* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.A. 1025/2018
Reserved on: 25.03.2019
Date of decision: 29.04.2019
IN THE MATTER OF:
STATE (GOVT. OF NCT OF DELHI) ….. Appellant
Through: Ms. Aashaa Tiwari, APP with
SI Manjeet Singh, P.S. Punjabi Bagh.
versus
SHAILESH KUMAR ….. Respondent
Through: Mr. Sumit Gaba, Advocate.
CORAM:
HON’BLE MS. JUSTICE HIMA KOHLI
HON’BLE MR. JUSTICE VINOD GOEL
HIMA KOHLI, J.
1. The State is aggrieved by the judgment dated 31.5.2018, passed by
the learned Additional Sessions Judge-01, West, (ASJ) Special Court
under the Protection of Children from Sexual Offences Act, 2012 (in
short, „POCSO Act‟) in Sessions Case No.57589 of 2016 (old No.22 of
2015), arising from FIR No.828/2014, PS Punjabi Bagh, whereunder, the
respondent has been acquitted of the charges for the offence punishable
under Sections 363 and Section366 IPC and Section 4 of the POCSO Act. He has
also been acquitted of the alternate charge for the offence under Section
376 IPC.
2. The prosecution case was that on 25.9.2014 at 12.45 A.M., the
respondent had kidnapped the prosecutrix, a 15 year old girl from her
CRL.A. 1025/2018 Page 1 of 17
home at Madipur, New Delhi, forcibly taken her to Lucknow (UP) and
from there to Patna (Bihar), where he compelled her to marry him and
committed penetrative sexual assault and rape on her.
3. The trial court rejected the case of the prosecution on the ground
that the evidence of the prosecutrix (PW-1), Municipal Corporation
Primary School Teacher (PW-3), brother of the prosecutrix (PW-4) and
father of the prosecutrix (PW-5) reveals that there is no birth certificate of
the prosecutrix available to prove her age and therefore, it cannot be held
that she was below 18 years of age at the time of the alleged offence. The
sole plea of the State before us is that the trial court fell into an error while
appreciating the date of birth of the prosecutrix which when examined in
the light of the testimony of PW-3, clearly shows that her date of birth is
10.1.2000 and therefore, on the date of the incident, i.e., on 25.9.2014, she
was a minor, aged 14 years, 9 months and 14 days.
4. It is considered necessary to briefly advert to the facts of the case
relevant for deciding the age of the prosecutrix on the date of the incident,
which is the only question raised before us for a decision.
5. On 25.9.2014, on information received by the police that two boys
had kidnapped a girl, DD No.4PP was recorded. On the same day, an FIR
No.828/2014 (Ex.PX-1) was registered at PS Punjabi Bagh at 5.40 P.M.
under Section 363 IPC, on the basis of the complaint of the brother of the
prosecutrix (PW-4) to the effect that his sister, aged 15 years was missing
from their tenanted premises at village Madipur, New Delhi since 12.45
A.M., on 25.9.2014. In the complaint, a finger of suspicion was raised
against the respondent. On 26.9.2014/27.9.2014, PW-4 informed ASI
CRL.A. 1025/2018 Page 2 of 17
Sardar Singh (PW-7) that he suspected that the respondent might have
taken his sister to his native village at Patliputra, Patna, Bihar. On
27.9.2014, PW-7 accompanied by Constable Sanjay, the complainant and
his paternal uncle left by train to Patna. On 28.9.2014, the police party
reached PS Patliputra, Patna, Bihar, took the assistance of the local police
and went to the house of the respondent where, the prosecutrix (PW-1)
and the respondent‟s mother were present. The respondent was not found
in the house. The prosecutrix was identified by her brother (PW-4) and
brought to the local police station. After completion of formalities, all of
them returned to Delhi on 30.9.2014.
6. The prosecutrix (PW-1) was taken to SGM Hospital with her
paternal aunt for a medical examination. She was medically examined
there vide MLC Ex.PW1/A. Thereafter, she was produced before the
Child Welfare Committee and from there, sent to Nirmal Chhaya. On
07.10.2014, the prosecutrix was produced before the learned Metropolitan
Magistrate for recording her statement under Section 164 Cr.P.C.
