The validity of consent in cases involving minors is immaterial, and the age of the prosecutrix is crucial in determining the offence.

JUDGMENT :

Mukta Gupta, J.

1. By this appeal, the appellant challenges the judgment dated 5th December 2019 convicting the appellant for offences punishable under Sections 363 IPC, 376(2) IPC and 6 of the POCSO Act as also the order on sentence dated 19th December 2019 whereby the appellant was directed to undergo rigorous imprisonment for a period of 10 years for offence punishable under Section 376(2) IPC as also rigorous imprisonment for a period of 7 years for offence punishable under Section 363 IPC and to pay a fine of Rs.5000/- on both the counts, in default thereof to undergo rigorous imprisonment for a period of 30 days.

2. Learned counsel for the appellant contends that the prosecution has not proved the age of the prosecutrix as no school record or original birth certificate was placed on record. There is a discrepancy in the digital copy placed on record as the same does not match with number in the charge sheet. The prosecutrix made a request to the appellant on the Facebook and became friendly. Since the appellant failed to fulfil the demand for a sum of Rs.6,000/- made by the mother of the prosecutrix, the FIR in question was lodged. The appellant got married to the prosecutrix with the consent of her mother because he genuinely believed that she was above 18 years of age as was declared by her. The call detail records showing that the prosecutrix was in touch with her mother through phone calls had not been placed on record which could show that the mother of the prosecutrix had consented to the marriage of the prosecutrix with the appellant. The mother of the prosecutrix in the FIR stated that the prosecutrix is 14 years old, however, in the cross examination, the prosecutrix stated that her age was 18 years. Even in the Facebook account, the age of the victim was mentioned as 18 years which fact has not been investigated by the police and the Facebook account now stands deleted. Allegations of the prosecutrix that forcible rape was committed is not fortified by her MLC. There being no intention to commit offence as the prosecutrix represented herself to be a major, the appellant be acquitted of the charges framed against him.

3. Learned APP for the State submits that even as per the case of the appellant, he only put vermilion on the head of the prosecutrix and there was no legal marriage. There is no discrepancy in the digital copy of the certificate showing the date of birth of the prosecutrix and the allegations against the appellant have been duly proved by evidence of the prosecutrix and her mother.

4. Above-noted FIR was registered for offence punishable under Section 363 IPC on the complaint of mother of the prosecutrix who stated that her daughter aged 14 years studying in 9th Standard had gone to fetch milk in the morning and had not come back. She gave description of her daughter and the phone number of her daughter. She further stated that on 28th January 2014, her daughter received a phone in the evening and she suspected that the boy who made the phone call on 28th January 2014 from the phone number 7696348143 had kidnapped her daughter. On investigation carried out, prosecutrix was recovered from custody of the appellant on 10th May 2014 at Sukhna Lake, Chandigarh. Appellant was arrested and prosecutrix was medically examined, who was found to be pregnant, however, she did not allow to conduct her internal examination on 10th May 2014. The prosecutrix was medically examined on 11th May 2014 and her samples were collected and sent to FSL for comparison. Call detail records of the two mobile phone numbers were collected. It was found that there was frequent exchange of calls between the two numbers from 27th January 2014 to 29th January 2014. The mobile number used by the appellant was registered in his name and the mobile number used by the prosecutrix was registered in her mother’s name.

5. Statement of the prosecutrix was recorded under Section 164 Cr.P.C. vide Ex.PW-1/A, wherein, she stated she met