The High Court of Delhi filed a leave to appeal to challenge an acquittal of the respondent in a POCSO case. The Court noted the significant delay but ultimately dismissed the appeal on merits.
Leave to appeal was denied; the judgment dated 01.07.2024 was confirmed because the prosecution failed to prove the prosecutrix was a minor.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 1st October, 2024
Through: Mr. Aman Usman, APP for State SI Neeraj Chaudhary PS Patel Nagar.
versus
SATISH KUMAR & ANR. .....Respondents Through: Mr. Abhishek Varma Advocate, Amicus Curiae for respondent (M: 9891312312).
CORAM:
JUSTICE PRATHIBA M. SINGH JUSTICE AMIT SHARMA
Prathiba M. Singh, J. (Oral)
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CRL.L.P. 477/2023
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recovered by her relatives. After being recovered, the statement of Ms. X was recorded under Section 164 of the Cr.P.C., according to which, offences under Sections 366/376 of the IPC and Section 4 of the POCSO Act, were added in the aforesaid FIR. Thereafter, chargesheet was filed and the charges were framed against the Accused. The prosecution led evidence of various witnesses including the survivor herself, the Social Science (TGT)/Vice Principal from the Govt. Girls Sr. Secondary School, West Patel Nagar, New Delhi, the father of the survivor and the Nana of the survivor. The defence did not lead any evidence.
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evidence. Mr Aman Usman relies upon the School Leaving Certificate issued by the first school (Ex. PW2/C), i.e., MCD Primary School, S block-1, West Patel Nagar, Delhi and the Elementary Education Certificate issued by the second school, i.e., Govt. Girls Senior Secondary School, West Patel Nagar, New Delhi which was placed on record by PW2 and PW3. It is his submission that under Section 94(2)(i) of the Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter, ‘JJ Act’ ), the said documents would have to be read in evidence, which would show that the survivor was a minor at the time of the incident. He relies upon the aforesaid School Leaving and the Elementary Education Certificate which has been placed on record by the prosecution.
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evidence of the date of birth in the absence of a birth certificate issued by the municipality. It is the second school’s documents which are sought to be relied upon by the prosecution when admittedly the school’s Social Science (TGT)/Vice Principal, i.e., PW2 who had appeared for deposition, relied upon the school leaving certificate issued by the MCD Primary School.
“19. Therefore in view of the above discussion, in order to prove the age of Ms. 'X', the prosecution had to place on record the first attended school certificate of Ms. 'X', however, testimony of PW2 clearly shows that Ms. 'X' got admitted in class 6th in Government Girls Senior Secondary School, West Patel Nagar, Delhi. The said school was not the first attended school of Ms. 'X'. In fact, PW2 has deposed in her examination in chief that the date of birth mentioned in the school record is on the basis of school leaving certificate issued by the Principal of MCD Primary School, S block-1, West Patel Nagar, Delhi. This clearly shows that the date of birth mentioned in the copy of the school certificate placed on record was based on the school leaving certificate issued by the first attended school by Ms. 'X'. The said certificate could have been proved only from the records of MCD Primary School, S block-1, West Patel Nagar, Delhi which was the first attended school of Ms. 'X'. However, prosecution neither arrayed any witness from the said school nor called any witness from the said school to prove the date of birth as mentioned in the school leaving certificate issued by the said school. Further, father of Ms. 'X' has been examined as PW3. He has admitted in his testimony that they do not have any birth certificate of Ms. 'X' and he does not
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remember her date of birth. He has further admitted that the date of birth as mentioned in the school record is given by mother of Ms. 'X'. In fact, during cross examination, PW3 has admitted that Ms. 'X' was born in native village and date of birth of 05.09.2000 furnished in the school was by approximation. This clearly establishes that the date of birth of 05.09.2000 was not the correct date of birth of Ms. 'X'. Mother of Ms. 'X' who has furnished the date of birth in the school has not been examined and therefore, her source of information of date of birth is not proved.
21. Hence, the testimony of PW2 merely proves that the copy of school certificate placed on record is the correct copy. However, in order to prove the date of birth, the prosecution had to prove the source of information of the said date of birth as mentioned in the school record. The same has not been proved by the prosecution in the present case. In fact, in the present case, the age is not proved as per the requirement of Rule 12 of Juvenile Justice (Care and Protection of Children) Rules, 2007 which mandates that the age has to be proved by the school record of the first attended school. In these circumstances, it is not established that Ms. 'X' was under the age of 18 years at the time of alleged incident. In fact, accused has stated that Ms. 'X' has represented herself to be aged about 19 years and solemnized marriage with the accused out of her consent. Ms. 'X' who has been examined as PW 1 has admitted in her cross examination that an affidavit was prepared for the purpose of solemnizing her marriage in which her age was mentioned as 19 years. Though PW1 has stated that she was forced to get married with the accused but she has nowhere stated that the age in the affidavit has been mentioned wrongly or by force by the accused. In view of this discussion, it is not established that Ms. 'X' was under the age of 18 years at the time of alleged incident.
22. As prosecution has failed to prove that Ms. 'X' was
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under the age of 18 years at the time of alleged offence, therefore, no offence is made out under section 6 of Prevention of Children from Sexual Offences Act 2012.”
“1. I have two children. The prosecutrix Ms. X is my younger child. At present, the prosecutrix is aged about 17 years. I do not remember her date of birth. It is mentioned in her school record.
xxx xxxx xxx xxx
1. It is correct that I do not have any birth certificate of my daughter issued by Municipal authorities or government authorities. My daughter was born in the native village at home. The date of birth of my daughter 05.09.2000 was furnished to the school by approximation. Her mother had got her admitted in the school and she has furnished this date to the school.
2. It is wrong to suggest that my daughter was above 18 years of age at the time of commission of alleged offence.
3. It is correct that I do not know her correct date of birth.”
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PRATHIBA M. SINGH JUDGE
AMIT SHARMA JUDGE
OCTOBER 01, 2024 MR/bsr/RKS/ Pc
(corrected & released on 4th October, 2024)
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2 issues framed by the court
Whether the Trial Court should have granted leave to appeal despite a delay of 401 days in filing the appeal under Section 378 Cr.P.C.
Whether the appeal falls to be dismissed on merits due to failure of the prosecution to prove the age of the prosecutrix beyond reasonable doubt.
3 provisions across 3 enactments
The State (GNCT of Delhi)
Satish Kumar
Prathiba M. Singh
Amit Sharma
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
