JUDGMENT :

Sudhanshu Dhulia, C.J.

1. Heard Ms. B. Sarma, learned Amicus Curiae for the appellant. Also heard Ms. S. Jahan, learned Additional Public Prosecutor, Assam.

2. This criminal appeal arises out of judgment and order of the Trial Court which was passed by the Additional Special Judge, Fast Track Court, North Lakhimpur in Special (POCSO) Case No. 107/2018 under Sections 366 IPC read with Section 4 of the POCSO Act.

3. As per the story of the prosecution, an FIR was lodged on 07.04.2018 at Boginadi Police Station at about 4-00 PM alleging that on 06.04.2018, i.e. the day prior to the lodging of the FIR, at 4-00 pm, the daughter of the informant (hereinafter referred to as "M/s. K."), who was 16 years old, was kidnapped by one Sri Kiran Sonowal with the help of another accused Sri Bhola Sonowal and she was confined in the house of Bhola Sonowal. The police consequently started investigation and filed charge-sheet under Section 366 IPC read with Section 4 of POCSO Act and subsequently the Special Judge framed charges against the accused under the aforesaid provisions and the trial commenced thereafter.

4. Meanwhile it must be stated that the FIR merely states that accused Kiran Sonowal and Bhola Sonowal had kidnapped M/s. K. There is no mention in the FIR as to the rape or physical assault of any crime on the victim. Subsequently from the statements of other witnesses including that of the Investigating Officer, it has come that the girl was recovered very next day from the residence of the accused and thereafter her statement was recorded under Section 164 Cr.P.C. before the Magistrate. By that time she had already stayed with her parents for three days since her recovery and the accused/appellant was in custody. She clearly states before the Magistrate that she had eloped with the accused on 03.04.2018 and on 05.04.2018, they got married and the two had physical relationship. She then says that five days later, they were caught in the house and her medical examination was also done by police. In other words, a clear-cut statement has been given that she had willingly gone with the accused and got married with the accused.

5. The medical examination of the victim was done on 09.04.2021, i.e. very next day of her recovery. She was medically examined by Senior Medical & Health Officer of North Lakhimpur Civil Hospital who found that the breast of the victim are well developed, pubic hair is present and hymen is absent. More importantly ossification test was also conducted to determine the age of the girl which was found to be above 18 years. Apart from these, no external injury were found on the body of the victim and the clear opinion of the Doctor was "The age of the girl is above 18(eighteen) years. No recent evidence of sexual intercourse and no any external physical injury seen".

6. In the trial to prove its case, the prosecution examined as many as seven witnesses.

7. P.W. 1, Tankeswar Chutia is the father of the victim. He has stated that the incident took place in the first week of April, 2018. He learnt that some messages were sent to his daughter in her mobile asking her to collect a gift from the accused and when she went to collect the gift she was kidnapped. The next day, his daughter informed her mother over phone that the accused had taken her along with him by lifting her into a vehicle to some place at Dhemaji. Thereafter the address was collected and the victim was rescued.

P.W. 1 was put to cross-examination where the defence had categorically asked the question that when his daughter was missing since 4:00 PM on the date of the incident, why had he not lodged the FIR on that day itself to which this witness could not give any satisfactory reply.

8. P.W. 2 is the prosecutrix herself who states that the informant is her father and the incident took place about 6 months back (her examination-in-chief was done on 08.10.2018). She says that she had received a message from the accused that she should come and collect he