Consent obtained by deceit is no consent, and consent given under misconception of fact is not valid consent.

1. By way of this appeal filed under Section 374(2) Cr.P.C., the appellant assails the judgment dated 29th November, 2016 and order on sentence dated 5th December, 2016 whereby the appellant has been convicted for committing the offence punishable under Section 363/366 of IPC & Section 6 of POCSO Act and sentenced as under:-

(i)	Under Section 363 IPC	R.I. for a period of 3 years with fine of Rs. 3,000/- and in default, to undergo SI for fifteen days
(ii)	Under Section 366 IPC	R.I. for a period of 5 years with fine of Rs. 3,000/- and in default, to undergo SI for fifteen days
(iii)	Under Section 6 of POCSO Act	R.I. for a period of 10 years with fine of Rs. 5,000/- and in default, to undergo SI for one month

All the sentences were directed to run concurrently

2. The facts which are relevant for adjudication of the present appeal are that on 15th December, 2012 DD entry No.32-A was lodged on the complaint of Sh.Yudhister Kumar, who personally visited Police Station Ranhola and informed that his daughter ‘S’ (name withheld to conceal the identity) aged about 16 years, who was a student of class-X in a Government School, had been missing from home since 12th December, 2012 from 2.00 AM. He was searching for her at his own level but as he could not find her, he came to lodge the report. On the basis of his complaint Ex.PW3/DA, case FIR No.279/2012 under Section 363 IPC was registered at PS Ranhola.

3. On 10th January, 2013, the prosecutrix was recovered from the house of the appellant. She was sent to DDU hospital for her medical examination. Thereafter she was produced before the learned Metropolitan Magistrate for getting her statement recorded under Section 164 Cr.P.C. The appellant/accused was also arrested and sent for medical examination. On the basis of statement made by the prosecutrix ‘S’, Section 366/376 IPC and Section 4 of POCSO Act were also added. After completion of the investigation, charge-sheet was filed and on committal of the case to the Court of Sessions, the accused was charged for committing the offence punishable under Sections 363/366/376 of IPC & Section 4 of POCSO Act.

4. The appellant on being charged for committing the offence punishable under Section 363/366 IPC and under Section 4 of POCSO Act, pleaded not guilty. The prosecution examined 14 witnesses in all to prove its case. At the stage when the case was fixed for examination of the accused under Section 313 Cr.P.C., on the application filed by the State, the charge was amended to the extent that he was charged for committing the offence punishable under Section 6 of POCSO Act. An alternate charge for committing the offence punishable under Section 376 IPC was also framed against the appellant.

5. After appreciating the testimony of the prosecutrix, her father and the report of the medical examiner, the appellant was convicted for committing the offence punishable under Section 363/366 IPC and under Section 6 of POCSO Act and sentenced in the manner referred to above.

6. At the outset, Ms.Sonika Tyagi, learned counsel for the appellant, on instructions from the appellant who was produced from custody on 24th October, 2017 pursuant to the productions warrants issued, submitted that the appellant is not challenging his conviction for committing the offence punishable under Section 363/366 IPC. Learned counsel for the appellant submitted that the appellant is questioning the legality of his conviction under Section 6 of POCSO Act on the ground that the charge was amended at the stage of his examination under Section 313 Cr.P.C without giving him an opportunity to recall the material witnesses for cross examination. Even the application filed by the appellant to recall material witnesses for cross examination was dismissed by the learned Trial Court. It has also been contended