Delhi District Court
10 In Sonu vs State (Nct) Of Delhi, 2010 (2) Jcc 1337 It ... on 31 October, 2013
1
IN THE COURT OF SH GULSHAN KUMAR
ADDITIONAL SESSIONS JUDGE01 (SOUTH)
SAKET COURTS: NEW DELHI
S.C. No. 110/13
ID No. 02406R0238382013
State
Vs.
Manoj Rajput
S/o Har Nath
R/o Village Devtha,
P.S. Alipur, Distt. Chattarpur
Madhya Pradesh
FIR No. 243/11
P.S. Safdarjung Enclave
U/S 363/376 IPC & Sec. 4 of POCSO Act
Date of Institution: 19.08.2013
Date of pronouncement of judgment: 31.10.2013
JUDGMENT
In the present case, charge has been framed against accused Manoj Rajput in respect of offences U/S 363/376 IPC and Section 4 of Prevention of Children from Sexual Offences Act. The allegation in Sessions Case No. 110/13 Page 1/6 2 the charge is that on 10.09.11 from Jhuggi No. S163, Ganda Nala, West Ansari Nagar, New Delhi, accused kidnapped minor prosecutrix, aged about 14 years old from the custody of her lawful guardian and he committed rape upon her and had penetrative sexual assault with prosecutrix.
2 Accused pleaded not guilty to said charge and claimed trial. 3 To prove its case, prosecution has examined six witnesses. They are HC Om Prakash(PW1), prosecutrix(PW2), W.SI Kamlesh(PW3), Manoj Kumar(PW4), Mahavir Singh (PW5) and SI Rajneesh (PW6).
4 Statement of accused U/S 313 Cr.P.C has been recorded, wherein accused has denied the allegations of prosecution. He has submitted that he has been falsely implicated in this case. Prosecutrix went away with him with her own free will and consent. They both got married. They lived together for two years. With the consent of prosecutrix, physical relations were developed between them. They have one girl child out of the wedlock.
5 I have heard arguments from ld. counsel for accused and ld. Addl. PP for State. I have also perused the case file. Sessions Case No. 110/13 Page 2/6 3 6 Ld. Counsel for accused has prayed for acquittal of accused stating that prosecutrix has not supported prosecution case. As per ossification test, age of prosecutrix has been determined as 1718 years. Date of birth of the prosecutrix was entered in the school records on the basis of the saying of her parents and no birth proof was given at that time and therefore, there is no cogent evidence that date of birth of prosecutrix was actually 15.01.2001 as stated. It is thus argued that the date of birth as entered in the school records, could not be taken as conclusive proof of her actual age at the time of the incident.
7 On the other hand, ld. Addl. PP has prayed for conviction of accused stating that prosecutrix was minor and accused had abducted her and raped her. Ld. Addl. PP for State has further argued that as per the school record proved by PW4, the date of birth of the prosecutrix was 15.01.2001 which means that she was minor on the day of incident.
8 In the present case, PW2/prosecutrix is the star witness of this case. She has not supported the prosecution case. She has deposed that she is 18 years old. She got married with accused in a temple in the village. She lived with accused for about two years. A Sessions Case No. 110/13 Page 3/6 4 baby girl is born to her out of the said wedlock. She does not want any action against accused. She is staying at the house of accused happily. 9 In this case, ossification test of prosecutrix was conducted and her age was determined between 1718 years. Her father (PW5) has deposed that he did not get prepared the birth certificate of prosecutrix from MCD or any authority. PW4 Sh. Manoj Kumar, Teacher of the school, where prosecutrix last studied, has proved the date of birth as 15.01.2001 vide certificate Ex. PW4/A. PW4 has deposed that no documentary proof for date of birth of prosecutrix was submitted by parents at the time of her admission in school. 10 In Sonu Vs State (NCT) of Delhi, 2010 (2) JCC 1337 it was held that it was settled that the age determined through radiological examination is not exact and may vary by two years on either side. Margin of error in such a radiological examination is two years on either side and according to the settled principles of criminal jurisprudence benefit of this variation must go to the accused; if such benefit is extended to accused, age of the prosecutrix can be taken above than 16 years.
Sessions Case No. 110/13 Page 4/6 5
In "Jaya Mala Vs Home Secretary, Government of Jammu & Kashmir & Ors.", AIR 1982 SC 1296, it was held by Hon'ble Supreme Court that margin of error in age ascertained by radiological examination is to be taken as two years on either side. 11 Hence, giving the margin of two years of age to the prosecutrix determined radiologically it could be said that the prosecutrix was 18 years of age at the time of incident and could have given her consent. The evidence proves that sexual relation between the accused and the prosecutrix was with the consent to the prosecutrix as they had got married.
12 In view of above judgments and the facts and circumstances of the case, I am of the opinion that it has emerged on record that the prosecutrix was major and she had accompanied the accused out of her own will and had physical relations with her consent. It cannot be held that accused had taken the minor girl away from the lawful custody of her parents and committed rape upon her. I, thus hold that no case is made out against accused Manoj Rajput u/s 363/376 IPC and Section 4 of Prevention of Children from Sexual Offences Act. The accused is thus, acquitted of the charges levelled against him. Sessions Case No. 110/13 Page 5/6 6 13 In this case, accused Manoj Rajput is in JC. He be released immediately if not wanted in any other case. In view of amended provisions of Section 437A CrPC, accused is directed to furnish personal bond and surety bond in the sum of Rs. 15,000/ for a period of six months with the directions that he will appear before Hon'ble High Court as and when any notice is received by him in respect of any appeal filed by the State against the judgment. 14 File be consigned to Record Room.
Announced in the open court today
on 31.10.13 (Gulshan Kumar)
Additional Sessions Judge01(South)
Saket Courts, New Delhi.
Sessions Case No. 110/13 Page 6/6