh Singh v. Prabhat Singh [(2009) 6 SCC
681 : (2010) 2 SCC (Cri) 1194] . In these cases, it has
been held that even if the entry was made in an official
record by the official concerned in the discharge of his

CRL.A.No.223/2018 Page 23 of 48
official duty, it may have weight but still may require
corroboration by the person on whose information the
entry has been made and as to whether the entry so made
has been exhibited and proved. The standard of proof
required herein is the same as in other civil and criminal
cases. Such entries may be in any public document i.e.
school register, voters list or family register prepared
under the rules and regulations, etc. in force, and may be
admissible under Section 35 of the Evidence Act as held
in Mohd. Ikram Hussain v. State of U.P. [AIR 1964 SC
1625 : (1964) 2 Cri LJ 590] and Santenu Mitra v. State
of W.B. [(1998) 5 SCC 697 : 1998 SCC (Cri) 1381 : AIR
1999 SC 1587]

23. There may be conflicting entries in the official
document and in such a situation, the entry made at a
later stage has to be accepted and relied upon.
(Vide Durga Singh v. Tholu [AIR 1963 SC 361] .)

24. While dealing with a similar issue in Birad Mal
Singhvi v. Anand Purohit[1988 Supp SCC 604 : AIR
1988 SC 1796] , this Court held as under: (SCC p. 619,
para 15)

―15. … To render a document admissible under Section
35, three conditions must be satisfied, firstly, entry that is
relied on must be one in a public or other official book,
register or record; secondly, it must be an entry stating a
fact in issue or relevant fact; and thirdly, it must be made
by a public servant in discharge of his official duty, or
any other person in performance of a duty specially
enjoined by law. An entry relating to date of birth made
in the school register is relevant and admissible under
Section 35 of the Act, but entry regarding to the age of a
person in a school register is of not much evidentiary
value to prove the age of the person in the absence of the
material on which the age was recorded.‖

CRL.A.No.223/2018 Page 24 of 48

25. A Constitution Bench of this Court, while dealing
with a similar issue in Brij Mohan Singh v. Priya Brat
Narain Sinha [AIR 1965 SC 282] , observed as under:
(AIR p. 286, para 18)

―18. … The reason why an entry made by a public
servant in a public or other official book, register, or
record stating a fact in issue or a relevant fact has been
made relevant is that when a public servant makes it
himself in the discharge of his official duty, the
probability of its being truly and correctly recorded is
high. That probability is reduced to a minimum when the
public servant himself is illiterate and has to depend on
somebody else to make the entry. We have therefore
come to the conclusion that the High Court is right in
holding that the entry made in an official record
maintained by the illiterate chowkidar, by somebody else
at his request does not come within Section 35 of the
Evidence Act.‖

26. In Vishnu v. State of Maharashtra [(2006) 1 SCC 283
: (2006) 1 SCC (Cri) 217] while dealing with a similar
issue, this Court observed that very often parents furnish
incorrect date of birth to the school authorities to make
up the age in order to secure admission for their
children. For determining the age of the child, the best
evidence is of his/her parents, if it is supported by
unimpeccable documents. In case the date of birth
depicted in the school register/certificate stands belied by
the unimpeccable evidence of reliable persons and
contemporaneous documents like the date of birth
register of the municipal corporation, government
hospital/nursing home, etc., the entry in the school
register is to be discarded.

27. Thus, the entry in respect of age of the child seeking
admission, made in the school register by semi-literate
chowkidar at the instance of a person who came along

CRL.A.No.223/2018 Page 25 of 48
with the child having no personal knowledge of the
correct date of birth, cannot be relied upon.

28. Thus, the law on the issue can be summarised that the
entry made in the official record by an official or person
authorised in performance of an official duty is
admissible under Section 35 of the Evidence Act but the
party may still ask the court/authority to examine its
probative value. The authenticity of the entry would
depend as to on whose instruction/information such entry
stood recorded and what was his source of information.
Thus, entry in school register/certificate requires to be
proved in accordance with law. Standard of proof for the
same remains as in any other civil and criminal case.