(Ex.PW1/B). In the said statement, the prosecutrix declared her age as 14
years and stated that she had abandoned her studies after class IX. The
investigation of the case was assigned to SI Kailash (PW-6), who was later
on joined by ASI Sardar Singh (PW-7). On 17.12.2014, the respondent
was arrested from his house at village Madipur vide arrest memo,
Ex.PW2/A. Thereafter, his disclosure statement (Ex.PW6/B) was
recorded and he was sent for a medical examination to SGM
Hospital vide MLC, Ex.PW6/G. The respondent produced a mobile phone,
which he stated contained a video recording of his marriage with the
prosecutrix, that was seized vide seizure memo, Ex.PW6/F. The
CRL.A. 1025/2018 Page 3 of 17
respondent also produced some documents including a receipt issued by
the temple situated at Karnal Ganj, Gai Ghaat, near Mahatma Gandhi
Bridge, his own affidavit and that of the prosecutrix, marked as
Ex.PW6/D, Ex.PW6/E and Ex.PW1/DA, respectively.
7. On 18.12.2014, the respondent was produced in Court and sent to
judicial custody. On 27.3.2015, charges for the offence under Sections 363
and Section366 IPC and under Section 4 of the POCSO Act and in the alternate,
under Section 376 IPC were framed against the respondent to which he
pleaded not guilty and claimed trial. To prove its case, the prosecution
examined 7 witnesses.
8. As the focus of the present appeal is on establishing the age of the
prosecutrix on the date the alleged offence was committed, the relevant
evidence on this aspect is extracted from the impugned judgment as
below:-
“23. The crux of the entire case law is that the matriculation
certificate, then school record of the first attended school, then
the birth certificate issued by the corporation or municipal
authority or panchayat and then the ossification test are to be
considered, in the event of the earlier not being available. It is
also clear that the correctness of a certificate issued by
school/MCD is not to be doubted unless found to be false or
forged.
24. It is important to discuss and analyse the evidence led
on the point whether or not the prosecturix was a minor on the
date of the alleged offence.
25. Ms. X, the prosecutrix (PW1) has deposed that “I was
aged about 14 years at that time……….” In her cross
examination, she has deposed that “Although I have studiedCRL.A. 1025/2018 Page 4 of 17
up till 9th class but I do not know Hindi language completely
and I know the language used in my native village… I have
signed and put my thumb impressions on this Shapatpatra.
Shapatpatra is now Exhibited as EX PW1/DA and it bears my
signatures at point A and my thumb impression at point B.
26. Mr. Ashok Kumar Chaudhary (PW3), who is a teacher
in the school where the prosecutrix has studied, has deposed
that “As per school record the prosecutrix was admitted in our
school in class I on 12.08.2005. An entry at serial no.2373 in
the admission register was made at the time of admission in
school. As per school record the date of birth of the
prosecutrix is 10.01.2000. No other record of the admission of
the prosecutrix is now available in the school. So I cannot say
as to what document was submitted for the date of birth of the
prosecutrix by her parents/guardian at the time of her
admission in the school. The copy of the relevant entry made
at serial no.2373 is now exhibited as Ex.PW3/A which bears
my signatures at points A, B and C. (original seen and
returned). In the month of December 2014, the police officials
came to the abovesaid school and asked me to produce the
admission record of the prosecutrix. I had handed over the
copy of admission record of the prosecutrix to the IO which
was seized by the police vide seizure memo Ex.PW3/B which
bears my signatures at point A. I had also given in writing to
the police the date of birth of any child is not got registered in
the government record in the village so the date of birth of the
child cannot be issued. My such handwritten note in now
exhibited as Ex.PW3/C which bears my signatures at point A.”
He has been cross examined on behalf of accused and deposed
that “I was not the Principal of the abovesaid school during
the year 2014. At that time, there was no Principal in the
school. I was the officiating Principal/Incharge. I was issued
an authorization by the Government for being Officiating
Principal/Incharge but I have not brought the same to the
Court today. I had taken the charge in the year 2014 but I do
not remember the exact date and month. I had told the police
officials that I was the Officiating Principal/Incharge but I had
not given a copy government issued authorization in my
CRL.A. 1025/2018 Page 5 of 17
favour. I had personally not made the entries regarding the
admission of the prosecutrix in the school.”
27. Mr.Z, brother of the prosecutrix (PW4) has deposed that
“The prosecutrix is my younger sister. The date of birth (sic)
the prosecutrix 10.01.2000.” In his cross examination, he has
deposed that “I do not have any proof regarding the date of
birth of the prosecutrix. The same may be available with my
parents.”
