IMPORTANT POINT
The prosecution must prove the age of the victim beyond reasonable doubt in cases involving sexual offences under the POCSO Act, and the absence of reliable evidence can lead to acquittal.

JUDGMENT/ORDER

1. The challenge in this appeal is to the judgment and order of conviction and consequential sentence dtd. 12/8/2022, passed by Additional Sessions Judge, Ambajogai in Spl. POCSO Case No.24/2017. By the impugned judgment and order, the appellant herein, a 20 year old boy then, has been convicted for the offence punishable under Sec. 376(2)(i) of the Indian Penal Code and under Sec. 6 of the Protection of Children from Sexual Offences Act and therefore sentenced to suffer rigorous imprisonment for 10 years and to pay fine of Rs.1.00 Lakh with default stipulation.

2. The facts in brief giving rise to the present appeal are as follows :- It is a case of the prosecution that, P.W.3 (victim) was little over 16 years of age in June 2017. On 25/4/2017, she was passing by the bus stand. The appellant and his friend (acquitted accused) came in a Scorpio vehicle. They forcibly took her in the car. She was taken to some other village, Talegaon Dabnhade. The appellant took a room on rent. He made the victim stay with him in the said room. Whenever he used to go out of the room, he would bolt the entrance door of the room from outside, confining the victim in. During their such stay, the appellant had sexual intercourse with the victim many a time. On the very next day i.e. on 26/4/2017, the mother of the prosecutrix (P.W.1) lodged F.I.R. (Exh.47) at Kaij Police Station, alleging appellant to have kidnapped the victim. The crime vide C.R. No.197/2017 for offence punishable under Sec. 363 of the Indian Penal Code was, therefore, registered at Kaij Police Station.

3. When the appellant forgot to latch the door from outside when he went out of the room, the victim contacted her mother (P.W.1) on cell phone. It was 5th of June 2017. She told her mother about her whereabouts. Parents and other relations of the victim, therefore, rushed to Talegaon Dabhade. Having realised the parents of the victim to have been coming to Talegaon Dabhade, the appellant fled. The parents first took the victim to the house of her maternal aunt in Mumbai. After 10 - 15 days stay thereat, they came back to Kaij. Statement of the victim was recorded. She was medically screened. The appellant was arrested. He too was medically examined. Seized articles namely the clothes of both, the appellant and the victim were sent to Forensic Science Laboratory for analysis and report. Statements of persons acquainted with the facts and circumstances of the case were recorded. On completion of the investigation, the appellant and his friend were proceeded against by filing the charge sheet.

4. The learned Judge (Trial Court) framed the charge (Exh.35). The defence of the appellant was of false implication. The prosecution, in support of its case, examined 7 witnesses and produced in evidence certain documents. On appreciation of the evidence in the case, the trial Court acquitted the friend of the appellant in toto. The appellant was acquitted of the charge punishable under Ss. 363 and 344 of the Indian Penal Code. He was however, convicted for the offence punishable under Sec. 376(2)(i) of the Indian Penal Code and under Sec. 6 of the Protection of Children from Sexual Offences Act and sentenced as stated above. The State has not preferred appeal against his acquittal.

5. The learned counsel for the appellant would submit that, it may be a case of consensual relationship. The prosecution miserably failed to prove the victim to have been a child when the alleged offence did take place. According to him, neither the birth certificate nor entry of the victim's date of birth recorded in the birth register maintained by the local authority was tendered in evidence. The school record indicating the date of birth of the victim although relevant, cannot be relied upon to definitely fix age of the victim. He would further submit that, the medical screening report of the victim indicates she was not subjected to sexual assault. According to learned counsel, the appellant, at the