IMPORTANT POINT
Victim of rape being minor, her consent has no significance.

JUDGMENT

Ravindra Maithani, J.—The instant appeal has been preferred against the judgment and order dated 05.04.2019, passed by the Special Judge, POCSO/Sessions Court, Tehri Garhwal, District Tehri Garhwal, in Special Sessions Trial No.18 of 2018, State of Uttarakhand Vs. Ishwari Rana (“the case”). By the impugned judgment and order, the appellant has been convicted under Sections 363, 366 and 376(2)(n) IPC and Section 5(l)read with Section 6 of the Protection of Children from Sexual Offences Act, 2012 (“the Act”). The appellant has been convicted and sentenced as hereunder:—

(a) Under Section 363 IPC, three years’ rigorous imprisonment with a fine of Rs. 5,000/-. In default of payment of fine, further simple imprisonment for a period of three months.

(b) Under Section 366 IPC, three years’ rigorous imprisonment with a fine of Rs. 5,000/-. In default of payment of fine, further simple imprisonment for a period of three months.

(c) Under Section 376(2)(n) IPC, ten years’ rigorous imprisonment with a fine of Rs. 10,000/-. In default of payment of fine, further simple imprisonment for a period of six months.

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

3. Facts necessary to appreciate the controversy, briefly stated, are as follows: The victim, a young girl of 17 years of age, was staying with her deaf and dumb father in her village. Her mother had already died. On 05.03.2018, at about 8:30 AM, the victim left her house to get medicine from market, but she did not return. She was studying in class XI. A search was made. When she could not be located, an FIR was lodged on 14.03.2018 by her cousin, PW1, Khem Singh, based on which, a chik FIR was recorded and Case Crime No. 11 of 2018 under Sections 363, 366A IPC was lodged at Police Station Ghansali, District- Tehri Garhwal. On 16.06.2018, the victim was recovered from the house of the appellant. On 17.06.2018, the victim was medically examined by PW4, Dr. Beena Singh, at Government Hospital, Baurari. She had no injury on her person. The victim, at the relevant time, told it to the Doctor that she was in relationship with the appellant for the last four years since then. She married the appellant on 05.03.2018 and started staying in a rented accommodation at Dehradun. They established continuous relations thereafter. The appellant did not commit any force upon her. The victim had told to the PW4, Dr. Beena Singh, that she had left her house on her own. During investigation, the Investigating Officer (“IO”) collected blood samples, obtained Forensic Science Laboratory Report and prepared site plans. After completion of investigation, chargesheet under Sections 363, 366, 376 IPC and Section 5(l)/6 of the Act was submitted against the appellant, which is the basis of the case.

4. On 18.09.2018, charges under Sections 363, 366 and 376(2)(n) IPC and Section 5(l) read with Section 6 of the Act were framed against the appellant, to which he denied and claimed trial.

5. In order to prove its case, the prosecution examined 11 witnesses , namely, PW1, Khem Singh, the cousin of the victim, PW2, the victim, PW3, Jai Singh Negi, the Principal of the school, where the victim had studied, PW4, Dr. Beena Singh, who medically examined the victim on 17.06.2018, PW5, Dr. Manisha, who took samples, PW6, Constable Rajkumar Bamola, who lodged the FIR and recorded it in the General Diary, PW7, Constable Narendra, who accompanied the IO when the victim was recovered from the residential accommodation of the appellant on 16.06.2018, PW8, Naresh Thapa, in whose Dhaba, the appellant was working as a cook, PW9, Varun Walia, who was the landlord of the appellant, PW10, Sahab Singh, the brother of the victim, and PW11, Vijay Kumar, the IO.

6. The appellant was examined under Section 313 of the Code of Criminal Procedure, 1973 (“the Code”). The appellant denied every allegation. He denied that he ever kidnapped the victim. He also denied that the victim was recovered from his custody. A