Daily Archives: May 25, 2020

Age determination of minor victim, benefit of doubt to accused, cornerstone case : Delhi HC

Cornerstone case dealing with * age determination of MINOR victime, *use of Bone ossification test, * How Bones ossification test is NOT conclusive and gives a range of age, * Benefit of doubt , *Benefit of doubt to accused … ETC. Delhi HC grants the benefit of doubt to the accused and decrees / acquits the accused .

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IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment reserved on : 28th May, 2018

Judgment delivered on: 08th August, 2018

CRL.REV. P.195/2018

SHWETA GULATI & ANR. ….. Petitioners

versus

THE STATE GOVT. OF NCT OF DELHI ….. Respondent

Advocates who appeared in this case:

For the Petitioners : Mr Vikram Dua with Mr Vinod Kumar

For the Respondent : Mr Mukesh Kumar, APP. SI Sanjeet Singh, PS Rajouri Garden

CORAM:- HON’BLE MR JUSTICE SANJEEV SACHDEVA

JUDGMENT

SANJEEV SACHDEVA, J.

1. The petitioners impugn order dated 06.09.2017 passed by the Child Welfare Committee (CWC) as well as the order of the Appellate Court dated 21.02.2018 holding the victim girl to be a minor.

2. Petitioner No.1 is the employer of the minor victim ‘K’ and is a co-accused along with her husband in FIR No.896/2016, Police Station Rajouri Garden under Sections 325/376 IPC and Section 6 POCSO read with Section 75 Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter referred to as ‘J.J.Act, 2015’)

3. The impugned orders arise out of an issue, which arose before the CWC pertaining to payment of wages to the minor victim.

4. Since there was no document available, a Bone Ossification Test of the victim ‘K’ was conducted for her age determination. As per the Ossification Test Report, the age was estimated to be in range of 17 to 19 years, as on 05.12.2016.

5. By the impugned order dated 06.09.2017, the CWC determined the age of the Victim ‘K’ as ‘Seventeen Years’. The said order was impugned by way of an Appeal before the Court of Additional Sessions Judge.

6. By the impugned order dated 21.02.2018, the learned Court of the Additional Sessions Judge has dismissed the Appeal.

7. It is these two orders, which are challenged in these proceedings.

8. In the impugned order dated 06.0.2017, the CWC has held as under:- “………..Thence, CWC, in exercise of powers conferred by Section 94(2)(iii) and 94(3) of the JJ Act, 2005 has determined girl’s age to be 17 years depending on the bone ossification test report wherein her age was estimated in the range of 17-19 years as on 05.12.2016. Thus, lower limit of the range has been fixed as girl’s age taking note of her best interest…”

9. The Court of the Additional Sessions Judge (ASJ), in the impugned order dated 21.02.2018, while dismissing the Appeal, has held as under:- “9. Section 94(3) of the J.J.Act, 2015 provides that the age recorded by the Committee of the Board to be the age of the person so brought before it shall for the purpose of J.J.Act, 2015 be deemed to be the true age of that person. 10. It is well settled that a hyper technical approach should not be adopted while appreciating evidence adduced in respect of plea of juvenility and where two views are possible, the Court should lean in favour of holding the accused to be a juvenile in borderline cases. Same principle shall apply to the victim as well. In judgment dated 01.07.2013 in Jarnail Singh versus State of Haryana, Criminal Appeal No.1209 of 2010, it has been held by the Hon’ble Supreme Court of India that there is hardly any difference insofar as the issue of minority is concerned between a child conflict with law and a child who is a victim of crime.”

10. Since the Revisional Court in the impugned judgment has relied upon the judgment of the Supreme Court in Jarnail Singh versus State of Haryana, (2013) 7 SCC 263, it would be expedient to examine the same. In the facts of the case before the Supreme Court, the defence had sought to rely upon the ossification test results ignoring the evidence available from the school first attended.

