01Facts
The Appellant was convicted by the Trial Court for kidnapping and repeatedly raping a minor (PW1, aged 15) between 05.03.2022 and 26.03.2022
pp. 1-2, 5The prosecution alleged that the Appellant enticed PW1 to elope to Haridwar and Bihar, where they purportedly married
pp. 2, 9-10PW1 initially stated in her Section 164 Cr.P.C. statement that she eloped voluntarily and had "physical relations" once
p. 9However, during the trial, she alleged the Appellant lured her with "rosy pictures," cheated her regarding his marital status, and forcibly raped her repeatedly
p. 10PW1 refused an internal medical examination during her MLC
p. 6, 17The Appellant contended he was falsely implicated and believed the victim was 18 years old
p. 402Issues
i.1. Whether there is any infirmity in the Trial Court’s judgement convicting the Appellant under Sections 363, 366, and 376(2)(n) of the IPC and Section 6 of the PoCSO Act
p. 8ii.2. Whether the term "physical relations" (sharirik sambandh), without further particulars or medical evidence, is sufficient to establish "penetrative sexual assault" under Section 3 of the PoCSO Act
pp. 6-7, 16iii.3. Whether the prosecution proved the "taking" or "enticing" of a minor required for a conviction under Sections 361, 363, and 366 of the IPC
pp. 12-1403Law Applied
Section 361 of the IPC defining kidnapping from lawful guardianship and Section 366 IPC regarding kidnapping for marriage or illicit intercourse
p. 12S. Varadarajan v. State of Madras [1964 SCC OnLine SC 36], which distinguishes "taking" from a minor voluntarily accompanying an accused without inducement
p. 14Sections 3 and 5(l) of the PoCSO Act defining penetrative and aggravated penetrative sexual assault
pp. 15-16Section 29 of the PoCSO Act regarding the statutory presumption of guilt
p. 18Reference to Moidu K. vs. State of Kerala regarding the impact of non-compliance with Section 232 Cr.P.C.
p. 4Provisions in the judgment · 3
Code of Criminal Procedure, 1973 Section 164, 207, 232, 235, 294, 313, 374, 482
Indian Penal Code, 1860 Section 361, 363, 366, 376
Protection of Children from Sexual Offences Act, 2012 Section 3, 5, 6, 29, 42
04Reasoning
The Court observed that PW1’s testimony was inconsistent; her Section 164 statement claimed voluntary elopement and a single instance of consensual relations, whereas her trial testimony alleged inducement and repeated forcible rape
pp. 9-10, 17Regarding kidnapping, the Court found no evidence of active "taking" or "enticing" as PW1 admitted to joining the Appellant due to affection, bringing the case under the S. Varadarajan exception
p. 14Regarding the charge of rape/PoCSO, the Court held that the vague use of the term "physical relations" (sharirik sambandh) without specific descriptions of the act does not satisfy the technical requirements of "penetration" under Section 3 of the PoCSO Act
pp. 16-17The lack of medical corroboration due to the victim’s refusal of an internal exam created a void in evidence
p. 17The Court clarified that the Section 29 PoCSO presumption only triggers after the prosecution establishes "foundational facts," which was not done here
p. 1805Holding
The prosecution failed to establish the ingredients of Sections 363 and 366 IPC as there was no evidence of inducement
p. 15Penetrative sexual assault was not proved beyond reasonable doubt due to the victim's vague testimony and the absence of medical evidence
pp. 17-18The High Court allowed the appeal and set aside the conviction. The Appellant was acquitted of all charges under Section 235(1) Cr.P.C. and ordered to be set at liberty
p. 18Original Court PDF
Nirmal KumarvsState Of Nct Of Delhi And Anr.
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