29. In case, the issue is examined in the light of the
aforesaid settled legal proposition, there is nothing on
record to corroborate the date of birth of the prosecutrix
recorded in the school register. It is not possible to
ascertain as to who was the person who had given her
date of birth as 13-2-1975 at the time of initial admission
in the primary school. More so, it cannot be ascertained
as who was the person who had recorded her date of
birth in the primary school register. More so, the entry in
respect of the date of birth of the prosecutrix in the
primary school register has not been produced and
proved before the trial court. Thus, in view of the above,
it cannot be held with certainty that the prosecutrix was a
major. Be that as it may, the issue of majority becomes
irrelevant if the prosecution successfully establishes that
it was not a consent case.‖

31. From the above extract, it would be seen that in
Satpal Singh (supra), the evidence led by the prosecution
to establish the date of birth/ age of the prosecutrix on
the date of the incident was the school register of the
Government school, wherein she was admitted on
02.05.1990. The prosecutrix had been admitted on the

CRL.A.No.223/2018 Page 26 of 48
basis of the school leaving certificate Issued by the
Government primary school. In the said register, her
date of birth had been recorded as 13.02.1975. The
Supreme Court posed the question whether the date of
birth recorded in the school register is admissible in
evidence and can be relied upon without any
corroboration. This question arose since the
Headmaster of the Government school had stated that the
date of birth was registered in the school register as per
the information furnished by the parents/ guardian
accompanying the students who came to the school for
admission, and the school authorities did not verify the
date of birth by any other means. The Supreme Court
referred to Section 35 of the Evidence Act. It observed
that admissibility of a document is one thing, and probity
of the entry made in the said document is a different
thing. A document may be admissible but as to whether
the entry contained therein has any probative value may
still required to be examined in the facts circumstances
of a particular case. It was held that even if an entry is
made by an official in the discharge of his official duty, it
may have weight but still may require corroboration by
the person on whose information the entry has been made
and as to whether the entry was made has been exhibited
and proved.

32. The Supreme Court referred to Birad Mal Singhvi
(supra), wherein it was held that an entry relating to date
of birth made in the school register is relevant and
admissible under Section 35 of the Act, but entry
regarding the age of a person in a school register is of
not much evidentiary value to prove the age of the person
in the absence of the material on which the age was
recorded.

33. The rationale behind making the entry made by a
public servant in a public or other official register or
record as a relevant fact was noticed in Brij Mohan

CRL.A.No.223/2018 Page 27 of 48
Singh (supra). While doing so, the Supreme Court
rejected the reliance placed on the entry made in the
school register with regard to the date of birth, since the
same had been made by an illiterate chowkidar which
could not be relied upon. The entry made in the school
register with regard to the date of birth provided by the
parents could be disregarded, if it stands belied by
unimpeachable evidence of reliable persons and
contemporaneous documents like the date of birth
register of a municipal corporation; government
hospital/ nursing home, etc.

x x x x x x x x x

35. The learned ASJ has observed in the paragraph 6
of the impugned judgment, which is extracted
hereinabove, that ―as per rules the birth certificate of the
school first attended is required which has not been
produced‖. The learned ASJ has made no reference to
any specific ―rule‖ in this regard. However, we take it,
that the learned ASJ had Rule 12 of the Juvenile Justice
(Care Protection of Children) Rules 2007 (JJ Rules for
short) in his mind.

36. Firstly, we may observe that the Juvenile Justice
(Care Protection of Children) Act 2015 (JJ Act for
short) and the JJ Rules have been framed with the object
of ―catering to the basic needs through proper care,
protection, development, treatment, social reintegration,
by adopting a child-friendly approach in the
adjudication and disposal of matters in the best interest
of children and for their rehabilitation through processes
provided, and institutions and bodies established, … …
…‖ (emphasis supplied) (See preamble to the JJ Act).
The expression ―child-friendly‖ is defined in Section
2(15) of the JJ Act to mean ―any behavior, conduct,
practice, process, attitude, environment or treatment that
is humane, considerate and in the best interest of the

CRL.A.No.223/2018 Page 28 of 48
child;‖. Under Section 7, the Juvenile Justice Board
constituted under the JJ Act is obliged to observe its
rules in regard to transaction of business, and to ensure
that all procedures are child-friendly. The whole
approach adopted by the authorities under the JJ Act,
in the administration of the said Act, is to lean in favour
of the accused/ juvenile in conflict with law. It is in this
context that Rule 12 of the JJ Rules – which prescribes
the procedure to be followed in determination of the age
of the juvenile in conflict with law, has to be understood
and applied. The said Rules, insofar, as it is relevant
reads as follows:

―12. Procedure to be followed in determination of
Age.―

In every case concerning a child or a juvenile in
conflict with law, the court or the Board or as the
case may be the Committee referred to in rule 19
of these rules shall determine the age of such
juvenile or child or a juvenile in conflict with law
within a period of thirty days from the date of
making of the application for that purpose.

