The prosecution must provide credible evidence of a victim's age to support a conviction under Section 363 of the IPC.

JUDGMENT :

NAVNEET KUMAR, J.

Heard learned counsel for the appellant and the learned APP representing the State.

2. The instant interlocutory application has been filed for suspension of sentence of the appellant by enlarging him on bail during pendency of the instant criminal appeal, which has been preferred against the judgment of conviction dated 08.05.2024 and order of sentence dated 17.05.2024 passed in Case NO.ST-547/2018 arising out of Sukhdeonagar P.S. (Pandra O.P.) Case No.219 of 2018, G.R. No.2488 of 2018 by the learned Additional Judicial Commissioner-XVI, Ranchi whereby the appellant has been convicted for the offence under Section 363 of IPC and sentenced to undergo R.I. for seven years with a fine of Rs.10,000/- and in default of payment of fine, further directed to undergo R.I. for six months.

3. At the outset it has been pointed out by the learned defence counsel appearing on behalf of the appellant that the appellant has been convicted for the offence punishable under Section 363 of the IPC under which the requirement is that victim should be minor and in the present case, the prosecution has miserably failed to bring any slightest documentary evidence to establish that the victim was minor i.e. below 18 years of age.

4. Further, it has also been pointed out that the I.O. in this case has been examined as PW-5 and he categorically stated in para 17 that during the course of the investigation, he had obtained one progress report of the victim vide para 68 of the case diary and that progress report was of the class 4 upon which neither any seal of the school or the principal was there on the progress report and as such no convincing document has been brought on record to prove the age of the victim in order to fasten the guilt of the accused under Section 363 of the IPC.

5. Further, it has also been argued on behalf of the appellant that it is admitted case of the prosecution that both the parties, the victim and the appellant were fully acquainted with each other and this appellant was in the distant relation and both had gone to Banaras and lived there for one month which is an admitted fact and as such during the course of the stay of the victim and the appellant together in the Banaras no any police report has been instituted by the victim nor any alarm was raised nor any disagreement has been stated by the victim during the course of her stay in Banaras and as such the case of the prosecution becomes doubtful. It has also been argued on behalf of the appellant that the I.O. PW-5 during the course of the investigation has found that both the victim and the accused-appellant were in love with each as evident from Para 16 of the deposition of PW-5.

6. Further, it has also been pointed that in the FIR where the father of the victim is the informant and he has stated that the appellant had allured and enticed her to take her away but the victim has stated the she was forcefully taken away by the appellant and as such there major contradiction between the versions of the victim and the father and the truthfulness is that the victim being the major had voluntarily accompanied the appellant to the Banaras and therefore, the conviction of the appellant for the offence punishable under Section 363 of the IPC is bad in law and fit to be set aside and the appellant deserves to be enlarged on bail by suspending the order of sentence.

7. On the other hand, learned APP appearing on behalf of the State has opposed the contentions raised by the appellant and submitted that the victim has consistently stated her age about 14 years right from her deposition recorded under Section 164 of the Cr.P.C. and also during course of the deposition at the trial and as such she was minor at the time of the occurrence. Further, although the prosecution did not bring any cogent documentary evidence with respect to the age of victim but the I.O. has stated in para 17 that he has procured one progress report of Class-IV i.e. mark-sheet where the d