Delhi High Court - Orders
State Of Nct Of Delhi vs Shri Saddam @ Sameer S/O Shri Sahbuddin ... on 13 September, 2022
Author: Purushaindra Kumar Kaurav
Bench: Purushaindra Kumar Kaurav
$~4
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.REV.P. 1272/2019 & CRL.M.As. 42082/2019, 42083/2019
STATE OF NCT OF DELHI ..... Petitioner
Through: Mr. Utkarsh, APP for State with SI
Narendra Kumar, P.S. Bharat Nagar
Versus
SHRI SADDAM @ SAMEER
S/O SHRI SAHBUDDIN
R/O MOHALLA DIPUR, THANA KHIRI,
DISTT. LAKHIMPUR KHIRI
U.P. ..... Respondent
Through: None.
CORAM:
HON'BLE MR. JUSTICE PURUSHAINDRA KUMAR KAURAV
ORDER
% 13.09.2022
1. This revision is directed against the order of discharge dated 31.07.2019, whereby the respondent has been discharged from the offence punishable under Sections 376/363 of the IPC and under Section 6 of Protection of Children from Sexual Offences (POCSO) Act.
2. Learned APP appearing on behalf of the State/petitioner submits that the impugned order is illegal and improper. He further submits that the learned trial court has erred in discharging the respondent from the offence in question and conducting a mini trial at the time of framing of charge. According to him, the impugned order is strictly against the settled principle of law that the trial court is only required to see as to whether a prima-facie case against the accused is made out or not. He, therefore, prayed that the same has to be set aside by this court.
Signature Not Verified Digitally Signed By:PRATIMA Signing Date:17.09.2022 15:20:02 -2-3. I have considered the submissions made by the learned APP for the State/petitioner and have also perused the impugned order of discharge.
4. A perusal of the record would indicate that a report of missing person was lodged by the mother of the prosecutrix on 03.08.2018. It was alleged therein that there was possibility of the prosecutrix being kidnapped by the accused. On the basis of the statement of the complainant, an FIR was registered for the offence punishable under Section 363 of the IPC and further investigation was conducted. During investigation, on 06.08.2018, the prosecutrix was recovered from the possession of the accused. They both were found at native place of the accused i.e. Lakhimpur Khiri, Uttar Pradesh and were brought to Delhi. The statement of the prosecutrix under Section 161 of the Cr.P.C. was recorded and her medical examination was got conducted. The offence under Section 376 of the IPC as well as under
Section 6 of the POCSO Act, was also added and the further investigation was handed over to SI Shivali. The accused was arrested and the statement of the prosecutrix under Section 164 of the Cr.P.C. was also recorded. The documents with respect to the age of prosecutrix were collected and on completion of the investigation, the charge sheet against the accused was filed.
5. The statement of the prosecutrix under Section 164 of the Cr.P.C. would indicate that she did not utter a single word against the accused. Rather, she had stated that she herself had left her parental home and went with the accused to his native village. It has also been admitted by her that when she was travelling with the accused to his village by AC Sleeper Bus, she established physical relations with her own will and then thereafter Signature Not Verified Digitally Signed By:PRATIMA Signing Date:17.09.2022 15:20:02 -3- stayed with the accused at his native village. The learned trial court has noted that the age of the prosecutrix as per ossification test was found to be 18 to 20 years as on the date of examination i.e. 21.01.2019. The trial court, therefore, keeping in mind the principles laid down in the case of Shweta Gulati & Anr. v. The State Govt. of NCT of Delhi in judgment dated 08.08.2018 in Crl.Rev.P. No. 195/2018, has held that there is possibility of variation in the ossification test and, therefore, the age of the prosecutrix should be considered to be higher side i.e. 20 years at the time of commission of the offence. Accordingly, on the date of the incident, the prosecutrix was found to be major.
6. The learned trial court, therefore, proceeded to hold that neither the statement under Section 164 of the Cr.P.C. nor the medical evidence would suggest the ingredients of the offence in question; nor the age of the prosecutrix was also of about 20 years, therefore, no offence under the POCSO Act was found to have been committed.
7. This court has considered the submissions and the material available on record and finds that there was no prima-facie case against the accused to frame the charges. It is expected from the trial court to consider the broad probabilities of the case; the total effect of the evidence and the documents produced before the court; and basic infirmities etc., at the time of framing of the charges and if the court finds that there is no reasonable ground to proceed against the accused, there is no reason to proceed with the order of framing of charge. The court has to apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was plausible. In the instant case, since the trial court had opined Signature Not Verified Digitally Signed By:PRATIMA Signing Date:17.09.2022 15:20:02 -4- that there was no possibility of commission of any offence and hence, had proceeded to discharge the accused.
8. This court does not find any substance in the submissions made by learned APP for the State. Accordingly, the instant petition is dismissed alongwith pending applications.
PURUSHAINDRA KUMAR KAURAV, J SEPTEMBER 13, 2022 p'ma Signature Not Verified Digitally Signed By:PRATIMA Signing Date:17.09.2022 15:20:02