28. Mr. Y, father of the prosecutrix (PW5) has deposed that
“The prosecutrix is my third child. I do not know the date of
birth of the prosecutrix as I am illiterate. I do not know the
present age of the prosecutrix. I got the prosecutrix admitted
in school in class V in the village. At that time, the prosecutrix
was aged about 3-4 years. She was admitted in class I and not
in class V.” In his cross examination, he has deposed that “I
do not have any proof regarding the date of birth of the
prosecutrix.”
9. Thus, it emerges from the trial court record that the age of the
prosecutrix was recorded as 14 years in the MLC (Ex.PW1/A). In her
statement recorded under Section 164 Cr.P.C. (Ex.PW1/B) also, the victim
mentioned her age as 14 years. Her stand remained the same during her
deposition before the Court. However, in Ex.PW1/DA, a notarized
affidavit dated 27.9.2014, duly signed by the victim and bearing her
thumb impression, she had mentioned her age as 19½ years and declared
that she is a major. In the rukka (PW4/A), PW-4, brother of the victim
mentioned the age of his sister as 15 years. The FIR registered on the
brother‟s complaint also mentions her age as 14 years. In his testimony,
PW-4 stated that the date of birth of his sister is 10.1.2000. In his cross-
examination, he admitted that he did not have any proof regarding his
CRL.A. 1025/2018 Page 6 of 17
sister‟s date of birth and stated that it may be available with his parents.
PW-5, the father of the victim deposed that she was his third child; that he
did not know her date of birth as he was illiterate; nor did he know her
present age. He stated that he had got his daughter admitted in a school in
the village in class-I and at that time, she was 3-4 years old. In his cross-
examination, he admitted that he did not have any proof regarding the date
of birth of the victim.
10. PW-3, working as a teacher in MC Primary School, village Vikas
Block Sirsia, District Saraswati, U.P. in the year 2014-15, produced the
school records to prove the date of admission of the prosecutrix in class-I
on 12.1.2005 and deposed that as per the said record, her date of birth is
10.1.2000. A copy of the relevant entry made at serial number 2373 in the
School Admission Register is marked as Ex.PW3/A. In his cross-
examination, PW-3 had clarified that he was only officiating as a
Principal/Incharge in the year 2014 and had not personally made the
entries.
11. Upon examining the evidence brought on record, the trial court
rejected the stand of the prosecution that the prosecutrix was below 18
years of age at the time of the offence for the following reasons:-
“29. It is clear from the evidence of PWs 1, 3, 4 and 5 that
there is no birth certificate of the prosecutrix available with
the prosecution which could have been obtained from the
corporation or the municipal authority or panchayat but the
record of her first attended school is available.
30. The father of the prosecutrix (PW5) was not even aware of
her date of birth and did not have any proof of the same. HeCRL.A. 1025/2018 Page 7 of 17
has not even deposed that on what basis her date of birth was
furnished to her school and what documents were submitted
and who had actually got her admitted in school. He has also
deposed that she was 3-4 years old at the time of admission
but as per the school record, she was about 5 years old. This
contradiction is too major to be ignored and no explanation
for the same has been furnished by the prosecution. The
brother of the prosecutrix (PW4) has although given her
alleged date of birth but has deposed that he does not have any
proof regarding the date of birth of the prosecutrix. The same
may be available with her parents. The prosecutrix herself
(PW1) has not deposed her date of birth but she has admitted
signing the “Shapathpatra” (Ex.PW1/DA) dated 27.09.2014
wherein it is stated that she is aged 19 ½ years.
31. More importantly, the school record (Ex.PW3/A to
Ex.PW3/C) only finds mention that the date of birth of the
prosecutrix is 10.01.2000 but there are no supporting
documents filed by her parents in the school including the
application form, affidavits of the parents, any record of the
Village Panchayat or Municipal authorities or even the
hospital or nursing home where she may have been born.
When the father of the prosecutrix (PW5) was not even aware
about her date of birth and at what age she was admitted in
school, then the authenticity of the date of birth mentioned in
the school record is shattered. No document like adhar card or
ration card of the prosecutrix has been produced by the
prosecution. The prosecutrix has admitted the “shapathpatra”
(Ex.PW1/DA) wherein her age is mentioned as 19 ½ years
thereby indicating that she was a major and above 18 years of
age at the time of the alleged incident.
32. Therefore, it is clear that it cannot be held that the
prosecutrix was below 18 years of age at the time of the
alleged offence. The evidence of the prosecution indicates that
she was above 18 years of age at the time of commission of the
alleged offences.”
