JUDGMENT :

JASMEET SINGH, J

1. This is an appeal for setting aside the judgment dated 21.11.2019 and the order on sentence dated 28.11.2019 passed by the Ld. Trial Court, ASJ-06, (POCSO), Shahdara District, Karkardooma Courts, Delhi in SC No. 123/2017 arising out of FIR No. 26/2017, under section 363/366/376 IPC and section 6 of POCSO Act, registered at PS Shahdara.After trial and examination of the witnesses, the Trial Court was pleased to hold the appellant guilty of offences u/s 363/366/ 376 IPC & 6 of POCSO Act and vide order of sentence dated 28.11.2019, the appellant was sentenced to 10 years rigorous imprisonment and fine.

2. Brief facts of the case are that on 23.01.2017, a complaint was filed by the father of the victim alleging that on the said date, he went to drop his daughter at the school, however, she did not return home and he has apprehension that his daughter has been kidnapped. On this basis, FIR bearing no. 26/2017 was registered against the appellant on 23.01.2017.During investigation, the IO obtained CDR of the victim, upon which the location of mobile phone of the appellant was seen at Phagwara, Punjab and the victim was traced with the appellant and he was arrested. Thereafter, medical examination of the victim and appellant was conducted at GTB Hospital, exhibits were collected and seized, statement under 164 Cr.PC was recorded and hence, the appellant was charged for offences under section 363/366/376 IPC and 6 of POCSO Act.

3. It is submitted by learned counsel for the appellant that the appellant is innocent and has been falsely implicated in this case. It is further submitted that the victim voluntarily left her house and made physical relations with the appellant with her consent as they were in a relationship.

4. It is argued by Mr. Yadav, learned counsel for the appellant that the victim was at no time kidnapped by the appellant and there are no allegations of kidnapping in the statement of the victim recorded under section 164 Cr.PC. He states that except a bald statement, there is nothing on record to reflect that the appellant kidnapped the victim or sexually assaulted her. He states that the appellant has been implicated in this case on account of a monetary dispute and the mother of the victim tutored the victim to implicate the appellant in the present case.

5. Mr. Yadav states that the victim was major at the time of incident and there is no record of first school or birth certificate of the victim to prove the correct age of the victim. He further states that the prosecution witnesses cannot be believed as there are material contradictions in the depositions inter-se with regard to the meeting of the victim with the appellant as well as the manner in which the recovery of the victim has been narrated.

6. On the other hand, it is argued on behalf of the State that PW-1/victim has proved in her testimony that on 28.01.2017, she was kidnapped by the appellant when she was aged about 16 years on the false pretext of marriage and the appellant repeatedly committed rape/penetrative sexual assault upon her.

7. Ms Anu Narula, counsel for the prosecutrix submits that the age of the victim is not in controversy, being 15 years of age at the time of the first incident. She states that the date of birth of the victim has been proved to be 20.01.2001 by witness PW-1/victim, PW-5/her mother and PW-7/In-charge from school and therefore, the victim was minor at the time of the commission of offence.

8. She further states that the appellant himself admitted in his statement that he took the victim to Phagwara, Punjab to marry her and on the basis of this admission, the fact pertaining to kidnapping of victim stands proved.

9. It is argued by the State that the other witnesses have also supported the prosecution story related to kidnapping, commission of rape/penetrative sexual assault repeatedly, recovery of the victim from the possession of the appellant as well as the arrest of the appellant. Ms Anu Narula state