CRL.L.P. 302/2022 Page 1 of 8

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IN THE HIGH COURT OF DELHI AT NEW DELHI

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Date of decision: 13^th September, 2023

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CRL.L.P. 302/2022

STATE

..... Petitioner

Through:

Mr. Tarang Srivastava, APP for State

with Insp. Sumit Kumar, PS Moti

Nagar, Delhi.

versus

BASIR AHMAD

..... Respondent

Through:

None.

CORAM:

HON'BLE MR. JUSTICE SURESH KUMAR KAIT

HON'BLE MS. JUSTICE NEENA BANSAL KRISHNA

J U D G M E N T (oral)

1.

This Criminal Leave to Appeal under Section 378(3) of the Code

of Criminal Procedure, 1973(hereinafter referred to as „CrPC‟) has been

filed by the State against the impugned Judgment dated 18.07.2020

acquitting the respondent for the offences under Sections 363/376/506 of the

Indian Penal Code, 1860 (hereinafter referred to as „IPC‟) and Section 4 of

The Protection of Children from Sexual Offences Act, 2012 (hereinafter

referred to as „POCSO Act‟).

2.

The case of the prosecution was that on 13.02.2014, a complaint was

made by Bhabhi of ‘Ms.X’, the prosecutrix that she was missing from the

house since 13.02.2014 and had failed to return. During investigation,

brother of the prosecutrix informed that the prosecutrix was present at the

House No. 32A, Gali No. 3, Nehru Nagar, Anand Parbat. On this

information, the Investigating Officer along with brother went to the said

house and recovered the prosecutrix. Her statement was recorded and the

offence under Section 376 IPC was added in the FIR already registered

DigitallySigned By:SAHIL

SHARMA

Signing Date:20.09.2023

18:44:31

Signature Not Verified

CRL.L.P. 302/2022 Page 2 of 8

under Section 363 IPC. After investigation, the charge sheet was filed under

Sections 363, 376 and 506 IPC and Section 4 of the POCSO Act.

3.

Charges against the respondent were framed on 23.05.2014 under the

aforesaid Sections. Statements of 8 witnesses were recorded on behalf of

the prosecution wherein the prosecutrix who appeared as PW-2 fully

supported the case of the prosecution. However, the learned Additional

Sessions Judge observed that the age of the prosecutrix was shown to be

between 17 to 19 years and therefore, there was no conclusive evidence of

her being a minor at the time of alleged offence. Consequently, the benefit

was extended to the respondent who was acquitted.

4.

Aggrieved by the said acquittal of the respondent, the State has

filed the present Leave to Appeal.

5.

The grounds pleaded essentially by the State are that the learned

Additional Sessions Judge failed to appreciate the testimony of the

prosecutrix i.e. PW-2 who in her statement under Sections 161 and 164

CrPC as well as in her testimony before the Court, had deposed that the

respondent had made physical relationship with her under threat. It is

pleaded that her statement throughout was consistent and there was no

material contradiction. The testimony of the prosecutrix was corroborated

by the forensic evidence wherein the FSL report corroborated the presence

of human semen on the exhibits of the prosecutrix. The learned Additional

Sessions Judge also ignored the DNA profile which matched with that of the

accused-respondent herein.

6.

For the purpose of determination of the age, the ossification report

was considered which suggested the age of the prosecutrix in the range of 17

to 19 years. The learned ASJ overlooked the age of the prosecutrix on the

DigitallySigned By:SAHIL

SHARMA

Signing Date:20.09.2023

18:44:31

Signature Not Verified

CRL.L.P. 302/2022 Page 3 of 8

lower side despite the sens