Proof of minor status is essential under POCSO; without clear age determination, conviction cannot stand. The benefit of doubt must accrue to the accused when age is unproven.

JUDGMENT :

JASMEET SINGH, J.

1. This is an appeal seeking to challenge the judgment dated 08.01.2016 and order of sentence dated 11.01.2016 passed by the learned ASJ-01, Rohini District Courts, New Delhi in SC No. 58/2014 pertaining to FIR No. 372/2013 registered at PS Khanjawala under Sections 363 of the INDIAN PENAL CODE (“IPC”).

2. Vide the impugned judgement, the appellant was acquitted under Sections 363 and 366 of IPC and was convicted under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (“POCSO Act”).

3. Vide the impugned order of sentence, the appellant was sentenced with rigorous imprisonment of 10 years with a fine of Rs. 10,000/- under Section 6 of POCSO Act.

FACTUAL BACKGROUND

4. The brief facts of the case are that on 12.11.2013, the father of the prosecutrix registered a complaint regarding the missing of his daughter aged about 13 years. The prosecutrix had gone to school but did not return home. The complainant expressed his doubt on the appellant.

5. During the course of investigation, the prosecutrix and the appellant were apprehended on 28.11.2013 at Abu Fazal Enclave, Sarita Vihar, Delhi.

6. The prosecutrix was medically examined and her statement under Section 164 CrPC was recorded. The appellant was also arrested.

7. On 29.04.2014, charges under Sections 363 and 366 of IPC and under Section 5(l) punishable under Section 6 of POCSO Act, alternatively under Section 376(2)(n) of IPC, were framed against the appellant, to which he pleaded not guilty and claimed trial.

8. The prosecution examined a total of 15 witnesses and the statement of the accused/appellant under Section 313 of CrPC was recorded, wherein he claimed himself to be innocent and having been falsely implicated in the case by the prosecutrix at the instance of her parents. The appellant did not lead any defence evidence.

9. The learned Sessions Court after considering the entire evidence vide the impugned judgement, acquitted the appellant under Sections 363 and 366 of IPC and convicted him under Section 6 of POCSO Act and vide the impugned order, he was sentenced with rigorous imprisonment of 10 years with a fine of Rs. 10,000/- under Section 6 of POCSO Act.

10. Aggrieved by the impugned judgement, the appellant has filed the present appeal.

SUBMISSIONS ON BEHALF OF THE APPELLANT

11. Mr Kumar, learned counsel appearing on behalf of the appellant challenges the impugned judgement and submits as follows:

A. Learned Trial Court has failed to appreciate that the prosecution has not been able to prove the age of the prosecutrix and the opinion of the learned Trial Court that the prosecutrix was a minor at the date of incident i.e. on 11.11.2013 is against the facts and circumstances and even without any cogent evidence. Reliance is placed on the case of P. Yuvaprakash vs. State Rep. By Inspector of Police, (2023) SCC OnLine 846 to urge that mere production of school register is not sufficient to prove the age of the prosecutrix.

B. Learned Trial Court failed to appreciate the fact that the prosecution has not been able to prove the alleged offence of POCSO Act. Learned Trial Court was of the view that the prosecutrix had willingly gone with the appellant. Further, the prosecutrix has categorically stated that during the period she stayed with the appellant, he did not commit any wrong act with her.

C. Thus, learned Trial Court has erred in holding that the prosecution has been successful in establishing the guilt of the appellant beyond reasonable doubt in respect of offence levelled against the appellant. Therefore, the impugned judgment and order on sentence is liable to be set-aside.

SUBMISSIONS ON BEHALF OF THE RESPONDENT

12. Mr Gahlot, learned APP appearing on behalf of the respondent supports the impugned judgement and submits that:

A. The date of birth as per school record of the prosecutrix is 20.09.1999 and as such she was about 14 years of age at the time of the incident. The school record has been proved by PW-1/Admission Inc