High Court of Delhi was dealing with the petition challenging impugned judgment whereby petitioner has been convicted for offences punishable under Section 376 IPC read with Section 4 of the POCSO Act and the order on sentence whereby the appellant has been directed to undergo rigorous imprisonment for a period of 10 years.
Brief Facts:
The father of the prosecutrix complained about the kidnapping of his minor daughter aged 16 years on 13th May 2013. He stated that his daughter had gone to the school and used to come back at around 2 pm from the school, however, on that date, she did not come back and when he enquired from the school, it was informed that his daughter had not come to the school. He expressed his suspicion on Afsar who was residing in his house on rent and that Afsar was also not at home since morning and their mobile phones were switched off. On recovery of the prosecutrix, her statement was recorded wherein, she stated that while she was going to School at 7 am, Afsar came in his Maruti Van, forcibly put her in the same and took her to Maujpur. He also threatened her that in case she does not accompany him, he would kill her father. He took her to a Masjid where he forcibly performed Nikaah and thereafter, locked her in a house. The prosecutrix which was recorded under Section 164 CrPC and her MLC conducted which showed that she had conceived, Sections 366, 343, 506 and 376 IPC as also Section 4 of the POCSO Act were also added. The main thrust of the cross examination was to prove that she was not a minor at the time of the alleged incident. She denied the suggestion that she was having any affair with the appellant or that she had voluntarily accompanied the appellant and performed the Nikaah with him.
Appellant’s Contention:
Learned counsel for the appellant submitted that the findings of the learned trial Court that the prosecutrix was a minor is incorrect and not born out from the record and thus, the consent of the prosecutrix was not immaterial. It was submitted that the prosecutrix in her statement under Section 164 CrPC admitted that the appellant married her and a Nikaah was performed. Once Nikaah has been performed and Nikaahnama has been prepared, the prosecutrix being the wife of the appellant, the appellant could not have been convicted for offence punishable under Section 376 IPC in view of the exception to Section 375 IPC, for the reason, even as per the prosecution case, the prosecutrix was at least 16 years of age at the time of alleged incident. It was submitted that since the prosecutrix had married the appellant willingly, she being a major, was a consenting party to the relationship and thus, the conviction under Section 376 IPC and Section 4 of the POCSO Act be set aside.
Respondent’s Contention:
Learned APP for the State refuting the contentions of learned counsel for the appellant stated that the said proof of age having been proved by the prosecution in accordance with law will hold primacy in terms of Rule 12(3) of the J.J. Rules. Since prosecution has proved the date of birth of the prosecutrix as 10th January 2001 and the alleged incident took place on 13th May 2013 when the prosecutrix went missing and was recovered on 8th June 2013, the prosecutrix was less than 13 years of age at the time of alleged offence and thus, a ‘child’ within the meaning of POCSO Act and therefore, her consent, if any, is of no consequence. It was submitted that despite minor contradictions in the testimonies of the prosecutrix and her father, it is not evident that the prosecutrix was more than 18 years of age at the time of alleged incident, hence, there is no error in the impugned judgment of conviction.
HC’s Observations:
After hearing both the sides Court stated that a perusal of Rule 12(3) of the J.J. Rules itself reveals that the first priority has to be given to the Matriculation or equivalent certificate and in the absence thereof, to the date of birth certificate from the school first attended other than a play school. Court observed that as per the record, prosecutrix further left the school on 1st May 2013 while studying in 8th standard. Thus, she had no matriculation certificate. Therefore, as per the date of birth recorded in the school first attended, the prosecutrix was a child in terms of Section 2(1)(d) of the POCSO Act as she was below the age of 18 years. Court found that the father of the prosecutrix stated that this was the third child and there was a gap of two years in each child and the first child was born after two years of marriage, the same cannot be taken as an exact estimation of the date of birth of the prosecutrix.
Court stated that the father could not tell exact difference of age between his other daughters and the prosecutrix and the age difference between the prosecutrix and the youngest child. The testimony of the witness cannot be used to rebut the documentary evidence giving the age of the prosecutrix who got admitted in the school in the year 2001 in Delhi at the school first attended. Court found that the father of the prosecutrix has clarified that after the prosecutrix was kidnapped and he got lodged the FIR, effort was made by him to trace her daughter and he went to the police station and that he tried to search the accused and his daughter. He stated that while he was going to Maujpur, he saw the Maruti Van belonging to the appellant near Seelampur Red light and when enquiry was made, he came to know that the said car was parked with a dealer for sale. The said dealer called the appellant on the pretext of finding a good buyer for the car, whereafter, the appellant was recovered with his daughter at Maujpur along with the Investigating Officer. It is thus evident that after his daughter was recovered, she was produced before the Investigating Officer and hence, there is no contradiction in the testimony of the witnesses on this count.
HC Held:
After evaluating submissions made by both the parties the Court held that “In view of the discussion aforesaid and as the prosecution has proved beyond the reasonable doubt that the prosecutrix was a ‘child’ at the time of alleged incident and that she was forcibly taken away from the lawful guardianship of her parents and offence of sexual intercourse was committed on her repeatedly and forcibly, this Court does not find any error in the impugned judgment of conviction and order on sentence.”
Bench: Hon'ble Ms. Justice Mukta Gupta
Case Title: Mohd. Afsar v. State
Case Details: CRL.A. 274/2020
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