Delhi High Court in State v. Umesh [Crl.Rev.P 266/2014] upheld an order of discharge passed by a Sessions Judge in a Case where the Accused was charge sheeted for Section 363/376 of IPC and Section 4 of Protection of Children from Sexual Offences Act 2012
Justice Indermeet Kaur had set the accused free of all the offences alleged, holding that the victim was married to the Accused and voluntarily consented to the sexual inter course.
The allegation against the Accused was that the victim- a minor girl aged 13 years, was taken away by enticement from the lawful guardianship from her father. According to the prosecution the girl was born on 8.10.2001 and was 13 years at the time of incident, but the victim girl deposed in her 161 and 164 statements that she was aged 15 years at the time of incident.
The trial Court discharged the Accused holding as follows;
“…….having regard to the statement of child victim under Section 164 Cr.P.C, under Section 161 Cr.P.C. and statement of Rahila under Section 161 Cr.P.C, prima facie there is no allegation on record to show that accused had kidnapped the child victim out of lawful guardianship of her parents. Further, there is also no material on record to show that accused committed rape upon child victim as it has come on record that whatever sexual relations were developed between child victim and accused were pursuant to marriage”.
It is not clear from the order that the question regarding the age was examined by the trial Court.
Impugned by the order of discharge State filed a Revision Petition before Delhi High Court. The only question considered by the High Court is whether the victim was aged 13 years old or 15 years old at the time of occurrence. Court found that the girl was 15 years old since she given her age as 15 years in the 164 statement.
Dismissing the Revision Petition Justice Kaur held as follows;
“It was in these circumstances that the impugned order was passed. It is based on the cogent evidence collected by the prosecution. The stand of the prosecution that the victim was a minor and aged 12 years is not established by the documents relied upon by the prosecution. In terms of Rule 12 if the first three parameters contained in Rule 12 (3) are not made available, the next step would be to subject the victim to an ossification test. This as noted supra would not be the conclusive piece of evidence. This has to be coupled with the fact that the victim in her statement recorded under Section 164 of the Cr.PC has clearly stated that she was 15 years of age on the date of the incident. This is clearly a case where even if the accused is put to trial, the result is already preknown;it would result in an acquittal. This is clear in view of the statement given by the victim, both under Sections 161 & 164 of the Cr.PC coupled with the fact that there is no conclusive proof with the prosecution about the victim being a minor. This Court is of the view that the order suffers from no infirmity.”
The Judgment raises many important questions.
The first is whether evidence in the nature of ‘conclusive proof’ is required at the time of framing of charges?
The charge-sheet shows that there were 15 witnesses . There is no mention in the Judgments about other witnesses except the victim and CW6, a school principal . There is not even a whisper in the Judgment about any evidence of marriage between the Victim and Accused.
It is not stated in the Judgment that the Court relied on which provision of which statute, to find that a girl aged 15 is not a minor.
The offences charged were section 363/376 of the IPC and Section 4 of the Protection of Children from Sexual Offices 2012
According to Section 1(d) of Protection of Children from Sexual Offices Act “Child” means any person below the age of eighteen years;
Section 375 Sixthly of Indian Penal Code says ‘a man is said to commit Rape, with or without the consent of Victim, if she is under Sixteen years of age (now 18 years after Nirbhaya Amendment]’
Under Section 361 of IPC whoever takes or entices any minor under eighteen years of age if a female, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship. The definite case of the prosecution is that the girl is enticed out of the keeping of guardian. It is also the settled position that consent of minor is not a defence under S.363 IPC.
According to Section 2(a) of The Prohibition of Child Marriage Act, 2006 'child' in case of 'female' means a person who has not completed Eighteen years of age.
Supreme Court time and again held that in case the victim was below 16 (18 now) years of age at the relevant time, the issue of consent becomes totally irrelevant. Even the issue of consent is no more res integra even in a case where the victim was above 16 (18 now)years of age.
Section 12 of the Prohibition of Child Marriage Act, 2006 states that a Marriage of minor is void where a child is taken or enticed out of the Keeping of the lawful guardian.
The Judge considered the question whether the girl was aged below 15 years of age, presumably to invoke (not stated in the Order) the Second exception of Section 375 which says that ‘Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape’.
But there is no evidence except the statement of victim under S.161/164 CrPC recorded during investigation, to prove that she is the wife of the Accused.
Even if it is assumed that she is Fifteen years of age and married to the Accused, it will not exclude the Accused from the culpability under Protection of Children from Sexual Offences Act since there is no provision similar to Exception -2 of S.375 IPC , in POCSO which exempt the sexual intercourse with wife above 15 years of age from the ambit ‘Rape’.
Another aspect is that the relation between a two minors or a minor with a major cannot even be considered as a live-in relationship in view of Supreme Court Judgment in D.Velusamy vs D.Patchaiammal. In this Judgment Supreme Court held that to enter in to a live-in relationship both the partners must be of legal age to marry. [Age of Accused is not mentioned in the Jt]
In this context, it is also worthwhile to recollect the Madras HC order calling upon the rape victim and the accused to settle the matter and Supreme Court judgment which held that the conception of compromise under no circumstances can really be thought of in rape cases. The Madras High Court had recalled its order later.
Read the Judgment here;