The prosecution must prove the victim's age beyond reasonable doubt for a conviction under the POCSO Act, and inconsistencies in evidence can lead to acquittal.

Judgment :

(Rajani Dubey, J.)

1. The present appeal under Section 374(2) of Code of Criminal Procedure has been filed against the the judgment of conviction and order of sentence dated 16.05.2019 passed by Special Judge, POCSO ACT, 2012, Fast Track Court, Kabirdham (C.G.) in Special Sessions Case No. 75/2018 whereby, the trial court has convicted the appellant under Sections 363, 366, 376(3) of IPC and Section 6 of POCSO Act, but keeping in view the provision of Section 42 of POCSO Act, appellant has been sentenced as under:-

2. Facts of the case, in nut shell, are that on 26.07.2018 at about 11:00 am, the prosecutrix left the house to go to school. She did not return home in the evening. When she was searched around, she could not be found. Complainant- Gendalal Gandharva informed about the prosecutrix being missing. On the basis of which, a case was registered at Police Station- Kawardha for the offence under Section 363 of the Indian Penal Code. Spot map was prepared. The age proof of the prosecutrix was collected. The prosecutrix was recovered from the possession of the accused/appellant. Medical examination of the prosecutrix was done. The accused/appellant was arrested and information about the arrest was given to his family. The statements of the witnesses were recorded. The statement of the prosecutrix recorded under Section 164 Cr.P.C. was registered in the Court. After completion of usual investigation, charge-sheet was filed before the learned trial Court against the accused/appellant for the offence punishable under Sections 363, 366, 376 of IPC and Section 4 of POCSO Act. Learned trial Court framed the charges against the appellant under Sections 363, 366, 376(2)(N) of IPC and Section 6 of POCSO Act to which, he abjured his guilt and prayed for trial.

3. So as to hold the accused/appellant guilty, the prosecution has examined as many as 12 witnesses. Statement of the accused/appellant was also recorded under Section 313 of the Cr.P.C. in which he denied the incriminating circumstances appearing against him and pleaded innocence and false implication in the case. However, he did not adduce any evidence in his defence.

4. Learned trial Court upon appreciation of oral and documentary evidence available on record, by its judgment dated 16.05.2019, finding evidence adduced by the prosecution trustworthy, convicted the the appellant under Sections 363, 366, 376(3) of IPC and Section 6 of POCSO Act and sentenced him as mentioned in para 1 of this judgment. Hence, this appeal.

5. Learned counsel for the appellant submits that the impugned judgment and the findings contained therein are bad in law and on facts of the case. The learned trial Court has failed to see that the statements adduced by the prosecution witnesses are contradictory and such statements are not reliable and admissible under the law. The learned trial Court has not appreciated this fact that the prosecution has utterly failed to prove the age of the prosecutrix below 16 years. It is clear from statement of P.W.-1, who is friend of prosecutrix that she along with the prosecutrix went with the accused persons to Ghughari Road Atal Awas and they stayed there in the night. In cross examination, she denied to identify the accused persons. Therefore, the conviction of the appellant is illegal and against the law. The learned trial Court also did not appreciate the statement of Dr. Usha Singh (P.W.-12) who did not find any external or internal injuries over the body of the prosecutrix. Therefore, the prosecution has utterly failed to prove its case beyond reasonable doubt against the appellant. It is als