Hitesh Sublaik vs State Of H.P.

Jyotsna Rewal Dua, J

An application moved on behalf of the accused for correcting the date of birth of the female child victim recorded in the statement of her father (PW-7) from 09.01.2001 to 09.01.2000 was dismissed by the learned Additional Sessions Judge, Fast Track Special Court (POCSO), Shimla, H.P. on 28.11.2022. The accused has taken exception to this order in the instant petition moved under Section 482 of Code of

The petitioner is facing trial for offences punishable under Sections 376 & 506 of Indian Penal Code read with Sections 4 and 6 of Protection of Children from Sexual Offences Act (POCSO). Statement of father of the female child victim (PW-7) was recorded before the learned Trial Court on 27.04.2022. PW-7 gave the date of birth of his daughter (female child victim) as 09.01.2001.

The petitioner-accused moved an application on 19. 11.2022, seeking to substitute the date of birth of the female child victim in the statement of PW-7 as 09.01.2000. The ground urged was that PW-7 had given the date of birth of the female child victim on the basis of her horoscope and in the horoscope of the female child victim, her date of birth was mentioned as 09.01.2000 and not 09.01.2001, which got recorded in the statement of PW-7. It was, thus, put forth that inadvertent typographical error crept in the statement of PW-7 was required to be corrected.

The existence of alleged clerical mistake in the giving out the date of birth of female child victim in the statement of PW-7 was denied by the respondent. The respondent pleaded that copy of horoscope had not been supplied. The same was not even made part of the challan. Hence, the respondent-State opposed the application.

The learned Trial Court vide a detailed order passed on 28.11.2022, dismissed the aforesaid application giving cause of action to the petitioner to institute the present petition, invoking inherent jurisdiction under Section 482 Cr.P.C.

Heard learned counsel for the parties. From the material available on record, I am of the considered view that no case is made out for interference with the impugned order. This is for the following reasons: -

5(i) PW-7 (father of the female child victim), during his examination-in-chief, gave the date of birth of his daughter (female child victim) as 09.01.2001. He was cross-examined on behalf of the accused-petitioner, specifically in respect of the age of his daughter. During the course of his cross-examination, he gave the date of birth of his daughter as 09.01.2001. This was so stated by him not once, but twice. In all, he gave the date of birth of his daughter as 09.01.2001 thrice during the course of his entire statement. The statement of PW-7 giving 09.01.2001 as date of birth of his daughter (female child victim) was recorded in presence of learned counsel for the petitioner and twice during the course of his cross-examination. This cannot be said to be a simple case of clerical mistake or an inadvertent error, which needed to be rectified as is alleged by the petitioner.

5(ii) The correction of date of birth from 09.01.2001 to 09.01.2000 being sought by the petitioner-accused will have direct impact on the main case as otherwise the female child victim, at the time of commission of the alleged offences, would not be a child for the purpose of Section 2(d) of the POCSO Act.

5(iii) The petitioner-accused will get sufficient opportunity to lead his defence evidence during trial to prove his version of the age of the female child victim.

5(iv) The horoscope, on the basis of which the petitioner-accused is now seeking to change the date of birth of the female child victim in the statement of PW-7, cannot be construed to be the same horoscope, on the basis of which, PW-7 had indicated the date of birth of his daughter as 09.01.2001. The horoscope has admittedly not been made part of the challan. In case this plea of the petitioner-accused is to be accepted, it would mean that all the accused can get the horoscope prepared and file the same alongwith application, seeking correction of the date of birth of the female child victims to save themselves from the rigors of the POCSO Act. This is impermissible in law.

Learned Trial Court has justly rejected petitioner’s prayer for correct of the date of birth of the female child victim from 09.01.2001 as recorded in the statement of her father (PW-7) to 09.01.2000. For the aforesaid reasons, I do not find any reason to exercise inherent jurisdiction. Accordingly, the present petition is dismissed, so also the pending miscellaneous application(s), if any.