In a criminal appeal filed before the Delhi High Court to assail a judgment dated 23-05-2008, on the grounds that the prosecutrix had reached the age of consent as per the pre-amendment provisions, and that she had accompanied the appellant of her own volition, a Single Judge Bench of Justice Vimal Kumar Yadav accepted the appeal and acquitted the appellant.
On 16-05-2004, the complainant went to the police station and reported that his daughter (prosecutrix) had been missing since noon. The complainant expressed his suspicion about the appellant’s involvement. Hence, the duty officer registered a First Information Report (FIR) under Section 363 of the Indian Penal Code, 1860 (IPC).
It was stated that upon reaching the appellant’s hometown, the prosecutrix voluntarily opted to marry the appellant and got her marriage registered under the Special Marriage Act, 1954, before the police got involved. Both parties were brought to Delhi, where the FIR was registered based on the complaint by the prosecutrix’s father. The police recorded their statements under Section 161 of the Code of Criminal Procedure, 1973 (CrPC) and also recorded the prosecutrix’s statement under Section 164 of CrPC, after which, she was sent to Nari Niketan.
The Court referred to K.P. Kirankumar v. State (Crl. A. No. 5614/2025) and stated that the first document having utmost importance is the certificate issued by the Education Board for Class 10th. In its absence, the other relevant document is the birth certificate issued by a Municipal Body, and as a last resort, the Court said that the ossification test can be used to determine the age. The Court noted that the prosecutrix had not studied up to the 10th standard and that the birth certificate was also not present. Considering the circumstances, the Court stated that documents such as a school leaving certificate and similar documents for the date of birth can be examined.
The Court found that the school-leaving certificate reflected that the prosecutrix’s date of birth was 10-01-1990 and that when the accused had allegedly enticed her, she was a minor. It was said that the appellant’s contention that the prosecutrix accompanied him of her own volition became irrelevant.
Further, the Court noted that the ossification test reflected that the prosecutrix’s age was between 14 and 16 years at the relevant time, and given the margin of error that the age could be plus or minus 2 years, the prosecutrix’s age could be in the range of 12 to 18 years. The Court perused the prosecutrix’s statements and said that she was completely aligned with the appellant as long as she was with him and in the Nari Niketan, noting that she had not complained against him in any manner.
The Court noted that the prosecutrix had deliberately refused her internal examination and stated that this was because she had consensually moved out with the appellant and married him. It was said that if this was not the case, the prosecutrix would have undergone the exam to facilitate the collection of evidence against the appellant. It was found that the MLC also reflected that the prosecutrix had been suffering from amenorrhea, meaning that she could have been pregnant.
The Court said that a statement made before the court during the trial stage is taken to be a substantive statement, but the statement made ‘on oath’ before a Magistrate also cannot be completely ignored. It was stated that the prosecutrix’s conduct showed that the substantive statement was made under social or parental pressure and that there were certain aspects that could not be explained by her during cross-examination. The Court stated that if the appellant had taken her away forcefully, she had ample opportunities to draw the attention of government authorities, as she had travelled in public transport for more than 1500 kms.
The Court stated that it is common knowledge that every train has RPF personnel who patrol, and that it is impossible to find anyone travelling in isolation on public transport. It was said that her silence in such circumstances only indicated that she was an ally of the appellant and that she accompanied him out of her own choice. The Court said that the prosecutrix’s age could be taken as 18 years, with a margin of error, as the statement made before the court seemed to stem from social and family pressure.
Regarding the offence of rape, the Court referred to exception 2 to Section 375 of the IPC, and stated that, being the appellant’s wife, even if the prosecutrix was less than 18 years of age, she could not be treated as having been raped by the appellant. Thus, the appeal was accepted, and the appellant was acquitted, with the court holding that the appellant was not responsible for any offence.
