JUDGMENT :

Goutam Bhaduri, J.

1. The instant appeal under Section 374(2) of the Code of Criminal Procedure, 1973 (for short ‘Cr.P.C.’) is preferred against the judgment of conviction and order of sentence dated 13.12.2019 passed by the Special Judge (Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, Korba, Chhattisgarh in Special Criminal Case No.39 of 2017, wherein the appellant has been convicted under Sections 363, 366 of the Indian Penal Code, 1860 (for short ‘IPC’) and under Section 4 of the Protection of Children from Sexual Offences Act, 2012 (for short ‘POCSO Act’) and sentenced as under :-

2. The case of the prosecution was that, a complaint was made by Shaniro Bai (PW-8), mother of the victim that the accused/ appellant took her daughter to forest and committed sexual intercourse with her daughter. On the primary investigation, prosecutrix was found to be a minor. After investigation, it was found that appellant has committed sexual intercourse with the victim, therefore, the offence was registered under Sections 363, 366 of IPC and Section 4 of the POCSO Act and the charge-sheet was filed.

3. During the course of trial, the appellant abjured his guilt and claimed to be tried. The prosecution on its behalf examined as many as 18 witnesses and exhibited 24 documents. After evaluating the evidence and statements, the appellant was convicted for the offences as mentioned aforesaid. Being aggrieved by such order, the accused/appellant filed this appeal.

4. Learned counsel for the appellant/accused would submit that his submission would be two fold. The first would be that the evidence would lead to show that the prosecutrix was above 18 years, therefore, the provisions of POCSO Act would not be attracted. He would further submit that the accused/appellant was falsely implicated, which would be evident from the inconsistent statements of prosecution witnesses, therefore, offences were not proved beyond the reasonable doubt, for which the benefit of doubt should have been given to the accused. He would submit that statement of T.C. Tatiya (PW-18) Investigating Officer and (PW-8), mother of prosecutrix would show that on the date of incident i.e. 07.08.2017, as per Aadhaar Card, which was seized by the Investigating Officer and given by mother, date of birth of prosecutrix was 01.01.1999, therefore, reading it with the radiologist report shows that the age of the prosecutrix was more than 18 years. He placed his reliance in Rajak Mohammad v. State of Himachal Pradesh reported in (2018) 9 SCC 248.

5. Further, in order to demolish the identity and involvement of the appellant/accused, learned counsel would submit that only on hearsay evidence, the appellant was inculpated. Reading the statements of Pratap Singh (PW-1), Dhayad Singh (PW-5), Kaushlya Rathiya (PW-6), Prosecutrix (PW-7) and Shaniro Bai (PW-8) would submit that nobody has seen the accused, taking away the victim with him for the alleged sexual assault. He would further submit that alleged slides though were recovered, but they were not sent for DNA test and with respect to the FSL, the evidence would suggest that it was seized on 08.08.2017, but till one month, it was not sent for FSL and whereabouts of the same during such time