JUDGMENT

Bibek Chaudhuri, J. - The instant appeal is directed against judgment and order of conviction and sentence dated 6th September, 2019 and 7th September, 2019 respectively passed by the Learned Additional Sessions Judge, Khatra in the district of Bankura in Special Case No. 6/2018 convicting the appellant for committing offence under Section 376 of the Indian Penal Code as well as Section 4 of POCSO Act, 2012. The appellant was further convicted for committing offence under Section 417 of the Indian Penal Code. For the offence under Section 376 of the Indian Penal Code as well as Section 4 of the POCSO Act, the Learned Trial Judge handed down sentence to the appellant for rigorous imprisonment for seven years with fine of Rs.50,000/-, in default, to suffer further imprisonment for three months. For the offence under Section 417 of the Indian Penal Code the appellant was sentenced to suffer rigorous imprisonment for one year with fine of Rs.10,000/-, in default, simple imprisonment for one month. The aforesaid judgment and order of conviction and sentence is assailed in the instant appeal.

2. Vide order dated 13th April, 2022 this Court dispensed with the formality the preparation of paper book and proposed to hear out the instant appeal on the basis the materials in lower Court record. Indpur Police Station Case No. 18/2018 was registered on 7th March, 2018 under Sections 376/417 of the Indian Penal Code and Section 4 of the POCSO Act on the basis of a written complaint submitted by one Bharati Bauri. It is alleged in the said written complaint that the daughter of the de facto complainant who was at the relevant point of time aged about 16 years had love affair with the appellant. The appellant cohabited with the said daughter of the de facto complainant for last one year on false assurance of marriage. On 4th March, 2018, the de facto complainant came to know that the appellant was making arrangement to marry another girl. After getting such news the de facto complainant and her daughter asked the appellant as to why he did not want to marry the daughter of the de facto complainant. At this, the appellant straightway refused to marry her. It is also alleged that on 4th March, 2018 the appellant called the daughter of the de facto complainant stating that he would marry her.

3. Police took up the case for investigation and on completion of investigation submitted charge-sheet under the above stated penal provisions against the appellant. Since the offence under the POCSO Act is triable by the Learned Special Judge, the case was transferred to the Court of the Learned Special Judge at Khatra for trial and disposal. The Learned Trial Judge framed charge against the accused, examined as many as 12 witnesses on behalf of the prosecution, examined the accused under Section 313 of the Code of Criminal Procedure and finally delivered the impugned judgment and passed the order of conviction and sentence.

4. The Learned Advocate for the appellant has assailed the judgment passed by the Trial Court on the ground that the prosecution has failed to prove that the victim girl was a minor. In the absence of such proof with all reasonable certainty, an accused cannot be held guilty under any provision of the POCSO Act, 2012. It is further submitted by the learned advocate for the appellant that even if the evidence of the witnesses on behalf of the prosecution is accepted, it would be found that at the relevant point of time the victim was aged about 16 years and six months. It is the case of the prosecution that there was a love affair between the appellant and the victim. As a result of such love affair they cohabited. Thus, the victim was a consenting party as she had reached the age of discretion, knew the effect of such physical relationship with the accused, charge under Section 376/417 of the Indian Penal Code would not lie.

5. Thirdly, it is submitted by the learned advocate for the appellant that prosecution has failed to establi