JUDGMENT :

2. By way of instant appeal, appellant has assailed the judgment of acquittal dated 28.11.2020 passed by learned Additional District & Sessions Judge, Fast Track Special Court, Solan, District Solan, H.P. in Sessions Trial No. 30-S/7 of 2020/2016

3. Respondent herein was charged and prosecuted for offences under Sections 363, 366 and 376 of the Indian Penal Code (for short ‘IPC’) and Section 4 of the Protection of Children from Sexual Offences Act, 2012 (for short ‘POCSO Act’).

4. The prosecution of respondent was result of investigation carried out in pursuance to registration of FIR No.03 of 2016 dated 8.1.2016 at Police Station, Arki, District Solan, H.P. The above noted FIR was registered on the complaint of Ganga Ram S/o Sh. Pahal Singh. It was alleged by him that respondent herein used to meet his daughter (victim). Despite advice, respondent used to roam in or around his house. In the evening of 07.01.2016, at around 6.00 P.M. respondent had enticed the victim and had kidnapped her with intention to marry her.

5. During investigation, the victim was recovered on 17.01.2016 from the company of the respondent from village Haripur, Tehsil Chakrata, Vikasnagar, Dehradun. The victim denied having been enticed by respondent. The victim disclosed that she was maintaining relation with respondent voluntarily and was pregnant. She had accompanied respondent of her own free will.

6. On completion of investigation, report under Section 173 Cr.P.C. was submitted recommending trial of respondent. Learned trial Court charged respondent for offences under Sections 363, 366 and 376 of IPC and Section 4 of the POCSO Act.

7. After completion of trial, the learned trial Court has recorded the finding of acquittal vide impugned judgment.

8. The appellant has assailed the impugned judgment mainly on the ground that the evidence has not been correctly appreciated by the learned trial Court. It has been contended that the findings of the learned trial Court to the effect that victim was major at the time of alleged offence is against the material proved on record. According to appellant, the statement of PW-2, father of victim has not been considered in right perspective. Documents Ex.PW-8/B and Ex.PW-8/C have wrongly been discarded. The precedence given to document Ext.- DX vis-à-vis documents Ex. PW-8/B and Ex.PW-8/C, is against the settled principles of law. It has also been submitted that the statement of victim under Section 164 Cr.P.C. Ex.PW-19/F, has not been appreciated correctly.

9. We have heard Mr. Rajinder Dogra, learned Senior Additional Advocate General for the appellant and Mr. V.S. Chauhan, Senior Advocate, assisted by Mr. Avinash Sharma, Advocate, for the respondent and have also gone through the records.

10. It is not disputed by either side that the respondent has married the victim and have two children from the wedlock. They are living happy married life. The factum of marriage having been solemnized between respondent and victim cannot be a legal ground to absolve the respondent from the criminal liability, if the alleged offence is otherwise proved against him. Thus, the material available on record needs independent assessment.

11. The controversy revolves around the prime issue regarding the age of victim at the time of alleged offences. The victim had accompanied the respondent on 17.01.2016. According to her version, she had conceived as a result of physical relation developed between her and the respondent on 2/3.11.2015. Thus, the fate of the case hinges upon the age of the victim on 2/3.11.2015 and thereafter on 07.01.2016.

12. The prosecution has examined the father of victim Sh. Ganga Ram as PW-2, who in his examination-in-chief narrated the age of victim to be 16 years in the year 2016. However, in cross-examination, he admitted to have executed an affidavit Ext.-DX before the Executive Magistrate, Arki regarding the date of birth of his daughter. He also admitted the fact that his daughter had solemnized marr