* IN THE HIGH COURT OF DELHI AT NEW DELHI + CRL.A. 1025/2018 Reserved on: 25.03.2019 Date of decision: 29.04.2019 IN THE MATTER OF:

STATE (GOVT. OF NCT OF DELHI) ..... Appellant Through: Ms. Aashaa Tiwari, APP with SI Manjeet Singh, P.S. Punjabi Bagh.

versus SHAILESH KUMAR ..... Respondent Through: Mr. Sumit Gaba, Advocate.

CORAM:

HON'BLE MS. JUSTICE HIMA KOHLI HON'BLE MR. JUSTICE VINOD GOEL HIMA KOHLI, J.

1. The State is aggrieved by the judgment dated 31.5.2018, passed by the learned Additional Sessions Judge-01, West, (ASJ) Special Court under the Protection of Children from Sexual Offences Act, 2012 (in short, „POCSO Act‟) in Sessions Case No.57589 of 2016 (old No.22 of 2015), arising from FIR No.828/2014, PS Punjabi Bagh, whereunder, the respondent has been acquitted of the charges for the offence punishable under Sections 363 and 366 IPC and Section 4 of the POCSO Act. He has also been acquitted of the alternate charge for the offence under Section

376 IPC.

2. The prosecution case was that on 25.9.2014 at 12.45 A.M., the respondent had kidnapped the prosecutrix, a 15 year old girl from her home at Madipur, New Delhi, forcibly taken her to Lucknow (UP) and from there to Patna (Bihar), where he compelled her to marry him and committed penetrative sexual assault and rape on her.

3. The trial court rejected the case of the prosecution on the ground that the evidence of the prosecutrix (PW-1), Municipal Corporation Primary School Teacher (PW-3), brother of the prosecutrix (PW-4) and father of the prosecutrix (PW-5) reveals that there is no birth certificate of the prosecutrix available to prove her age and therefore, it cannot be held that she was below 18 years of age at the time of the alleged offence. The sole plea of the State before us is that the trial court fell into an error while appreciating the date of birth of the prosecutrix which when examined in the light of the testimony of PW-3, clearly shows that her date of birth is 10.1.2000 and therefore, on the date of the incident, i.e., on 25.9.2014, she was a minor, aged 14 years, 9 months and 14 days.

4. It is considered necessary to briefly advert to the facts of the case relevant for deciding the age of the prosecutrix on the date of the incident, which is the only question raised before us for a decision.

5. On 25.9.2014, on information received by the police that two boys had kidnapped a girl, DD No.4PP was recorded. On the same day, an FIR No.828/2014 (Ex.PX-1) was registered at PS Punjabi Bagh at 5.40 P.M. under Section 363 IPC, on the basis of the complaint of the brother of the prosecutrix (PW-4) to the effect that his sister, aged 15 years was missing from their tenanted premises at village Madipur, New Delhi since 12.45 A.M., on 25.9.2014. In the complaint, a finger of suspicion was raised against the respondent. On 26.9.2014/27.9.2014, PW-4 informed ASI Sardar Singh (PW-7) that he suspected that the respondent might have taken his sister to his native village at Patliputra, Patna, Bihar. On 27.9.2014, PW-7 accompanied by Constable Sanjay, the complainant and his paternal uncle left by train to Patna. On 28.9.2014, the police party reached PS Patliputra, Patna, Bihar, took the assistance of the local police and went to the house of the respondent where, the prosecutrix (PW-1) and the respondent‟s mother were present. The respondent was not found in the house. The prosecutrix was identified by her brother (PW-4) and brought to the local police station. After completion of formalities, all of them returned to Delhi on 30.9.2014.

6. The prosecutrix (PW-1) was taken to SGM Hospital with her paternal aunt for a medical examination. She was medically examined there vide MLC Ex.PW1/A. Thereafter, she was produced before the Child Welfare Committee and from there, sent to Nirmal Chhaya. On 07.10.2014, the prosecutrix was produced before the learned Metropolitan Magistrate for recording her statement under Section 164 Cr.P.C. (Ex.PW1/B). In the said statement, the prosecutri