The court or the Board or as the case may be the
Committee shall decide the juvenility or otherwise
of the juvenile or the child or as the case may be
the juvenile in conflict with law, prima facie on the
basis of physical appearance or documents, if
available, and send him to the observation home
or in jail.

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 –

CRL.A.No.223/2018 Page 29 of 48

(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.‖

Pertinently, in cases falling under sub-rule (3)(b), the
Court/ Board/ Committee shall, for reasons to be
recorded, give benefit to the child or juvenile by
considering his/ her age on the lower side within the
margin of one year.

37. No doubt, the Supreme Court in Mahadeo
(supra) held that the same yardstick could be followed

CRL.A.No.223/2018 Page 30 of 48
by the Court for the purpose of ascertaining the age of a
victim, as is prescribed in Rule 12 of the JJ Rules,
however, in our considered view, the said observations
of the Supreme Court have to be viewed, firstly, in the
factual context in which they were made, and also while
keeping in mind the fact that stricto sensu Rule 12 of
the JJ Rules is framed with a view to provide protection
to the accused who may be juveniles, and not with a
view to cause prejudice to a victim of a crime who may
be a minor.

38. In Mahadeo (supra), the appellant was convicted
of the offence punishable under Section 363, 506 376
IPC. The High Court dismissed the appeal of the
appellant. The two Courts affirmed the finding of fact
that the prosecutrix was 15 years and 4 months of age
when the offences were committed. The said findings
were premised on the evidence led by the prosecution in
the form of school leaving certification of the prosecutrix
proved on record by the Headmistress of the school,
which disclosed her date of birth 20.05.1990 as also the
admission form and the transfer certificate issued by the
primary school where the prosecutrix had studied, led in
evidence by the Headmaster of the primary school. In
the records of both the schools the date of birth of the
prosecutrix was recorded as 20.05.1990. On behalf of
the appellant, it was argued that the prosecutrix was not
below the age of 18 years at the time of occurrence. In
this regard, the appellant relied upon the evidence of
doctor PW-8 who examined the prosecutrix. She deposed
that the age of the prosecutrix could have been between
17 to 25 years at the relevant time. The Trial Court
rejected the reliance placed by the defence on the version
of PW-8, since the same was not premised on scientific
examination of the prosecutrix by conduct of tests such as
the ossification test. The mere opinion of PW-8 – the
doctor, could not be acted upon. The Supreme Court
agreed with the said finding of the Trial Court and in that

CRL.A.No.223/2018 Page 31 of 48
context made reference to Rule 12 of the JJ Rules. The
Supreme Court in the light of Rule 12(3)(b) observed
that: ―only in the absence of alternative methods
described under Rules 12(3)(a)(i) to (iii), the medical
opinion can be sought for. In the light of such a statutory
rule prevailing for ascertainment of the age of a juvenile,
in our considered opinion, the same yardstick can be
rightly followed by the courts for the purpose of
ascertaining the age of a victim as well.‖

39. Pertinently, in Mahadeo (supra) as well – like in
the present case, the birth certificate of the prosecutrix
had not been produced. What had been produced were
the school records from the primary school and the
Daneshwar Vidyalaya which recorded the date of birth
of the prosecutrix consistently as 20.05.1990. The
Supreme Court accepted the said evidence as good
evidence to prove the minority of the prosecutrix as on
the date of the offence. Thus, though the priority/
procedure laid down in Rule 12 of the JJ Rules would
be attracted to determine the age of the victim/
prosecutrix, the tendency to lean in favour of the
accused (in the case of a juvenile in conflict with the
law) would, in such situations, be to lean in favour of
the minority of the victim/ prosecutrix while
determining the age of the victim/ prosecutrix.‖
(emphasis supplied)

37. The evidence brought on record shows that it was really not even in
issue, whether the prosecutrix was below the age of 12 years or not. It was a
consistent case of the prosecution that the prosecutrix was 11 years of age at
the time of the incident. That was so disclosed by the prosecutrix in the
rukka; before the doctor when her MLC was conducted; in her statement
recorded under Section 164 Cr.P.C.; in the FIR and; before the Court. The
age of the prosecutrix was also disclosed to be of 11 years by PW5- the

CRL.A.No.223/2018 Page 32 of 48
mother, Ms. Shimla and the age of the prosecutrix was also established by
the school records produced by PW6, Ms. Seema Sharma. Neither the
prosecutrix PW1 nor her mother PW5, nor Ms. Seema Sharma PW6 were
cross examined on the aspect of the age of the prosecutrix.

