MOHD. AFSAR Vs. STATE

JUDGEMENT

(1.) By this appeal, the appellant challenges the impugned judgment dtd. 9/1/2020 whereby he has been convicted for offences punishable under Sec. 376 IPC read with Sec. 4 of the POCSO Act and the order on sentence dtd. 15/1/2020 whereby the appellant has been directed to undergo rigorous imprisonment for a period of 10 years and pay a fine of Rs.10,000.00, in default whereof to undergo simple imprisonment for a period of six months.

(2.) Learned counsel for the appellant contends that the findings of the learned trial Court that the prosecutrix was a minor is incorrect and not born out from the record and thus, the consent of the prosecutrix was not immaterial. As per the father of the prosecutrix, PW-10, he was married in the year 1987 and had nine children in all, out of which, the youngest child had expired. He deposed that his first child was born after about two years of marriage and there was a gap of 2 to 2 1/2 years between each child. As per the prosecutrix who appeared in the witness box as PW-6, she had six sisters and one brother and two sisters were elder to PW-6 and that she was the third child in the family. Thus, considering the age gap between first child and thereafter, the prosecutrix was born in the year 1993 and as on the date of alleged incident i.e. 13/5/2013, she was approximately 20 years old and hence, major. Even given the margin of 2 1/2 years gap between two children, she was still above 18 years of age at the time of alleged incident. Further, even the father of the prosecutrix stated that his second daughter was born somewhere around 1991 to 1992 and thus, in the year 2013, she was 21 to 22 years old. According to the father, after the second daughter, one more child was born who subsequently expired and thereafter, the victim was born. Even taking this gap into consideration, the prosecutrix was a major at the time of incident. Further, this version of PW-10 is contrary to the version of the prosecutrix who stated that the child who expired was the youngest boy born in Delhi. The learned Trial Court also failed to note that no birth certificate or hospital record or any municipal record was furnished at the time of the admission of the victim in the school and thus, date of birth recorded in the school record cannot be treated as the correct date of birth. Further, the school certificate exhibited by PW-5 was not from the school first attended as PW-10 himself stated that his four children were born in the village and had gone to school in the village itself, the name of the school being Tajvidul Quraan situated in village Seda District, Bijnaur, Uttar Pradesh. Thus, the school certificate not being from the school first attended, cannot be relied upon as per Rule 12(3) of the Juvenile Justice (Care and Protection of Children) Rules 2007 (in short, the 'J.J. Rules').

(3.) Learned counsel for the appellant further contends that there are material contradictions and inconsistencies in the testimony of Woman Constable Sunni Devi who was examined as PW-8, SI Shiv Kumar (PW-11) and the Investigating Officer SI Rishi Sharma (PW-12) in comparison to what is stated by the father of the prosecutrix (PW-10). PW-8 Woman Constable Sunni Devi in her testimony deposed that PW-10 reached the police station on 8/6/2013 along with the prosecutrix and produced her before PW-12 the Investigating Officer, whereas, PW-10 in his testimony deposed that PW-12 found the appellant and the prosecutrix. PW-10 further stated that at the time of rescue of the prosecutrix from a room at Maujpur, two other police personnel namely Bani Singh and SI Shiv Kumar were also present, however, they have not been examined as witnesses by the prosecution. PW-11 did not depose that they went to Maujpur to rescue the prosecutrix and PW-12 the Investigating Officer stated that in the first week of June 2013, PW-10 had produced the prosecutrix and the appellant in the police station and told him that the appellant had kidnapped the prosecutrix.