CRL. A. 1418/2011. Case: Shambhu Nath Pandey Vs State of NCT of Delhi. High Court of Delhi (India)
| Case Number | CRL. A. 1418/2011 |
| Counsel | For Appellant: Mr. Rupesh Tyagi with Mr. Saurabh Kocher, Advocates and For Respondents: Mr. Manoj Ohri, APP for State |
| Judges | Mr. Manmohan, J. |
| Issue | Code of Criminal Procedure, 1973 - Sections 164, 374(2); Indian Penal Code (45 Of 1860) - Sections 35, 363, 366, 375, 376 |
| Judgement Date | September 17, 2012 |
| Court | High Court of Delhi (India) |
Judgment:
Manmohan, J.
1. Present appeal has been filed under Section 374(2) Cr.P.C. challenging the judgment dated 8th August, 2011 and order on sentence dated 17th August, 2011 passed by learned Additional Sessions Judge-04, Saket Courts, New Delhi whereby the appellant has been convicted for offence punishable under Sections 366/376 IPC and sentenced to seven years rigorous imprisonment with a fine of ` 6,000/-. The relevant facts of the present case are that on 27th June, 2004, Mr. Akbar Ali lodged a complaint with police station Okhla Industrial Area stating that his daughter who had gone to school to appear in her compartment examination on 22nd June, 2004 had not returned home. Accordingly, police registered an FIR under Section 363 IPC.
2. Subsequently, during investigation police apprehended both prosecutrix and appellant-accused at the instance of mother of the prosecutrix. The prosecutrix was produced for medical examination and her statement was recorded under Section 164 Cr.P.C. It is pertinent to mention that the prosecutrix in her statement to the police as well as to the doctor and the Metropolitan Magistrate under Section 164 Cr.P.C. stated that she had married the accused-appellant in a temple and thereafter she had willingly had sexual intercourse with the appellant-accused. Since there was a dispute with regard to the age of the prosecutrix, an ossification test was conducted which opined that her age at the time of incident was between 14.9 and 15.8 years.
3. By the aforesaid impugned judgment and order, the appellant-accused was convicted under Sections 363/376 IPC. The relevant portion of the impugned judgment is reproduced hereinbelow:-
16. Defence had taken the only plea that the accused and the prosecutrix surrendered in the police post. The prosecutrix remained out of the lawful guardianship of her parents for almost eighteen days. Therefore, it is proved that prosecutrix was taken/enticed away. Now the next question arises about the age of the prosecution. Court has to determine the age of the prosecutrix at the time of commission of offence. There are three version of her age. First is school record. She was class eighth student. As per school record, the prosecutrix's date of birth was 01.01.1991, meaning thereby, she was below 14 years of age on the day of incident. Doctor, who had examined the prosecutrix, has given the history stating her age as 15 years in MLC Ex. PW7/A. The prosecutrix in her statement under section 164 Cr.P.C. has given her age as 15 1/2 years. Doctor who examined the X-Ray plate for determination of age of the prosecutrix had opined the age of the prosecutrix between 14.09 to 15.8 years. Under no circumstances, age of the prosecutrix was above 16 years. The fact cited in Kulwant Singh (supra) is different. There, the prosecutrix has given her age to doctor as 17 years. In the radiological examination, the age given by the doctor is 14 to 16 years. In Raja Ram (supra), parents of the prosecutrix were not examined on the fact of age of the prosecutrix though they were best witnesses. But here in the present case, both PW-4 and 5 deposed to the fact that the age of the prosecutrix was 14 years, though they did not give her actual date of birth. PW-4 deposed in his examination that his elder son was aged 17 year and his mustache has not come and Roshni was his second child. He denied that his daughter is more than 17 years of age. Same has been deposed by PW-5 that her daughter was aged about 14 years when the incident of kidnapping took place. Dr. Harsh has given bone age of the prosecutrix after ascertaining the matacarpal and lower head fused.
17. In view of the above discussion, I am of the considered opinion that the prosecution has established that the age of the prosecutrix was not more than 16 years at the time of commission of offence. Considering the fact about the standard in which the prosecutrix studying coupled with the abovesaid facts, the age of the prosecutrix cannot...
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