Del HC upholds conviction for rape and penetrative sexual assault where ‘wife’ was below 18 yrs of age

Delhi High Court:  Mukta Gupta, J., decided an appeal challenging the impugned decision whereby the appellant had been convicted for the impugned decision whereby he had been convicted for offences punishable under Section 376 of Penal Code, 1860 read with Section 4 of the POCSO Act and the order on sentence dated 15-1-2020 whereby the appellant had been directed to undergo rigorous imprisonment for a period of 10 years and a fine of Rs 10,000, in default whereof to undergo simple imprisonment for a period of six months.

Prosecutrix in her statement under Section 164 CrPC admitted that the appellant married her and a Nikaah was performed.

Further, the prosecutrix being the wife of the appellant, the appellant could not have been convicted for offence punishable under Section 376 IPC in view of the exception to Section 375 IPC, for the reason, even as per the prosecution case, the prosecutrix was at least 16 years of age at the time of alleged incident.

It was further stated that since the prosecutrix had married the appellant willingly, she being a major, was a consenting party to the relationship and thus the conviction under Section 376 IPC and Section 4 of the POCSO Act be set aside.

As per the date of birth recorded in the school first attended, the prosecutrix was a child in terms of Section 2(1)(d) of the POCSO Act as she was below the age of 18 years.

PW-10, the father of the prosecutrix has clarified that after the prosecutrix was kidnapped and he got lodged the FIR, effort was made by him to trace her daughter and he went to the police station and that he tried to search the accused and his daughter. He stated that while he was going to Maujpur, he saw the Maruti Van belonging to the appellant near Seelampur Red light and when the enquiry was made, he came to know that the said car was parked with a dealer for sale.

The said dealer called the appellant on the pretext of finding a good buyer for the car, whereafter, the appellant was recovered with his daughter at Maujpur along with the Investigating Officer. It is thus evident that after his daughter was recovered, she was produced before the Investigating Officer.

Lastly, the High Court concluded stating that the prosecution proved beyond the reasonable doubt that the prosecutrix was a ‘child’ at the time of the alleged incident and that she was forcibly taken away from the lawful guardianship of her parents and offence of sexual intercourse was committed on her repeatedly and forcibly.

In view of the above, Bench found no error in the impugned judgment of conviction and order on sentence.[Mohd Afsar v. State, 2022 SCC OnLine Del 51, decided on 7-1-2022]


Advocates before the Court:

For the appellant: Sunita Arora, Advocate

For the respondent: Ravi Nayak, APP for the State with SI Pradeep Sharma, P.S. Jamia Nagar

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