1. This appeal has been preferred against judgment dated 09-10-2014 passed in Special S.T. No.29/2014 by Additional Sessions Judge, FTC, Rajnandgaon, C.G. convicting the appellant under Section 363, 366 376 of the IPC and Section 4 of the POCSO Act and sentencing him with R.I. for 5 years along with fine Rs.500/-, R.I. for 7 years along with fine Rs.500/-, R.I. for 10 years along with fine Rs.1000/- and RI for 7 years along with fine Rs. 500/- respectively, with default stipulations and all the sentences are directed to be run concurrently.

2. The case against the present appellant is this, that the prosecutrix aged about 16 years went missing on 03-04-2014. The FIR and missing report was lodged by Devendra Vaisnav (PW-1), father of the prosecutrix and on that basis offence under Section 363 of the IPC was registered against unknown person. The minor prosecutrix was recovered from the custody of this appellant on 07-04-2014 vide Ex.-P/2. On the basis of the statement given by the prosecutrix and her medical examination report, further offences of rape and offence under the provision of the POCSO Act were also added in the investigation. After completion of the investigation, charge sheet was filed before the concerned Court. The trial Court charged the appellant with offence under Section 363, 366, 376 of the IPC and under Section 4 of the POCSO Act. The appellant denied the charges and prayed for trial.

3. On completion of the evidence for prosecution, the appellant was examined under Section 313 of the Cr.P.C. in which he has denied all the incriminating evidence against him, pleaded innocence and false implication. No witness was examined in defence. On completion of the trial, the impugned judgment was passed in which the appellant has been convicted and sentenced as aforementioned.

4. It is submitted by the counsel for the appellant that a totally erroneous judgment has been passed by the trial Court without appreciating the evidence on record, which shows that the prosecution has not proved its case beyond reasonable doubt. It should have been appreciated that the prosecutrix had willingly left her paternal home and accompanied the appellant as both of them were having affair. While visiting various places the prosecutrix never raised alarm or tried to escape from the custody of the appellant which further shows her consent. The age of the prosecutrix was below 18 years is not proved beyond reasonable doubt by the prosecution. The entry in school register is not a conclusive proof. The medical evidence also does not support the prosecution case that the prosecutrix was raped, as the prosecutrix was a consenting party. Further, according to the statement given by Dr. Kiran Dhandekar (PW-10) while examining the prosecutrix, she was informed that the prosecutrix had her menstrual cycle on 3rd April, 2014 which normally continues for 5 days and the date of recovery, i.e., 7th of April, 2014 is within those 5 days, which shows that the prosecution has come up with an improbable story of commission of the offence of rape in this case. Hence, for these reasons, the appellant was entitled to be acquitted in the case concerned. It is prayed that the appeal may be allowed and the appellant be acquitted of charges.

5. Learned counsel for the applicant placed reliance on the judgments of this Court in the matter of Ashok Kumar Vs. State of C.G., reported in 2016(1) C.G.L.J. 367, which is based on findings of the facts and reliance on the same cannot be applicable in the case. Reliance has also been placed on the judgment of this Court in the matter of Rajkumar & Another Vs. State of C.G., reported in 2016(3) C.G.L.J. 550, which is based on medical report, no opinion was given by the examining doctor, hence, the appellate Court had allowed the appeal on this point; which is again finding of the fact. In this case the same has to be appreciated on the basis of the evidence present in this case. On this point, further reliance ha