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CRL.A. 485/2020 & CRL.M.(BAIL) 264/2022

SURJEET KUMAR vs STATE

This was an appeal for setting aside the judgement dated 21.11.2019 and the order on sentence dated 28.11.2019 passed by the Ld. Trial Court, ASJ-06, (POCSO), Shahdara District, Karkardooma Courts, Delhi in SC No. 123/2017 arising out of FIR No. 26/2017, under section 363/366/376 IPC and section 6 (Punishment for aggravated penetrative sexual assault) of THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT (POCSO Act), registered at PS Shahdara. After trial and examination of the witnesses, the Trial Court was pleased to hold the appellant guilty of the above mentioned offences and through its order of sentence on 28.11.2019, sentenced the appellant to 10 years rigorous imprisonment and fine. Appeal before the HON’BLE MR. JUSTICE JASMEET SINGH.

THE INDIAN PENAL CODE

Section 363	Punishment for kidnapping.
Section 366	Kidnapping, abducting or inducing woman to compel her marriage, etc
Section 376	Punishment for rape

FACTS OF THE CASE

On 23.01.2017, a complaint was filed by the father of the victim alleging that on the above mentioned date, he had dropped his daughter at the school but she did not return home and he feared that his daughter has been kidnapped.

He filed an FIR bearing no. 26/2017 and was registered against the appellant on 23.01.2017.During investigation, the Investigating Officer obtained the call detail records of the victim, thus resulting in identifying the location of mobile phone of the appellant. It was seen at Phagwara, Punjab and the victim was traced with the appellant and he was arrested.

Medical examination of the victim and appellant was conducted at GTB Hospital, exhibits were collected and seized, statement under 164 (Recording of confessions and statements) Cr.PC was recorded and hence, the appellant was charged for offences under section 363/366/376 IPC and 6 of POCSO Act.

The learned counsel appearing for the appellant contended that the appellant was innocent and had been falsely implicated in the case. He further submitted that the victim voluntarily left her house and made physical relations with the appellant with her consent as they were in a relationship.

The above Council stated that the victim was at no time kidnapped by the appellant and there were no allegations of kidnapping in the statement of the victim recorded under section 164 Cr.PC. He states that there was nothing on record to show that the appellant kidnapped the victim or sexually assaulted her. He states that the appellant has been implicated in this case on account of a monetary dispute and the mother of the victim tutored the victim to implicate the appellant in the present case.

The appellant’s council contended that the victim was major at the time of incident and there was no record of first school or birth certificate of the victim to prove the correct age of the victim. He further attempted to point out the contradictions made by the prosecution witnesses, with regard to the meeting of the victim with the appellant as well as the manner in which the recovery of the victim has been narrated.

It was argued on behalf of the State that PW-1/victim had proved in her testimony that, on 28.01.2017 she was kidnapped by the appellant when she was aged about 16 years on the false pretext of marriage and the appellant repeatedly committed rape/penetrative sexual assault upon her.

The counsel for the prosecutrix submitted that the age of the victim was 15 years of age at the time of the first incident. She states that the date of birth of the victim has been proved to be 20.01.2001 by witness PW-1/victim, PW-5/her mother and PW-7/In-charge from school and hence, the victim was minor at the time of the commission of offence.

The above council contended that the appellant himself had admitted in his statement that he took the victim to Phagwara, Punjab to marry her and on the basis of this admission, the fact pertaining to kidnapping of victim stands proved.

JUDGEMENT

The Court with the help of the exhibits determined the date of birth of victim as 20.01.2001. Therefore, making the victim a minor, i.e. 15 years of age at the time of the first incident, being in July/August 2016.

In this case the Court stated that the victim was taken away from the lawful guardianship of her parents without their consent and she was recovered with the appellant at Phagwara, Punjab. Thus establishing the offence of kidnapping by the appellant. 

The Court stated that the argument made by the learned counsel for the appellant that the relationship of the appellant and the victim was consensual is immaterial as a minor is incapable of giving consent.

The Court looking into the FSL (Forensic Science Laboratory) Report established the offence of rape committed by the appellant on the victim because the report clearly states that the appellant is the biological father and the victim is the biological mother of the child.

The Court stated that all the alleged offences against the appellant stood duly proved. Hence, it found no fault or irregularity in the order of Addl. Sessions Judge and did not interfere with the order of 21.11.2019 and the order on sentence dated 28.11.2019 passed by the Ld. Trial Court, ASJ-06, (POCSO), Shahdara District, Karkardooma Courts, Delhi in SC No. 123/2017 arising out of FIR No. 26/2017, under section 363/366/376 IPC and section 6 of POCSO Act, registered at PS Shahdara. 25. The appeal was hence accordingly dismissed.

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JUDGEMENT REVIEWED BY ADITYA G S.

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