Full Text
HIGH COURT OF DELHI
JUDGMENT
AMIT .....Appellant
Through: Mr. Adit S. Pujari, Advocate (DHCLSC) with Mr. Bhavesh Seth, Advocate
Through: Mr. Utkarsh, APP for the State with SI Geetam Singh.
Mr. Vaibhav Tomar, Ms. Heena Khan, Mr. Prabhjot Singh Dhillon and
Mr. Hriman Dhaka, Advocates for Prosecutrix
1. This appeal under Section 374(2) read with Section 383 of the Code of Criminal Procedure, 1973 (the Cr.P.C.) has been filed by accused no. 1(A[1]) in Sessions Case No. 1653/2016 (Old Case No. 169/2013) on the file of Additional Session Judge-01, (POCSO), South-East District, Saket Courts, New Delhi, assailing the judgment dated 04.10.2019 and order on sentence dated 18.10.2019 as per which he has been convicted and sentenced for the offences punishable under Section 376 of the Indian Penal Code, 1860 (the IPC) and Section 4 of the Protection of Children from Sexual Offences Act, 2012 (the PoCSO Act).
2. The prosecution case is that on 24.07.2013 at about 04:00 pm, A[1] and accused no. 2 (A[2]), in furtherance of their common intention, kidnapped PW[5] and PW[9] from their lawful guardianship and took them to Suratgarh, Rajasthan, where A[1] committed penetrative sexual assault on PW[5]. It is also alleged that accused no. 3 (A[3]) wrongfully confined PW[5] and PW[9] at his house and abetted the commission of the penetrative sexual assault. Hence, the accused persons are alleged to have committed the offences punishable under Sections 363, 366A, 368, 376 read with 34 IPC and Sections 4 and 17 of the PoCSO Act.
3. On the basis of Ext. PW1/A FIS of PW[1], given on 25.07.2013, Crime No. 244 of 2013, Badarpur Police Station, that is, Ext. PW16/A FIR was registered by PW16, Assistant Sub Inspector. PW17 conducted investigation into the crime and on completion of the same, filed the charge-sheet/final report before the court, alleging the commission of the offences punishable under the aforementioned Sections.
4. When the accused persons were produced before the trial court, all the copies of the prosecution records were furnished to them as contemplated under Section 207 Cr.P.C. After hearing both sides, the trial court as per two separate orders dated 21.11.2013, framed a Charge under Sections 363, 366A, 376 read with 34 IPC and Sections 4 and 17 of the PoCSO Act against A[1]; Sections 363, 366A read with 34 IPC and Section17 of the PoCSO Act against A[2] and Section 368 IPC and Section 17 of the PoCSO Act against A[3], which was read over and explained to the accused persons, to which they pleaded not guilty.
5. On behalf of the prosecution, PWs. 1 to 17 were examined and Exts. PW1/A-B, PW1/DA, PW2/A, PW3/A, PW4/A, PW5/A, Mark X, PW7/A, PW8/A-B, PW9/A-B, Mark A, PW12/A, PW13/A, PW14/A, PW15/A-D, PW17/A-I and Mark 17A were marked.
6. After the close of the prosecution evidence, the accused persons were questioned under Section 313(1)(b) Cr.P.C. regarding the incriminating circumstances appearing against them in the evidence of the prosecution. They denied all those circumstances and maintained their innocence.
7. After questioning the accused persons under Section 313(1)(b) Cr.P.C., compliance of Section 232 Cr.P.C. was mandatory. In the case on hand, no hearing as contemplated under Section 232 Cr.P.C. is seen done by the trial court. However, noncompliance of the said provision does not ipso facto vitiate the proceedings unless omission to comply with the same is shown to have resulted in serious and substantial prejudice to the accused persons (see Moidu K. versus State of Kerala, 2009 (3) KHC 89; 2009 SCC OnLine Ker 2888). In the case on hand, the accused persons have no case that non-compliance of Section 232 Cr.P.C. has caused any prejudice to them.
8. No oral and documentary evidence was adduced by the accused persons.
9. Upon consideration of the oral and documentary evidence and after hearing both sides, the trial court, vide the impugned judgment dated 04.10.2019, held A[1] guilty of the offences punishable under Section 376IPC and Section 4 of the PoCSO Act. A[1] to A[3] have been acquitted under Section 235(1) Cr.P.C of the charges under Section 363, 366A, 368 read with 34 IPC and Section 17 of the PoCSO Act. The trial court, vide order on sentence dated 18.10.2019, sentenced A[1] to rigorous imprisonment for a period of ten years and fine of ₹10,000/- and in default of payment of fine, to simple imprisonment for one month for the offence punishable under Section 376 IPC. Benefit under Section 428 Cr.P.C has been granted. Aggrieved, A[1] has come up in appeal.