38. As noticed hereinabove even while recording his statement under
Section 313 Cr.P.C., when the accused was confronted with the school
record Ex.PW6, he responded by merely stating that it was a matter of
record. The incident took place nearly 2 years after the father of the
prosecutrix gave the affidavit disclosing her age Ex. PW6/B and it could not
be said that he deliberately suppressed the age of the prosecutrix with a view
to falsely implicate the accused. Pertinently, the affidavit was given by none
other than the father of the prosecutrix and he was no stranger to her. There
was no other evidence brought on record inconsistent with the date of birth
of the prosecutrix recorded in the school record.

39. As noticed hereinabove, the prosecutrix was not found to have even
attained menarche. As per Modi’s Medical Jurisprudence and Toxicology
menarche is generally reached by a female at the age of 13-14 years. In this
regard we may quote the relevant extract from the aforesaid medical
literature.

―Age-Puberty in the female usually commences at the
thirteenth or fourteenth year in India. The age of onset
of menstruation is variable and factors like race,
heredity, general health, environment, climate, diet and
hygiene play a part‖

CRL.A.No.223/2018 Page 33 of 48

40. The prosecutrix was a student of 3rd Grade at the time when the
offence was perpetrated. It would even, otherwise, be absurd to assume that
a child of 3rd Grade is of 18 years plus. The Grade in which she was
studying was age appropriate with 11 years, as stated by the prosecutrix.

41. Thus, in the light of the aforesaid discussion, the finding returned by
the Trial Court that the age of the prosecutrix was not established to be of 12
years on the date of the incident is completely fallacious and contrary to the
evidence brought on record. The same cannot be sustained and is
accordingly set aside.

42. At the same time, we may observe – at the cost of repetition, that the
offence of rape does not get obliterated even if the prosecutrix is assumed to
be above the age of 12 years. The only consequence – of the prosecutrix
being found to be below 12 years of age, is that the rape, if established to
have been committed, would tantamount to aggravated sexual assault as
defined in Section 5(m) of the POCSO Act.

43. We may now turn to examine the evidence led by the prosecution on
record in relation to the offence with which the accused was charged.

44. The first statement of the prosecutrix given to the police Ex.PW1/A,
insofar as it is relevant, was that about 10 days ago, her father had gone to
Mathura for some work. Since he did not return, her mother went to
Mathura to bring him back. On 20.02.2013-Wednesday, her brother Rahul
had gone to participate in the Budh Bazaar at Sadik Nagar in the afternoon.
Since her brother used to return late after participating in the Budh Bazaar,
the prosecutrix and her sister had left the door of their home open and had

CRL.A.No.223/2018 Page 34 of 48
gone to sleep at around 11.00P.M. While they were sleeping, the accused-
whom she knew from before, came to their house and removed the pant of
the prosecutrix while she was sleeping and he also removed his own pant
and thereafter, he did “galat kaam” with her which caused considerable pain
to her and after the act some “garam paani” also came out. Thereafter, the
accused gave Rs. 10/- to the prosecutrix and told her not to speak to anyone
about his act. She also stated that her sister Divya, aged 7 years saw the
entire episode. She and her sister did not tell about the incident to anyone
and on 25.02.2013, she told the incident to her mother. The mother, in turn,
informed the police.

45. In her statement recorded under Section 164 Cr.P.C. before the Ld.
Magistrate Ex.PW4/B, the prosecutrix, narrated the incident as already
narrated by her in Ex.PW1/A. She added that the accused raised her legs at
the time of committing the offence. She stated that the accused left before
the arrival of her brother and that the accused threatened her with dire
consequences if she spoke to anyone. She also stated that her brother saw
the accused in the stairway. She stated that she got scared and she informed
her brother about the incident after about 3-4 days. Thereafter, he informed
the parents about the incident. In her statement made before the Court, the
prosecutrix was consistent with earlier two statements. She explained the
reason why her parents were not at home; why the door of the house had
been left open on the fateful night; that the accused entered the house and
removed the clothes of the prosecutrix and his own clothes and that he
committed rape upon her. She also stated that she felt pain in her abdomen
and that her sister- Divya witnessed the same. She also stated that her

CRL.A.No.223/2018 Page 35 of 48
brother- Rahul came home late in the night, and the accused was going
downstairs when he came, and when her brother questioned the accused, he
stated that he had come to see if all was well. She also stated that while
committing the rape the accused had intimidated and threatened her not to
reveal the incident to anyone, otherwise, he would kill her and take her
away. She stated that when her mother returned home, she was crying in
pain and told about the incident to her mother, whereafter the police was
called at number 100. She was cross examined and she stood her ground.
She denied the suggestion that on the night of the incident some more boys
had come to her home to meet her. She denied that on the said day, the
tailor had met her.

