IMPORTANT POINT
The court established that in cases involving minors, the prosecution must clearly prove the age of the victim and the absence of consent, and any ambiguity in these areas can lead to acquittal.

JUDGMENT :

Ashutosh Kumar, J.

1. We have heard Mr. Manendra Kumar Sinha, learned Advocate for the appellant and Mr. Abhimanyu Sharma, learned APP for the State.

2. The appellant has been convicted under Sections 366A and 376(2) of the Indian Penal Code and under Sections 4 and 6 of the Protection of Children from Sexual Offences Act, 2012, vide judgment dated 28.01.2022, passed in POCSO Case No.28 of 2020 (C.I.S. No. 28 of 2020) arising out of Gopalganj P.S. Case No. 184 of 2020. By order dated 08.02.2022, he has been sentenced to undergo R.I. for seven years, to pay a fine of Rs.10,000/- and in default of payment of fine, to further suffer S.I. for three months for the offence under Section 366A of IPC and to undergo R.I. for twenty years each, to pay a fine of Rs.50,000/- each and in default of payment of fine, to further suffer S.I. for three months each for the offence under Sections 4 and 6 of the POCSO Act, 2012.

3. Since sentence has already been awarded under Sections 4 and 6 of the POCSO Act, 2012, no sentence has been awarded under Section 376 of the IPC.

4. The sentences have been ordered to run concurrently.

5. The age of the appellant at the time of the judgment was assessed to be 20 to 21 years. The appellant is said to have enticed away the victim (P.W. 7) to Kanpur, where she was kept as the wedded wife of the appellant for about two months. She was recovered from the house of the parents of the appellant.

6. The medical examination of the victim reflected her age to be between 15 to 16 years.

7. The father of the victim (P.W. 5) has lodged the FIR on 18.03.2020 alleging that his daughter left his house for reaching his motel on 16.03.2020, but neither did she reach the motel nor returned home. Later, in night, the informant (P.W. 5) learnt from his wife (P.W. 1) that the appellant had been stalking the victim regularly. The informant (P.W. 5), therefore, suspected that in all probability, the appellant might have kidnapped the victim.

8. On the basis of the aforenoted written report of P.W. 5, Gopalganj Town P.S. Case No. 184 of 2020 dated 18.03.2020 was registered for investigation for the offences under Sections 363, 366A/34 of IPC.

9. It appears from the records that the appellant was arrested and the victim was recovered from his house on 14.05.2020. The victim had given her statement under Section 164 of the Cr.P.C., after her recovery, before the learned Magistrate in which she has alleged that she was taken away by the appellant on 16.03.2020 to a bus-stand, from where both of them went to Fatehpur, a locality at Kanpur. She was made to stay in a rented accommodation as the wife of the appellant. During her stay at Kanpur, she was subjected to sexual intercourse. When the parents of the appellant contacted him, the appellant grew nervous and brought her to his parent’s house. Later, this case was lodged. In that Statement, she has disclosed her aged to be 15 years.

10. However, during the Trial, the victim (P.W. 7) had a different story to narrate.

11. Before the Trial Court, she declared that at the time of occurrence, she was only 14 years of age. She had come out of her house and had gone to Kanpur alone. She had met the appellant at Kanpur who brought her to Gopalganj. She has categorically stated before the Trial Court that the appellant did not commit any wrong act with her. In fact, she did not even know the appellant from before and had met him for the first time at Kanpur railway station. On being questioned, she further stated that the case was lodged by her father but she is not aware whether the allegations are correct. She admitted of having given her statement before a female Police Officer and also before the Magistrate and that in the medical examination, she was found to be pregnant, bearing a pregnancy of 13 weeks, but she got aborted when she had consumed medicines for fever. When she was further questioned as to how did she conceive, she turned a volte-face again and said that because of the sex