: JASMEET SINGH, J (ORAL)

1. This is an application filed by the State seeking leave to appeal challenging the judgment dated 10.02.2020 passed by the learned ASJ- 04 (POCSO), South-West, Dwarka Courts, New Delhi in SC No. 440648/2016 arising out of FIR No. 317/2014 registered at PS Jaffarpur under Section 4 of the Protection of Children from Sexual Offences Act, 2012 (“POCSO Act”).

2. Vide impugned judgement, the respondent was acquitted under Section 4 of POCSO Act.

FACTUAL BACKGROUND

3. The brief facts of the case are that on 10.12.2014 at about 12:25 AM, the father of the prosecutrix registered a complaint regarding the missing of his daughter aged about 17 years and studying in Class 12th. The prosecutrix had gone for tuition but did not return home. The complainant expressed his doubt on the respondent who was also missing from his house.

4. During the course of investigation, the prosecutrix and the respondent were apprehended on 12.12.2014 at Dharuhera and were brought to Delhi.

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

6. On 06.08.2015, charges under Section 4 of the POCSO Act were framed against the respondent, to which he pleaded not guilty and claimed trial.

7. The prosecution examined a total of 12 witnesses and the statement of the accused under Section 313 CrPC was recorded, wherein he claimed himself to be innocent and having been falsely implicated in the case by the prosecutrix and her parents. The respondent did not lead any defence evidence.

8. The learned Trial Court after considering the entire evidence vide the impugned judgement, acquitted the respondent under Section 4 of the POCSO Act.

9. Aggrieved by the impugned judgment, the State prefers the present appeal.

10. The operative paragraphs of the impugned judgement are as follows:

“23.⁠ ⁠In the case in hand the prosecution did not examine the uncle of the child victim, whose affidavit was submitted in the school. The prosecution failed to establish on what basis her date of birth was mentioned in the affidavit of her uncle, Ex.PW-10/C. Just on the ground that the date of birth of the child victim was recorded in her school on the basis of her guardian/uncle, particularly when the said guardian was neither her father nor her mother, is not sufficient to prove her age. It is also important to mention here that PW-1, the child victim deposed that her correct date of birth was 22.12.1998. PW-2, mother of child victim deposed that the date of birth of the child victim was 22.12.1998. Thus, according to the child victim and her mother, her date of birth is 22.12.1998, however, in the school her date of birth was recorded as 20.01.1998 and it further creates doubt about the correct date of birth of the child victim. The date of birth stated by the child victim and her mother cannot be taken into consideration because the date of birth of the child has to be determined as per section 94 of the Juvenile Justice Act. On the basis of oral testimony of the mother of child victim, the prosecution cannot discharge the burden to prove the correct date of birth / age of the child victim.

37. In view of the above discussions, I am of the considered view that the prosecution has duly proved that the accused made physical relation with the child victim in the intervening night of 11.12.2014 and 12.12.2014. However, the prosecution failed to prove beyond reasonable doubt that the child victim was less than 18 years old on the date of incident and on the other hand it is also established that the accused made physical relation with the child victim with her consent. It is well settled law that the benefit of doubt always goes in favour of the accused. Accordingly, accused Hitesh is acquitted under section 4 r/w section 3 of POCSO Act.”

SUBMISSIONS ON BEHALF OF THE PETITIONER

11. Mr. Chauhan, learned APP appearing on behalf of the petitioner opposes the impugned judgement and submits as follows:

A. Th