$~10
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.A. 334/2018
% Judgment pronounced on: 16th July, 2019

STATE (GNCT OF DELHI) ….. Appellant
Through: Ms.Aashaa Tewari, APP for State with
Inspector Jagdish Yadav and SI Ashish
Kumar, PS Gokul Puri.
versus
HARGOVIND ….. Respondent
Through: Mr.S.S. Ahluwalia, Advocate for
respondent.
CORAM:
HON’BLE MR. JUSTICE MANMOHAN
HON’BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
MANMOHAN, J. (ORAL)

1. Present appeal has been filed by the State challenging the order of
acquittal dated 15.09.2016 passed by the Additional Sessions Judge,
North East District, Karkardooma Courts, Delhi, in FIR No.36/2013
registered with Police Station Gokulpuri, under Sections 363/Section366/Section376
IPC and Section 4 of the POCSO Act.

2. The Trial Court in its impugned judgment has given benefit of doubt
to the respondent/accused and acquitted the respondent of the
offences under Sections 363/Section366/Section379 and Section 4 of the POCSO
Act. Relevant portion of the impugned judgment dated 15.09.2016 is
reproduced below: –

“21. Thus, a serious doubt has been created
regarding the age of the victim. The manner in

CRL.A. 334/2018 Page 1 of 5
which she had acted and conducted herself is not
that of a minor girl of about 13 years of age. She
not only developed a love affair with the accused
but had also eloped with her and went to a distant
place like Jalon, U.P. where she entered into
marriage with the accused and resided with him as
his wife. In none of her statement or in her
deposition before the Court, she made any
allegation against the accused that he, in any
manner, enticed her or forced her either to elope
with him, enter into marriage or for sexual
intercourse, as alleged by the prosecution. In any
case, the prosecution has failed to prove that the
victim was a minor at the time when she went with
the accused. There is no concrete evidence
regarding her age and the benefit of the same
would obviously go to the accused.

22. Considering the above facts in totality and the
evidence which has come on record, more
particularly the testimony of the victim, the only
conclusion which can be drawn is that the victim
had gone with her consent with the accused and
resided with him at Jalon, UP. The factum of
marriage could also not be proved on record and
there is only a bald statement of the victim to prove
this fact. In fact, PW15 who had gone to Jalon to
verify the fact of marriage, deposed that he could
not found any evidence of marriage between the
victim and the accused. As already discussed
above, the allegations of rape could also not be
proved in view of the contradictory statements of
the victim and lack of any corroborative medical
evidence. The lack of evidence regarding the
minority of the victim would also give benefit of
doubt to the accused regarding the allegations of
abducting her.

23. Hence, in these circumstances, accused
Hargovind is extended benefit of doubt and he is

CRL.A. 334/2018 Page 2 of 5
accordingly acquitted of the offences 363/366 SectionIPC,
Section 376 IPC and Section 4 of the POCSO Act.
He is set at liberty. His personal bond and surety
bond stand discharged.”

(emphasis supplied)

3. Learned Predecessor of this Court vide a detailed judgment dated
02.07.2018, directed the recording of additional evidence under
Section 311 Cr.P.C. by the Trial Court on the aspect of age of the
prosecutrix during the relevant period i.e. 22.01.2013 and
27.02.2013. Relevant portion of the order dated 02.07.2018 passed
the Division Bench, is reproduced below: –

“24. If the prosecutrix was a minor on the relevant
date, in the face of the evidence brought on record,
the accused may not be able to escape the charges
framed against him. However, in our view the
evidence brought on record does not conclusively
establish the age of the prosecutrix to be above the
age of discretion i.e. 16 years or more, as on
22.01.2013.

25. Looking to the facts and circumstances taken
note of hereinabove, as also the fact that the
victim/prosecutrix had eloped with the accused
without use of force or coercion – we are of the
considered opinion that the Ld. ASJ should have
resorted to medical examination of the prosecutrix
in terms of Rule 12 of the JJ Rules, to determine
her age before proceeding with the matter. By not
doing so, the Ld. ASJ has failed to exercise the
jurisdiction and responsibility that vested upon
him while trying a serious offence.

26. Thus, we direct the recording of further
evidence in exercise of our jurisdiction under
Section 311 Cr.P.C. read with Section 165 of the
Evidence Act and Section 34 of the POCSO Act on

CRL.A. 334/2018 Page 3 of 5
the aspect of age of the prosecutrix during the
relevant period, i.e. between 22.01.2013 and
27.02.2013, including by resort to Rule 12 of the
JJ Rules, if necessary. We direct the Special Court
to record additional evidence on this aspect and
send the same to this Court within the next 6
months. The prosecution, and the defence would be
entitled to lead additional evidence on the said
aspect.”

(emphasis supplied)

4. In pursuance to the said order, the Trial Court recorded the evidence
of Dr. Nitish Upadhyay, Senior resident, Radiology Department,
GTB Hospital, Delhi and forwarded the same to this Court. The
testimony of the doctor Nitish Upadhyay is reproduced below: –

“On 04.04.2019, I examined the x-ray films of the
victim D/o ‘SK’, female, 23 years old. After
examining the x-ray film, I gave my detailed
ossification report. I have seen my report dated
04.04.2019. It bears my signatures at point A. My
detailed report is now Ex.CW1/1. I found that bone
age of the abovesaid victim was between 18 to 22
years on the day of examination. X-ray film is now
Ex.CW1/2.

Cross examination of CW-1 (Dr. Nitish
Upadhyay)
It is correct that a radiological test cannot give the
exact age of a person and there is always a margin
of error. On the basis of the x-ray films produced
before me, I cannot say what could have been the
age of the victim in the year 2013.”

(emphasis supplied)

CRL.A. 334/2018 Page 4 of 5

5. Keeping in view the aforesaid evidence, it cannot be said with
certainty that the age of the prosecutrix was less than sixteen and she
was a minor on the date of the incident.

6. Consequently, the respondent is given the benefit of doubt and the
present appeal is dismissed.

7. Bail bond of the respondent is cancelled and his surety stands
discharged.

MANMOHAN, J

SANGITA DHINGRA SEHGAL, J
JULY 16, 2019
afa/

CRL.A. 334/2018 Page 5 of 5