46. The statement of the prosecutrix was corroborated by both PW7-
Baby Divya, sister and PW2- Master Rahul, the brother. PW7- Baby Divya
narrated the incident by stating that on one day the accused came to their
house. At that time he was drunk. Her parents were not at home. The door
of the house was not bolted and was slightly open and electricity was off at
that time. Her brother was also not there. The accused came inside the
house and removed his clothes and the clothes of her sister and laid upon
her. Thereafter, he did “gandi cheez” with her sister. She explained that he
inserted his penis into the vagina of the prosecutrix. The accused put one
hand on the mouth of her sister, and threatened her and her sister that if they
raise alarm, he will kill both of them. After some time, hearing the footsteps
of her brother, he went downstairs, threatening them not to follow him,
otherwise, he will kill them. When her parents came in the morning, the
police was called. She identified the accused correctly. She was cross

CRL.A.No.223/2018 Page 36 of 48
examined on behalf of the accused but her examination in chief was not at
all shaken. She denied that she had been tutored by her mother to depose
before the Court. She also denied that she was tutored by her elder sister.
She stated that the incident was not narrated to her brother in the night.
However, the incident was disclosed to the mother in the morning.

47. PW2- Master Rahul, the brother of the prosecutrix in his testimony
corroborated the statement made by the prosecutrix. He stated that on the
fateful night, he returned home in the night at about 01.00 A.M. When he
was going upstairs to his home, the accused was coming downstairs. He
asked the accused why he had come to his home. He said that the mother of
the prosecutrix had asked him to meet her children in her absence and said
that he had come to meet the prosecutrix. He stated that when he came
upstairs, there was no light and his sister was sleeping and he also went to
sleep. The next morning his sister narrated the incident to him. He stated
that he asked his sister to remain calm till the mother arrives. After about 2-
3 days, the mother came back. He shared the incident with the tailor known
to them and he informed the mother about the incident. The prosecutrix also
narrated the incident to her mother. The mother then called up the police
and the police made enquiries.PW2 was cross examined on behalf of the
accused but his examination in chief was not shaken.

48. PW5- Ms. Shimla, the mother of the prosecutrix stated that she
returned to Delhi on 25.02.2013 to her house. On that day, her daughter-
the prosecutrix “S” was not well (woh bujhi si ho rhi thi). She asked her-
what had happened? She told her that the accused had come to their house 3
days earlier and had done wrong act with her. She made a call to number

CRL.A.No.223/2018 Page 37 of 48
100 about the incident, whereafter, the police came. She stated that the
police took into its possession the t-shirt, pant of her daughter- the
prosecutrix and one blanket. She denied the suggestion that the tailor of the
nearby shop was involved in the incident, or that the accused had been
falsely implicated instead of the tailor.

49. From the testimonies of the aforesaid witnesses, it is seen that the
prosecutrix was consistent in her statements at all stages. She narrated the
incident as it happened while recording her statement Ex.PW1/A; while
recording her statement under Section 164 Cr.P.C. Ex. PW4/B and Ex.
PW4/C and while recording her testimony before the Court. Her statement
has been fully corroborated by PW7- her younger sister, Baby Divya, who is
an eye witness to the occurrence of the incident. To the extent that the
accused was seen coming down after the incident from the house of the
prosecutrix, the statement of Master Rahul is corroborative.

50. The statement of the prosecutrix is also corroborated by the MLC of
the prosecutrix Ex. PW8/A, which shows that her hymen was found torn.
Though it is possible for the hymen to get torn due to physical activity or
injury, it cannot be assumed that in every case where the hymen of a small
girl child is found torn, the same is a result of a physical activity or injury.
The defence did not probablise the possibility of the hymen of the
prosecutrix being torn due to physical activity or due to injury. When there
are serious allegations of penetrative sexual assault and the hymen of the
prosecutrix is also found torn, the fact that the hymen of the prosecutrix-
who is a minor child of only about 11 years, is torn, is certainly an

CRL.A.No.223/2018 Page 38 of 48
incriminating circumstance and is a corroborative piece of evidence in
relation to the statement of the prosecutrix and other prosecution witnesses.

