The prosecution must establish the victim's age and the nature of the sexual relationship to secure a conviction under relevant sections of the IPC.

Challenge is to the judgment and order dated 10.9.2014 in Sessions Case 139 of 2013 delivered by the Additional Sessions Judge, Chandrapur, by and under which, the accused is convicted for offence punishable under section 363 of Indian Penal Code (IPC) and is sentenced to suffer rigorous imprisonment for three years and to payment of fine of Rs. 500/-, and is convicted for offence punishable under section 366A of IPC and is sentenced to suffer rigorous imprisonment for five years and to payment of fine of Rs. 1000/- and is further convicted for offence punishable under section 376 of IPC and is sentenced to suffer rigorous imprisonment for seven years and to payment of fine of Rs.1000/-.

2. Heard Shri. R.M. Daga, the learned counsel for the appellant (hereinafter referred to as “the accused”) and Shri. P.S. Tembhare, the learned Additional Public Prosecutor for the respondent/State.

3. The prosecution case, as is unfolded during the course of trial, is thus:

The victim is a resident of Kati Birsola Tahsil and District Gondia and was studying in 9th standard in the year 2012-13. During the summer vacation, she visited her uncle Yograj Dongarwar at Mul and was desirous to join sewing classes. Yograj Dongarwar, found the victim missing in the night intervening 5th and 6th June, 2013. He came to know that the victim was in love with accused. Yograj lodged police report Exh. 10 on the basis of which offence under section 363 and 366A of the IPC was registered against the accused and was investigated by PW 7 Shri. Undirwade. PW 7 recorded the spot panchanama Exh. 17, arrested the accused, collected and seized blood sample, pubic hair and clothes of the accused and collected the birth certificate of the victim. The victim who then aged about 16 years was sent to General Hospital, Chandrapur for medical examination on 16.6.2013. PW 8 Dr. Swapna examined the victim, found the hymen torn, the vagina admitted two fingers easily. She opined that sexual intercourse had taken place. The Investigating Officer Shri. Undirwade submitted chargesheet in the Court of Judicial Magistrate First Class, Mul under section 363, 366A and 376 of the IPC. The learned Magistrate committed the proceedings to the Sessions Court. The learned Sessions Judge framed charge under sections 363, 366A and 376 of the IPC. The accused abjured guilt and claimed to be tried. The defence, as is discernible from the trend of the cross-examination and the statement recorded under section 313 of the Code of Criminal Procedure, is of total denial.

4. The learned counsel for the accused submits that the prosecution has failed to establish that the prosecutrix was aged less than 18 years at the relevant time. Inviting my attention to the evidence of the victim, Shri R.M. Daga would submit that concededly, the victim, and the accused were in love and that since Yograj PW 1 illtreated the victim, she left her house on own accord and joined the company of the accused at Balaghat. The learned counsel Shri. Daga invites my attention to the following portion of the examination in chief of the victim who is examined as PW 6:

“Yogiraj Dongarwar r/o. Mul is husband of my mother's sister. In the year 2013, I was residing at Mul at his house. I know accused. He is resident of kati District Gondia which is my native place. I was born on 29.1.1998”.

“One day, Yogiraj beat me severally”.

“In may 2013, I on my own accord, went to Gondia alone. Yogiraj searched me everywhere including my father. He lodged my missing report. Thereafter I went to Sirpur, Balaghat. Accused resides at Balaghat. I went to him and resided for four days. I had love on accused. Today also I love him. During those four days, accused performed sexual intercourse with me. At Sirpur, we resided at the house of relatives of accused”.

Be it noted that it is elicited in the cross examination of the victim that the date of birth is stated on the say of the parents.

5. The prosecution has examined PW 4 Narhari Katre to prove