The Delhi High Court on Thursday quashed a Trial Court order convicting two men for raping a minor girl, but directed the duo to pay compensation for maintenance of child born to the prosecutrix.
The Bench comprising Justice S.P. Garg and Justice C. Hari Shankar was hearing Appeals filed by two convicts, Tejinder Singh and Vikram Singh, challenging a judgment passed in January, 2013 by the Additional Sessions Judge, whereby they were convicted for repeatedly raping a 13 year old girl over a period of 4 to 5 months.
The crime came to light only after the girl was found to be pregnant. Since she received medical attention only after the seventh month of pregnancy, abortion was not an option, and she gave birth to a boy in March, 2012. The baby was now lodged at a private orphanage in Haryana.
Hearing the Appeals, the Bench however opined that the minor girl's testimony was not consistent. It observed, "She has given conflicting and divergent versions at different stages of investigation / trial. Initially, she did not bring it to the notice of her parents or family members her ordeal at any stage; no such incident was reported to the police. The prosecutrix continued to have physical relations with the appellants subsequently without demur or protest. She continued to visit the office of the appellants in the factory as and when called without any hitch. Nothing prevented the prosecutrix to avoid visiting the appellants at the place where she was ravished."
The Court further accorded importance to the fact that no injuries were found on her, observing, "No visible injuries whatsoever were found on her private organs to infer forcible rape; she did not suffer any injury on her body to infer if any time any resistance was offered by her."
It also noted the absence of a birth certificate or school record for confirming the age of the girl and concluded that she was well above 16 years of age when the Appellants had physical relations with her. The Court then concluded that she was in fact a consenting party throughout, and observed, "Physical relationship (if any) was with her free consent. It is not the case of the prosecution that the victim was unable to understand the consequence of her act of having physical relations with others due to her low I.Q.; no credible evidence has emerged to substantiate this."
The Court went on to thwart the application of the Protection of Children from Sexual Offences Act (POCSO Act), 2012, noting that the alleged crime had been committed before the Act came into force.
It then allowed the Appeals and set aside the conviction and sentence awarded to the Appellants, ruling, "Since the victim was more than 16 years of age at the time of commission of the offence and physical relations (if any) were with her consent, the appellants cannot be held guilty for commission of offence punishable under Section 376 IPC and the findings of the Trial Court on that score cannot be sustained and are set aside."
The Court however noted that the DNA report did confirm that the child belonged to the second Appellant, Vikram Singh. It in fact agreed with her assertion that the Appellants "exploited her innocence". It then directed payment of compensation of Rs. 5 lakhs and 8 lakhs by Tejinder Singh and Vikram Singh respectively, opining,
"Since the victim who was below 18 years on the date of incident was exploited and physical relations were established by the appellants who were major and knew the consequences of their acts whereby the poor girl became pregnant and delivered the child of A-2, she is entitled for compensation for the maintenance of the ‘child’."
The amount has been directed to not be withdrawn without the permission of the Trial Court till the child attains majority. It was however left open to the Trial Court to release the amount sooner for the welfare of the child.