11. The Supreme Court in Jarnail Singh (supra) held that even though Rule1 12 is strictly applicable only to determine the age of a 1 The Juvenile Justice (care and Protection of Children) Rules, 2007 child in conflict with law, Rule 12 should be the basis for determining age, even of a child who is a victim of crime. For there is hardly any difference insofar as the issue of minority is concerned, between a child in conflict with law, and a child who is a victim of crime. The Supreme Court further explained that under Rule 12, the age of a child is ascertained by adopting the first available basis out of a number of options postulated in Rule 12(3). If, in the scheme of options under Rule 12(3), an option is expressed in a preceding clause, it has overriding effect over an option expressed in a subsequent clause. The highest rated option available would conclusively determine the age of a minor. In the scheme of Rule 12(3), matriculation (or equivalent) certificate of the child concerned is the highest rated option. In case, the said certificate is available, no other evidence can be relied upon. Only in the absence of the said certificate, Rule 12(3) envisages consideration of the date of birth entered in the school first attended by the child. In case such an entry of date of birth is available, the date of birth depicted therein is liable to be treated as final and conclusive, and no other material is to be relied upon. Only in the absence of such entry, Rule 12(3) postulates reliance on a birth certificate issued by a corporation or a municipal authority or a panchayat. Yet again, if such a certificate is available, then no other material whatsoever is to be taken into consideration for determining the age of the child concerned, as the said certificate would conclusively determine the age of the child. It is only in the absence of any of the aforesaid, that Rule 12(3) postulates the determination of age of the child concerned, on the basis of medical opinion.

12. In the facts of the present case none of the documents mentioned in Rule 12(3)(a) are available so there is no question of preferring an ossification test report over the said documents. It may be noticed that Section 94 of the J.J.Act, 2015 is in similar terms to Rule 12 of the 2007 Rules.

13. The question that arises for consideration is as to whether, while determining the age of the victim, the benefit of doubt in age estimated by the bone ossification test is to go to the accused or the victim.

14. The settled principle is that the ossification test is not conclusive of age determination. It is settled that it is difficult to determine the exact age of the person concerned on the basis of ossification test or other tests. The Supreme Court, in several decisions, has taken judicial notice of the fact that the margin of error in age ascertained by radiological examination is two years on either side.

15. Now the question that arises for consideration is as to whether the lower of the age or the higher of the age is to be taken. If benefit Ram Suresh Singh v. Prabhat Singh, (2009) 6 SCC 681 Jaya Mala v. Govt. of J&K (1982) 2 SCC 538 Jyoti Prakash Rai v. State of Bihar, (2008) 15 SCC 223 of doubt has to go to the accused then one would have to take the higher limit and if benefit of doubt has to go in favour of the prosecutrix then the lower of the two limits would have to be taken.

16. It is also settled position of law that benefit of doubt, other things being equal, at all stages goes in favour of the accused.

17. In the present case as no document of age was available, the age has been determined by the Child Welfare Committee as 17 years based on the ossification report. The bone ossification test report has estimated the age as 17 to 19 years. So applying the margin of error principle, of two years on either side, the age could be between 15 to 21 years. In the present case even if the margin of error is not taken on the higher side, the upper limit of the age estimated by the ossification test is 19 years.

18. Giving the benefit of doubt to the accused, the age of the victim has to be taken as 19 years of age. Accordingly, the order dated 06.09.2017 passed by the Child Welfare Committee (CWC) as well as the order of the Appellate Court dated 21.02.2018 is not sustainable.

19. In view of the above, the impugned order dated 06.09.2017 passed by the Child Welfare Committee (CWC) as well as the order of the Appellate Court dated 21.02.2018 is set aside to the limited extent that it determines the age of the victim as 17 years.

Triveniben v. State of Gujarat, (1989) 1 SCC 678 Maru Ram v. Union of India, (1981) 1 SCC 107

20. In so far as the direction issued to the petitioner to pay the wages as well as childhood loss compensation to the victim is concerned, the same is not being interfered with, in the peculiar facts and circumstances of the case, because the same has been determined keeping in view the interest of the victim in mind. However, it is noticed that there is a calculation error in the order dated 06.09.2017. The wages have been calculated at Rs. 47,840/- and childhood loss compensation has been assessed at Rs. 10,000/- the total of both however, has been mentioned as 48,840/- instead of 57,840/-. Accordingly, the petitioner shall pay the said amount of Rs. 57,840/- in terms of the order dated 06.09.2017.

