The court ruled that the prosecutrix was above 18 years and a consenting party, negating the applicability of POCSO Act provisions.

Judgment :

(Arvind Kumar Verma, J.)

1. With the consent of learned counsel for the parties, the matter is heard finally.

2. The appellant has been filed the instant criminal appeal under Section 415(2) of the Bhartiya Nagarik Suraksha Sanhita, 2023 questioning the judgment of conviction and order of sentence dated 18.07.2024 passed by the Special Judge (POCSO Act), Chirmiri, District Koriya (Now MCB) (C.G.) in Special Criminal Case No.06/2023, whereby the appellant has been convicted and sentenced punishable under Section 3/4 of the POCSO Act, rigorous imprisonment for 07 years and fine amount of Rs.2,000/-, in default of payment of fine amount, additional rigorous imprisonment for one month.

3. According to the case of prosecution, in this case, the prosecturix has lodged a report with the allegation that prosecutrix and applicant knew each other since childhood and both of them visited each others house. On dated 19.11.2017 the applicant has gone to the house of prosecutrix when no one was at her place and on the pretext of marriage committed sexual intercourse when she was of the age of 17 years. The applicant has committed sexual intercourse on pretext of marriage on numerous occasions when the prosecutrix was alone at home. That in the year 2018 while the prosecutrix is doing the work of make up artist at Noida then the applicant had gone along with her and stayed together in the rental house. In the year 2020 she got aborted twice on the month of July and December. On dated 01.05.2022 prosecutrix and applicant came back home together at Chirmiri and continued to be together and alleged that sexual intercourse was committed on prosecutrix on pretext of marriage and when the prosecutrix asked the applicant to marry, he couldn't give a definite answer upon which a report was lodged u/s. 376 (2) (n) of IPC and 6 of POCSO Act.

4. Statements of the victim and other witnesses were recorded under Section 161 of the Cr.P.C. On completion of investigation, a charge-sheet was filed against the appellant.

5. In order to bring home the offence, the prosecution examined as many as 07 witnesses. Statement of the appellant under Section 313 of the Cr.P.C. was recorded, wherein he pleaded innocence and false implication. However, when the defence was recorded, the accused expresses to give defence witness and in defence, the Headmaster of Odia Higher Secondary School, Godripara, Chirmiri, Subhash Chandra and himself were examined.

6. On completion of the trial, the trial Court convicted and sentenced the appellant as mentioned in paragraph three of this judgment. Hence, this appeal.

7. Learned counsel appearing for the appellant contended that the trial Court has wrongly been convicted and sentenced the appellant without there being any sufficient evidence available on record. He further contended that the prosecutrix and the accused knew each other since childhood and since 2017 till 2022 they stayed together at numerous places and without even complaining, the prosecutrix stayed with the appellant and when the appellant refused to marry due to personal reason, upon which the prosecutrix lodged an FIR against the appellant. He further contended that the learned trial judge before has not appreciated the deposition of defence witness Subhash Chandra (DW-1) as he clearly states about the discrepancies regarding the age of the prosecutrix. It is further contended that the age of the prosecutrix has not been proved and even if we take the age of the prosecutrix as per Dakhil Khariji, her D.O.B. is 04.10.1999 at the time of incident, she was a major lady and have given her consent to stay with the appellant. He further contended that as per the statement of PW 3- Vidyashri Tiwari in her Para 5, it has clearly been mentioned that no recent sexual intercourse can be seen and no forceful intercourse can be made out in his opinion. It is further contended that the prosecution has failed to prove their case beyond reasonable doubt and conviction of the a