The accused committed the offence of kidnapping by taking the prosecutrix out of the keeping of her lawful guardian without consent.

Vipin Sanghi, J.

The present appeal under Section 378 Cr.P.C. has been preferred by the State upon grant of leave, to assail the judgment dated 19.12.2016 passed by the learned Additional Sessions Judge - 01, South-East District in Case No.1549/2016, SC No.54/2014 arising out of FIR No.91/2014 registered at PS - Badarpur under Sections 363/354A IPC and Section 8 of the Protection of Children from Sexual Offences Act, 2012 (POCSO), acquitting the respondent/accused of the charge framed against him.

2. The aforesaid FIR was initially registered under Section 363 IPC on 16.02.2014. After the prosecutrix/victim child was recovered, her statement was got recorded under Section 164 Cr.P.C. On the basis of that statement, Section 354A IPC and Section 8 POCSO Act were added. The charge-sheet was filed under Section 363/354A IPC & Section 8 of POCSO Act and the learned Trial Court framed the charges, vide order on charge dated 26.08.2014, under the same sections.

3. The factual matrix emerging from the record is that on 16.02.2014 the complainant Shri Omwati (PW-1) came to the police station with her relatives and gave her statement to IO/ASI Lallan Sah (PW-6), that on the preceding day, i.e. 15.02.2014, she along with her family - including her granddaughter-prosecutrix/victim child (M), aged about 5 years and grandson arrived at her brother's house at Mohan Baba Nagar Tajpur Pahari Badarpur, New Delhi, to attend an engagement function which was to be held on the day of the incident i.e. 16.02.2014. The complainant stated that her granddaughter was playing outside the said house at around 3.30 PM, and at 4.00 PM on the said date, she was searched for, but could not be traced. On the statement (Ex.PW-1/A) of the complainant a case under section 363 IPC was registered (EX-PW-3/A) vide FIR No. 91/2014 by ASI Brij Mohan (PW-3), who then handed over the investigation to the Investigating Officer ASI Lallan Sah and the investigation was started the same day. The IO/ASI Lallan Sah inspected the spot from where the victim went missing. The grandson of the complainant Omwati (PW-1), Dev Verman, aged 8 years disclosed that one bald uncle was the person who had taken away his sister (victim). Consequently, Ms. Omwati - the complainant and Sh. Surender Verma (PW-2) went along with the IO/ASI Lallan Sah, Ct. Pawan Kumar (PW-4), Lady Ct. Sarita (PW-5), to the residence of the accused at village Mewla Mehrajpur, District Faridabad in search of the victim on 17.02.2014 from where the search team recovered the prosecutrix/victim girl in the presence of the accused. The prosecutrix was sent for medical examination to AIIMS Hospital the very same day. Her MLC No. 1992/2014 was prepared and the accused was examined at Indraprastha Apollo Hopitals, Sarita Vihar. Thereafter, the accused was arrested vide arrest memo (Ex. PW 4/A) under section 363 IPC and prosecutrix was lodged in PRAYAS (Shelter home) in the night & was counselled the next day by a counselor, Garima of a NGO, after which the victim returned to her family. On the next date i.e. 18.02.2014, the accused was released on bail.

4. The statement of prosecutrix (PW-8) was got recorded before Sh. Pawan Kumar MM, Saket Court under section 164 Cr.P.C (Mark PW7/DA), wherein the prosecutrix stated that, day before, i.e. day of the incident, one uncle took her by the hand and made her sit in an auto after which she was put inside one gadda (pit) - one with no water inside. The prosecutrix further stated that the accused then inserted his tongue inside her mouth and fled from there. Sometime later, another uncle came & laid her down on the ground, covered her mouth and strangulated her throat and then ran away, after which the prosecutrix states that she went to someone's house. The prosecutrix further describes the first uncle/person (accused) as a little bit dark and bald. After her statement was recorded, sections 354/34 IPC, 8 of the POCSO Act were added, and the investigation was handed over t