IMPORTANT POINTS
(1) Mere recovery of a child from some other person ipso facto does not to prove offence under Section 363, IPC – Prosecution has to prove that accused either took or enticed minor out of keeping of lawful guardian.
(2) Determination of age – Ossification Test cannot be sole criterion for age determination and a mechanical view regarding age of a person cannot be adopted solely on the basis of medical opinion by radiological examination.

JUDGMENT

Ravindra Maithani, J.—Instant appeal is preferred against the judgment and order dated 06.04.2016, passed in Special Sessions Trial no. 21 of 2014, State Vs. Sundeep by the Court of District and Sessions Judge, Pauri Garhwal. By the impugned judgment and order, the appellant has been convicted under Sections 363, 376, 506 IPC and Section 5(l)/6 of the Protection of Children from Sexual Offences Act, 2012 (for short, “the Act”) and sentenced as hereunder:—

(i) Under Section 363 IPC, rigorous imprisonment for a period of three years with a fine of Rs.3000/-. In default of payment of fine, to undergo simple imprisonment for a further period of three months.

(ii) Under Section 376 IPC, rigorous imprisonment for a period of ten years with a fine of Rs.5,000/- In default of payment of fine, to undergo simple imprisonment for a further period of six months.

(iii) Under Section 506 IPC, rigorous imprisonment for a period of one year with a fine of Rs. 1000/- In default of payment of fine, to undergo simple imprisonment for a further period of one month.

(iv) Under Section 5(l)/6 of the Act, rigorous imprisonment for a period of ten years with a fine of Rs.5,000/- In default of payment of fine, to undergo simple imprisonment for a further period of six months.

2. Prosecution case, briefly stated is as follows:

The victim girl of 17 years of age left her house at 10:30 in the morning on 14.06.2014. A search was made, but she could not be traced. The father of the victim, who is PW2 lodged an FIR on the same day at 1:25 PM at Police Station Kotdwar. Based on which, Case Crime No. 101 of 2014, under Section 363 IPC was lodged against unknown person. On 30.09.2014, when the victim was spotted with the appellant at the Railway Station, Kotdwar, she was taken by her father PW2 with him. The appellant managed to run away. The statement of the victim was recorded under Section 164 of the Code of Criminal Procedure, 1973 (for short, “the Code”). She was medically examined on 01.10.2014 at the Government Combined Hospital, Kotdwar. The Investigating Officer (“IO”) prepared the site plan and after investigation, submitted charge sheet against the appellant, under Section 366 and 376, 506 IPC and Section 5/6 of the Act. On 24.11.2014, charge under Sections 363, 376, 506 IPC and Section 5 (l)/6 of the Act were framed, to which, the accused pleaded not guilty and claimed trial.

3. In order to prove the case, the prosecution examined as many as five witnesses, namely, PW1. the victim, PW2 father of the victim, PW3 Dr. Sangeeta Negi, PW4 Sub Inspector, Manoj Kumar and PW5 Uma Dabral.

4. The appellant was examined under Section 313 of the Code. According to him, he is innocent and he has been falsely implicated and the witnesses have falsely deposed against him.

5. By the impugned judgment and order, the appellant has been convicted and sentenced as stated hereinbefore. Aggrieved by it, the appellant has preferred the instant appeal.

6. Heard learned counsel for the parties and perused the record.

7. Learned counsel for the appellant would submit that the prosecution has failed to prove the case against the appellant. The appellant ought to have been acquitted of the charge. But, the court below committed an error in convicting and sentencing the appellant. Learned counsel for the appellant would submit the following points in his submission:—

(i) There are contradictions in the statement of the victim. In her statement recorded under Section 164 of the Code, she has stated that she was persuaded by the appellant to accompany him, while she was returning from the shop. Whereas, in the court, she has stated that she was taken forcibly from her house by the appellant.

(ii) In her statement under Section 164 of the Code, the victim has stated that the appellant took her in his maternal aunt’s house and locked her. It is argued that if the victim was in the house of the aunt of the appellant, there is no question of locking her inside