DHARAM RAJ Vs. STATE DELHI ADMINISTRATION

JUDGEMENT

(1.) This is an appeal by Dharam Raj accused/appellant against his conviction under sections 366 and 376 Indian Penal Code and sentence of three years' RI and a fine of Rs. 250.00 under section 366 and four years RI and a tine of Rs. 250.00 under section 376 Indian Penal Code passed by Shri J.D. Kapoor, Additional Sessions Judge, New Delhi, by the impugned judgment and order of sentence dated July 17, 1984 and July 18, 1984 respectively. The prosecution case stated in brief is that the appellant Dharam Raj and the prosecutrix Kumari Mani are neighbours and were known to each other. On February 19, 1981 at about 4.00 p.m. Kumari Mani aged 15-16 years was waiting at the bus stop of Sant Nagar for going from there to her house after doing the house-hold duties as a maid servant in some houses. The appellant came there. He told Kumari Mani that her father was seriously ill and was admitted to Safdarjang Hospital and her mother had sent him to bring her at the hospital. Kumari Mani accompanied the appellant in a three-wheeler scooter for going to the hospital. The appellant, however, told the scooter driver to take them to Gulmohar Park and the scooter driver took both of them to a house in Gulmohar Park. One woman by the name Marry was preseat in that house. She, however, went away from there. The appellant is alleged to have committed rape with Kumari Mani during the night between February 19/20, 19.51 twice or thrice. He had threatened Kumari Mani that if she resisted she would be killed. He also told her that he would marry her. The father of Kumari Mani lodged a report with the police on the next day of the disappearance of Kumari Mani. SI Samarpal Singh, Investigating Officer of the case, accompanied by the father of the prosecutrix went to house no. 18, Gulmohar Park where the appellant had detained Kumari Mani and she was recovered from there. The appellant was arrested and was challaned in the case. As regards the age of the prosecutrix the prosecution relied on the report of the Radiologist wherein the Radiologist had opined the age of Kumari Mani as between 15 years and 15 years and 8 months. Then Kumari Mani supported the prosecution version regarding the main occurrence and about her being recovered from the custody of the appellant as alleged by the prosecution. The appellant in his statement under section 313 Cr.P.C. gave his age as 21 years as on February 18, 1984. He stated that Kumari Mani was elder to him in age. His parents had refused to arrange marriage between him and the prosecutrix ie. that they had declined the offer of the prosecutrix side to marry the appellant with the prosecutrix as she was elder to him and the appellant was, therefore, falsely implicated in the case.

(2.) The learned trial court as regards the question of age of the prosecutrix observed that since the medical officer who had radiologically examined the prosecutrix did not come in the witness box it could be assumed that the prosecutrix was about 16 years old. The learned Additional Sessions Judge then believed the version of the prosecutrix Kumari Mani (Public Witness 4) that she was induced by the appellant to go to the house in Gulmohar Park on the said pretext and that she was subjected to rape by the appellant there against her will and consent and under threat of her being killed by the appellant in case she did not submit to sexual intercourse by the appellant. The appellant was accordingly convicted both under section 366 and section 376 IPC.

(3.) I may say at the very outset that the conclusions of the learned Additional Sessions Judge and the entire approach and the reasoning for reaching the said conclusion are wholly wrong. As regards the age of the prosecutrix which was most material for determining as to whether the offence under section 376 and/or section 366 Indian Penal Code stood proved against the appellant the prosecution did not lead any cogent evidence such as a birth certificate or a certificate from the school record of the prosecutrix etc. The only evidence of the prosecution consisted of the statement of Mutuswamy, father of the prosecutrix, who just stated that the age of his daughter Kumari Mani was about 16 years when he gave his statement in the court and that the age at the time of the occurrence was 13 years, and the final conclusion of Dr. A K. Singhal as given in his so-called report Ex. Public Witness 2/A proved by Shri Nandan Singh, Record Clerk of the All India Institute of Medical Sciences (Public Witness 2) which is reproduced below :