The Delhi High Court dismissed the State's CRL.A. under Section 378(3) CrPC seeking to challenge an acquittal. Noting a delay of over 1400 days and that the lower court correctly found the survivor was an adult, the court refused leave to appeal.
The petition for leave to appeal is dismissed. Pending applications are disposed of.
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.
$~22
+ CRL.L.P. 536/2023 & CRL.M.A. 29121/2023
THE STATE (NCT OF DELHI) .....Petitioner Through: Mr. Ritesh Kumar Bahri, APP with Mr. Lalit Kumar Luthra & Ms. Divya Yadav, Advs.
Versus
RAJIV KUMAR .....Respondent Through: Mr. Zorawar Singh, Mr. Deepak Sharma & Mr. Sudanshu Ghai, Advs. (M- 9953249666)
CORAM: JUSTICE PRATHIBA M. SINGH JUSTICE AMIT SHARMA
O R D E R
% 16.10.2024
CRL.L.P. 536/2023
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This is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 02/07/2025 at 07:13:53
learned Trial Court has has relied upon the cross-examination of the survivor (PW-1) and her father (PW-3) while acquitting the Respondent.
“20. Hence, the date of birth of the prosecutrix as 27.07.2001 cannot be said to have been cogently and correctly proved by the prosecution. On the other hand, learned Amicus Curiae has invited attention to the testimony of PW -1/prosecutrix ‘S' and that of her father to contend that prosecutrix ‘S’ was not a minor/not below 18 years of age on the date of incident i.e. 24.12.2013. The name of the elder sister of prosecutrix ‘S’ is ' P' who is married to the elder brother of the accused.
21. In his cross examination conducted on 06.09.2016, PW-3, the father of the prosecutrix stated that his daughter 'P' was born in the year 1982 after about 2 years of his marriage. He also stated that at the time of marriage of his daughter 'P', she was 18 years of age. He also stated that 'P' is his eldest child.
22. In her cross- examination conducted on 29.01.2016, Prosecutrix ‘S’ i.e. PW- 1, stated that her sister 'P' is eldest amongst them. After 'P', her twin brothers were born. She stated that she did not know the exact gap in the age of 'P' and her twin brothers but perhaps they are 4-5 years younger than 'P'. Since 'P' was born in 1982
CRL.L.P. 536/2023
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This is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 02/07/2025 at 07:13:53
(as stated by her father PW-3), her twin brothers would have been born by 1987 (when 4-5 years is taken on a higher side to be 5).
23. PW -1 further stated that after her twin brothers, her another brother was born who was 3-4 years younger than her twin brothers. Again taking on higher side, the other brother of prosecutrix ‘S’ would have been born by 1991.
24. PW- 1 further stated that she is 2 years younger than her youngest brother. Thus, PW -1 would have been born latest by 1993. Therefore, on the date of incident, 24.12.2013, age of PW- 1 would be 20 years. PW- 1 has herself stated that she did not know her age when her sister was married but she was present in the marriage of her sister. The said statement of PW-1 also has a bearing on the fact that she was mature enough on the date of marriage of her sister so as to recollect that she had attended the marriage.
25. I have given my thoughtful consideration to the testimonies of the witnesses examined by the prosecution to prove the age of the prosecutrix. In the case in hand, in view of cross-examination of PW -1 and PW -3, the age of the prosecutrix on the date of incident comes around 20 years, which is thus above 18 years and as per this, it can be said that the prosecutrix was adult and major at the time of incident.
26. Thus, the accused is acquitted of offence punishable under section 363 IPC and section 4 of POCSO Act since being below the age of 18 years is a necessary ingredient of the same.”
CRL.L.P. 536/2023
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This is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 02/07/2025 at 07:13:53
grant leave to challenge the impugned judgment, both on the ground of delay as also merits.
PRATHIBA M. SINGH, J.
AMIT SHARMA, J.
OCTOBER 16, 2024/ nk/bh/NS
CRL.L.P. 536/2023
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This is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 02/07/2025 at 07:13:53
2 issues framed by the court
Whether a CRL.A. petition under Section 378(3) CrPC should be allowed to challenge an acquittal on merits despite a delay of over 1400 days when the impugned judgment was based on the conclusion that
Whether the benefits of delay and the findings of the Trial Court regarding the age of the survivor warrant the granting of leave to appeal.
1 provisions across 1 enactments
The State (NCT of Delhi)
Rajiv Kumar
Prathiba M. Singh
Amit Sharma
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
