The prosecution failed to prove the victim's age and the occurrence of sexual intercourse, leading to the acquittal of the appellant.

JUDGMENT :

(Ashutosh Kumar, J.)

1. Heard Mr. Dhirendra Nath Jha, the learned Advocate for the appellant and Mr. Abhimanyu Sharma, the learned APP for the State.

2. The appellant has been convicted for the offences under Sections 363, 366A of the Indina Penal Code and Section 4 of the POCSO Act, 2012 by judgment dated 16.09.2019 passed by the learned Additional District & Sessions Judge, -I-cum-Special Judge, (POCSO), Bhagalpur in G.R. Case No. 1566/17 arising out of Sanhaula P.S. Case No. 55/2017. By order dated 26.09.2019, the appellant has been sentenced to undergo RI for four years and to pay a fine of Rs. 10,000/-for the offence under Section 363 IPC; RI for five years and a fine of Rs. 10,000/-for the offence under Section 366-A IPC and RI for 12 years and to pay a fine of Rs. 20,000/-for the offence under Section 4 of the POCSO Act. All the sentences were ordered to run concurrently.

3. The victim, a girl of less than eighteen years and as claimed by her mother to be fifteen years, is said to have been abducted by the appellant who was her tutor for sometime. She came back within two days and appears to have made a statement before the Superintendent of Police, Bhagalpur, who sent her to the concerned police station for the needful. However, the case was lodged by her mother (PW3) on 07.05.2017 i.e. after a day of the victim not being found in her house. She has alleged in the F.I.R. (Sanhaula P.S. Case No. 55/17) that the appellant, who is her neighbour, has abducted her fifteen years old daughter for the purposes of marrying her. In this act, the parents of the appellant have also participated and helped him.

4. On the basis of aforenoted written report dated 07.05.2014, the subject F.I.R. was registered for investigation for the offences under Sections 363, 366(A) and 20 (B) of the Indian Penal Code and Section 4 of the POCSO Act, 2012.

5. It appears that police during the investigation did not find the accusation against the other family members of the appellant to be true and so only chargesheeted him, whereupon he was tried.

6. The learned Trial Court, after having examined seven witnesses on behalf of the prosecution including the Doctor and the Investigating Officer, convicted and sentenced the appellant as aforesaid.

7. Before analyzing the case and finding out whether the victim had made a correct statement before the Trial Court, we have first gone through the exhibits brought on record on behalf of the prosecution.

8. One of the exhibits i.e. Exhibit -3 appears to be the self statement of the victim, said to have been written on 10.05.2017. It is addressed to no one in particular. It only says that the appellant lured her to come out of her house and go with him on 06.05.2017. She was brought to Patna and kept in a lodge. Later, the appellant left her at Bhagalpur Railway Station. During the period at Patna, she was subjected to sexual intercourse. After bringing her to Bhagalpur Railway Station, the appellant fled away. She could anyhow contact S.P’s Office and reach there. She narrated about the occurrence to the S.P. who sent her to Sanhaula Police Station. The parents of the appellant, according to her, had no hand in the aforenoted kidnapping.

9. The victim also made her statement under Section 164 Cr.P.C. on 12.05.2017 in which though she has cast allegation against the appellant of having lured and taken her to Patna but has not spoken a word about her being subjected to sexual intercourse. She repeated before the learned Magistrate that on 09.05.2017, she went to the office of the S.P., who sent her to Sanhaula Police Station. She also repeated that she had not run away from the house of her own volition but on the appellant having brainwashed her in leaving her parental home.

10. The victim was subjected to medical examination on 11.05.2017 by Doctor Priyanka Rani (PW6). The victim was brought before her by a Mahila Constable. The doctor did not find any evidence of physical or chemical injury on any