Hari Om and Ors v. State & Anr

TALWANT SINGH, J MAY 24, 2022/nk

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* IN THE HIGH COURT OF DELHI AT NEW DELHI % Order pronounced on 24.05.2022 + HARI OM AND ORS. ..... Petitioners Through: Ms. Sonali Karwasara & Ms. Vivek Singh, Advs. Versus STATE & ANR. ..... Respondents Through: Mr. Ravi Nayak, APP for the State. CORAM: HON'BLE MR. JUSTICE TALWANT SINGH Talwant Singh, J.: 1. The present petition has been filed for quashing of FIR No. 0457/2017, PS Jaitpur, registered under Section 363 IPC and under Section 6 of Protection of Children from Sexual Offences Act, (POCSO) Act. The petitioner no.1 is the husband of the prosecutrix. Petitioner no.2 is sister of petitioner no.1 and petitioner no.3 is brother-in-law of petitioner no.1 and they have not been chargesheeted but they are shown in column 12 of the chargesheet submitted by the investigated agency. 1.1 The factual matrix given in the matter is that father of the prosecutrix lodged FIR No. 457/2017 under Section 363 IPC, registered at PS Jaitpur. The contention of the petitioner No. 1 is that prosecutrix had on her own had eloped with petitioner no.1 and at that time she had disclosed her age to be 18 years. Petitioner no.1 and respondent no.2/prosecutrix got married in Lucknow and they consummated the marriage and a female child was born out of the said marriage on 31.08.2018. 1.2 On 20.06.2018, petitioner no.1 and prosecutrix/respondent no.2 came back to Delhi and when they went to the house of the petitioner no.1, they came to know about lodging of the FIR by the father of the prosecutrix. The statement of the prosecutrix under Section 161 Cr.P.C. was recorded and her medical examination was conducted. The statement of the prosecutrix under Section 164 Cr.P.C. was also recorded before the MM wherein prosecutrix had clearly stated that she wanted to live with the petitioner no.1 and she did not want to go to her parent's home. 1.3 On 31.08.2018, a female child was born from the marriage. On 09.09.2018, the petitioner No. 1 was arrested and sent to the judicial custody. On 17.11.2018, the charge-sheet was filed by the police and accused petitioner no.1 was charged under Sections 376/363/366 IPC along with Section 6 of POCSO Act. On 09.04.2019, examination in chief of the prosecutrix was conducted wherein she did not support the case of the prosecution. On 31.07.2019, during cross-examination the prosecutrix, she stated that her age as recorded in the school records was not on the basis of birth certificate but on an affidavit given by her father mentioning the wrong year to secure admission in the school. On 06.08.2019, the petitioner no.1 was released on interim bail by the Sessions Court and thereafter the present petition was filed. 1.4 It has been submitted that petitioner no.1 and prosecutrix/respondent no.2 are living as husband and wife and they want to continue doing so in future. Both of them liked each other and wished to marry each other, however, father of the prosecutrix was against this marriage. Prosecutrix out of her own will, had left with petitioner no.1 without informing her parents. 2. Status report has been filed on behalf of the State reiterating that the FIR was registered on the complaint of father of prosecutrix/respondent no.2, who had stated that her daughter aged 16 years was missing on 20.06.2018. Later on, complainant brought his daughter to police station where her statement under Section 161 Cr.P.C. was recorded, wherein she stated that she liked the present petitioner no.1 and wanted to marry him but her parents were not willing to get her married to him. So, she eloped with him and got married in Lucknow and thereafter they made physical relations with each other. In her statement under Section 164 Cr.P.C. recorded before the MM, the prosecutrix stated that she had left house of her parents as they were not ready to perform her marriage with the present petitioner no.1. On the basis of date of birth mentioned in the school records, the prosecutrix was a minor at the time of marriage. On 31.08.2018, a female