51. We have, in detail, referred to the statements made by the prosecutrix
from time to time and find that they are all consistent in their material part.
The statement of the prosecutrix is completely credible and believable. The
accused has not been able to raise any doubt on the said statement. The
prosecutrix, who was only about 11 years of age described the incident as it
happened in detail, not only in her first statement Ex. PW1/A but also in her
statement recorded before the Magistrate under Section 164 Cr.P.C. Ex.
PW4/B and PW4/C. It is evident from the statement of the prosecutrix, that
she had no earlier experience of sexual activity. She stated in Ex. PW1/A
that on account of penetration by the accused into her vagina, she suffered
considerable pain and, thereafter, some hot fluid “garam paani” was
discharged. This refers to the act of ejaculation of semen by the accused- a
phenomenon with which she was not conversant. It is on this account that
she described the ejaculation of semen as the discharge of “garam paani”
when her statement was recorded under Section 164 Cr.P.C. She described
the offence by stating that the accused raised her legs while committing the
act. This, again, is a graphic narration of the incident by the prosecutrix
which she would not have given had she not actually been subjected to rape.
The prosecutrix and PW-2 and PW-7 are all minors. Their statements have
to be approached with caution. Their statements are duly corroborated and
rule out the possibility of tutoring.

CRL.A.No.223/2018 Page 39 of 48

52. The reasons given by the Ld. ASJ to disbelieve the case of the
prosecution are found in paragraph 13 of the impugned judgment, which
reads as follows;

―Thus as per testimony of mother the incident was told to
her by the victim on 25.02.2013 after her return from
village but as per testimony of sister it was told on next
morning. The victim has deposed that she narrated the
incident to her brother while weeping but her brother has
deposed that when he returned to home his sister was
sleeping and she on next morning narrated the incident
to him. As per brother he shared the incident with one
tailor who told it to his mother. Thus all the four
witnesses have deposed contrary to each other and the
same is sufficient to raise doubt on the case. The
prosecution has not brought any evidence to support the
version that the parents of victim were not present on the
day of incidence at home. Admittedly the offence of rape
is very shameful for the victim and the family and there is
possibility of non reporting it to the police promptly but
in the case in hand there is doubt that such an offence
has happened as when brother of the victim returned to
home, as per testimonies, he found her sister sleeping
and that he met with the accused in the stairs while he
was coming to home. If the offence had been occurred it
would have been observed by him in the night itself. It is
not possible that a girl with whom the offence of rape has
occurred and another girl who has seen the occurrence
will sleep within minutes”

53. The Ld. ASJ has found discrepancy in the statement of the prosecutrix
that, on the one hand, she stated that she narrated the incident to her mother
on 25.02.2013 after her return from the village, and on the other hand, her
younger sister PW7- Divya, stated that the incident was narrated on the next
morning. The Ld. ASJ, in our view, has taken an absurdly hypothetical view

CRL.A.No.223/2018 Page 40 of 48
of the matter. It is well settled that minor aberrations and inconsistencies
naturally creep in the statements of witnesses. That cannot be a reason to
discard the, otherwise, credible and consistent testimonies of the witnesses.
The Ld. ASJ failed to appreciate that PW7 was merely 8 years old at the
time when her statement was recorded on 17.01.2015. The incident is of
20/21.02.2013. Thus, the statement of PW7 was recorded, nearly 2 years
after the incident. When the incident took place, she was still very young.
To expect such exacting recollection and memory from anyone, much less a
child, who is barely 8 years of age, is to live in an unrealistic world.

54. The Ld. ASJ, unfortunately, has shown complete lack of sensitivity to
human feelings and limitations. The cut and dry approach demonstrated by
the Ld. ASJ has led to serious miscarriage of justice. We find that the
reasoning given by the Ld. ASJ is, even, otherwise, absurd. He observes
that the victim deposed that she narrated the incident to her brother while
weeping. Pertinently, while making the said statement, the prosecutrix did
not state that she narrated the incident to her brother on the same night.
Thus, there is no contradiction between this statement of the prosecutrix, and
the statement of the brother that the prosecutrix and her sister were sleeping
when he came back home around 1.00A.M. The statement of the brother
that he shared the incident with one tailor, who told to his mother, and the
statement of the prosecutrix that she told about the incident to her parents
and to her brother, in our view do not tantamount to such serious
inconsistency which could be said to go to the root of the matter. As to who
informed whom first, is an aspect which does not concern the incident itself,
since the offence/ incident had already taken place.