CRL.A. 1025/2018 Page 8 of 17
12. The impugned judgment goes on to hold that the prosecution has
miserably failed to prove that the respondent had kidnapped the
prosecutrix, raped her and committed penetrative sexual assault on her. As
a result, the respondent was acquitted.
13. Ms. Tiwari, learned APP argued that the trial court has failed to
appreciate the provisions of Rule 12 of the Juvenile Justice (Care and
Protection of Children) Rules, 2007 (in short, „JJ Rules‟), which prescribe
the procedure required to be followed in determination of the age of a
child or a juvenile in conflict with law; that the trial court erred in
appreciating the testimony of PW-3, who had produced sufficient
documents to prove the age of the prosecutrix; that the prosecutrix had
supported the case set up by the prosecution and was consistent in her
testimony and once it was established that on the date of the incident, she
was a minor, her consent becomes immaterial. In support of her
submission, learned APP relied on Parag Bhati Vs. State of Uttar Pradesh
Another reported as (2016) 12 SCC 744 and State (GNCT of Delhi) Vs.
Hargovind reported as 2018 SCC OnLine Del 9607.
14. Per contra, Mr. Sumit Gaba, learned counsel for the respondent
cited Jaipal Singh Vs. State of Haryana reported as 2003 (2) RCR (Cri.)
310 (DB) and State (GNCT of Delhi) Vs. Mohd. Irfan reported as (2017)
242 DLT 237 to canvass that the school records pertaining to the age of
the prosecutrix were rightly disbelieved by the trial court as the entry was
not premised on any birth certificate and there was no other material to
back the date of birth of the victim registered by the school as 10.1.2000.
CRL.A. 1025/2018 Page 9 of 17
15. We have carefully perused the trial court record, examined the
impugned judgment and heard the arguments advanced by learned counsel
for the parties.
16. The sole question for a decision in this case hinges on determining
the age of a victim of crime. In Jarnail Singh Vs. State of Haryana
reported as (2013) 7 SCC 263, the Supreme Court has held that Rule 12 of
the JJ Rules though strictly applicable to a child in conflict with
law, would also extend in cases where the Court is required to
determine the age of a child, who is a victim of a crime. Rule 12(3) lays
down the procedure to be followed in determination of age and reads as
follows:-
“12. Procedure to be followed in determination of
Age.-…
(1) xxxxx
(2) xxxxx
(3) In every case concerning a child or juvenile in
conflict with law, the age determination inquiry shall be
conducted by the court or the Board or, as the case may
be, the Committee by seeking evidence by obtaining:–
(a) (i) the matriculation or equivalent certificates, if
available; and in the absence whereof;
(ii) the date of birth certificate from the school (other
than a play school) first attended; and in the absence
whereof;
(iii) the birth certificate given by a corporation or a
municipal authority or a panchayat;
(b) and only in the absence of either (i), (ii) or (iii) of
clause (a) above, the medical opinion will be sought
CRL.A. 1025/2018 Page 10 of 17
from a duly constituted Medical Board, which will
declare the age of the juvenile or child. In case exact
assessment of the age cannot be done, the Court or the
Board or, as the case may be, the Committee, for the
reasons to be recorded by them, may, if considered
necessary, give benefit to the child or juvenile by
considering his/her age on lower side within the margin
of one year and, while passing orders in such case shall,
after taking into consideration such evidence as may be
available, or the medical opinion, as the case may be,
record a finding in respect of his age and either of the
evidence specified in any of the clauses (a)(i), (ii), (iii)
or in the absence, whereof, clause (b) shall be the
conclusive proof of the age as regards such child or the
juvenile in conflict with law.”
17. In the instant case, the matriculation or equivalent certificate of the
victim is not available as she deposed that she gave up studies after 9th
class. Rule 12(3)(a) contemplates that in the absence of the matriculation
or equivalent certificate, the date of birth certificate from the school first
attended can be used as evidence to determine the age of a child.
Mr.Ashok Kumar Chaudhary (PW-3), a teacher in the school where the
victim has studied, had produced the school records, which showed that
the victim was admitted in MC Primary School, Vikas Block Sirsia,
District Sarawasti, UP in class-I on 12.08.2005. The school record notes
her date of birth as 10.01.2000. However, PW-3 went on to state that there
is no other record of admission of the victim available in the school and
nor could he state as to what was the nature of the document submitted by
the victim‟s parents at the time of her admission, for recording her date of
birth in the school register.
