In a criminal appeal filed before the Delhi High Court, whereby the appellant challenged his conviction, a Division Bench of Justice Vivek Chaudhary and Justice Manoj Jain found that the victim was a major and that the case seemed to be one of eloping rather than kidnapping. Thus, the Court acquitted the appellant of all charges against him.
The appellant, in the present matter, was convicted under Section 4 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) and Sections 363[1], 366[2], and 376[3] of the Indian Penal Code, 1860 (IPC).
On 21-06-2014, the father of ‘A’ (sexual victim) informed the police that his 14-year-old daughter was missing. The Father suspected that the appellant had enticed ‘A’. A First Information Report (FIR) under Section 363, IPC. On 06-07-2014, the father of the appellant (PW11) produced his son and ‘A’ before the police.
The Child Welfare Committee directed the custody of ‘A’ to be handed over to her parents. The bone ossification test indicated A’s age to be around 17-18 years. A chargesheet was filed whereby the appellant was charged with committing offences under the aforementioned Sections. In his statement, the appellant pleaded innocence and claimed that he had been falsely accused.
The Trial Court concluded that at the time of the alleged offence, ‘A’ was a minor and that she was taken away from her parents’ custody forcibly by the appellant to subject her to illicit intercourse and forcible marriage. The Court also held that ‘A’ had been sexually assaulted in a village in Punjab. As the appellant was sentenced under Section 4 of the POCSO Act, a separate sentence under Section 376 of the IPC was not awarded because of the bar under Section 42 of the POCSO Act and Section 71[4] of the IPC. All sentences were directed to run concurrently, and the benefit of Section 428[5] of the Criminal Procedure Code, 1973 (CrPC) was also extended. Further, the Trial Court directed the District Legal Services Authority (DLSA) concerned to provide Rs. 5,00,000/- as compensation to ‘A’.
The present appeal challenged the orders dated 04-07-2020 (order on conviction) and 25-07-2020 (order on sentence). It was submitted that there was no proof regarding the exact age of ‘A’ and that the bone ossification test had also not been appreciated by the Trial Court. It was also contended that there was nothing on record to prove that ‘A’ had been enticed away or kidnapped.
While analyzing the aspect related to the victim’s age, the Court noted that the date of offence was 20-06-2014 and referred to Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007. It was stated that the school record should be the first preference, followed by the birth certificate, and then the bone ossification test. However, the Court also stated that there is no absolute rule requiring a document with higher preference to be accepted as the gospel truth, even if it appears somewhat shaky. In this regard, the Court referred to Suresh v. State of Uttar Pradesh & Anr. 2025 SCC OnLine SC 1579 and Madan Mohan Singh & Ors. v. Rajini Kant & Anr. (2010) 9 SCC 209.
The Court noted that when the FIR was registered, the victim’s father disclosed her age to be 14 years, whereas in her own statement, ‘A’ submitted her age to be 19 years. The Court also considered the bone ossification test and noted that the prosecution placed heavy reliance on the school record, which stated her age as 10 years, a fact that did not corroborate with the FIR.
Further, the Court said the age as per the school record did not seem believable, as the parents of ‘A’ categorically deposed that the victim was 13 or 14 years old at the time of the occurrence. It was also stated that the victim’s father had not been able to produce any birth certificate before the Court. It was noted that the Trial Court had dumped the school record and given preference to the oral testimony of the victim and her parents, according to which her age was 14 years at the time of the occurrence. The Court found that such an approach was inappropriate, and that if the school record was not considered, reliance should have been placed on the bone ossification report. It was also said that while considering the said report, a margin of error of two years should also have been applied, and thus, it was held that ‘A’ was a major at the time when she had gone missing.
While analyzing the aspect of kidnapping, ‘A’ identified the accused and said that he had taken her away to his aunt’s house after tying her mouth, where a wrong act was committed on her. She mentioned that she was kept there for 4-5 days, and thereafter, the father of the accused brought them to Delhi.
The Court said that the victim’s testimony did not seem believable because if the appellant had any malafide intention, he would not have dared to take ‘A’ in public transport in broad daylight. The Court did not find her version of the incident to be realistic. The Court also found discrepancies in her statements given to the doctor at AIIMS and her deposition.
It was noted that in a statement recorded by NGO Prayas, ‘A’ mentioned that she had known the appellant for the past year and that she used to like him. She was also aware that he was previously married and had a daughter, yet she would meet him without informing her family. The Court found it essential that the officials of the NGO observed that ‘A’ just wished to go back home and did not want any action against the appellant.
The Court stated that the case seemed to be that of elopement and a consensual relationship, but none of the parties could muster the courage to accept the same before the Court. Further, the Court said that if the statement made by her during the investigation is to be believed, they seemed to have married.
The Court referred to various cases and noted that there was no witness to throw light on the manner in which ‘A’ was taken away, and that her parents also did not have any knowledge in this regard. Thus, the Court said that the record not only indicated that ‘A’ was a major at the relevant time but also suggested that there was no act of kidnapping or abduction forcibly.
While granting the benefit of doubt to the appellant, the Court held that the appeal had succeeded and acquitted him of all the charges against him. The appellant was directed to furnish a personal bond of Rs. 15,000/- with one surety of like amount with an undertaking that he would have to appear before the Supreme Court if he is in receipt of any notice regarding the filing of a Special Leave Petition.
Appearances:
For Appellant – Mr. Anwesh Madhukar, Mr. Ishat Singh Bhati, Ms. Prachi Nirwan, Mr. Gaurav Chahal
For Respondent – Mr. Ritesh Kumar Bahri, Mr. Vinesh Kumar, Ms. Inderjeet Sidhu, Mr. Lalit Chaudhary, Mr. A Atri.
[1] Section 137(2) of the Bharatiya Nyaya Sanhita, 2023
[2] Section 87 of the Bharatiya Nyaya Sanhita, 2023
[3] Section 64 of the Bharatiya Nyaya Sanhita, 2023
[4] Section 9 of the Bharatiya Nyaya Sanhita, 2023
[5] Section 468 of the Bharatiya Nagarik Suraksha Sanhita, 2023
