State (Gnct Of Delhi) vs Hargovind
2019 Latest Caselaw 3216 Del

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*    IN THE HIGH COURT OF DELHI AT NEW DELHI
+      CRL.A. 334/2018
%                                  Judgment pronounced on: 16th July, 2019

       STATE (GNCT OF DELHI)                      ..... Appellant
                Through: Ms.Aashaa Tewari, APP for State with
                         Inspector Jagdish Yadav and SI Ashish
                         Kumar, PS Gokul Puri.
                          versus
       HARGOVIND                                            ..... Respondent
               Through:            Mr.S.S.     Ahluwalia,     Advocate     for
                                   respondent.
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
MANMOHAN, J. (ORAL)

1. Present appeal has been filed by the State challenging the order of acquittal dated 15.09.2016 passed by the Additional Sessions Judge, North East District, Karkardooma Courts, Delhi, in FIR No.36/2013 registered with Police Station Gokulpuri, under Sections 363/366/376 IPC and Section 4 of the POCSO Act.

2. The Trial Court in its impugned judgment has given benefit of doubt to the respondent/accused and acquitted the respondent of the offences under Sections 363/366/379 and Section 4 of the POCSO Act. Relevant portion of the impugned judgment dated 15.09.2016 is reproduced below: -

"21. Thus, a serious doubt has been created regarding the age of the victim. The manner in

which she had acted and conducted herself is not that of a minor girl of about 13 years of age. She not only developed a love affair with the accused but had also eloped with her and went to a distant place like Jalon, U.P. where she entered into marriage with the accused and resided with him as his wife. In none of her statement or in her deposition before the Court, she made any allegation against the accused that he, in any manner, enticed her or forced her either to elope with him, enter into marriage or for sexual intercourse, as alleged by the prosecution. In any case, the prosecution has failed to prove that the victim was a minor at the time when she went with the accused. There is no concrete evidence regarding her age and the benefit of the same would obviously go to the accused.

22. Considering the above facts in totality and the evidence which has come on record, more particularly the testimony of the victim, the only conclusion which can be drawn is that the victim had gone with her consent with the accused and resided with him at Jalon, UP. The factum of marriage could also not be proved on record and there is only a bald statement of the victim to prove this fact. In fact, PW15 who had gone to Jalon to verify the fact of marriage, deposed that he could not found any evidence of marriage between the victim and the accused. As already discussed above, the allegations of rape could also not be proved in view of the contradictory statements of the victim and lack of any corroborative medical evidence. The lack of evidence regarding the minority of the victim would also give benefit of doubt to the accused regarding the allegations of abducting her.

23. Hence, in these circumstances, accused Hargovind is extended benefit of doubt and he is

accordingly acquitted of the offences 363/366 IPC, Section 376 IPC and Section 4 of the POCSO Act. He is set at liberty. His personal bond and surety bond stand discharged."

(emphasis supplied)

3. Learned Predecessor of this Court vide a detailed judgment dated 02.07.2018, directed the recording of additional evidence under Section 311 Cr.P.C. by the Trial Court on the aspect of age of the prosecutrix during the relevant period i.e. 22.01.2013 and 27.02.2013. Relevant portion of the order dated 02.07.2018 passed the Division Bench, is reproduced below: -

"24. If the prosecutrix was a minor on the relevant date, in the face of the evidence brought on record, the accused may not be able to escape the charges framed against him. However, in our view the evidence brought on record does not conclusively establish the age of the prosecutrix to be above the age of discretion i.e. 16 years or more, as on 22.01.2013.

25. Looking to the facts and circumstances taken note of hereinabove, as also the fact that the victim/prosecutrix had eloped with the accused without use of force or coercion - we are of the considered opinion that the Ld. ASJ should have resorted to medical examination of the prosecutrix in terms of Rule 12 of the JJ Rules, to determine her age before proceeding with the matter. By not doing so, the Ld. ASJ has failed to exercise the jurisdiction and responsibility that vested upon him while trying a serious offence.

26. Thus, we direct the recording of further evidence in exercise of our jurisdiction under Section 311 Cr.P.C. read with Section 165 of the Evidence Act and Section 34 of the POCSO Act on

the aspect of age of the prosecutrix during the relevant period, i.e. between 22.01.2013 and 27.02.2013, including by resort to Rule 12 of the JJ Rules, if necessary. We direct the Special Court to record additional evidence on this aspect and send the same to this Court within the next 6 months. The prosecution, and the defence would be entitled to lead additional evidence on the said aspect."

(emphasis supplied)

4. In pursuance to the said order, the Trial Court recorded the evidence of Dr. Nitish Upadhyay, Senior resident, Radiology Department, GTB Hospital, Delhi and forwarded the same to this Court. The testimony of the doctor Nitish Upadhyay is reproduced below: -

"On 04.04.2019, I examined the x-ray films of the victim D/o 'SK', female, 23 years old. After examining the x-ray film, I gave my detailed ossification report. I have seen my report dated 04.04.2019. It bears my signatures at point A. My detailed report is now Ex.CW1/1. I found that bone age of the abovesaid victim was between 18 to 22 years on the day of examination. X-ray film is now Ex.CW1/2.

Cross examination of CW-1 (Dr. Nitish Upadhyay) It is correct that a radiological test cannot give the exact age of a person and there is always a margin of error. On the basis of the x-ray films produced before me, I cannot say what could have been the age of the victim in the year 2013."

(emphasis supplied)

5. Keeping in view the aforesaid evidence, it cannot be said with certainty that the age of the prosecutrix was less than sixteen and she was a minor on the date of the incident.

6. Consequently, the respondent is given the benefit of doubt and the present appeal is dismissed.

7. Bail bond of the respondent is cancelled and his surety stands discharged.

MANMOHAN, J

SANGITA DHINGRA SEHGAL, J JULY 16, 2019 afa/