Point of Law: Rule 12 is strictly applicable only to determine age of a child in conflict with law.

JUDGMENT :

Deepak Kumar Tiwari, J

1. By this Appeal under Section 374 (2) of the CrPC, the appellant herein calls in question the legality, validity and correctness of the impugned judgment dated 4.5.2016 passed by the Special Judge (POCSO Act, 2012), Kondagaon in Special Sessions Case No.46/2013 whereby the appellant has been convicted and sentenced as under:-

2. Case of the prosecution, in brief, is that on 11.12.2012 around 8 pm when the prosecutrix (PW-5), aged about 14 years, went near the Badi for urination, the appellant pressed her mouth, threatened to kill her and took her forcibly to his uncle’s house and gave her water mixed with some sedative and thereafter committed sexual intercourse. In the next day, during night, she somehow managed to flee and came to her mother’s house and narrated the incident to her mother (PW-4), elder brother (PW-1) and maternal uncle (PW-2). Thereafter the FIR was lodged on 14th December, 2012 at Police Station Kondagaon vide Ex.-P/7 and the reason for delay in lodging the report is mentioned as non-availability of any senior member in the family.

3. During investigation, the spot map (Ex.-P/9) was prepared by the ASI (PW-10) DS Nishad. The prosecutrix was medically examined vide Ex.-P/10 and undergarments of the prosecutrix were also examined vide Ex.-P/11. (PW-8) Smt. Anita Panna, Patwari, has prepared the spot map Ex.-P/12. The accused/appellant in the medical examination was found capable to perform sexual intercourse vide Ex.-P/13. The appellant’s undergarments were also examined vide Ex.-P/14. Statements of the witnesses were recorded. In the FSL report vide Ex.- P/20, on undergarments of the accused/appellant and the prosecutrix as well as vaginal slides ‘A’, ‘B’,’C’, no stain of semen and human sperm was found.

4. After completing the investigation, charge sheet was filed and the case was committed to the Special Judge under the POCSO Act. The appellant abjured his guilt. In his statement recorded under Section 313 of the CrPC, the appellant pleaded false implication.

5. In order to prove its case, the prosecution has examined as many as 10 witnesses and exhibited 20 documents. The appellant has not produced any defence witness and exhibited two documents.

6. After completion of trial and after appreciating the oral and documentary evidence on record, the appellant was convicted and sentenced as mentioned above, against which this Appeal has been preferred by him.

7. Shri Ashok Varma, learned counsel for the appellant would submit that the appellant has been falsely implicated and the trial Court has not appreciated the evidence in proper perspective. The FIR was lodged belatedly after the prosecutrix and her family negotiated with the family of the accused/appellant, and after Panchayat meeting, delayed report was lodged. The age of the prosecutrix is not legally proved by the prosecution and no ossification test was conducted during investigation. From the entire prosecution case itself, it appears that there was some love affair between the accused/appellant and the prosecutrix, as one love letter (Ex.-P/8) was seized from the possession of the prosecutrix (PW-5). Due to quarrel and denial of marriage after the Panchayat meeting, the delayed FIR was lodged. The case of the prosecution is not medically corroborated. Thus, learned counsel prays to allow the Appeal and acquit the appellant.

8. Per contra, learned State Counsel would support the impugned judgment on submission that the trial