JUDGMENT :

Ramesh Sinha, J.

1. This criminal appeal under Section 374(2) of the CrPC is directed against the judgment dated 15.11.2022 passed by the Additional Sessions Judge (FTC), South Bastar Dantewada in Special Sessions (POCSO) Case No.37/2018, whereby the learned Additional Sessions Judge has convicted the appellant for offences punishable under Sections 363, 366A and 376(3) of the Indian Penal Code (hereinafter called as ‘IPC’) and Section 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter called as ‘POCSO’) and sentenced to undergo RI for three years and fine of Rs.500/-, in default of payment of fine to further undergo RI for one year, RI for three years and fine of Rs.500/-, in default of payment of fine to further undergo RI for one year and RI for twenty years and fine of Rs.1000/-, in default of payment of fine to further undergo RI for one year. The trial Court has not awarded separate sentence to the appellant under Section 6 of the POCSO Act.

2. Case of the prosecution, in brief, is that on 24.09.2018 at about 10 o’clock, the accused committed the offence of inducing the minor prosecutrix out of the lawful guardianship without her parents consent and repeatedly engaged in physical relationship with her and committed aggravated penetrative sexual assault with her over 5 days on the pretext of marriage. Mother of the prosecutrix/victim (PW-4) has lodged written complaint before the Police Station Gadiras. On the basis of written report, the police of police station Gadiras registered the FIR in Crime No.14/2018 for offences under Sections 363, 366 and 376 of the IPC and Sections 4 & 6 of the POCSO Act vide Ex.P-8 against the accused-appellant. Statement of the prosecutrix was recorded under Section 164 CrPC vide Ex.P-2. The appellant was arrested vide arrest memo Ex.P-12. The prosecutrix was sent for medical examination vide Ex.P-14. Medico legal examination report of sexual violence was given by the doctor vide Ex.P-22. Her clothes and vaginal slides were sent for chemical examination and FSL report is Ex.P-20. Thereafter, charge-sheet was filed for the aforesaid offences against the appellant/accused.

3. In order to bring home the above-stated offences, the prosecution examined as many as 10 witnesses including the prosecutrix (PW-1). Statement of the accused/appellant was recorded under Section 313 of the CrPC, in which he denied his guilt and has taken the stand that he has been falsely implicated in this case. However, the accused examined none in his defence.

4. The trial Court after appreciating oral and documentary evidence available on record, by its judgment dated 15.11.2022, convicted the appellant herein for offences under Sections 363, 366A and 376 (3) of the IPC and Section 6 of the POCSO Act and sentenced him as aforementioned.

5. Ms.Anusha Naik, learned counsel for the appellant would submit that as per Dakhil Kharij register, age of the prosecutrix was 15 years 07 months and 14 days on the date of commission of offence, but no authentic documentary proof was adduced in order to show that the prosecutrix was a minor girl on the date of the incident. She would further submit that the prosecutrix was a consenting party and she had established physical relationship with the appellant on her own will. The trial Court has committed grave legal error in convicting the appellant herein for offences under Sections 363, 366A and 376 of the IPC and Section 6 of the POCSO Act as the prosexutrix (PW-1) and her mother (PW-4) have turned hostile and they have not supported the case of the prosecution. She would also submit that it is the case of elopement and not of taking away, enticing or abduction and as per the FSL report of the prosecutrix (Ex.P-20), no human sperm was found on the vaginal swab and clothes of the prosecutrix. There are material contradictions and omissions in the statements of the prosecution witnesses and on that basis, the appellant cannot be convicted. As such, the im