10. It was submitted by the learned counsel for A[1] that PW[5] admitted in her testimony that she was in a relationship with A[1] and that a marriage ceremony had taken place between them. PW[5] was more than 15 years of age at the time of the incident. Since the incident occurred on 24.07.2013, which is before the pronouncement of the Apex Court’s dictum in Independent Thought v. Union of India(2017) 10 SCC 800, Exception 2 to Section 375 IPC was applicable, under which sexual intercourse by a husband with his wife, the wife not being under 15 years of age, did not constitute rape. Reliance was placed on the dictum in Islam v. State of Uttar Pradesh, 2025 SCC OnLine All 5974.
11. It was submitted by the learned Amicus Curiae appearing for PW[5] that the alleged marriage was not a valid marriage but a child marriage, which is voidable at the instance of the victim. PW[5] in her testimony deposed that she does not consider A[1] to be her husband and that she does not want to live with him as his wife. It was further submitted that the religion of A[1] has not been established as he has a Hindu name, but his father’s name suggests that he is a Christian and hence, such a marriage cannot be legally recognised. Reliance was placed on Gullipilli Sowria Raj v. Bandaru Pavani, (2009) 1 SCC 714 and Vishwanath Ahirwar v. State of Uttar Pradesh, (2023) 1 HCC (All) 48.
12. The learned Additional Public Prosecutor submitted that there is no infirmity in the impugned judgment calling for an interference by this Court.
13. Heard both sides and perused materials on record.
14. The only point that arises for consideration in this appeal is whether the conviction entered and sentence passed against the appellant/A1by the trial court are sustainable or not.
15. The law was set in motion by Ext. PW1/A FIS of PW[1], namely, the brother of PW[5] and PW[9] on 25.07.2013, in which he has stated that his sisters (PW[5] and PW[9]) had gone missing since 24.07.2013.
16. Ext. PW5/A 164 statement of PW[5] is seen recorded on 03.08.2013. In her statement, PW[5] has stated thus: She left her home with her sister on 24.07.2013. She loves Amit (A[1]). He is known to her for last 3 months. She told Amit to take her away from home. Bhoop Singh (A[2]), Amit’s friend, also came. All of them went to Ganganagar by train. He put his private part inside her private part. We had sex once, and then we came to Delhi.
17. PW[9], sister of PW[5], in her Ext. PW8/B 164 statement states thus: She left her house with her sister (PW[5]) in the afternoon of 24.07.2013. They went along with Amit (A[1]), who said that he would meet them outside the house. They went to Palwal and then took a train to Ganganagar because Amit (A[1]) told them that his friend lives in Suratgarh. Her sister (PW[5]) and Amit are having an affair. Amit’s brother told him on the phone to come to Delhi so they came to Delhi and then the police apprehended them.
18. PW[5] when examined deposed that at A1’s request, she went to Palwal along with her sister PW[9] and Bhoop Singh (A[2]) for an excursion. They travelled first to Palwal by auto, then proceeded to Ganga Nagar by train, and thereafter to Surat Garh by bus. At Surat Garh, they stayed at the house of Sunil (A[3]), who is related to Bhoop Singh (A[2]). Amit (A[1]) had physical relations with her like a husband with wife. Amit (A[1]) thereafter returned to Delhi. They stayed at Surat Garh for about 8 to 9 days. Amit (A[1]), Sunil (A[3]), and Bhoop Singh (A[2]) were employed at Surat Garh and used to go out for work during the day. One night, she stayed alone in a room with Amit (A[1]), while other family members slept in another room. Amit (A[1]) had physical relations with her on the said day. A marriage ceremony was also performed between her and Amit (A[1]) at Surat Garh, though she does not remember the exact date. PW[5] further deposed that she does not consider Amit (A[1]) to be her husband and does not wish to live with him. After about ten days, while they were returning to Delhi, the police apprehended them at the Railway Station. PW[5] admitted that when she was taken for medical examination, she refused to undergo it.
18.1. PW[5], in her cross-examination, admitted that on 24.07.2013, she went gone with Amit (A[1]) voluntarily, as he told her they would go on an excursion. Amit (A[1]) took her and her sister PW[9] to Palwal in an auto. A[1] did not force or compel them to accompany him in the auto. PW[5] deposed that her marriage with A[1] was solemnised in a temple at Surat Garh. She could not recall the exact date of their marriage. PW[5] admitted that the marriage was performed with her consent and willingness. In the cross examination, PW[5] also has a case that A[1] had physical relations with her forcibly and without her consent. According to PW[5], she was disturbed and scared, and hence did not go for medical examination. She denied the suggestion that no medical examination was done because A[1] did not have physical relations with her.
19. PW[9] deposed that on 24.07.2013, she and PW[5], her sister, left their house and went along with A[1] to Palwal and took a train to Shri Ganga Nagar. They met Bhoop Singh @ Bhagwan Singh (A[2]) at Saathfoota road, who also accompanied them. From Shri Ganga Nagar, they went to Surat Garh and met Sunil (A[3]). They stayed at Sunil's (A[3]) house. After about 6 to 7 days, Amit (A[1]) returned to Delhi as he had some urgent work. A[1] was arrested in Delhi by the police. When Bhoop Singh (A[2]) was bringing them back to Delhi, the police met them at the railway station of Surat Garh. PW[9] admitted that she refused her medical examination.