21. The petition is disposed of in the above terms.

22. Order Dasti under the signatures of Court Master.

SANJEEV SACHDEVA, J

August 08, 2018 ‘Sn’

False & Vexatious 498a and Rape cases on in laws quashed. False 498a also quashed. MP HC

False & Vexatious 498a and Rape cases on in laws quashed. False 498a also quashed. MP HC

Husband files divorce claiming that wife was previously married to some one else and lived with him, hid that fact and remarried the current poor fella. Wife appears one time for the divorce and then promptly files 498a on husband approx 1.5 months later. In that 498a there are NO allegations of rape on in laws, but later wife improvises and also files fake Rape Cases on In laws. Husband also wins the 498a case on merits at Magistrate court. Now All fake cases are quashed by Hon HC. The Hon court sees thru the abuse of process of law.

dfd... - Madhya Pradesh High Court, Gwalior Bench Office Photo ...

HIGH COURT OF MADHYA PRADESH

BENCH AT GWALIOR

SINGLE BENCH

Cr.R.No.87/2017

(Manoj Dubey and Anr. Vs. State of M.P. and Anr.)

&

Cr.R.No.447/2017

(Pradumn Dubey and Anr. Vs. State of M.P. and Anr.)

——————————————————————————————–

Shri Amit Lahoti, learned counsel for the applicant.

Shri Aditya Singh, learned Public Prosecutor for the respondent/State.

Shri Sanjay Kumar Sharma, learned counsel for the complainant.

——————————————————————————————-

Present : Hon. Mr. Justice Anand Pathak

ORDER

{Passed on 12th day of May, 2020}

1. Since both the petitions carry same factual tenor and texture and subject matter is also same therefore, both these criminal revision petitions taken into consideration simultaneously and are decided by the common order. For convenience sake, facts of Cr.R.No.87/2017 are taken into consideration.

2. The instant criminal revisions have been preferred by the petitioners/accused against the order dated 10.01.2017 (in Cr.R.No.87/2017) and order dated 06.02.2017 (in Cr.R.No.447/2017) passed in Case No.208/2016 whereby in sum and substance the respective applications of petitioners under Section 227/228 of Cr.P.C. for discharge have been rejected.

3. The brief facts necessary for adjudication are that on 01.05.2014 marriage was solemnized between Pradumn Dubey (son of present petitioners) i.e. petitioner No.1 in Cr.R.No.447/2017 and respondent No.2 Smt. Richa Bhargawa as per Hindu rites and rituals at Guna. It appears that due to some domestic incompatibility, respondent No.2/wife started living at her parental home at Kolaras, District Shivpuri (M.P.) since 24.02.2015. The dispute between the couple could not be resolved, therefore, on alleged grounds of living adulterous life as well as cruelty committed by respondent No.2, then husband-Pradumn Dubey filed a divorce petition against the respondent No.2/wife on 05.04.2016.

4. In his petition, he levelled specific allegations about leading adulterous life and prior to marriage, conceiving from some other male and later on aborted. Husband levelled specific allegation against respondent No.2 of having relationship with one, Ashutosh Pandey. As per allegations, she lived with Ashutosh Pandey at his village Nohrikala as his wife for sometime and after dispute with him, she came back to her parental home and thereafter, marriage with Pradumn Dubey (petitioner No.1 of Cr.R.447/2017) solemnized. Later on, this fact came to the knowledge of husband through call details of her mobile as well as from other source. All details of leading adulterous life by respondent No.-2 have been narrated in divorce petition. Respondent No.2 contested the case and led her part of evidence.

