IMPORTANT POINT
The prosecution must establish the age of the victim and ensure the reliability of the victim's testimony to secure a conviction.

JUDGMENT (Oral)

CRL.M.A. 2700/2022 (Condonation of Delay)

1. Petitioner has moved an application under Section 5 of Limitation Act read with Section 482 Cr.P.C. praying for condonation of delay of eight days.

2. For the reasons stated in the application, we hereby condone the delay. Application stands disposed of accordingly.

CRL.L.P. 83/2022

3. The present petition has been filed by the State under Section 378 (1) (b) of Cr.P.C. seeking leave to appeal against the judgment dated 02.11.2019 passed by the learned Trial Court whereby the respondent/accused herein has been acquitted of all the charges under Section 363/328/376/506/IPC & Section 4 POCSO.

4. Leave has been sought, inter alia, on the following grounds:

(i) Learned trial court has proceeded on presumption and conjectures and that there was enough of evidence on record which directly indicted the accused and, therefore, it was a fit case for recording conviction.

(ii) Testimony of prosecutrix was sufficient in itself to return the finding of guilt as she had leveled specific allegations against the accused and her stand was consistent.

(iii) There was no reason for the learned trial court to have held that the prosecutrix was not minor and the documents related to her date of birth should not have been ignored.

5. We have gone through the trial court record.

6. As per the case of prosecution, FIR was registered on 08.02.2014 on the basis of complaint of father of prosecutrix who claimed that her minor daughter was missing since 07.02.2014. At the instance of complainant only, his daughter was recovered from near Bihari Colony Red Light. She was got medically examined. During investigation, prosecutrix refused for her statement to be vidrographed. However, her statement under Section 164 Cr.P.C. was recorded. The accused was arrested and was got medically examined. Various exhibits were also seized and sent for forensic analysis.

7. Accused (respondent herein) was charged for commission of offences under Sections 363/328/376/506/IPC & Section 4 POCSO to which he pleaded not guilty and claimed trial.

8. Prosecution examined eighteen witnesses. Complainant was examined as PW1 and his daughter i.e. prosecutrix as PW2.

9. Accused, in his statement, pleaded innocence and examined his father in his defence.

10. As already noticed above, the accused was acquitted. As per ld. Trial Court, prosecution could not establish that she was below 18 years of age at the time of commission of offence and it also did not find the testimony of prosecutrix of sterling quality.

11. There are, thus, two aforesaid aspects which need to be evaluated. Firstly, whether the prosecutrix was minor at the relevant time or not and secondly whether her testimony inspires complete confidence or not.

12. We have been taken through the testimony of prosecutrix as well as her parents i.e. PW1 (father) and PW8 (mother).

13. Learned counsel for the appellant very fairly admits that there is no birth certificate of the girl in question. He also admits that school record, where she got admitted for the first time, has neither been collected nor proved. It is also admitted case that father of prosecutrix has claimed himself to be an illiterate person.

14. Of course, FIR was got registered by her father claiming that age of his daughter was 13 years. As per prosecution, her date of birth is 01.03.2000. However, when her father entered into witness box, he claimed that he got married in the year 1992 and victim was born after 3 or 4 years of marriage. Her mother also claimed that they shifted from Bihar to Delhi after three years of the birth of prosecutrix. This goes on to indicate that when they shifted to Delhi in the year around 2000, victim was already three years old. Fact also remains that the parents of the prosecutrix are narrating about her age only on the basis of some estimation and guess work. For the reasons best known to the prosecution, record of the school where she was admitted for the first time has not been pro