The court's decision was primarily based on the finding of consent, discrepancies in the statements of the prosecutrix, and the debatable age of the prosecutrix.

Sanjiv Khanna, J. (Oral):--

Crl. M.A. No. 4808/2014

Delay of 74 days in filing of the leave to appeal is condoned for the reasons given in the application seeking condonation of delay.

The application is disposed of.

Criminal Leave Petition No. 235/2014

1. By impugned judgment dated 5th October, 2013, the respondent has been acquitted, giving benefit of doubt, under Sections 363, 366 and 376 of the Indian Penal Code, 1860 (IPC, for short). The aforesaid prosecution arose out of FIR No. 31/2012, Police Station Nangloi dated 7th February, 2012.

2. In the present case, the amendments made to Section 375 IPC vide Criminal Law Amendment Act, 2013, effective from 3rd February, 2013 would not be applicable, for the reason that as per the charge sheet, the prosecutrix had gone missing on 2nd February, 2012 and was recovered along with the respondent-Raj Pal on 23rd February, 2012.

3. On the question of consent, the trial court in the impugned judgment has recorded a finding in favour of the respondent. We are inclined to accept the said finding. The parents of the prosecutrix Kiran (PW-3) and Ram Pal (PW-4) have endorsed that the respondent was their distinct relative, indicating that the prosecutrix and the respondent knew each other. Ram Pal (PW-4) accepted and admitted the photographs Exhibit PW-4/DA1 to DA5, which show that the respondent and the prosecutrix were friendly and extremely close to each other.

4. Dr. Heena Kausar (PW-5), Sr. Gynaecologist, SGM Hospital, Mangolpuri had deposed as to examination of the prosecutrix on 23rd February, 2012 and the factum that the prosecutrix was very adamant to deny sexual assault. She had refused medical examination. PW-5, therefore, could not conduct internal medical examination. However, urine pregnancy test was negative. In cross-examination, PW-5 accepted as correct that the patient had told her that she was not sexually assaulted. Further, PW-5 accepted as correct that the patient had informed her that although she had got married, she had no physical relationship with her husband.

5. The prosecutrix was also examined under Section 164 of the Code of Criminal Procedure, 1973 on 24th February, 2012, vide statement marked Exhibit PW-6/A. In the said statement, the prosecutrix in categorical terms had asserted that on 2nd February, 2012 she had spoken to the respondent at Hapur on phone and that she wanted to reside with him. She had known the respondent for last six years. Thereafter, she went to ISBT and took a bus to Hapur and started living with the respondent. She had gone Hapur on her own. In her court deposition, the prosecutrix did alter her stand, to state that the respondent had enticed her to accompany him. He had told her that he would marry her and take good care. Contrary to her Section 164 Cr.P.C. statement, the prosecutrix in her court deposition had claimed that the respondent had taken her to Anand Vihar Bus Terminal and then to Hapur where she stayed about twenty days. She accepted as correct that the respondent used to go for work at Hapur. She admitted her statement under Section 164 Cr.P.C., but claimed that this statement was under the influence of the accused and as she was confused. She accepted that they had sexual intercourse, but it was with her consent. She denied the suggestion given by the Public Prosecutor, who was allowed to put leading questions that the respondent used to have sexual intercourse without her consent. In cross-examination by the counsel for the respondent, the prosecutrix accepted that she had stated before the Magistrate in her statement Exhibit PW-6/A that she had gone to Hapur and started living with the respondent. She also accepted as correct that she had made a telephone call to the respondent on 2nd February, 2012 to state that she wanted to live with him.

6. Noticing the contradictory statements, we have no reason to interfere with the finding of the trial court on the question of consent. We also notice that there is discrepancy