CRL.A.No.223/2018 Page 41 of 48

55. Insofar as the incident is concerned, the statements of PW1, PW2 and
PW7 are consistent and credible. In our view, the minor embellishments
and inconsistencies with regard to the subsequent developments which took
place before the police was called are not sufficient to raise any doubt on the
case of the prosecution which has remained intact.

56. The Ld. ASJ has observed that the prosecution has not established that
the parents of the victim were not present at home at the time of the incident.
We are dismayed at this line of reasoning adopted by the Ld. ASJ for the
reason, that it was not even suggested to either the prosecutrix PW1, or to
PW2- Master Rahul, or to PW5- Ms. Shimla, or even to PW7-Baby Divya
that the parents of the prosecutrix were at home on the fateful night, or that
they had not gone out of town. The accused could not have been heard to
contend that the parents of the prosecutrix were home on the fateful night.
The learned ASJ appears to have pulled out this argument of his own hat –
something he could not have done, to raise a doubt on the case of the
prosecution.

57. The Ld. ASJ has not believed the case of the prosecution for the
reason that when PW2 returned home, he found the prosecutrix and the
younger sister sleeping. He doubts the case of the prosecution, because
they- i.e. the prosecutrix and PW-7 did not report the crime to him on the
same night. However, he does not appreciate the consistent statement made
by both PW1 and PW7 that the accused threatened them with dire
consequences if they were to speak about the incident to anyone.

CRL.A.No.223/2018 Page 42 of 48

58. Merely because the prosecutrix and her sister may have appeared to
be asleep when PW2 returned home late in the night, it does not follow that
they were deep in sleep. Pertinently, it has come in the evidence of PW1
and PW7 that they were both aware of the fact that their brother had met the
accused on the stairway when he was returning to the room. Thus,
obviously, both the prosecutrix and PW7- Divya were not asleep when PW2
returned, but they gave the appearance of being asleep, to PW2.

59. Sexual offences carry with them a great deal of shame,
embarrassment and guilt for the victim and the other family members. It is
not easy, and it requires courage and confidence for the victim to speak up
and disclose the offence. This is more so when the victim and other
witnesses are small children and have been threatened with dire
consequences. Unfortunately, the Ld. ASJ has shown complete lack of
sensitivity and understanding of human behavior in this regard while
appreciating the evidence.

60. It has been argued on behalf of the accused that the samples drawn
and sent to FSL did not establish the presence of semen, much less of the
accused. The explanation for the same is simple. The incident took place
on the night of 20/21.02.2013, whereas the complaint was made and MLC
conducted only on 25.02.2013.The MLC records that the prosecutrix has
taken bath twice and defecated since the day of occurrence. That being the
position, it was not unusual to not find semen on the vaginal swabs taken
from the prosecutrix during the conduct of her medical legal examination.

CRL.A.No.223/2018 Page 43 of 48

61. It has also been argued that the clothes of the prosecutrix and the
blanket collected from her residence also did not show the presence of
semen. It appears from the record that the said clothes and blanket were
collected by the I.O. only with a view to investigate whether the same had
any semen marks which could be attributed to the accused. Pertinently, it
was not the case of the prosecution, and it was not stated either by the
prosecutrix, or her sister PW7, or her brother PW2, or even her mother PW5,
that the said clothings did receive the semen marks at the time of the
commission of the offence.

62. The defence taken by the accused was of false implication on account
of some alleged financial transaction between his family and the family of
the victim. The accused claimed that the family of the victim gave a loan of
Rs.50,000/- to them, which they were not able to pay on time, and to put
pressure on them the case had been planted on him. Pertinently, no such
defence was put to the prosecution witnesses, particularly PW1, PW2 and
PW5. For the first time, the said defence was set up by the accused while
recording his statement under Section 313 Cr.P.C. The accused did not lead
any evidence in support of this defence. Thus, this defence of the accused
stood falsified and was of no avail.

63. The accused has not been able to explain why the prosecutrix and her
family members would falsely implicate him in such a serious offence. The
accused was known to the family of the prosecutrix- being a neighbor. In
that capacity, he appears to have known of the parents of the prosecutrix
being out of town, thereby leaving the minor children unprotected. It
appears he was also aware of the fact that PW2 Rahul- the elder brother, was

CRL.A.No.223/2018 Page 44 of 48
away to participate in Budh Bazar and the prosecutrix was home only with
her younger sibling. He seized the opportunity and committed the heinous
crime.

