JUDGMENT :

Parth Prateem Sahu, J.

1. Appellant by this appeal would assail judgment dated 20.06.2002 passed in Sessions Trial-116 of 2001 passed by Additional Sessions Judge, Sakti, District-Bilaspur, whereby appellant was convicted under Sections 363, 366 and 376(1) of the IPC and awarded sentences as mentioned below :

2. Facts relevant for disposal of this appeal are that father of prosecutrix lodged report before concerned Police Station on 20.11.2000 stating therein that his daughter went away from house on 17.11.2000 at about 4 pm intimating her family members that she is going out to answer nature's call. She did not return back, she was searched at nearby places. During search, it revealed that prosecutrix went along with appellant on his bicycle few days back. Based on information gathered, report was lodged against appellant Premchand. Police registered crime for offences defined under Sections 363 and 366 of the IPC initially. After few days, prosecutrix returned back to her house, her statement was recorded and after conclusion of investigation, Police submitted charge-sheet before the Court of Jurisdictional Magistrate on 29.01.2001 against appellant for offences defined under Sections 363, 366 and 376 of the IPC. Trial Court framed charges under all three Sections.

3. During the course of trial, Police/prosecution proved as many as 40 documents i.e. from Ex. P1 to Ex. P40 through 13 witnesses. Prosecutrix was examined as PW1, Samaru Ram-Grandfather of prosecutrix as PW2, Sukhi Das as PW3, father of prosecutrix as PW4, Genduram-Assistant Teacher of Primary School, Amgaon, District-Janjgir-Champa as PW5, Bajranglal as PW6, Mother of prosecutrix as PW7, Kanhayyalal Sahu, Sarpanch, Amgaon as PW8, Shergir as PW9, Bhagwat Prasad as PW10, Dr Kum. Saroj Kashyap as PW11, who examined prosecutrix, Dr KM Uraon, who examined appellant as PW12, Investigating Officer as PW-13, to prove the case of prosecution. Appellant's statement under Section 313 of CrPC was recorded. Statement of prosecutrix, her grandfather and father recorded under Section 161 of CrPC are placed on record as Ex. D1, D2 and D3 respectively.

4. On appreciation of evidence, learned Sessions Judge arrived at a conclusion that on the date of incident prosecutrix was below 16 years of age and appellant committed rape upon her, passed impugned judgment of conviction, convicting the appellant and sentencing him for the period as mentioned in preceding paragraphs.

5. Shri Rajesh Jain, learned counsel for the appellant would submit that there was love affair between appellant and prosecutrix. From evidence available on record, it is clearly appearing that prosecutrix on her own will went out of her house and thereafter, travelled to different places through public conveyance, went to Delhi. They resided there for some time and thereafter, they returned back. In evidence, it has also come that both of them performed marriage in temple. When prosecutrix herself is a consenting party, went away from her house with her own will and also performed marriage in temple, alleged offence under Sections 363, 366 and 376 of IPC would not be made out against appellant. He also submits that on the date of incident prosecutrix was above 16 years of age. Prosecution failed to prove by cogent and reliable piece of evidence that on the first date of incident prosecutrix was below 16 years of age. Hence, in view of provisions of Section 375 of the IPC, prosecution failed to pr