5. After considering the rival submissions and evidence, Principal Judge, Family Court Guna vide judgment dated 06.09.2017 allowed the petition under Section 13 of Hindu Marriage Act filed by the petitioner-Pradumn Dubey and decree of divorce was issued and by way of divorce couple declared separate.

6. It is worthwhile to mention the fact that on 05.04.2016 divorce petition was filed and on 05.05.2016 wife caused her appearance in the Court and immediately thereafter, on 15.05.2016 she lodged FIR under Section 498-A of IPC and Section 3/4 of Dowry Prohibition Act, showing the dates of alleged offence between 01.05.2014 i.e. date of marriage to 12.10.2015, the date from which she started living separately. In the said FIR, there is not even a whisper in respect of allegation of committing attempt to rape and outraging her modesty by her brother-in-law -Rahul Dubey (Petitioner No.2 in Cr.R.447/2017).

7. On 23.06.2016, she lodged another FIR vide Crime No.327/2016 at Police Station Guna Kotwali for the offence under Sections 376 and 511 of IPC against all the petitioners for committing the offence of attempt to rape and outraging her modesty. In the said FIR, period of incident shown to be from 05.06.2014 to 28.02.2015. Perusal of FIR indicates the date of event as 05.06.2014 at Haridwar and thereafter, one more incident of attempt to rape by her brother-in-law -Rahul Dubey around one year back from the date of FIR.

8. Investigation carried out and charge-sheet submitted. Trial Court framed the charges against all the petitioners (except petitioner No.2 in Cr.R.No.447/2017) in respect of Sections 498-A, 376/109, 354/109 of IPC and brother-in-law -Rahul Dubey (petitioner No.2 of Cr.R.447/2017) was saddled with Sections 498-A, 376/511 and Section 354 of IPC .

9. Meanwhile, divorce petition filed by the husband-Pradumn Dubey was allowed vide judgment and decree dated 06.09.2017, in which this fact has been considered that respondent No.2 lodged a false FIR to the offence of attempt to rape to exert pressure over the petitioners.

10. Meanwhile on 26.09.2019 during the pendency of present petitions, first FIR lodged against all the petitioners under Section 498-A of IPC and Section 3/4 of Dowry Prohibition Act also resulted in acquittal of all the petitioners on merits and the said judgment dated 26.09.2019 is on record.

11. Therefore, through this revision petition, petitioners have challenged the rejection of application for discharge preferred by them under Sections 227/228 of Cr.P.C.. In Cr.R.No.447/2017, petitioners (husband and brother- in-law of respondent No.2-wife) also preferred revision against order dated 06.02.2017 whereby charge has been framed against the petitioners in respect of offence under Sections 498-A, 376/511 and Section 354 of IPC for Rahul Dubey and Section 498-A, 376/109 and 354/109 of IPC against Pradumn Dubey.

12. It is the submissions of counsel for the petitioners that it is factually clear that FIR of leveling allegations of attempt to rape and outrage her modesty are complete abuse of the process of Court and such process cannot be allowed for harassment. He relied upon the judgment rendered by the Hon’ble Apex Court in the case of State of Haryana Vs. Bhajanlal and Ors., AIR 1992 SC 604.

13. It is further submitted that after filing of divorce petition by the husband as counter blast, respondent No.2 lodged FIR under Section 498-A of IPC without mentioning therein any allegations of attempt to rape whereas she filed the said FIR on 15.05.2016 and at that point of time, if subsequent FIR is seen then it is clear that she referred the incident dated 05.06.2014 and the incident is of one year thereafter. Therefore, she could have narrated the said allegations in her first FIR filed under Section 498-A of IPC. It appears that when she realized that she is not getting sufficient material to harass the present petitioners only on the basis of offence under Section 498-A of IPC then she resorted to another FIR including the offence under Sections 376 and 354 of IPC, which is clear abuse of process of law and she cannot be permitted to start litigation at her whims on flimsy pretext and harass the petitioner till eternity. He referred the vagueness made by the prosecutrix in her written complaint, FIR and police statement/statement under Section 161 of Cr.P.C. He further submits that although this is revision petition but since this Court exercises the inherent jurisdiction under Section 482 of Cr.P.C., also then scope of revision is not limited. He relied upon the case of Rajiv Thapar & Ors vs Madan Lal Kapoor, 2013 (3) SCC 331 to submit that even in revisional jurisdiction if the injustice is caused then same can be taken care of. Here in the present case petitioners are constantly harassed by the wife. FIR is a delayed FIR and an afterthought.

