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"It is clearly apparent that the accused and the prosecutrix were in love and the prosecutrix had represented to the accused her age to be 21 years", order by the trial court noted
In a criminal revision moved by the State, Delhi High Court recently upheld an order of the trial court, discharging a man against offences of sexual assault and kidnapping under the Protection of Children from Sexual Offences Act (POCSO Act), 2012 and the Indian Penal Code (IPC) 1860.
The Court relied on the age mentioned in the AADHAAR Card of the prosecutrix, as per which she had attained the age of majority when the said offences were committed against her.
Justice Sudhir Kumar Jain, while maintaining the order passed by the trial court, said, “The perusal of impugned order dated 29.7.2016 reflects that the Trial Court had rightly observed that the date of birth of the prosecutrix as appearing in the school record was not based on birth certificate issued by MCD or any other statutory authority and in the absence of these documents, the Trial Court has rightly relied upon the Aadhaar card to ascertain the age of prosecutrix as per mandate of section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015, which reflects the date of birth of the prosecutrix as 01.01.1994.”
Reliance was placed on NCT of Delhi v. Umesh, 2015 SCC OnLine Del 10596, where the AADHAAR card was used to determine the age of the prosecutrix.
The three documents which the courts require to consider for the determination of age, as per Section 94 of the Juvenile Justice Act, 2015 are;
1. Date of Birth certificate (DOB) from school, or the matriculation or equivalent certificate from the concerned examination board, if available;
2. The birth certificate given by a corporation or a municipal authority;
3. Only in the absence of the aforementioned, age shall be determined by an ossification test or any other latest medical age determination technique on the orders of the committee or the board.
The accused was charge-sheeted for the offences under Ss. 363/366/366A/376 of the Penal Code, 1860 read with Ss. 4 and 6 of the POCSO Act, 2012.
Ld. ASJ Court vide impugned order dated 29.07.2016, discharged the accused observing, “I do not find any evidence which could prima-facie indicate about the commission of offence U/S 363/366/366A IPC against the accused… As far as the ingredients of offences punishable U/S 376 IPC and Section 6 of POCSO Act are concerned strangely there is no authentic document on record which could give clear indication about actual date of birth of the prosecutrix.”
The FIR was lodged by mother of the prosecutrix with regards to the prosecutrix leaving her house on 10.09.2015, at around 11 a.m., and not returning till late in the night.
In her statement under section 164 CrPc, the prosecutrix denied that she was taken out of the keeping of her lawful guardianship by force or that she was sexually assaulted by the accused.
“It is clearly apparent that the accused and the prosecutrix were in love and the prosecutrix had represented to the accused her age to be 21 years. The date of birth of the prosecutrix as appearing in her school records is not based upon any birth certificate issued by MCD or any other statutory authority. Even the date of birth of the accused in the records of the school first attended by him is 11.12.1999, however, he has been charge-sheeted in the matter on the basis of ossification test report wherein his age has been opined to be between 20-22 years”, order by the trial court added.
Case Title: NCT of Delhi v. Rohit Kumar | Crl. Rev. P. 384 of 2017
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