9911796707
TMI Blog2011 (10) TMI 736X X X X Extracts X X X X X X X X Extracts X X X X ..... rjung Enclave, New Delhi had left her house on 24.11.1989 for going to school. She informed through telephone that she would stay in the house of her friend Amita for the night. On 25.11.1989 at about 8.30 a.m. Monika telephoned her cousin Satish Anand that she was going to Pragati Maidan along with her school friends and asked him to reach there so that she would come back with him. Monika asked Satish Anand to meet her at Ahmed Food Restaurant, U.P. Pavilion, where Mohd. Imran Khan and Jamal Ahmed (appellants) used to work. Satish Anand went to Pragati Maidan at the pointed place, but he could neither meet Monika nor either of the appellants, but he came to know that Monika was roaming inside Pragati Maidan along with the appellants. As she did not come back till evening, the complainant Prabhu Dass went to Pragati Maidan on 26.11.1989 and on enquiry he came to know that Monika was seen roaming with the appellants. The appellants were known to Monika as Prabhu Dass, complainant was having a stall of readymade garments at shop no.11 in Anarkali Bazar, Pragati Maidan in front of the food stall where the appellants were working. Complainant's wife Devki and daughter Monika used ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd above 16 years of age. The Investigating Officer deposed in the court that the Birth Certificate produced in the court did not relate to her. The prosecution did not cross-examine him after declaring hostile. In such an eventuality the appellant is entitled for the benefit of his statement. The appellant Jamal Ahmed had no physical connection with the prosecutrix. She had an affair with Mohd. Imran Khan and had gone with him voluntarily. She had been taken from Delhi to Meerut by bus. She met with an Advocate for planning her marriage with Mohd. Imran Khan. She stayed in the hotel. Thus, she had ample opportunity to raise hue and cry or inform some body at some place that she had been subjected to some threat or coercion. The courts below erred in placing reliance on her statement. 7. Shri Anis Ahmed, learned counsel appearing for another appellant in Criminal Appeal No.1516 of 2010 has also assailed the impugned judgment on similar grounds. 8. Per contra, Shri P.P. Malhotra, learned ASG appearing for the State of Delhi has opposed the appeals contending that Monika, prosecutrix was below 16 years of age on the date of incident. She remained under persistent threats from the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hem and from there she was brought to Delhi to the house of elder brother of appellant Jamal Ahmed. Both the accused persons committed rape upon her in that house. They had put their knives on her back in such a manner that other persons could not notice them. She could not raise hue and cry while coming from Meerut to Delhi as she was totally in a position of shock and the accused appellants threatened to kill her in case she raises voice or tries to run away. On 27.11.1989 she had been locked inside the house as the appellants had gone away and after coming back in the evening she was raped by both of them. On 28.11.1989 both the appellants left the house and returned in the evening along with elder brother and brother-in-law of accused Imran. These two persons had taken the prosecutrix to a flat behind G.B. Pant Hospital where she found both the appellants present. After sometime, police recovered her from that place and she was sent for medical examination. Her statement was recorded under Section 164 Cr.P.C. on 29.11.1989. 11. Shri Babu Lal (PW.11), the then Metropolitan Magistrate proved the statement of the prosecutrix recorded under Section 164 Cr.P.C. Other witnesses also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... correct and were liable to be set aside. In view of the fact that the High Court has acquitted the appellants for the offences under Sections 366/34 IPC the issue of kidnapping is not required to be considered further. AGE : 14. Both the courts below have laboured hard to find out the age of the prosecutrix for the reason that defence produced certificate from Safdarjung Hospital, New Delhi to create confusion and the I.O. in order to help the appellants had made a statement that the certificate on record did not belong to the prosecutrix. The medical report of the Radiologist issued by Ram Manohar Lohia Hospital, New Delhi revealed that age of the prosecutrix was between 16 and 17 years. The Birth Certificate issued underSection 17 of the Registration of Birth & Death Act, 1969 reveals that a female child was born on 2.9.1974 by the wedlock of Prabhu Dass and Devki, residents of Sector 12/69, R.K. Puram, New Delhi and its registration number had been 4840. It also reveals that number of live children including this child had been two. However, this certificate has been duly proved by Vijay Kumar Harnal, Medical Record Officer, Safdarjung Hospital, New Delhi (PW.9), who explain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 of Evidence Act and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in theEvidence Act similar to illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence. The court must be alive to its responsibility and be sensitive while dealing with cases ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also be conscious of the danger of being ostracised by the society. It would indeed be difficult for her to survive in Indian society which is, of course, not as forward-looking as the western countries are." 18. Much reliance has been placed by learned counsel for the appellants on the judgment of this Court in Javed Masood & Anr.v. State of Rajasthan, (2010) 3 SCC 538, wherein it had been held that in case the prosecution witness makes a statement and is not declared hostile, he is supposed to speak the truth and his statement is to be believed. It is in view of this fact in the instant case that Puran Singh, I.O. (PW.15) has deposed in the court that the "birth certificate of the prosecutrix did not relate to the prosecutrix. I did not verify about the birth certificate from the NDMC. I do not remember if at the time of bail application I had submitted that the birth certificate is genuine but does not relate to prosecutrix." 19. Thus, the question does arise as to what extent the court is under an obligation to accept the statement of Puran Singh, I.O.(PW.15) particularly in view of the birth certificate available on the record. In view of our finding in resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ra Sharan, learned senior counsel has placed reliance on the judgment of this Court in Baldev Singh & Ors. v. State of Punjab, AIR 2011 SC 1231, wherein the convicts of gang rape had been sentenced to 10 years RI and a fine of ₹ 1000/- each had been imposed and served about more than 3 years imprisonment and incident had been very old, this Court in the facts and circumstances of the case reduced the sentence as undergone, directing the appellants therein to pay a sum of ₹ 50,000/- of fine to be paid to the victim and prayed for some relief. 23. The High Court after taking into consideration all the circumstances including that the incident took place in 1989; the appeal before it was pending for more than 10 years; the prosecutrix had willingly accompanied the appellants to Meerut and stayed with them in the hotel; and she was more than 15 years of age when she eloped with the appellants and the appellants were young boys, reduced the sentence to 5 years which was less than the minimum prescribed sentence for the offence. As the High Court itself has awarded the sentence less than the minimum sentence prescribed for the offence recording special reasons, we do not th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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