14. Learned counsel for the respondent opposed the prayer and prayed for dismissal of petition.

15. Counsel for the complainant also raised the point regarding merits of the case and submits that trial Court would decide the case and allegations prima facie apparently exist and therefore, same needs to be tried through leading evidence.

16. Heard the learned counsel for the parties and perused the case dairy/documents.

17. In the present case, petitioners have filed the revision petitions in which one is against order of discharge and another is against order of framing charge. Scope of revision is not so limited as tried to be projected by the counsel for respondent because revisional Court can see the correctness, legality or propriety of any order passed as well as the regularity of any proceeding of any Court below.

18. Therefore, looking to the scope as provided in Section 397 and 401 of Cr.P.C., this Court has sufficient jurisdiction to look into correctness or propriety of any order passed by the Sessions Court. So far as present case is concerned, respondent No.2 lodged the FIR on 23.06.2016 by filing a written complaint. Contents of written complaint and FIR are almost identical. Later on, her police statement was taken on same day i.e. 23.06.2016 then also she repeated the allegations but next day in her statement under Section 164 of Cr.P.C. before the Magistrate, she made her statement only in one para and the same is reproduced as under for ready reference:-

19. Perusal of the said statement indicates that she referred the role of her brother-in-law-Rahul Dubey but she nowhere refers the role of her husband or her father and mother-in-law (petitioners of Cr.R.No.87/2017). The statement recorded just after one day i.e. 24.06.2016 therefore, it cannot be assumed that by the efflux of time, she forgot the details of incident. She tries to improve upon some contents qua Rahul Dubey which were not earlier lodged in the written complaint, FIR or police statement. Material contradictions and omissions exist in all her statements and contents of her written complaint as well as F.I.R. This shows her intention.

20. This fact has material bearing that after marriage (on 01.05.2014) her brother-in-law- Rahul Dubey started misbehaving with her and first incident is of dated 05.06.2014 one month after the date of marriage. Apparently such allegation comes under the doubt for the reason that if she was so upset by the advances of her brother-in-law then she should have immediately reported her family members, husband as well as father/mother-in-law or to the police. She left her matrimonial home on 24.02.2015 and the said fact reflected in the judgment and decree dated 06.09.2017 passed by the Principal Judge, Family Court, Guna. When she left her matrimonial home within 10 months of her marriage on 24.02.2015 and thereafter, if any advances were made by the brother-in-law -Rahul Dubey then she had one more opportunity to raise her voice and/or to mention the said fact in earlier FIR. The Police Station Kolaras District Shivpuri registered the case vide Crime No.204/2016 against all four petitioners of the instant case for alleged offence under Section 498-A of IPC and 3/4 of Dowry Prohibition Act on which trial was conducted before the JMFC Kolaras, District Shivpuri and vide judgment dated 26.09.2019 the said case resulted into acquittal of all the four petitioners/accused.

21. Reference of one compromise deed (Ex.P-3 of the said case) also finds place in judgment of the trial Court in which she accepted the fact that she was not allowed restrained by the petitioner/husband to go to the place of her brother-in-law (thtkth -Akhil) because her husband did not like the idea of going and staying for day’s together at her sister and brother-in-law’s place. In the said compromise deed dated 03.12.2014, she accepted that she wants to live happily with her matrimonial family and she would not be restrained by the family members/petitioners.