CRL.A. 1025/2018 Page 11 of 17
18. It is well settled that an entry of the date of birth made in the school
admission register would have evidentiary value only if there is material
available based on which the age was so recorded. In the case of SectionBrij
Mohan Singh vs. Priya Brat Narain Sinha and Ors. reported as AIR 1965
SC 282, the Supreme Court held that an entry of birth recorded in the
school register maintained by an illiterate Chowkidar, was not admissible
and had no probative value within the meaning of Section 35 of the Indian
Evidence Act. For ready reference, Section 35 of the Indian Evidence Act
is reproduced below:-
“35. Relevancy of entry in public [record or an electronic
record] made in performance of duty.–An entry in any
public or other official book, register or [record or an
electronic record], stating a fact in issue or relevant fact, and
made by a public servant in the discharge of his official duty,
or by any other person in performance of a duty specially
enjoined by the law of the country in which such book,
register, or [record or an electronic record] is kept, is itself a
relevant fact.”
19. SectionIn Birad Mal Singhvi vs. Anand Purohit reported as 1988 Supp.
SCC 604, where a question arose with regard to eligibility of a candidate
participating in an election to the State Legislative Assembly, in the
context of attaining the age of 25 years as stipulated, the Supreme Court
held as below:-
15……..Section 35 of the Indian Evidence Act lays down that
entry in any public, official book, register, record stating a
fact in issue or relevant fact and made by a public servant
in the discharge of his official duty specially enjoined by the
law of the country is itself the relevant fact. To render a
document admissible under Section 35, three conditions
must be satisfied, firstly, entry that is relied on must be one
in a public or other official book, register or record;
CRL.A. 1025/2018 Page 12 of 17
secondly, it must be an entry stating a fact in issue or
relevant fact; and thirdly, it must be made by a public
servant in discharge of his official duty, or any other person
in performance of a duty specially enjoined by law. An
entry relating to date of birth made in the school register is
relevant and admissible under Section 35 of the Act but
the entry regarding the age of a person in a school register
is of not much evidentiary value to prove the age of the
person in the absence of the material on which the age
was recorded. …” (emphasis added)
20. The probative value of the entry regarding the date of birth made in
a school register has come up for consideration by the Supreme Court and
the High Courts in several other cases and the common view expressed is
that no probative value can be attached to such a record unless and until
the parents are examined or the person on whose information the entry
may have been made, is examined.
21. SectionIn Sushil Kumar vs. Rakesh Kumar reported as AIR 2004 SC 230,
the Supreme Court held thus:-
“34. In the aforementioned backdrop the evidences brought
on record are required to be considered. The Admission
Register or a Transfer Certificate issued by a Primary
School do not satisfy the requirements of Section 35 of the
Indian Evidence Act. There is no reliable evidence on
record to show that the date of birth was recorded in the
school register on the basis of the statement of any
reasonable person.”
22. SectionIn Satpal Singh vs. State of Haryana reported as (2010) 8 SCC 714,
the Supreme Court held that a document may be admissible under Section
35 of the Indian Evidence Act being a public document if prepared by a
government official in exercise of his official duty but whether the entry
contained therein has any probative value would still require to be
CRL.A. 1025/2018 Page 13 of 17
examined in the facts and circumstances of a particular case. Citing
several earlier decisions, the Supreme Court held that even if the entry was
made in an official record by the official concerned in discharge of his
official duty, it may have weight, but would still require corroboration by
the person on whose information the entry has been made and whether the
entry so made has been exhibited and proved. The Supreme Court
summarized the law in the following words:-
“28. Thus, the law on the issue can be summarised that the
entry made in the official record by an official or person
authorised in performance of an official duty is admissible
under Section 35 of the Evidence Act but the party may still
ask the court/authority to examine its probative value. The
authenticity of the entry would depend as to on whose
instruction/information such entry stood recorded and
what was his source of information. Thus, entry in school
register/certificate requires to be proved in accordance
with law. Standard of proof for the same remains as in any
other civil and criminal case.” (emphasis added)
23. In the present case, the father of the victim, PW-5 deposed that he
did not know the date of birth of his daughter as he was illiterate, nor was
he in a position to state her current age. He stated that he got the victim
admitted in the school in class-I in the village and at that time, she was
about 3-4 years old. In his cross-examination, PW-5 admitted that he did
not have any proof regarding his daughter‟s date of birth. It is therefore
clear that the father of the victim had not submitted any document to the
school at the time of getting his daughter admitted in class-I, on
12.08.2005, to establish her date of birth as 10.01.2000, as recorded by the
school. He was candid enough to state that being illiterate, he did not
CRL.A. 1025/2018 Page 14 of 17
know the date of birth of the victim and that she was between 3-4 years
old when she was admitted in class-I.
