2019 (8) TMI 1918 - HC - Indian Laws

Challenge to order of acquittal - kidnapping - Determination of the prosecutrix's age and its impact on the case - HELD THAT - In the present case, a complaint dated 27th March 2015 was lodged with police station Defence Colony by Sh. 'VK' that he had left his minor daughter/prosecutrix 'K' (aged about 17 years) at her school around 9 30 a.m. on the previous day as she had her class Twelfth board examination. She had thereafter not returned home and he suspected that some unknown person had kidnapped her. In pursuance to the said complaint, a case was registered under Section 363 IPC and during the course of investigation, prosecutrix was recovered on 5th April 2015 from the possession of respondent-accused from House No. 187, 1st floor, Mausam Vihar, Village Pasonda, Sahibabad, Ghaziabad, Uttar Pradesh. Though this Court is in agreement with the contention of learned APP for State that the prosecutrix was a minor on the date of the incident, yet the element of mens rea, which is an essential ingredient of Sections 363/366/376 IPC is missing. In the present case, it is only because of a misrepresentation by the prosecutrix with regard to her age, which the respondent-accused bonafidely believed to be true that he allowed her to accompany him - It is also settled law that any acquittal order cannot be lightly interfered with by the Appellate Court, though it has wide powers to review the evidence and to come to its own conclusion. The power to grant leave must be exercised with care and caution because the presumption of innocence is further strengthened by the acquittal of an accused. The present leave petition, being bereft of merit, is dismissed.

Summary

Issues Involved:

1. Determination of the prosecutrix's age and its impact on the case.
2. Evaluation of the elements of 'taking away' or 'enticement' in the context of kidnapping charges.
3. Assessment of the prosecutrix's consent and its relevance under the POCSO Act.
4. Examination of the respondent-accused's mens rea concerning the charges under Sections 363/366/376 IPC.
5. Consideration of the principles guiding appellate intervention in acquittal cases.

Issue-wise Detailed Analysis:

1. Determination of the Prosecutrix's Age:

The central issue in the case was the determination of the prosecutrix's age, as it was crucial for establishing charges under the POCSO Act and related IPC sections. The trial court noted discrepancies in the evidence regarding the prosecutrix's age. The father of the prosecutrix, during his testimony, failed to recall her exact date of birth, and the school records, which are primary evidence under Rule 12(3) of the Delhi Juvenile Justice (Care and Protection of Children) Rules, 2009, were not produced. The prosecution relied on a birth certificate from a municipal authority, but the absence of school records and the mother's testimony weakened the prosecution's case. Consequently, the trial court could not conclusively establish that the prosecutrix was a minor at the time of the incident.

2. Evaluation of 'Taking Away' or 'Enticement':

The trial court found the element of 'taking away' or 'enticement' lacking in the context of kidnapping charges. The prosecutrix, in her deposition, stated that she had a friendship with the accused and went with him voluntarily after her board exams. She confirmed that she was not coerced or enticed, and during cross-examination, she denied any suggestion of being taken without consent. Her statement under Section 164 Cr.P.C. further corroborated her voluntary actions, indicating that she had forced the accused to elope due to her apprehensions about her family's reaction to their relationship.

3. Assessment of the Prosecutrix's Consent:

The trial court held that the prosecutrix's consent was not relevant under the POCSO Act if she was a minor. However, given the uncertainty about her age, the court focused on her testimony, which indicated that the accused did not force or coerce her into any sexual activity. Her statements consistently portrayed a consensual relationship, negating the charges of sexual assault.

4. Examination of Mens Rea:

The court emphasized the absence of mens rea, an essential ingredient for charges under Sections 363/366/376 IPC. The prosecutrix had misrepresented her age as eighteen to the accused, which he believed in good faith. This misrepresentation was pivotal, as the accused's actions were based on the belief that the prosecutrix was of legal age, thus lacking the requisite criminal intent for the charges.

5. Appellate Intervention in Acquittal Cases:

The judgment underscored the principles governing appellate intervention in acquittal cases. It highlighted that an acquittal strengthens the presumption of innocence and can only be overturned for substantial and compelling reasons. The appellate court must give due weight to the trial court's findings, especially when witness credibility is involved. In this case, the High Court found no substantial reason to disturb the trial court's acquittal, as the evidence did not conclusively prove the charges against the accused.

Conclusion:

The High Court dismissed the State's leave petition, affirming the trial court's judgment of acquittal. The court concluded that the prosecution failed to establish the prosecutrix's minority conclusively, lacked evidence of coercion or enticement, and did not prove the accused's criminal intent. The principles of appellate review further supported the decision to uphold the trial court's acquittal.