IMPORTANT POINT
The prosecution bears the burden of proving the victim's age in cases involving the POCSO Act, and failure to do so undermines the validity of charges related to sexual offences against minors.

JUDGMENT/ORDER

VINAY JOSHI, J. - Conviction and sentence for the offence punishable under Ss. 363, 366, 376 of the Indian Penal Code and Sec. 4 of the Protection of Children from Sexual Offences Act (POCSO), led the appellant (convicted accused), to challenge the judgment and order of conviction in Session Trial No.172/2014 dtd. 5/8/2021, by this appeal.

2. The appellant/accused was charged for the aforesaid offences. The prosecution led evidence of 8 witnesses to substantiate the charge. The Trial Court held that the prosecution succeeded in proving the leveled charges and separately punished for each of the offences. The maximum sentence imposed for the offence punishable under Sec. 376 of the Indian Penal Code and Sec. 4 of the POCSO Act is to undergo imprisonment for life along with fine of Rs.1.00 lakh on each count. Besides that the appellant/accused was also convicted for the offence punishable under Ss. 363 and 366 of the Indian Penal Code for which punishment was imposed to undergo imprisonment for 7 and 10 years respectively, with fine of Rs.1.00 lakh each on both count. All the sentences are directed to run concurrently. The maximum sentence imposed by the trial Court is to undergo imprisonment for life along with total fine of Rs.4.00 lakhs, with stipulation of default.

3. The prosecution case in brief is that - the informant Dhanraj was living with his family including his sister [victim], aged 15 years and 6 months. On 6/3/2014, in the evening the victim left away by leaving her house. Family members took search, but, in vain. They have filed report about the missing of victim girl. On the following day, the informant - brother learnt that the neighbouring resident Kailash [accused] also went missing, and therefore, he lodged a report [Exh.54] with the police. On the basis of said report, the police have registered the offence of kidnapping, and inducing a women to compel for illicit intercourse.

4. P.W.5 - API Thakre was entrusted with the investigation. On 22/3/2014, wife of the accused lodged missing report [Exh.62], stating that her husband also went missing. On secret information, the police took both the victim and accused in custody on 23/5/2014. Statement of the victim was recorded. Since there were allegations of sexual intercourse, provisions of Sec. 376 of the Indian Penal Code and the victim being minor, provisions of POCSO Act have also been invoked. During the course of investigation, the victim got medically examined. Documents relating to date of birth of victim were collected. Clothes of the victim were seized. Necessary samples were taken and sent for chemical analization. Panchnama of the scene of offence was drawn. After completion of the investigation, final report has been filed. The trial Court has framed charges to which the accused disowned the guilt. On appreciation of the available material, the trial Court held that the prosecution succeeded in proving the leveled charges, and imposed the aforesaid punishment.

5. We have heard the learned Counsel appearing for the appellant, as well as gone through written notes of arguments. We have also heard the learned A.P.P. in resistance. Respondent no.2 though served, has chosen not to appear in the matter.

6. The defence of the accused is of total denial and of false implication. The learned Counsel appearing for the accused would submit that the trial Court has miserably failed in appreciating the evidence. The trial Court has misread the evidence pertaining to the date of birth of the victim girl. It is argued that the victim herself has admitted that no such incident had occurred. Medical evidence does not support the prosecution case. It is submitted that the prosecution failed to establish the minority of the victim, and thus, the judgment and order of conviction is unsustainable in the eyes of law.

7. Per contra, the learned A.P.P. has supported the judgment and order of conviction. It is submitted that the victim girl gave specific evidence abo