The Delhi High Court has upheld a trial court order that acquitted a man accused of raping a minor girl after the prosecution failed to prove that he kidnapped her forcefully.
In 2017, a POCSO court in the national capital had acquitted Kaishar Ali, who was held on the charges of kidnapping and raping a minor under Sections 363, 366, 376 of the Indian Penal Code and Section 6 of the Protection of Children from Sexual Offences (POCSO) Act.
The girl's father had filed a complaint against Ali claiming that he had kidnapped his daughter. However, the girl in her statements recorded before the Magistrate said she had gone with him voluntarily after her last board exam as she liked him and they planned to get married.
A high court division bench, presided by Justices Manmohan and Sangita Dhingra Sehgal, upheld Ali's acquittal saying that the element of intention, which is an "essential ingredient in such cases", was missing, and the girl in her statement said she went with him of her own will.
"Though this court is in agreement with the contention of the prosecution that the prosecutrix was a minor on the date of the incident, yet the element of mens rea (intention), which is an essential ingredient of Sections 363/366/376 IPC is missing," the court said.
"In the present case, it is only because of a misrepresentation by the prosecutrix with regard to her age, which the respondent/accused bonafidely believed to be true, that he allowed her to accompany him," the order read further.
The court observed that the prosecution failed to prove that the victim was a minor at the time of incident and that she had herself misrepresented her age in order to go with the accused.
"A perusal of the aforesaid statement of the prosecutrix shows that she had misrepresented her age to be 18 years to the respondent-accused. She had categorically stated that had she not done so, the respondent-accused would not have allowed her to accompany him," the bench observed
The court also said that the statement of the prosecutrix negates the charge of Section 6 (aggravated penetrative sexual assault) of Prevention of Children from Sexual Offenses (POCSO) Act as "the accused had not knowingly committed any offence, none of the charges can be said to have been proven."
The trial court noted that the girl went with Ali after her board exams. She changed her clothes at the Moolchand Metro Station and the duo went to a village situated near Vaishali Metro Station, Ghaziabad. They took a room on rent in the village and stayed there for 10 days and she categorically deposed that during her stay with the accused he never hit her or ill-treated her.
"I was very happy as there was no scarcity. I love Kaishar very much. He did not force me in any manner whatsoever," the victim said in her statement.
Her statement further said: "In the meanwhile, the police and my father came over there. They took us to the police station. Then, my father started persuading me to make a statement that, 'When I came out after writing my exam, I met Ali, who offered to drop me home. On the way, he offered me a cold drink laced with sedatives and kidnapped me. He also snatched my phone so that I don't talk to my parents'."
The state had challenged the trial court order in the case.