IMPORTANT POINT
The prosecution must conclusively establish the victim's age under the POCSO Act, and inconsistencies in the victim's testimony can undermine the case against the accused, warranting acquittal.

JUDGMENT :

(Chakradhari Sharan Singh, J.) :

This appeal has been preferred by the sole appellant under Section 374(2) of the Code of Criminal Procedure, 1973 (CrPC for short), putting to challenge a judgment of conviction dated 14.12.2022 and the order of sentence dated 22.02.2022, passed by the learned VIth Additional Sessions Judge Cum Special Judge (POCSO), Madhepura, in POCSO Case No. 21/2018/C.I.S. No. -21/18 of Madhepura P.S. Case No. 297 of 2018 whereby the appellant has been convicted and sentenced as under:

2. All the sentences have been ordered to run concurrently.

3. We are not disclosing the names of the victim and her near relatives who have deposed at the trial, so as to protect the victim’s identity. The victim’s father (PW-4) is the informant whose written report addressed to the Officer-in-Charge of Madhepura Police Station dated 10.05.2018 is the basis for registration of the concerned Madhepura P.S. Case No. 297 of 2018, for an occurrence which had taken place on 05.05.2018. It was alleged in the FIR that the informant’s daughter, aged nearly 13 years, was student of Class VIII and on the date of occurrence she had left for coaching centre at about 01:00 PM. She, however, did not return after the coaching hours and on enquiry from the teachers of the coaching centre, the informant learnt that she had left the coaching centre long back for her house. Despite a thorough search, the victim could not be found. On 10.05.2018, he learnt that Suresh Paswan, his son Chhotu Kumar, Naresh Paswan, his son Raushan Kumar (the appellant), Ashok Yadav and his son Manish Kumar under a conspiracy had kidnapped the victim. Thus, altogether six persons were named in the FIR including this appellant by the informant based on suspicion.

4. It transpires from the materials on record that according to the prosecution’s case, the Investigating Officer received an information on 26.06.2018 about the presence of the victim somewhere near Civil Court, Madhepura. He proceeded for the Civil Court and recovered the victim. On 26.06.2018 itself, the victim was subjected to medical examination. A Medical Board was constituted and based on the radiological examination, the victim’s age was found to be between 14-16 years. The doctor did not find any bruise or abrasion on any part of the body of the victim including her private parts. On internal examination, no internal injury was found, though the features of sexual intercourse were found to be present. Spermatozoa was not found in the vaginal swab test. The victim’s statement was recorded under Section 164 of the Cr.P.C. before a Magistrate on 28.06.2018 (Ext. 1). The statement of victim under Section 164 of the Cr.P.C. is significant in the present case which is the first version of the victim about the occurrence. She stated that when she was on her way to the coaching centre on 05.05.2018, the appellant made the victim elope with him to Delhi where he forcibly performed marriage with her. The appellant would make her consume intoxicants. She all through remained unconscious. She had not gone with the appellant out of her on volition and that he had kidnapped her. The statement of the victim under Section 164 of the CrPC does not disclose any sexual act committed by the appellant on her. She did not allege any act of rape against the appellant. She alleged that the appellant had kidnapped her and married her against her willingness. The statement of the victim under Section 164 of the CrPC needs to be read with the FIR in the present facts and circumstances. If what is alleged in the FIR is to be considered, the victim,