JUDGMENT

1. The State has preferred the present appeal against the judgment dated 15.09.2016 delivered by the learned Additional Sessions Judge-01, North East District, Karkardooma Courts, Delhi in Sessions Case No.44750/2015 titled as State vs. Hargovind, arising out of FIR No.36/2013 registered under Section 363/366/376 IPC and Section 4 of the POCSO Act at Police Station Gokalpuri, Delhi, whereby the accused/respondent was acquitted from the charges leveled against him.

2. The facts in brief are that on 22.01.2013, complainant-PW4 lodged a complaint at Police Station Gokalpuri that his daughter, aged about 13 years, has been kidnapped by someone. On the basis of his complaint, the case was registered under Section 363 of IPC. Subsequently, on 27.02.2013, the victim was found present at the bus stop, Yamuna Vihar by the complainant and his uncle (phoofa) Prabhu Dayal. The accused Hargovind-`Chacha' of the prosecutrix was also present with her. The intimation in this regard was given to the Police Station and statement of the victim was recorded under Section 161 of Cr.P.C. On the basis of the statement of the victim, penal Section 4 of the POCSO Act was added in the FIR. Subsequently, the statement of victim under Section 164 of Cr.P.C. was recorded in which the allegations of kidnapping and rape were leveled against the accused/respondent and therefore section 366/376 of IPC were also added in the FIR. Investigation was conducted and completed and charge sheet was filed against the accused/respondent Hargovind.

3. Charge for the offence punishable under Sections 363/366 IPC and Section 4 of the POCSO Act, and alternate charge under Section 376 IPC was framed against the accused to which he pleaded not guilty.

4. To prove its case, the prosecution has examined 18 witnesses, including PW1-the victim, PW4-the father of the victim, who is also the complainant, PW7-the landlady of the premises where the accused resided with the victim and, PW5-the principal of the school where the victim studied-to prove her date of birth. After completion of prosecution evidence, statement of the accused under Section 313 Cr.P.C. was recorded in which he claimed that he never enticed the victim, nor committed rape upon her, nor kept her at his house. However, he did not lead any evidence in his defence.

5. After considering the material placed on record and the depositions of witnesses, the learned Additional Sessions Judge acquitted the accused/respondent from the charges framed against him. The Ld. ASJ held that it was proved that the victim was found in the company of the accused at Yamuna Vihar from where they both were apprehended. He also held as proved, the fact that the accused had resided in the house of PW7 on rent for about five days in the year 2013 at District Jalaun, UP, with the victim. The Ld. ASJ held that the victim had gone with the accused with her consent, and no force was used by the accused. On the aspect whether the accused had established sexual relationship with the victim, the Ld. ASJ held that the evidence on record was not sufficient to establish the said fact. He held that the prosecution had not established that the prosecutrix/victim was about 13 years and 3 months when she eloped with the accused. He held that the prosecution had not established that the victim/prosecutrix was a minor on the date of the incident. Being aggrieved by the judgment of acquittal, the State had preferred the instant appeal.

6. For the prosecution to succeed in its present appeal, it is essential for the State to establish, firstly, that the victim/prosecutrix was below the age of discretion i.e., 16 years at the relevant time. To establish the offence of penetrative sexual assault, the prosecution has to also establish the same on the basis of the evidence led in the case.

7. Learned APP for the State argued that as per school records, i.e. Admission Register (Ex.PW-5/A), Admission Certificate (Ex. PW-5/B) and the certif