The Allahabad High Court has set aside the rape charges framed by the POCSO Act Court in a case related to the Pahasu police station area of Bulandshahr, in the incident of molestation of a seven-year-old innocent.
A Single Bench of Justice Rajeev Misra passed this order while hearing a Criminal Revision filed by Sanjay Gaur.
The criminal revision has been filed challenging the framing of charge order dated 3.1.2023, passed by the Additional Sessions Judge/Special Judge (POCSO Act) Bulandshahr in Sessions trial under Section 376 AB, 504, 511 IPC and Section 9M/10 POCSO Act, Police Station- Pahasu, District Bulandshahr, whereby charges have been framed against revisionist under section 376 AB/511, 504 IPC and Section 9M/10 POCSO Act.
The Court noted that in respect of an incident which is alleged to have occurred on 5.9.2022, a prompt F.I.R dated 5.9.2022 was lodged by first informant (mother of the prosecutrix) and was registered as Case under Section 376 AB, 504, 511 IPC and Section 9M/10 POCSO Act, Police Station- Pahasu, District- Bulandshahr. In the aforesaid F.I.R revisionist Sanjay Gaur has been nominated as solitary named accused.
As per the prosecution story as unfolded in the F.I.R, it is alleged that named accused Sanjay Gaur dislodged the modesty of prosecutrix who is a young girl, aged about 7 years by forcing her to perform non-penetrative sex with accused.
After the above mentioned F.I.R was lodged, the Investigating Officer proceeded with statutory investigation of the concerned case crime number in terms of Chapter-II Cr.P.C. He recorded the statement of the first informant. As per the said statement the first informant appears to be an eye witness of the occurrence. However, the first informant in her aforesaid statement has only supported the F.I.R and there is no recital in her statement that the modesty of the prosecutrix was dislodged by committing deliberate penetrative sexual assault upon her.
Subsequent to above, prosecutrix was requested for her medical examination. At this juncture, the first informant/mother of the prosecutrix gave a brief description about the occurrence. However in the description so made there is no departure from the earlier statement of the first informant recorded under section 161 Cr.P.C.
Since no consent was given by the mother of the prosecutrix to conduct internal medical examination of the prosecutrix, as such, no internal medical examination of the prosecutrix was conducted by the Doctor. However, no external injury was found on the body of the prosecutrix. The statement of the prosecutrix was also recorded under section 161 Cr.P.C wherein the prosecutrix has reiterated the same story as unfolded in the F.I.R. Nothing more has been stated by prosecutrix in her aforesaid statement. Ultimately, the statement of the prosecutrix was recorded under section 164 Cr.P.C wherein the prosecutrix has rejoined her previous statement under section 161 CrPC.
On the basis of above and other material collected by the Investigating Officer, during the course of investigation he came to the conclusion that complicity of named accused/revisionist is established in the crime in question. He ultimately submitted the Police Report in terms of Section 173(2) Cr.P.C dated 21.9.2022 (charge-sheet) whereby revisionist has been charge sheeted under sections 376 AB, 504, 511 IPC and Section 9M/10 POCSO Act, Police Station- Pahasu, District- Bulandshahr.
After submission of the aforesaid police report, cognizance was taken upon the same by Special Court. Consequently, the Sessions Case came to be registered against the revisionist. Court below vide framing of charge order dated 3.1.2023 has framed charges against revisionist under section 376 AB, 511, 504 IPC and Section 9M/10 POCSO Act.
Thus feeling aggrieved by the framing of charge order dated 3.11.2023, passed by Court below, revisionist has now approached the Court by means of the criminal revision.
The Court observed that,
Having heard the counsel for revisionist, the A.G.A for State, the counsel representing first informant/opposite party-2 and upon perusal of record, the Court finds that the only legal question involved in the criminal revision is whether in view of material on record, can it be said prima facie that the offence under section 376 AB IPC has been committed by the revisionist. Admittedly, rape has been defined in Section 375 IPC. The definition comprises of four parts which are acts of commission and only when one such act covered under subsection- A, sub-section- B, sub-section- C, sub-section- D, subsection- E of Section 375 IPC has been committed, it can be concluded that rape was committed upon prosecutrix.
It is only when either of the condition precedent under section 375 IPC is satisfied that the penal provisions contained in Section 376 AB IPC shall be applicable. The charge under section 376 AB IPC has been framed against the revisionist primarily on the ground that the prosecutrix is below 12 years of age.
Without disputing the age of the prosecutrix, the counsel for revisionist submits that the basis of charge under section 376 AB IPC is “Commission of Rape” upon the prosecutrix by an accused. However, when the alleged act of accused revisionist as has emerged in the statement of the witness referred to abvove is examined in the light of the provision contained in Section 375 IPC, the same shall not fall within the definition of rape.
“Consequently, in view of above, no offence under section 376 AB IPC can be said to have been committed by revisionist as per the statement of the first informant recorded under section 161 Cr.P.C, the statement of the prosecutrix recorded under sections 161/164 Cr.P.C as well as the prosecution story as unfolded in the F.I.R itself.
In view of above, the criminal revision succeeds and is liable to be partly allowed”, the Court further observed while allowing the petition.
“Charge framed against the revisionist under section 376 AB IPC under the order dated 3.1.2023, passed by the Additional Sessions Judge/Special Judge (POCSO Act) Bulandshahr in Sessions trial under Sections 376 AB, 504, 511 IPC and Section 9M/10 POCSO Act, Police Station- Pahasu, District- Bulandshahr shall stand set aside”, the Court ordered.