64. Section 29 of the POCSO Act raises a statutory presumption against
the accused, who is prosecuted for committing, or abetting, or attempting to
commit any offence, inter alia under Section 5 of the said Act “that such
person has committed or abetted or attempted to commit the offence, as the
case may, unless contrary is proved.” Section 30 of the POCSO Act relates
to raising of a statutory presumption against the accused with regard to the
mental state.

65. Thus, it was for the accused to rebut the mandatory statutory
presumption under Section 29 and 30 of the POCSO Act, which, he has
miserably failed to do.

66. The accused also claimed an alibi. In response to question No.27, he
stated that he was not even in Delhi on the particular day and that he had
gone to his maternal uncle for purchase of items which he sells at his general
store. Once again, this defence was not put to any of the prosecution
witnesses. In support of this plea, the accused examined DW1-Sh. Bajrangi,
his maternal uncle.

67. DW1 stated that in the year 2012, the accused came to him for work
as a fruit vendor in Allahabad. The accused went to him on 22.02.2012 and
he remained with him in Allahabad throughout the season of Guavas i.e., for
2 months. He changed the date when the accused allegedly went to him as
26.01.2013, and claimed that he stayed with him till 22.02.2013. He stated

CRL.A.No.223/2018 Page 45 of 48
that during this time, he learnt the business of selling guavas as he wanted to
set the same in Delhi. He claimed that when he was returning, he gave him
150 Kg. of guavas to sell in Delhi.

68. Firstly, we may observe that the statement of DW1 is at variance with
the defence taken by the accused, wherein he stated that he had gone to his
maternal uncle “for purchase of the items which we sell at our general
store.‖ On the other hand, his uncle DW1 stated that the accused stayed
with him to learn the business of guavas, as he wanted to set up that business
in Delhi- meaning thereby, that the accused was not selling guavas at his
general store.

69. The cross examination of DW1 completely discredits him. He could
not give the address where he was residing when the accused allegedly
visited him. He could not tell the name of the current English month and
whether the month was September, October or March. Yet he gave the
exact date of his arrival as 26.01.2013, and of his departure as 22.02.2013.
He stated that the accused came to him at Allahabad only once and he had
met the accused in Delhi twice. The accused remained with him for 60-65
days. We may observe that the period 26.01.2013 to 22.02.2013 is less than
1 month.

70. On further cross examination, he stated that the accused came to
Allahabad by Prayag Raj Express in December 2013 and remained with him
for 2 months. He stated that the accused never came to him in Allahabad
prior to December 2013. Pertinently, the incident is of February, 2013.

CRL.A.No.223/2018 Page 46 of 48

71. It is clear to us that DW1- being the maternal uncle of the accused, is
an interested witness and his interest lies in saving and protecting the
accused. His testimony is completely discredited, since he has contradicted
himself on several aspects taken note of hereinabove. Thus, the accused
failed to establish the alibi set up by him.

72. In the light of the aforesaid discussion, we are of the view that the
prosecution has been able to conclusively establish the charge against the
accused of his having raped the prosecutrix on the night of 20/21-02.2013 at
her residence, beyond reasonable doubt.

73. The impugned judgment, in our view, suffers from serious infirmities.
The approach of the Ld. ASJ in appreciation of evidence has led to grave
miscarriage of justice. The approach of the Ld. ASJ is not judicious, as in
the formation of his opinion, he has got influenced by wholly irrelevant and
minor embellishments and inconsistencies, which are bound to creep-in in
any case. The Ld. ASJ has failed to appreciate that the core of the case of
the prosecution had remained intact, and has been completely established to
the hilt by the credible testimonies of the prosecutrix which stood
corroborated by PW2, PW7, and by the medical evidence brought on record.
The accused has not been able to probablise the defence set up by him either
by way of cross examination of the prosecution witnesses, or by leading any
definite evidence.

74. Consequently, we set aside the impugned judgment and hold the
respondent accused guilty of having committed the offence of aggravated
sexual assault upon the prosecutrix since the prosecutrix, at the relevant

CRL.A.No.223/2018 Page 47 of 48
point of time was a child below 12 years of age. The respondent accused is,
thus, convicted for the offence under Section 5 read with Section 6 of the
POCSO Act.

(VIPIN SANGHI)
JUDGE

(I.S.MEHTA)
JUDGE
OCTOBER 12, 2018

CRL.A.No.223/2018 Page 48 of 48

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