22. The facts of misbehavior by Rahul Dubey could have reflected in the settlement deed dated 03.12.2014 because as per the allegations, first incident of misbehavior by brother-in-law -Rahul Dubey was committed on 05.06.2014 at Haridwar therefore, on 03.12.2014, she could have referred this fact in compromise deed and could have ensured her modesty and chastity but same does not find place in the settlement deed or in the judgment dated 26.09.2019 passed by the JMFC, Kolaras. On this ground also, it appears that she filed the instant cases on false pretext just for harassment.

23. Interestingly, first FIR under Section 498-A of IPC was filed by the prosecutrix at Police Station Kolaras on 15.05.2016 and after one month she again filed an FIR with same allegations of dowry demand but with addition of Section 354 and 376 of IPC. Second FIR was filed at Police Station Guna Kotwali, District Guna. This shows the bend of mind and motive of respondent No.2 to keep harassing the petitioners on the pretext or the other. These facts create sufficient doubt about the actual disposition of respondent No.2 and her intention to wreak vengeance. Criminal law cannot be used as a tool for oppression, harassment and embarrassment to the common man. Here respondent No.2 tried to misuse the process of law for extending harassment to the petitioners. She knows that all petitioners are Government Teachers and their entanglement in criminal proceedings would cost them heavily. Therefore, she is enjoying peevish pleasure.

24. When divorce proceedings successfully pursued by the petitioner/husband Pradumn Dubey and when all four petitioners successfully contested the trial of Section 498-A of IPC then again relegating them back for the trial for same offence under Section 498-A of IPC would be travesty of justice because long drawn litigation itself is a type of punishment or at-least harassment to the common man which cannot be permitted in those cases where malice of complainant is apparent on record.

25. Even otherwise on merits, no allegations of attributes of Section 376 or 354 of IPC existed or reiterated by the complainant in her statement under Section 164 of Cr.P.C. qua other petitioners because allegations are only against Rahul Dubey but since the mens rea or ill-motive is apparent which is being established by the documents available on record, therefore, this Court cannot sit with blind eyes to allow the continuation of the abuse of process of law. Interestingly, her case suffers from delay and latches also because she could not explain delay and factual inconsistency in her complaint and statements.

26. In the case of Sh. Satish Mehra vs Delhi Administration & Anr. 1996 (9) SCC 766 the Hon’ble Apex Court has reiterated the scope of Section 227 of Cr.P.C. which is reproduced as under:- “15.But when the Judge is fairly certain that there is no prospect of the case ending in conviction the valuable time of the Court should not be wasted for holding a trial only for the purpose of formally completing the procedure to pronounce the conclusion on a future date. We are mindful that most of the Sessions Courts in India are under heavy pressure of work-load. If the Sessions Judge is almost certain that the trial would only be an exercise in futility or a sheer waste of time it is advisable to truncate or snip the proceedings at the stage of Section 227 of the Code itself.”

27. In the cumulative analysis and going through the judgment of the Apex Court in the case of Rajiv Thapar (Supra) and in the facts and circumstances of the case, this Court finds that it is case where interference would advance the cause of justice therefore, this Court intends to allow both the revisions filed by the petitioners.

28. Even otherwise, this Court does not find any ground to proceed further in the litigation and trial Court erred in rejecting the application under Section 227/228 of Cr.P.C. for discharge as well as erred in framing charge as per impugned order dated 10.01.2017 (in Cr.R.No.87/2017) and order dated 06.02.2017 (in Cr.R.No.447/2017) and both the impugned orders are hereby set-aside and no case for trial has been made out by the prosecution.

29. Resultantly, petitioners are discharged from the clutches of charges under Sections 498-A and 376/109, 354/109 of IPC and petitioner Rahul Dubey for the offence under Sections 498-A, 376/511 and Section 354 of IPC. They are set free.

30. E-copy/Certified copy, whichever is available, of this order be provided to the petitioners and E-copy of this order be sent to the trial Court concerned for compliance. It is made clear that E-copy of this order shall be treated as certified copy for practical purposes in respect of this order.

31. Both the revision petitions stand allowed and disposed of accordingly.

Ashish* (Anand Pathak)

Judge

ASHISH

CHAURASIA

2020.05.12

18:38:05

-07’00’