24. In the absence of any primary material based on which the age of
the victim was recorded in the school register, it is not possible to accept
her date of birth as 10.01.2000. Moreover, even the teacher from the
school in question, who had appeared as PW-3, had stated that he had
given a handwritten document to the police on 17.12.2014 (Ex.PW3/C),
wherein he had recorded that when a child attains the age of 5+ years, the
parents approach the school for their admission. If one goes by the said
statement, then the testimony of the victim‟s father to the effect that he
had got her admitted in class-I when she was about 3-4 years, cannot be
accepted, as it is premised on mere guess work.
25. In Brij Mohan Singh (supra), the Supreme Court observed that in
actual life, it frequently happens that persons give false age of a child at
the time of admission in the school so that later in life, he would have an
advantage when seeking public service for which the minimum age for
eligibility is often prescribed. In Vishu vs. State of Maharashtra reported
as (2006) 1 SCC 283, while dealing with a similar issue, the Supreme
Court had yet again observed that very often parents furnish incorrect date
of birth to the school authorities to make up the age in order to secure
admission for their children. For determining the age of the child, the best
evidence is of his/her parents, if it is supported by unimpeachable
documents.
26. We have noted earlier hereto that in the MLC and the statement of
the victim recorded under Section 164 Cr.PC, her age has been mentioned
as 14 years. However, in the affidavit executed by her on 27.09.2014, she
CRL.A. 1025/2018 Page 15 of 17
has mentioned her age as 19½ years. As against the above, the brother of
the victim (PW-4) had mentioned his sister‟s age as 15 years in his
complaint. In his cross-examination, he admitted that he did not have any
proof regarding his sister‟s date of birth. It is evident that the victim‟s
brother did not have any document or even a clear idea of her exact age
and was speaking only on the basis of estimation. The father of the victim
(PW-5) too deposed that he did not possess any document to establish the
date of birth of his daughter. In a judgment of the Punjab and Haryana
High Court entitled SectionJaipal Singh vs. State of Haryana reported as (2003) 2
RCR (Cri) 310 (DB), the Court elected not to accept the school certificate
of the prosecutrix stating her age to be 15 years, which was found to be in
conflict with the age mentioned in the FIR, MLC and the statement of the
prosecutrix herself as also her father, for the reason that entry in the school
record was not based on the birth certificate, but on the basis of the
statement made by her father. Similarly, in the case of SectionState (GNCT of
Delhi) vs. Mohd. Irfan reported as 2017 (Suppl.) Crl.CC 355 (Delhi)
(DB), where the school records of the prosecutrix mentioned her date of
birth as 15.03.2003 and it turned out that the said entry was based on a
subsequently dated affidavit given by her mother, the Court did not rely on
the entries made in the school records.
27. We are of the opinion that in the absence of any material document
based on which the entry of the date of birth of the victim has been made
in the school register, mere production of the school register that records
inter alia her date of birth as 10.01.2000, would not suffice. The victim
was admitted in the school by her father, an illiterate person, who himself
admits that he did not have any proof regarding the date of birth of his
CRL.A. 1025/2018 Page 16 of 17
daughter. The facts mentioned above show that the prosecution has not
been able to discharge the burden cast on it to prove that the age of the
victim was below 18 years at the time of the alleged commission of
offence and that being the only ground taken in this appeal to assail the
impugned judgment, we do not find any reason to interfere in the
subsequent findings returned by the trial court rejecting the prosecution
version that on 25.09.2014, the respondent had kidnapped the victim with
the intention to compel her to marry him against her will and he had
committed penetrative sexual assault upon her and raped her. Once it is
held that the girl was over 18 years of age and competent to give her
consent, the question of the respondent raping her does not arise. It is
apparent that the girl had eloped with the respondent on her own and was
a consenting party to the sexual intercourse. In our view, the decisions
cited by the learned APP will not be of any assistance in the peculiar facts
and circumstances of the present case.
28. As a result, the impugned judgment is upheld. The State’s appeal
fails and is dismissed with no orders as to costs.
(HIMA KOHLI)
JUDGE
(VINOD GOEL)
JUDGE
APRIL 29, 2019
NA/ap/rkb
CRL.A. 1025/2018 Page 17 of 17
