Effect on criminal proceeding
Tashi Norbu Basi
(Querist) 18 May 2012
This query is : Resolved
Criminal trial has already commenced for offence u/s 376 IPC on allegation that though sex was consensual but at the relevant time, the girl was a minor.
The alleged victim, her mother and uncle (mother's brother) have already been examined in Court.
From the evidence of the above PWs it is evident that:- (i) even at the time of alleged incident the alleged victim was not a minor, (ii) the alleged birth certificate was not genuine and that on the date given therein she was already around 4 years old, (iii) that person named as father in the certificate was infact her step father (second husband of her mother).
We have a large number of PWs remaining, and examining all of them will take a long, long time. Continuing the proceedings will only be harassment of the accused, a real travesty of justice.
My query:- given that the above facts are beyond contestation, will the Hon'ble Court continue the trial? Is there any provision or precedent to have the case dismissed and accused discharged? (Pls sirs, citations if possible, will be greatly appreciated)
Thank you very much.
Nadeem Qureshi
(Expert) 18 May 2012
Dear Mr. basi
if you have any strong proof and want to discharge,you can file an application u/s 245 Crpc, before the trail court and argue on your evidence, the accused may be discharge (if you have strong evidence)Feel Free to Call
Adv.R.P.Chugh
(Expert) 18 May 2012
Dear Querist,
I differ with Ld.Friend Nadeem - when he talks about S.245 CrPC. Section 245 CrPC is not applicable to Court of Sessions trial on Police Report. 245 provides for discharge only in warrants cases instituted otherwise on police report. The facts nowhere talk about it being instituted on a private complaint or judge's own knowledge. Hence 245 has no application. The stage of discharge in a Court of Session Trial (rape cases are triable Court of Session) is soon after the committal is made and before the framing of charges. As you say trial is on and evidences are being taken, if after the evidences suggest and judge believes that prosecution has not discharged his BOP, then he may acquit even without asking the accused to enter upon his defence u/s 232 CrPC but not until prosecution evidences are taken.
Good Luck !
PARTHA P BORBORA
(Expert) 18 May 2012
in my opinion if her birth certificate reveals that she was minor at the time of occurance it will be considered as rap. A stape father has the same status as a biological father. It is not be cosiderd as proper defence for you. If the birth certificate was issued before the offence committed it will be considered as proof of her age. If the evidence of the victim, her mother and her uncle are coroborative as well medical report supports the prosecution version you will be convicted.
Shonee Kapoor
(Expert) 19 May 2012
I differ with Borbora,
If the document was forged and the prosecutix was not a minor at the time of consensual sex, you can not be convicted.
Also, though the remedy of 245 (2) may not be available to you. Don't be unduly worried.
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
PARTHA P BORBORA
(Expert) 19 May 2012
@ Kapoor sir,
my opinon is based on the fact that it is proved that she was a minor. As determination of her age shall be determined on the basis of her birth certificate. Testimony of the witnesses may deposed that she was a major but if there is a birth certificate court shall consider her birth certificate first To determine her majority in a case like 376 IPC. But if there is no proof of her age the opinion of kapooor sir shall prevail.
Adv. Chandrasekhar
(Expert) 24 May 2012
Two facts to be proved. One, victim is a not a minor and the second fact is it is a consensual sex. Both are purely questions of facts to be proved by evidence. Just failing to prove the first fact by the prosecution does not entitled the accused to be acquitted at this stage. The prosecution can be given chance to prove that it is not a consensual sex.
Tashi Norbu Basi
(Querist) 07 September 2012
Dear experts,
Thank you all for taking the time to respond. I don't think you'll have even a slight inkling of how much of a help your answers are to a learner like me. I've learnt a lot from you'll and there have even been times when your advices have got me out of very tight corners. Please know your efforts are greatly appreciated. Thank you very much.
