The importance of conclusive evidence in cases involving the age of the prosecutrix and the consideration of the prosecutrix's conduct in determining consent.

1. This appeal has been preferred against the judgment and order dated 01.05.1998 passed by Additional Sessions Judge, Baikunthpur District Sarguja in Sessions Trial No. 348/1997 convicting the accused/appellant under Section 363 IPC and sentencing him to undergo RI for three years and pay fine of Rs. 1000/-, in default of payment of fine to further undergo RI for one year.

2. Case of the prosecution in brief is that on 20.10.1997 written report - Ex. P-1 was lodged by Chonhus Ekka (PW-2) - father of the prosecutrix (PW1) alleging that on 7.10.1997 his daughter (prosecutrix) had left her house without informing anyone and on enquiry being made it was revealed that accused/appellant who lived in the same village was also missing. During search, on 20.10.1997 the prosecutrix returned home and on being asked she informed that as her marriage was fixed in village Khala against her wishes, she eloped with the accused/appellant and stayed in the house of one Aman. It is further alleged that prosecutrix informed his father that she was in love with the accused/ appellant but he did not make any physical relations with her. Based on this written report, FIR Ex. P-2 was registered against the accused/appellant for the offences punishable under Sections 363 and 366 IPC. After completion of investigation, charge sheet was filed by the police on 10.11.1997 under the same sections. Court below, thereafter also framed the charge for the offences as mentioned in the FIR and the charge sheet.

3. In support of its case, prosecution has examined 09 witnesses. Statement of the accused/appellant was also recorded under Section 313 of the Code of Criminal Procedure in. which he denied the charges levelled against him and pleaded his innocence and false implication in the case.

4. After hearing the parties, the Court below acquitted the accused/appellant of the charge under Section 366 IPC but convicted and sentenced him as mentioned in paragraph No.1 of this judgment.

5. Counsel for the accused/appellant submits that even if the entire case of the prosecution is taken as it is, accused/appellant cannot be convicted under Section 363 IPC because there is no legally admissible evidence in respect of the age of the prosecutrix. He further submits that the prosecutrix herself has admitted that she was in love with the accused/appellant and she accompanied him at her own. All this, according to the counsel for the accused/appellant, shows that the prosecutrix was a consenting party and therefore, conviction of the accused/appellant under Section 363 IPC is not sustainable in the eye of law.

6. On the other hand counsel for the respondent/State supports the judgment impugned.

7. Prosecutrix (PW -1) has stated that she knew the accused/appellant who happened to be her brother. According to her, accused/appellant took her to Chirmiri on the assurance of marriage and kept in the house of his maternal aunt. Accused/appellant is also stated to have threatened to kill her in case she declined to accompany him. This witness has first stated that she was kept in Chirmiri for about 3-4 months and then has stated that she was kept there for two months. She has stated that when the report was lodged by her parents, accused/appellant had brought her to police station Baikunthpur and that after returning home she informed her mother and father that accused/appellant had allured her away. According to her, at the relevant time she was aged about 13 years. This witness has further stated that she was taken to Chirmiri in a jeep and number of persons were sitting in it. In cross-examination she has stated that during her stay at Chirmri, one day the appellant had physical relations with her but this fact was not disclosed to her parents. On being confronted with her case diary statement Ex. D-1, this witness has stated that she did not make any statement that the appellant did not have physical relations with her. Chonhus Ekka (PW-2) - father of the prosecutrix has