The need for substantial and compelling reasons to interfere with an acquittal order, and the presumption of innocence until proven guilty.

JUDGMENT :

Manmohan, J.

Present criminal leave petition has been filed on behalf of the State challenging the judgment/order of acquittal dated 22nd November, 2017 passed by Additional Sessions Judge-01-Cum Special Court (POCSO), South East District, Saket Courts, New Delhi in FIR No. 140/2015 under Sections 376/366/363 IPC and Section 6 of POCSO Act registered with Police Station Defence Colony.

2. The Trial Court in the impugned judgment while acquitting respondent-accused held as under:-

"16. In the present case the complaint was filed by father of prosecutrix mentioning the age of prosecutrix/victim to be about 17 years. However, during his testimony as PW-2 father of the victim deposed that he does not remember the date and time of her birth and that he had got his daughter admitted in Lavela Public School, Tuglakabad in Nursery class when she was 2/3 years old. The prosecution has examined PW-3, Shri Kailash Chand Yadav, Asstt. Public Health Inspector, Central Zone, Lajpat Nagar to prove the age of the prosecutrix and as per said witness, date of birth in their record of the prosecutrix 'K' is 19.01.1998. No witness from the school of the prosecutrix has been cited as a witness nor got summoned/examined by the prosecution. As per Rule 12(3) of Delhi Juvenile Justice (Care and Protection of Children) Rules, 2009, in every case concerning a child or juvenile in conflict with law, the first document to be considered for the age of the child is the date of birth certificate from the school (other than a play school) first attended by the child and only in the absence whereof the birth certificate given by a corporation or a municipal authority or a panchayat is to be looked into. In the present matter, the school record including the matriculation certificate of the victim has not been looked into by investigator alibit the victim was reported to be studying in class 12th at the time of incident. No justification is forthcoming from prosecution side as to the reason for not bringing on record the matriculation certificate or school record of the victim and same lends substance to the contention of Ld counsel for the accused who has vehemently argued that the girl/victim had herself told her age to be more than 18 yrs at the time of incident and same would have been substantiated by her school record/matriculation certificate. Mother of the Victim has not been examined by the prosecution who could have given the exact date of birth of the victim. No explanation is forthcoming as to why the date of birth of victim was not registered immediately after the birth. Thus, in view of the foregoing discussion and particularly in the absence of first attended school record of the prosecutrix/victim and deliberate withholding of matriculation certificate of victim, it cannot be held with certainty that the prosecutrix/victim girl was a minor on the day when she had left her home with the accused.

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21. In the present case also the element of 'taking away' or 'enticement' is found to be lacking as there is no such averment in entire deposition of the prosecutrix, PW-1 who has categorically averred during her deposition on 06.10.2016 that she was having friendship with the accused since January, 2015. PW-1/ prosecutrix has also deposed that she went with accused after her last board exams. She further stated that she had changed her clothes at Mool Chand Metro Station and went with accused to a village situated near Vaishali Metro Station, Ghaziabad and they took a room on rent and they remained there for ten days and she categorically deposed that during her stay with the accused no beatings were given by accused to her nor he misbehaved or maltreated her. During the cross-examination of victim/PW-1 by the Ld. Addl. PP for the State she has categorically denied the suggestion that she did not go with the accused with her consent or that accused took her by alluring her and that he made sexual relations with her against h