The consent of a minor girl in case of sexual intercourse is immaterial and amounts to rape.

JUDGMENT :

Ramesh Sinha, J.

1. The appellant has preferred this appeal under Section 374(2) of the Code of Criminal Procedure, 1973 (for short, the Cr.P.C.) questioning the judgment dated 26.05.2021 passed by the Additional Sessions Judge/First F.T.C.S. (POCSO) Bilaspur, District Bilaspur, in Special Sessions Case No. 82/2019 whereby the appellant has been convicted and sentenced as under:

2. Case of the prosecution, in short, is that the appellant kidnapped the victim aged about 15 years and repeatedly raped her and committed penetrative sexual assault on her.

3. The first information report (for short, the FIR), (Exhibit P/2) was lodged by the Bihari Banjare (PW-2) father of the victim at Police Station, Torwa, District Bilaspur, on 07.05.2019 at 21:30 hours, which was registered as Crime No. 0155/2019 for the offences under Section 363 and 366 of the IPC. The said FIR was registered by Amrit Sahu, Assistant Sub Inspector (PW-16).

4. In the FIR, it was alleged by the complainant-Bihari Banjare (PW-2) that his daughter (victim) who was aged about 15 years and had left her studies since last year, had gone somewhere on 04.05.2019 before 5 a.m. When he enquired about his daughter, it was revealed at Lalkhadan that the appellant/accused, who was working at Pradeep Hotel had lured his daughter and taken her alongwith him. From that date, the accused/appellant was also not coming for work at Pradeep Hotel.

5. The victim was recovered on 19.05.2019 at 13:30 hours by the Head Constable, Sunita Ajgalle (PW-14) from the custody of the appellant/accused from a hut like house near an under-constructed building situated at Dev Nagar, 67, Nagpur, Maharashtra, in presence of Leeladhar Hedau (PW-6) and one Shekhar Tukaram Satpute , and accordingly, a Baramadgi Panchnama (Exhibit P/10) was also prepared.

6. The accused/convict was arrested on 21.05.2019 at 11:30 a.m. by the police of Police Station, Torwa.

7. After investigating the matter, the police submitted the police report alongwith charge-sheet against the appellant/convict under section 363, 366 and 376 of IPC before the learned Additional Sessions Judge (FTC) Bilaspur, on 18.07.2019.

8. The learned Additional Sessions Judge framed charge on 25.07.2019 charging the appellant/accused for the offence punishable under Sections 363, 366, 376 of the IPC and Section 6 of the Protection of Children from Sexual Offences Act, 2012. The accused/convict abjured the guilt and prayed for trial.

9. Amongst others, the prosecution has exhibited the following documents in support of its case:

Statement of victim (Exhibit P/1)

First Information Report (Exhibit P/2)

Crime details form (Exhibit P/3)

Property seizure memo (Exhibit P/4)

Consent letter (Exhibit P/5)

Memo regarding providing of Dakhil Kharij Register (Exhibit P/6)

Property seizure memo (Exhibit P/7)

Copy of admission and discharge register (Exhibit P/8C)

Baramadgi Panchnama (Exhibit P/10)

Memo to T.I. regarding recording statement of victim under Section 161 Cr.P.C. (Exhibit P/11)

Statement of Pradeep Paswan (Exhibit P/12)

Memo regarding providing of CDR of mobile No. 6263207973 and 6067702878(Exhibit P/13)

Call details (Exhibit P/14)

Certificate under Section 65B of the Evidence Act (Exhibit P/15)

Application for medical examination of victim and medical examination report (Exhibit P/16A and P/16)

Property seizure memo (Exhibit P/17)

Consent letter (Exhibit P/18 and P/19)

Notice under Section 160 of Cr.P.C. (Exhibit P/20)

Application for medical examination of accused and medical examination report (Exhibit