Conviction under the POCSO Act necessitates proof of the victim's minority; failure to establish this must lead to acquittal.

JUDGMENT :

M.G. UMA, J.

1. The appellant being the accused in Special Case (POCSO) No.83/2023 on the file of the learned Additional District and Sessions Judge FTSC-I (POCSO) at Kalaburagi (in C.C.No.160/2023 of Raghavendra Nagar Police Station) is impugning the judgment of conviction and order of sentence dated 19^th November, 2024 convicting him for the offences punishable under Sections 354 (D), 363, 343 of the Indian Penal Code, 1860 (for short ‘the IPC’) and Section 6 of the Protection of Children from Sexual Offences Act, 2012 [for short, ‘the POCSO Act’] and sentencing him to undergo rigorous imprisonment for a period of 35 years for the offence punishable under Section 6 of the POCSO Act, 2012 with fine of Rs.20,000/-; to undergo imprisonment for 2 years for the offence punishable under Section 354 (D) of IPC , with fine of Rs.2,000/-; to undergo imprisonment for 5 years for the offence punishable under Section 363 of IPC with fine of Rs.6,000/- and to undergo imprisonment for 1 year for the offence punishable under Section 343 of IPC with fine of Rs.1,000/-, with default sentences.

2. Facts of the case in brief are that, on 18.10.2023 the father of the victim girl lodged the missing complaint, suspecting that accused has kidnapped the victim. FIR came to be registered. Investigation was undertaken. On 21.10.2023, the accused and victim were found together. The victim was rescued and accused was apprehended. Victim was subjected to medical examination. After investigation, charge sheet came to be filed. According to the case of the prosecution, the accused committed the offence punishable under Sections 354(D), 363, 376 (2) (n) and 343 of IPC and under Section 6 of the POCSO Act.

3. Learned Magistrate took cognizance of the offence and summoned the accused. The accused appeared before the Trial Court, pleaded not guilty and claimed to be tried. Prosecution examined PWs-1 to 14, got marked Exs.P-1 to P-50 and identified M.Os.1 to 10 in support of its contention. The accused has denied all the incriminating materials available on record and examined DWs-1 and 2 in support of his defence. The Trial Court, after taking into consideration all these materials on record, came to the conclusion that the prosecution is successful in proving guilt of the accused for offences punishable under Sections 354 (D), 363, 376 (2) (n) and 343 of IPC and Section 6 of the POCSO Act, and accordingly, sentenced him as stated above. Being aggrieved by the same, the accused is before this Court.

4. Heard Sri Shriharsha R. Harwal, learned counsel for the appellant and Sri Gopalkirshna B. Yadav, learned High Court Government Pleader for respondent No.1- State. Respondent No.2 though served, has remained un-represented.

5. In view of the rival contentions urged by learned counsel for both the parties, the point that would arise for my consideration is:

"Whether the judgment of conviction and order of sentence passed by the Trial Court suffers from infirmities and calls for interference by this Court?"

My answer to the above point is in the ‘affirmative’, for the following:

REASONS

6. According to the case made out by the prosecution, the victim PW-1 was aged 17½ years. Accused had stalked the victim girl with sexual intent, induced her to have sexual intercourse, kidnapped her from lawful guardianship, committed rape repeatedly from 19.10.2023 till 21.10.2023. She was subjected to wrongful confinement and thereby he has committed the offences punishable under Sections 354 (D), 363, 376 (2) (n), 343 of IPC and Section 6 of the POCSO Act.

7. PW-1 in her evidence stated before the Trial Court that, accused is her relative and he used to come to her house and was friendly with her. Accused committed rape on her w