The prosecution failed to prove the survivor's age under the POCSO Act, leading to the acquittal of the appellant.

JUDGMENT

AMIT SHARMA, J.

1. The present appeal under Section 415 of the Bharatiya Nagrik Suraksha Sanhita, 2023 (for short, ’BNSS’) has been filed assailing the judgment of conviction dated 04.06.2024 and order on sentence dated 03.10.2024 passed by learned ASJ-01 (POCSO) North District, Rohini Courts, Delhi, whereby the Appellant has been convicted in SC No. 597/2017, arising out of FIR No. 613/2017, under Sections 376 of the Indian Penal Code, 1860 (for short, “ IPC ’) and Section 6 Protection of Children from Sexual Offences Act, 2012 (for short, “POCSO Act”) registered at Police Station Aman Vihar.

2. The appellant by way of the impugned judgment of conviction and order on sentence was convicted for the offences punishable under Section 376 (2)(f) of the IPC and Section 6 of the POCSO Act. The appellant has been sentenced to undergo Rigorous Imprisonment of 10 years alongwith a fine of Rs.1000/-, and in default of payment of fine, to further undergo rigorous imprisonment for 1 month for the offence punishable under Section 376 (2)(f) of the IPC .

BRIEF FACTS

3. Brief facts necessary for the disposal of the present appeal are as follows:

i. On 30.05.2017 vide DD No. 24 B information was received at PS Aman Vihar regarding the survivor (respondent no.2) aged about 17 years of being admitted in BSA Hospital. The survivor had given birth to a child and was unmarried at that time.

ii. On receiving the said information IO Nishu reached the hospital and collected the MLC (EX.PW-3/A) of the survivor wherein it was stated that the survivor’s cousin aged about 30 years had forcefully established physical relations with her. The doctor then handed over certain samples of the new born child and the survivor to the IO.

iii. Thereafter the statement of the survivor was recorded wherein she alleged that about 10 months prior to the registration of the present FIR, her distant relative Karan i.e. appellant came to her family’s house and started residing there. It was further alleged that one day when there was no family member at the house, the appellant forcefully established physical relations with her and thereafter, threatened her not to disclose the said incident to anyone. It was further stated that she did not tell anyone regarding the aforesaid incident due to the threat made by the appellant. Thereafter on 30.05.2017 she experienced abdominal pain due to which her mother took her to the hospital and she was informed regarding her pregnancy, and gave birth to a child.

iv. During investigation the statement of the survivor was recorded in the hospital and on the basis of the said complaint (EX.PW1/A) the present FIR was registered under Section 376 of the IPC and Section 6 of the POCSO Act. Thereafter, the appellant was arrested and medical examination of the appellant was conducted vide MLC No. 9391/17 (Ex.PW-8/A) and the samples of the survivor and the new born child were sent to the FSL by the IO.

v. During the investigation certain documents were collected by the IO from the school of the survivor which reflected the date of birth of the survivor as 03.08.1999. After the competition of investigation chargesheet dated 21.07.2017 was filed qua the appellant under Section 376 of the IPC and Section 6 of the POCSO Act. Consequently, the learned Trial Court vide order dated 03.11.2017 framed charges qua the appellant for the offences punishable under Section 5(m) POCSO Act and Section 376 (2)(f) IPC .

vi. During the course of the trial the prosecution examined 12 witnesses including the parents of the survivor. Thereafter, the statement of the appellant under Section 313 of the CrPC was recorded wherein he stated that he had established physical relations with the survivor with her consent and she was not a minor at the time of the incident. Further the appellant did not opt to lead to any evidence in his defence. After hearing final arguments on behalf of the parties, the impugned judgment of conviction dated 04.06.2024 and order on se