State of NCT of Delhi v. Radhey Shyam

1. The present leave petition under Section 378(1) of Cr.P.C. impugns the judgment dated 17th May, 2016, rendered by the Additional Sessions Judge, (North- West), Rohini Courts, New Delhi, thereby acquitting the respondent in case titled “State vs. Radhey Shyam”; arising out of FIR NO. 260/2011 under Sections 363/376/392/506/366/34 IPC and Section 12 of POCSO Act.

2. The case is that the prosecutrix Ms. S., a minor had been misled as well as confined in the second floor of the tenanted house of the respondents for about 8 months, and in this duration the respondent brothers, Nilesh and Avinash, sexually assaulted her. 2017:DHC:5894-DB

3. In order to prove its case, the prosecution examined a total of 30 witnesses, including the prosecutrix (PW-16). Subsequently, statements of incriminating material was put before the respondents and later the statement of the respondents under Section 313 Cr.P.C. was recorded. The respondents denied all the allegations leveled against them and refused to lead any evidence.

4. The Trial Court after hearing the learned counsel for the parties and a proper examination of the evidence on record, acquitted the respondents of the charges framed against them. This was so done while taking into consideration the statements of the prosecturix recorded under Section 161 and 164 Cr.P.C., as well as her deposition in Court, which according to the Trial Court indicated that she left her house, got “married” to the respondent Nilesh and started residing with him voluntarily, without any coercion, threat, pressure or enticement whatsoever, and consented to have sexual intercourse with him.

5. On the issue of whether the consent of the victim to have sexual intercourse with the respondent No.2 was validly given, the Trial Court reasoned as follows:

6. Apropos the charge punishable under Section 363 IPC, the Trial Court observed as follows:

7. This case pertains to the year 2011 when section 375 IPC provided for the age of consent as 16 years. After amendment to said section, the age was increased to 18 years with effect from 02.02.2013.

8. A perusal of the record would show that as of the date of the alleged incident, the prosecutrix, on the basis of school records, was more than 16 years and 10 months old i.e. at the time of having sexual intercourse with respondent no. 2 whom she had apparently “married, she had attained the age of consent. Therefore, under section 12 of the POCSO Act, no offence is made out since she was already 16 years of age. Apropos the alleged confinement, the record reflects that the prosecutrix went away from her home of her own free will to reside at the home of the respondent no. 2 as his lawfully wedded wife. In this context, the Court would refer to the dicta of the Supreme Court in S.Varadrajan vs. State of Madras, AIR 1965 SC 942, which held; "where facts indicate that a girl left her father's protection, knowing and having capacity to know the full import what she was doing and voluntarily joined the accused, the offence of kidnapping cannot be said to have been made out."

9. The learned Additional Public Prosecutor for the State has referred to other grounds taken in the petition but they are either subsidiary or incidental to the main grounds i.e. (i) whether the prosecutrix was a minor for the sake of giving sexual consent or for living with another person and

(ii) whether she was coerced to leave her parental home. Both these issue have been answered in the negative or the basis of the evidence. The reasons for and the conclusion arrived at in the impugned order are sound and cannot be faulted. In the view of the above discussion, we are unable to agree with the learned counsel for the petitioner.

10. We find no reason to interfere with the impugned order.

11. Accordingly, the leave petition is dismissed.

NAJMI WAZIRI, J. SIDDHARTH MRIDUL, J. SEPTEMBER 26, 2017 sb