207 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Union Territory of Chandigarh … Appellant Versus Sumit … Respondent

2. CRM-A-941-MA-2018 (O&M)

Union Territory of Chandigarh … Appellant Versus Mukesh … Respondent Date of decision: 8^th September, 2025 CORAM: HON’BLE MRS. JUSTICE MANJARI NEHRU KAUL HON’BLE MR. JUSTICE H. S. GREWAL Present: Mr. J.S. Toor, Addl. PP UT Chandigarh with Mr. Adhiraj Toor, Advocate for the applicant/appellant.

Mr. Umang Bansal, Advocate for Mr. R.C. Sharma, Advocate for the respondent.

MANJARI NEHRU KAUL, J.

1. Both the instant appeals, detailed herein above, are directed against separate judgments dated 31.08.2017 passed by the Court of learned Additional Sessions Judge-cum-Judge, Special Court, Chandigarh whereby respondent/accused Sumit and Mukesh have been acquitted of the charges framed against them. Both these matters are being taken up together for disposal by this common judgement as they arise out of the same FIR No.139 dated 26.08.2016 under Sections 363, 366, 376 of IPC and Sections 4 and 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as, ‘the POCSO Act’)

registered at Police Station Maloya, Chandigarh.

2. The case of the prosecution, briefly stated, is that on

26.08.2016, Chanchal (PW-1) mother of the victim, made a complaint Ex.P1 alleging that her younger daughter, aged about 17 years, had been enticed away by the accused – Sumit and Mukesh. It was further alleged that the said accused had subjected her daughter to sexual intercourse against her wishes. The complainant expressed apprehension that her daughter was in danger at the hands of the accused.

3. On the basis of this complaint, the aforesaid FIR was registered under Sections 363, 366, 376 of the IPC and Sections 4 & 6 of the POCSO Act. During investigation, the accused were arrested on the identification of the complainant vide recovery memo Ex.P4. The medical examination of the accused was conducted and MLR Ex.P5 obtained. The victim was produced before the Magistrate and her statement under Section 164 Cr.P.C. Ex.P18 was recorded, wherein she alleged sexual assault by the accused.

4. PW-4 Poonam Gupta, Clerk from the Municipal Corporation, produced the birth record Ex.P6 and Ex.P7, showing that the victim was a minor at the time of occurrence. PW-7 Balam Singh, Manager of Hotel Surya, Sector 42, Chandigarh produced the Hotel registry entry Ex.P11 and copy of Identity Card Ex.P12, allegedly showing the stay of the accused with the victim on 01.08.2016.

5. During the pendency of trial, the victim expired a natural death before she could be examined in Court. The prosecution examined

9 witnesses in total.

6. The trial Court, on appraisal of the record, found:

(i) The victim never subjected herself to medical examination despite repeated opportunities.

(ii) She was not recovered from the custody of the accused, but was found alone at the bus stand.

(iii) PW-1, her mother, did not witness the accused enticing or taking away the victim.

(iv) The hotel records Ex.P11 and Ex.P12 reflected an alleged stay on 01.08.2016, much prior to the date of occurrence as mentioned in the FIR.

(v) The statement of the victim under Section 164 Cr.P.C.

Ex.P18 was not substantive evidence in the absence of her deposition before the Court.

Holding that the prosecution had failed to prove its case beyond reasonable doubt, the trial Court acquitted the accused.

7. Learned State counsel has assailed the acquittal of the accused on the following grounds:

(i) That the trial Court erred in discarding the statement of the victim recorded under section 164 Cr.P.C. Ex.P18. Since the victim died before she could be examined in Court, the said statement, duly proved by the Magistrate (PW-9) assumes importance and should have been relied upon, especially as it categorically implicated the accused in sexual assault.

(ii) The minority of the victim stood conclusively established through the documentary record. Thus, once her age was proved,