JUDGMENT
V.S. Aggarwal, J.
1. This is an appeal filed by Devanand (hereinafter described as the appellant) directed against the judgment and order of sentence passed by learned Additional Sessions Judge, New Delhi dated 31st January, 2000. The learned trial court held the appellant guilty of the offence punishable under Section 376 Indian Penal Code and sentenced him to undergo rigorous imprisonment for seven years and a fine of Rs. 1000/-. In default of payment of fine he was to undergo further rigorous imprisonment for two months.
2. The facts of the prosecution case are that Sushila, prosecutrix is stated to be only 13 years of age at the relevant time. She made a complaint against the appellant that she had been raped by the appellant by threatening her that if she discloses this fact to any person her parents would be killed. The appellant was a tenant in the house where Sushila lived with her parents. The complaint had been made after the appellant vacated the premises.
3. This led the process of law into motion. On basis of statement of Sushila formal first information report was recorded by sub inspector Krishan Kumar. Sushila had been sent to the hospital for medical examination. Thereafter the appellant had been arrested. Even the appellant was medically examined. The statement of the prosecutrix. The statement of the prosecutrix too was recorded under Section 164. The school leaving certificate of the prosecutrix was obtained. On these broad facts the report under Section 173 Code of Criminal Procedure as against the appellant had been submitted.
4. The learned trial court framed a charge against the appellant for the offence punishable under Section 376 Indian Penal Code to which the appellant pleaded not guilty and claimed a trial. In support of its case the prosecution examined 10 witnesses which included the statement of Sushila, PW-1, Phoolwati, mother of Sushila, prosecutrix, PW-2, Dr. Alka, PW-3, who had examined the prosecutrix, besides Dr. Sanjeev Ghai, PW-7 who had reported on basis of X-ray of Sushila about her age, PW-8, Dr. Sunil Sharma had examined the appellant, Ms. Shanti from Sangam Vihar Government Primary Girls School, PW-4 had proved the school leaving certificate of the prosecutrix.
5. When the accused was examined and the prosecution evidence put to him he denied his involvement in the alleged crime and according to him there was a dispute of property. Father of the prosecutrix owned 100 sq. yards plot. He wanted to construct 50 sq yards of plot and asked for money. The appellant took the money from his contractor and gave it to him. When he asked for the return of the money, father of the prosecutrix involved him in this case.
6. In defense the appellant examined Prithvi Singh Rawat, DW-1 who deposed that the appellant was working as a sub contractor. He used to work from morning till evening. The appellant had borrowed from him Rs. 10,000/-. He had given Rs. 5000/- as loan at one time and after five/six days another amount of Rs. 5,000/-.
7. Learned trial court on basis of the said material on the record believed the statement of the prosecutrix that she had been represented under a threat. It was also held that the prosecutrix was below 16 years of age. With these basic findings the appellant was held guilty of the above said offence and the order of sentence followed.
8. The first and foremost question that comes up for consideration is as to whether the prosecutrix at the relevant time was below 16 years of age or not. Prosecutrix appeared as PW1 and stated that she is 13 years of age. She also stated that she had studied in Government Primary school, Sangam Vihar. During cross-examination the witness added that she has three brothers and one sister. She is the eldest child in the family. Her younger brother was stated to be studying in standard 6th. She could not state as to since she is not attending the school but added that he school timings were from 7.30 AM to 12.00 Noon. Sometimes the girls from the neighborhood would also go to the school at the same time. She could not state the names of those girls. She stated further that her parents used to go to work everyday in the morning and her brothers would go to school in the afternoon shift. During cross-examination she had stated that she cannot read and write either in Hindi or in English. Phoolwati, PW-2 is the mother of the prosecutrix stated that at the time when the alleged incident is stated to have taken place the prosecutrix was only 13 years of age. She also deposed that her daughter used to go to school at about 7.30 AM and return by 12,30 Noon. She also stated that her daughter does not know how to read and write. According to her she was admitted in class I in the school.
9. Ms. Shanti, PW-4 was from Sangam Vihar school and she had brought the school leaving certificate of the prosecutrix. She added that prosecutrix was admitted in the school on 28th July, 1994. Her date of birth is recorded as 14.4.1986 and she proved the photocopy of the same as PW-2/A. The last witness in this regard was Dr. Sanjeev Ghai, PW-7 who had opined that the age of the prosecutrix was between 14-1/2 to 16.4 years. He admitted that there can be variation of two years on either side.
