The prosecution failed to prove the prosecutrix's age under 18 years and her consent negated the charges of abduction and sexual assault.

JUDGMENT :

RAJANI DUBEY, J.

1. The present appeal is directed against the judgment of conviction and order of sentence dated 20.05.2019 passed by the learned Special Judge, SC/ST (Prevention of Atrocities) Act, 1989, Bemetara, District Bemetara (C.G.) in Special Case (Atrocities) No.03/2018, whereby the appellant has been convicted under Sections 366 and 376 of IPC read with Section 3 (2) (v) of the SC/ST (Prevention of Atrocities) Act and Section 5 (Tha) read with Section 6 of POCSO Act and sentenced to undergo RI for 10 years with fine of Rs.100/- and life imprisonment with fine of Rs.100/- respectively, with default stipulations.

2. The prosecution case, in brief, is that on 03.12.2017 mother of the prosecutrix lodged a missing report, stating that the prosecutrix was not found in the house thereafter she searched her in the village, she enquired about the prosecutrix with the brother of accused and she came to know that the accused was also not found in the house. On the basis of report lodged by the mother of prosecutrix, the police registered and thereafter searched the appellant and prosecutrix and the prosecutrix was found in possession of appellant. After investigation, charge sheet was filed before the Magistrate concerned. On the basis of the evidence adduced by the prosecution and material available on record, learned trial court convicted the accused/appellant, as mentioned in para 1 of the judgment.

3. Learned counsel for the appellant submits that the judgment passed by the learned Trial Court is contrary to law and material available on record. There are material omissions and contradictions in the statements of the prosecution witnesses. The prosecution has not produced any authentic document with regard to date of birth of prosecutrix. The prosecutrix, her mother and her brother have given different statements about the date of her birth, which clearly shows that at the time of incident the proseuctrix was major. The prosecutrix is consenting party, she herself went with the appellant on her own. She went difference places and also resided as husband and wife since long time. The leaned Trial Court has also failed to consider the evidence of PW-22 Dr. Anamika Minj who has clearly stated that the prosecutrix is habitual of sex and recent intercourse was not found and also not found any injury in her private part, but the learned Trial Court has not considered the above said aspects of the matter and has wrongly convicted the appellant. Therefore, the appeal deserves to be allowed. Reliance has been placed on the judgments rendered by the Hon’ble Supreme Court in the matter ofBirad Mal Singhvi vs. Anand Purohit, AIR 1988 SC 1796 and P. Yuvaprakash vs State Rep. by Inspector of Police , AIR 2023 SC 3525 .

4. Per contra, learned State counsel supports the impugned judgment and submits that the learned Trial Court has minutely appreciated the evidence available on record and has rightly convicted the appellant. Therefore, the appeal is liable to be dismissed.

5. Heard learned counsel for the parties and perused the material available on record.

6. It is clear from the record of the learned Trial Court that the learned Trial Court framed charges under Sections 363, 366 & 376 of IPC and Section 5 read with Section 6 of POCSO Act and Section 3 (2) (v) of SC/ST (Prevention of Atrocities) Act against the appellant and after appreciation of oral and documentary evidence, the learned Trial Court acquitted the appellant under Section 363 of IPC and convicted and sentenced the appellant, as mentioned in para 1 of the judgment.

7. As per prosecution, at the time of incident, the prosecutrix was below 18 years of age. The prosecutrix (PW-1) stated that her date of birth is 09.06.2001. In the cross-examination, she admitted that she has stated her date of birth on her mother’s saying. The mother of the prosecutrix (PW-2) stated that the date of birth of the prosecutrix is 26.09.2002. In the cross- examination, she admitted that in th