GAURAV KATARA AND ORS. Vs. STATE AND ORS.

JUDGEMENT

(1.) The appellant Gaurav Katara challenges the legality and correctness of a judgment dated 18.05.2006 in Sessions Case No.152/04 arising out of FIR No.302/2004 registered at Police Station Krishna Nagar by which he was held guilty for committing offences under Section 366/376 IPC. By an order 20.05.2006 he was awarded RI for five years with fine Rs. 5,000/- under Section 376 IPC and RI for three years with fine Rs. 2,000/- under Section 366 IPC. Both the sentences were to operate concurrently.

(2.) Briefly stated, the prosecution case as reflected in the chargesheet was that on 17.07.2004 from Shani Bazar, Delhi, the appellant abducted 'X' (assumed name) with an intent to force or seduce her to illicit intercourse with him against her wish. She was taken to various places and was sexually assaulted. Ambrish Maheswari, 'X's father lodged missing person report DD No.24A (Ex.PW-12/A) at 2205 hours and informed the police that on 17.07.2004 at around 04:00 p.m. her daughter 'X' had gone without informing anyone and she did not return thereafter. On 18.07.2014 after recording Ambrish Maheshwari's statement (Ex.PW1/A), the Investigating Officer lodged First Information Report. In the complaint Ambrish Maheshwari (PW-1) suspected appellant's involvement in the kidnapping of her daughter 'X', aged 141/2 years. Efforts were made to find out the prosecutrix. She and the appellant were recovered/apprehended on 22.07.2004 at Bus Stand of Mahua District, Rajasthan. Intimation was sent to Delhi police. They were brought to Delhi. 'X' was medically examined; she recorded her statement under Section 164 Cr.P.C. The accused was arrested and medically examined. Statements of witnesses conversant with the facts were recorded. After completion of investigation, a charge-sheet was submitted against the appellant for the commission of the offences under Sections 363/366/376 IPC. Meena Katara, appellant's mother, was kept in Column No.2. By order dated 22.02.2005 Meena Katara was summoned to face trial under Section 319 Cr.P.C. Charges under Sections 366/376 were settled against the appellant. Meena Katara was charged under Section 109 read with Section 366/376 IPC. They pleaded not guilty and claimed trial. The prosecution examined sixteen witnesses to establish its case. In 313 statement, the accused denied their involvement in the crime and pleaded false implication. They did not examine any witness in defence. The trial resulted in appellant's conviction as mentioned previously. It is relevant to note that Meena Katara was acquitted of the charges. The State did not challenge the said acquittal.

(3.) I have heard the learned counsel for the parties and have examined the file minutely. The main controversy is about the exact age of the prosecutrix 'X' on the day of incident. The Trial Court has discussed all the relevant facts and was of the opinion that 'X' was below 16 years of age on the day of occurrence. The appellant was unable to produce any evidence to establish that she was more than 18 years of age that day. In the missing person report (Ex.PW-12/A), lodged on 17.07.2004, age of the prosecutrix was described as 141/2 years by her father Ambrish Maheshwari; he reiterated it in his statement (Ex.PW- 1/A). In 164 statement (Ex.PW2/A), the prosecutrix claimed her age to be 14 years. In her Court statement she disclosed her age 15 years as on 22.02.2005. In the cross-examination, she denied to be more than 18 years. The accused did not elaborate as to on the basis of what document/ material, he assessed 'X's age to be more than 18 years. The prosecution examined PW-7 (Madhu Gogia), Principal, Biglow's Public School, Krishna Nagar, who brought the record pertaining to 'X's admission in her school. She deposed that as per record 'X' was admitted in class Vth on 03.04.1999 and her date of birth recorded was 26.01.1990. Admission form filled by her father was exhibited as Ex.PW-7/A. He had furnished photocopy of birth certificate (Ex.PW-7/B) issued by MCD at the time of admission. Her name was mentioned in admission and withdrawal Register at Serial No.1313. She studied in their school till March, 2004 and Transfer Certificate (Ex.PW-7/E) was issued to her on 12.04.2004. 'X's father had also submitted school certificate of the previous school (Ex.PW-7/D). She admitted in the cross-examination that as per Ex.PW- 7/D issued by the previous school, the date of birth was recorded as 26.01.1989. She fairly admitted that school leaving certificate was not verified from the previous school. Apparently, document (Ex.PW-7/D), disclosed the date of birth of the prosecutrix as 26.01.1989. The date of birth was recorded much prior to the occurrence. It was not anticipated that time that such an incident would happen in future to manipulate her date of birth. Even if her date of birth is considered as 26.01.1989, she was well below 16 years of age on the day of incident. Besides this, the prosecution also examined PW-10 (Narender), Sub Registrar Births and Death, Anaj Mandi, Shahdara. He brought record pertaining to the birth of the child whose parents' name was mentioned as Sushila and Ambrish Maheshwari. As per record date of birth of 'X' was 26.01.1990. The said birth was recorded on 10.05.1990. Photocopy of relevant entry in original birth register was exhibited as Ex.PW10/A. Ex.PW-7/B i.e. birth certificate was issued on 10.05.1990 by the office. In the crossexamination, he admitted that entry in the Registrar was made on the basis of affidavit filed by Sushila Devi. No valid reasons exist to disbelieve the date of birth recorded much prior to the incident. It has come on record that 'X' is Ambrish Maheshwari's adopted daughter. Photocopy of adoption deed dated 18.05.1990 executed between the natural parents and the adoptive parents reveal that 'X' was born on 26.01.1990. In the presence of overwhelming evidence about the date of birth as 26.01.1990, no reasons prevail to disbelieve her age particularly when no documents worth the name has been brought on record by the appellant to prove her age more than 18 years.