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IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Ritu Bahri, C.J., Alok Kumar Verma, J.
State of Uttarakhand - Appellant
Versus
Krishna Kant alias Krishna Kafaltiya - Respondent
Government Appeal No. 10 of 2016
Decided On : 02-04-2024
Acquittal - Sexual Offences - IPC Sections 328, 363, 366, 376, POCSO Act Sections 8, 12 - The court found insufficient evidence to prove the prosecutrix was a minor, leading to the acquittal of the accused.
Fact of the Case:
The prosecutrix, aged about 16, was reported missing by her father. She was found with the accused, who was charged under various sections of the IPC and POCSO Act. The prosecution claimed the accused attempted to rape her, but evidence was insufficient.
Finding of the Court:
The court determined that the prosecution failed to prove the prosecutrix's age and that she left voluntarily, leading to the conclusion that the accused's actions did not constitute a crime under the law.
Issues: Whether the accused committed the offenses charged under the IPC and POCSO Act, particularly regarding the age of the prosecutrix and the nature of her consent.
Ratio Decidendi: The court emphasized that without clear evidence of the prosecutrix's age and the absence of coercion, the charges could not be sustained, as consent is a critical factor in determining culpability.
Result: The Government Appeal is dismissed.
JUDGMENT :
Alok Kumar Verma, J.
This Government Appeal is directed against the judgment dated 30.06.2015, passed by learned Special Judge (POCSO)/ F.T.C./Additional Sessions Judge, Haldwani, District Nainital in Sessions Trial No.24 of 2014, “State vs. Krishna Kant alias Krishna Kafaltiya”, whereby, the respondent – accused has been acquitted of the charge under Sections 328, 363, 366, 376 read with Section 511, Section 506 of the Indian Penal Code, 1860, Section 8 and Section 12 of the Protection of Children from Sexual Offences Act, 2012.
2. Briefly stated the prosecution case as it emerges from the evidence on record is that the prosecutrix’s father (PW5) informed the police through his written information dated 06.03.2014 (Ext. Ka.5) that his daughter (PW1), aged about 16 years, left her house on 05.03.2014 at around 11:00 a.m. When she was searched, it was found that Krishna Kant alias Krishna Kafaltiya, who ran a dance class, had taken her with him.
3. On the said information (Ext. Ka.5), an FIR (Ext. Ka.2) was registered by Head Constable Nirmal Singh Latwal (PW4) on 06.03.2014 at 00:45 hrs.
4. The mobile phone of the accused was put on surveillance on 11.03.2014. His location was found in Delhi. The prosecutrix was found at Gate No.1 of Delhi Railway Station on 12.03.2014. Medical examination of the prosecutrix was conducted on 13.03.2014. Her statement was recorded under Section 164 of the Code of Criminal Procedure, 1973. Accused was arrested on 15.03.2014. A copy of the prosecutrix’s Birth Certificate (Ext. Ka.18) was provided to the Investigating Officer by the informant (PW5). Upon conclusion of the investigation, charge-sheet (Ext. Ka.16) was filed by Sub-Inspector Laxman Singh (PW11).
5. Charges were framed against the respondent – accused. As the accused pleaded innocence, trial was held.
6. In order to bring home the guilt of the accused, the prosecution examined as many as twelve witnesses.
7. Statement of the accused was recorded under Section 313 of the Code of Criminal Procedure, 1973. He denied all the incriminating evidence, produced by the prosecution.
8. Mr. J.S. Virk, learned counsel for the State contended that the prosecution’s witnesses have supported the prosecution’s case. The guilt of the respondent is fully proved, therefore, the judgment of acquittal is not justify in the eye of law.
9. We have carefully assessed the evidence, produced by the prosecution.
10. The prosecutrix (PW1) has stated that she is a Class XI student, but the prosecution has not filed her High School Certificate to prove her date of birth.
11. The prosecution has examined Rakesh Prasad, Registrar (Birth and Death) (PW12) to prove the prosecutrix’s Birth Certificate (Ext. Ka.18). According to the Birth Certificate (Ext. Ka.18), her date of birth is 05.01.1998. The said certificate was issued on 06.08.2014, i.e. after the alleged incident. It has not been clarified by the prosecution as to what is the basis of date of birth of the prosecutrix recorded in the Birth Certificate (Ext. Ka.18). Therefore, the date of birth of the prosecutrix recorded in the Birth Certificate is found to be entered without any basis, so, the date of birth of the prosecutrix cannot be determined by believing only on the Birth Certificate.
12. Considering the above, this Court has no hesitation to hold that the prosecution has miserably failed to prove that the prosecutrix was a ‘Child’ at the time of the alleged occurrence.
13. As per statements of the prosecutrix (PW1), her mother (PW3) and her father (PW5), she left home because her father scolded her, that is, the respondent – accused did not take her with him. The prosecutrix was not even recovered from the custody of the respondent.
14. PW2 Saurabh Belwal was a student of the same college in which the prosecutrix studied. He has stated that on 05.03.2014, he had received the prosecutrix’s phone call at around 05:30 p.m. She had told him that she was at her friend Gunjan’s house. He again received the prosec
The prosecution must establish the age of the prosecutrix to prove statutory offenses; lack of evidence on age and consent led to acquittal.
The credibility and acceptability of evidence, especially regarding the age of a minor, are crucial in cases involving offenses against children.
The acquittal of the accused was upheld as the prosecution failed to prove guilt beyond a reasonable doubt, guided by the presumption of innocence.
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