10. While analysing the said evidence it has to be remembered that the school leaving certificate Ex. PW-2/A which has been strongly relied upon on behalf of the State to prove that the age of the prosecutrix was below 16 years recites that her date of birth is 14.4.1986. The prosecutrix is stated to be a student of 5th class. This is not based on any birth certificate. Obviously the date of birth has been given on certain approximate date which might have flown from the parents of the prosecutrix. The fact that the witnesses of the prosecution in this regard cannot be believed to be telling truth is obvious from the fact that though prosecutrix is stated to be in class 5, still both Sushila and her mother had the courage to stage that she can neither read nor write Hindi or English. The statement so made is totally inconsistent with the school leaving certificate because it betrays common sense to believe that a student of class 5 cannot even write in Hindi. Therefore, when the prosecutrix and her mother states that she was only 13 years of age the fact cannot be believed on its face value. The school leaving certificate also looses much of its significance.
11. The said school leaving certificate is totally contradicted by the medical evidence because on Ossification test that was conducted the age was opined to be between 14-1/2 to 16.4 years with a variation of two years on either side. It is well known that the development of the child depends on the food habits, the climate and the physical health. In that view of the matter in the absence of any other reliable evidence and unreliable testimony pertaining to the age of the prosecutrix it cannot be termed that prosecution has proved that she was below 16 years of age at the relevant time.
12. The next question that immediately comes up for consideration is as to whether the prosecutrix had been raped by the appellant or not. Even if the prosecution has failed to prove that Ms. Sushila was below the age of 16 years still if he had sexual intercourse with her without her consent it would amount to rape and her age becomes irrelevant.
13. In this regard statement of Sushila can again be considered. She appeared as PW-1 . Obviously she is the best person to recite about what had transpired. In her own words during her examination-in-chief pertaining to the said incident reads:-
“After about 30/36 days of coming of the accused in our house he started threatening me with the knife and also threatened me that my parents would be killed by him if I would make a noise and thereafter the accused started committing rape upon me for 4/5 times…… The accused had committed rape in the absence of my parents. When the accused vacated our house I narrated the fact to my mother then we went to the police station to lodge the report.”
14. During cross-examination she had stated that her parents go to work everyday in the morning and as already referred to above her brothers were attending school in the afternoon shift. She stated further that the appellant had forcibly sex with her on many occasions. There are other tenants/occupants in the premises. She had denied the suggestion that the appellant had promised to give Rs. 40,000/- to her father for transfer of the house in his name. She told her mother about the incident on the 5th day after the appellant had left the house. According to her the appellant had continuously been threatening her of putting her parents to death.
15. The above said statement clearly show that at the earliest opportunity the prosecutrix had not made any complaint to her mother in this regard. Reading of her examination in chief reveals that first time she was raped as per her own version after about 30 to 36 days of coming of the appellant but in any case she admits that she has been raped many a times and she only complained to her mother few days after he had left. The appellant stayed in the house of the prosecutrix for more than year.
16. This clearly show that there has been an inordinate delay in making the complaint by the prosecutrix. It is not one of those occasions where the prosecutrix or her parents discuss such like an event to save the family honour. In this regard reference with advantage can be made to the decision of the Supreme Court in the case of Jagannivasan v. State of Kerala 1995 SCC (Crl.) 826. In the said case after the prosecutrix was alleged to have been raped she went to dance performance rather to her parents to inform of the crime. She had kept quite for six months. The Supreme Court took note of the said fact and held that in those circumstances it would be unsafe to rely on the word of the prosecutrix.
17. In the present case position is still worst. For months together she had never informed her mother or anybody else that the appellant had committed the above said act against her wish and under a threat. This has to be considered in light of the fact that there were other residents in the house. Even if the appellant would enter her premises she had never raised any noise or complained to the neighbours. There is no resistance even purported to have been offered. It is in the statement of Dr. Alka Sinha, PW-3 that there was no external injuries found on examination. These factors clearly indicate that the version of the prosecutrix that she had forcibly been raped under threat of putting her parents to death cannot be believed. As already noted above she has not been telling the truth because she was a student of 5th class and she had the courage to state that she cannot even read Hindi. It appears thus that it. would be a case of consent rather than she having been raped. Appellant indeed in these circumstances is entitled to the benefit of doubt.
18. For these reasons the appeal is accepted. The impugned judgment and order of sentences are set aside. Appellant is awarded the benefit of doubt and is acquitted of the charge framed.