JUDGMENT :

Goutam Bhaduri, J.

1. This criminal appeal is filed under Section 374 (2) of the Code of Criminal Procedure, 1973 by the appellant against the impugned judgment of conviction and order of sentence dated 02.08.2021 passed in Special Sessions Trial No.08/2019, by the Additional Sessions Judge, Fast Track Court, Surajpur, District Surajpur(C.G.), whereby the appellant has been convicted for the offence punishable under Sections 363, 366 of the Indian Penal Code, 1860 (for short ‘the IPC’) and under Section 6 of POCSO Act and sentenced to undergo R.I. for 7 years with fine of Rs.500/-, R.I. for 7 years with fine of Rs.500/- & R.I. for 20 years with fine of Rs.500/-, respectively plus usual default stipulations.

2. The brief facts of this case are that a report was made by the complainant, the father of the victim on 11.01.2019 that his daughter is found missing since 02.01.2019 and after the inquiry, she could not be found and apprehension was made that by allurement, the appellant/accused took away the minor girl from the lawful custody of the parents and on the pretext of marriage, he committed sexual intercourse, therefore, the offence under Section 363, 366, 376 (2) of I.P.C. and Section 6 of Protection of Children from Sexual Offences Act, 2012 was registered.

3. After the investigation, the police filed the charge-sheet and during the course of trial, the appellant/accused has abjured the guilt and claimed to be tried. The prosecution on its behalf had examined as many as 11 witnesses and and the trial Court by holding that the prosecutrix was below the age of 16 years and was subjected to sexual assault by the appellant convicted and sentenced the appellant as aforesaid. Hence this appeal.

4. Ms. Payal Jail, learned counsel for the appellant would submit that the prosecution has failed to prove the age of the victim to be a minor. She would further submit that no authentic evidence was placed by the prosecution before the trial Court to show that the prosecutrix was minor on the date of alleged incident. It is further submitted only on the basis of school admission register (Dakhil Kharij) which is proved by PW-1, the Headmaster, the presumption was drawn, but PW-1 was not the author of the said document and the statement of the father PW-5 would show that the said entry was made on the basis of certain Aanganbadi Certificate but that has not been proved by the prosecution. She would further submit that the statement of the mother PW-6 is ambiguous to show that the age of her daughter to be 15 to 16 years. As such looking into that factor read with the statement of Doctor (PW-7), the benefit of doubt of age of 2 years to be given to the accused/appellant. She would further submit that the documents would go to show that the recovery (Baramadgi) Panchnama Ex.P-3 was drawn in the police station and the statement of prosecutrix under Section 164 CrPC also does not attribute any sexual over act to the Appellant. She would submit that under the circumstances, the facts would suggest that the prosecutrix was forced to leave the house by her family members by abusing and despising her. Consequently in absence of any proved fact that she was in the company of the appellant, the conviction cannot be sustained.

5. Per contra, learned State counsel would submit that the prosecution was able to prove the age of the prosecutrix on the basis of Dakhil Kharij Register, which has not been rebutted in evidence by the accused and the FSL report also affirms the fact about the presence of spermatozoa on the slides, consequently the statement of the prosecutrix along with the FSL report would show that she was subjected to sexual assault by the appellant against her will, therefore, the conviction and sentence is well merited, which do not call for any interference.

6. We have heard, learned counsel for the parties and have also minutely perused the entire record.

7. First of all, the question which arises for consideration is that whether