19.1. During her cross-examination, PW[9] admitted that PW[5] was having an affair with Amit (A[1]) and they had planned to elope. PW[9] admitted that Bhairo (A[2]) helped them speak to their parents on the phone whenever they asked him to connect them to their home. PW[9] deposed that she did not see A[1] and her sister having any physical relations.
20. PW10, mother of PW[5] and PW[9], deposed that there is an age difference of approximately two and a half years between her two daughters. She denied any affair between PW[5] and A[1].
21. The challenge in this appeal is limited to the allegation of rape and penetrative sexual assault punishable under Section 376 IPC and Section 4 of the PoCSO Act against A[1]. All the accused persons, including A[1], have been acquitted of the Charge of kidnapping, abetment, and confinement.
22. Section 375 IPC defines the offence of rape. It provides that sexual intercourse amounts to rape if it is committed against a woman’s will, without her consent, with consent obtained by fear or misconception of fact, with consent given by a woman who is incapable of understanding the nature and consequences of the act, or with or without her consent when she is under the prescribed age.
23. The learned counsel for the appellant/A[1] submitted that the case on hand would fall within Exception 2 of Section 375 IPC as it stood before the decision in Independent Thought (supra). Exception 2 as it stood then provided that sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, was not rape. The prosecution version itself indicates that a marriage ceremony was performed between A[1] and PW[5], and the age of PW[5] was above fifteen years at the relevant time, the act of sexual intercourse would prima facie fall within Exception 2 to Section 375 IPC, as it then existed. Since the date of the incident in the present case is before the decision in Independent Thought (supra), the ratio cannot be applied retrospectively.
24. A perusal of Ext. PW15/D birth certificate of PW[5] indicates that PW[5] was born on 05.02.1998 and therefore was aged 15 years and 5 months at the time of the incident. Therefore, it is proven that PW[5] was above 15 years of age at the time of the incident.
25. Coming to the aspect of marriage, PW[5] herself admits that she and A[1] had undergone a ceremony of marriage in a temple at Surat. It is true that PW[9] her sister does not speak of it. But PW[5], the victim herself says that her marriage with A[1] had been solemnised. There is no case for the prosecution that the marriage had not been solemnised as per the rites and customs of the community to which they belong. PW[5] admittedly was aged 15 years at the time of marriage, apparently a minor. Section 2(a) of the Prohibition of Child Marriage Act, 2006 (the PCM Act) defines a child as a person who, if a male, has not completed 21 years of age and if a female who has not completed 18 years of age. Section 2(b) defines child marriage as a marriage to which either of the contracting parties is a child. Apparently PW[5] was a child when the marriage was solemnised. Section 3 of the PCM Act reads thus –
26. The testimony of PW[5] and PW[9] makes it clear that the former did have an affair with A[1] and that she had voluntarily eloped with A[1]. In the 164 statement, PW[5] has no case of forcible sexual intercourse by A[1]. PW[5] in the box also admitted that the relationship was consensual. However, on further cross examination she deposed that A[1] had forcibly established sexual relations with her. It is clear that PW[5] being a minor, her consent is immaterial. However, apart from the testimony of PW[5], there is no other evidence including medical evidence to support her version. It is certainly true that for a conviction of an offence under Section 375, the sole testimony of the victim alone be sufficient provided it is trustworthy and credible.
27. In this context, I refer to exhibit PW2/A, the MLC of PW[1]. The column relating to the particulars of injuries reads thus – “Alleged H/o absconding from her home on 24.07.2013 with her sister without her parent’s knowledge. Their parents lodge a FIR regarding them missing on 25.07.2013. They went to Suratgarh with their neighbour Amit and Bhoop Singh and returning to home on 01.08.2013, when police found them on railway station. No H/o sexual assault/rape. Victim not giving consent for gynaecological examination.” (Emphasis supplied)
28. In addition to this, PW[9], the sister of PW[5] deposed that she along with PW[5] and A[1] were in the same room and that they were sleeping in the same cot. But she never saw A[1] having sexual intercourse with PW[5], her sister. PW[5] does not give any cogent reason(s) as to why she refused medical examination. Therefore, on an entire reading of the materials on record, I find that the prosecution has not been able to prove the offence of rape beyond reasonable doubt and that so A1/the appellant is entitled to the benefit of doubt.
29. In the result, the appeal is allowed, and the impugned judgment is set aside. The appellant/A[1] is acquitted under Section 235(1) Cr.P.C. of all the offences charged against him. He is set at liberty and his bail bond shall stand cancelled.
30. Application(s), if any, pending, shall stand closed.
CHANDRASEKHARAN SUDHA (JUDGE) FEBRUARY 23, 2026/ER/RS