IMPORTANT POINT
The court reinforced that the burden of proof lies with the prosecution to establish both the victim's age and the occurrence of the crime beyond reasonable doubt.

JUDGMENT :

This appeal has been filed by the victim (X) challenging the judgment and order dated 24.2.2023, passed by Special Judge (POCSO Act), Court No. 3/Additional Sessions Judge Bareilly, in Sessions Trial No. 46 of 2020 (State v. Sanjay and others), arising out of Case Crime No. 432 of 2017, under Sections 376-D, 506 IPC & Section 6 POCSO Act, Police Station Subhash Nagar, District Bareilly, whereby accused persons have been acquitted of the offence by granting them benefit of doubt. A finding has been returned that prosecution has not been able to successfully prove the incident, which led to the implication of accused persons.

2. This appeal was initially entertained and lower Court records were summoned, so that the appeal may be considered for admission. The records have been received and have been perused by us.

3. The prosecutrix has alleged in her written report that on 10.9.2017 at about 7.00 pm she had gone to Nekpur Sugar Mill to get Chowmein. A scooty arrived with the minor accused alongwith accused Jittu @ Jitendra, who are resident of the same locality and administered some substance, on account of which she became unconscious and victim was taken to a village where she was kept in a room. When the victim became conscious, she found herself in a room, where she was subjected to sexual assault by Sanjay Sonkar son of Netrapal, Boby, Nandram and Sanjay son of Makhan Lal etc. The victim thereafter was left at her house at about 11.00 in the night and she was also extended threats. The victim has claimed herself to be 17 years of age. It is thereafter that on 18.9.2017 a report was lodged with local police pursuant to which Case Crime No. 432 of 2017 came to be registered with above-noted allegations.

4. The investigation ultimately concluded with submission of a charge-sheet. Thereafter the case was committed to the Court of sessions. Charges were framed against the accused persons who denied the accusations made against them and demanded trial. It is thereafter that the trial proceeded and has ultimately resulted in acquittal of the accused persons.

5. First and foremost, the Court of sessions has taken up the issue as to whether the victim at the time of incident was minor or major. Evidence in that regard has been noticed in para 31 to 34 of the judgment. The prosecution has placed reliance upon the transfer certificate issued to the victim of Class-VI, on the basis of which the victim got admitted to Class-VII in a different educational institution on 24.8.2012. The scholar register has been produced of the later institution and the Officiating Principal of the institution has been examined. The Officiating Principal has admitted that at the time of admission of the victim and till she left the institution, the witness was not posted in the institution. The transfer certificate was not verified. Trial Court has taken note of the provision of Section 94 of the Juvenile Justice Act and it has been observed that there is neither any material to show the age of the victim at the time of her admission to Class-I, nor the extract of the birth register as per the municipal record etc. has been produced. Parents of the victim have also not been examined in respect of the age of the victim.

6. Upon evaluation of the evidence placed on record, the trial Court has held that prosecution has not been able to prove the date of birth of the victim on the basis of materials placed on record. The victim was medically examined and in her ossification test report her age has been found to be 19 years. The trial Court has thus concluded that the prosecution has not been able to prove the victim to be a minor, and that the evidence on record proves that she was major on the date of incident. Although learned counsel for the appellant has placed various submissions but no illegality or perversity has been pointed out in the application of appropriate law on the subject by the trial Court. We, therefore, find no illegality in the findi