2019 (8) TMI 1918

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....hter admitted in Lavela Public School, Tuglakabad in Nursery class when she was 2/3 years old. The prosecution has examined PW-3, Shri Kailash Chand Yadav, Asstt. Public Health Inspector, Central Zone, Lajpat Nagar to prove the age of the prosecutrix and as per said witness, date of birth in their record of the prosecutrix 'K' is 19.01.1998. No witness from the school of the prosecutrix has been cited as a witness nor got summoned/examined by the prosecution. As per Rule 12(3) of Delhi Juvenile Justice (Care and Protection of Children) Rules, 2009, in every case concerning a child or juvenile in conflict with law, the first document to be considered for the age of the child is the date of birth certificate from the school (other than a play school) first attended by the child and only in the absence whereof the birth certificate given by a corporation or a municipal authority or a panchayat is to be looked into. In the present matter, the school record including the matriculation certificate of the victim has not been looked into by investigator alibeit the victim was reported to be studying in class 12th at the time of incident. No justification is forthcoming from prosecu....

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....to behave abnormally and she had falsely told her age to be 18 years to the accused as he would not have taken her otherwise. Thus the testimony of prosecutrix in the court as well as her statement before Ld. MM during the proceedings U/s. 164 Cr.P.C. clearly establishes that there was no force, duress exerted upon her by the accused. No case of sexual assault by the accused is made out from the testimony of the prosecutrix/victim. As such, in the facts where prosecution is not able to prove that she was minor at that time, no offence of kidnapping and penetrative sexual assault is made out against the accused." 3. Ms. Aasha Tiwari, learned APP for State stated that the Trial Court failed to appreciate that PW-2 i.e. the father of the prosecutrix had deposed in Court that he had handed over a copy of his daughter's birth certificate to police which was taken into possession and seized by the IO vide memo Ex PW-2/B. She further stated that the father had deposed that as per record, the date of birth of his daughter was 19th January, 1998. She pointed out that this fact had been further corroborated by PW-3-Sh. Kailash Chand Yadav, Asstt. Public Health Inspector, Central Zone,....

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.... me beatings. I thought that in case I talked about marriage, they would kill me. We are Kshatriyas Thakur. We don't do like this. Kesar told me that he would marry me in case of my consent. I had persisted that I would go only after giving my last examination on 26th March, 2015. All the people behave in quite strange way at home. He took me. I had told him falsely that I was 18 years old. I had told him falsely else he would not have taken me. Ques. Then what happened? Ans. We started living on rent in a room at Village Pasona in Secunderabad near Ghaziabad. We thought to do a court marriage. We required a sum of Rs. 15,000/- for the same. We had only Rs. 10,000/- with us. He started doing a job. We were about to be married on 8th April. Ques. Then what happened? Ans. I was very happy as there was no scarcity. I very much love Kesar. He did not force in any manner whatsoever. Last night, we were preparing meals. In the meanwhile, police and my father came over there. They took us to Police Station from there. Then, my father started persuading me to make a statement to the effect, "When I came out after giving examination,....

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....tions 363/366/376 IPC is missing. In the present case, it is only because of a misrepresentation by the prosecutrix with regard to her age, which the respondent-accused bonafidely believed to be true that he allowed her to accompany him. 11. In fact, statement of the prosecutrix clearly negates any charge including Section 6 of POSCO. Consequently, as the respondent-accused had not knowingly committed any offence, none of the charges can be said to have been proven. 12. It is also settled law that any acquittal order cannot be lightly interfered with by the Appellate Court, though it has wide powers to review the evidence and to come to its own conclusion. The power to grant leave must be exercised with care and caution because the presumption of innocence is further strengthened by the acquittal of an accused. 13. The Apex Court in Ghurey Lal vs. State of Uttar Pradesh, (2008) 10 SCC 450 has held as under:- "69. The following principles emerge from the cases above: 1. The appellate court may review the evidence in appeals against acquittal under Sections 378 and 386 of the Criminal Procedure Code, 1973. Its power of reviewing evidence is wide and the app....

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.... by the High Court, the accused would have been set free long ago. Though the appellate court's power is wide and extensive, it must be used with great care and caution." (emphasis supplied) 14. One of us, (Manmohan, J) in Niraj vs. Ramesh Pratap Singh, 2012, SCC OnLine Del 3813 has held as under:- "6. It is also well settled that the Appellate court should reverse an acquittal only for very substantial and compelling reasons. In the event, two views are possible on the evidence adduced before the trial Court and the view taken by the trial Court is a plausible view, the Appellate Court should not interfere and substitute its own view against the plausible view taken by the trial Court. In fact, the Supreme Court in Chandrappa & Ors. Vs. State of Karnataka, (2007) 4 SCC 415 while referring to previous cases laid down the following general principles regarding the powers of appellate court while dealing an appeal against an order of acquittal:- "42. From the above decisions, in our considered view, the following general principles regarding powers of appellate Court while dealing with an appeal against an order of acquittal emerge; (1) An appella....