Elopement of minor girl under 18 does not negate kidnapping from lawful guardianship under Section 363 IPC, as her consent is inconsequential without guardian's approval; POCSO conviction under Section 8 requires proof of sexual assault, absent here.

JUDGMENT :

GAUTAM KUMAR CHOUDHARY, J.

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

1. Appellant is in appeal against the Judgment of conviction and sentence passed by learned Special Judge (POCSO), Godda in Special POCSO Case No.24 of 2018, whereby and whereunder the appellant has been convicted for the offences under Section 363 of IPC with sentence of seven R.I years with a fine of Rs.50,000/- and with a sentence of RI of four years and fine of Rs 25,000/- under Section 8 of the POCSO Act. In default of payment of fine, R.I. for one year and six months respectively.

2. Informant of the case is the maternal grand-father of the victim-girl. As per the FIR, on 09.02.2018, the victim-girl had left her home for marketing and she was taken by this appellant on his motorcycle along with her sister. The victim/girl was taken away whereas her sister, Laxmi Kumari was returned home on another motorcycle. The informant had thought the victim had gone to her parents’ house. Later on when it transpired that she had not returned home, the present case has been lodged against the appellant.

3. On the basis of the aforesaid 'fardbeyan' of the informant, the Police instituted First Information Report being Lalmatia P.S. Case No.19 of 2018 corresponding to G.R. No.266 of 2018 under Sections 366(A), 506/34 of the Indian Penal Code against the accused/appellant.

4. Police after investigation submitted charge-sheet against the appellant and he was put on trial for the offences under Sections 366A, 376 IPC and Section 4 of the POCSO Act as well as under Section 9 of the Prohibition of Child Marriage Act, 2006.

5. Altogether 8 witnesses including the victim-girl were examined and relevant documents were adduced into evidence and marked as Exhibits including the statement of the victim- girl recorded under Section 164 Cr. P. C.

6. Learned Trial Court while convicting the accused/appellant acquitted him of the charges under Sections 366A, 376 IPC, Section 4 of the POCSO Act and Section 9 of the Prohibition of Child Marriage Act, 2006.

7. It is submitted by learned counsel for the appellant that the victim/girl has been examined as PW.4 and she has not made any allegation of sexual assault and it has only been deposed that she was taken away on the point of knife by the appellant and vermillion had been applied to her in presence of a Lawyer. In her statement before the Magistrate under Section 164 Cr.P.C., she stated that she had married the appellant for which her parents were not agreed. After being assaulted, she had gone along with the appellant to Delhi and married him in Rajiv Nagar in a Temple.

8. It is also argued that it was highly improbable that she could not have been taken on a Motorcycle to Godda and then from there to Delhi on public transport under a threat of life. It is further argued that at the time of judgment, the appellant was 27 years of age, meaning thereby, that at the time of incidence, he was hardly 23 years old.

9. It is argued by learned APP for the State that the victim- girl (PW.4) has deposed in Para-8 that she had given statement under Section 164 Cr.P.C. as said to her by the appellant and his mother.

10. It is further argued that the victim-girl was 17 years old as stated by the Medical Board and deposed by Dr. Amod Kumar Mishra (P.W.5) that the girl of minor having 17 years of age, her consent was inconsequential.

11. Having considered the submissions advanced on behalf of the parties and perusing the materials available on record, there can be lit