Consent of a minor is not lawful; thus, any relationship or agreement made by a minor cannot absolve the accused of criminal liability under kidnapping and sexual assault laws.

JUDGMENT :

C.V. KARTHIKEYAN, J.

Prayer: Criminal Appeal filed under Section 374(2) of Cr.P.C. to set aside the Judgment dated 28.02.2020 passed in S.C. No. 129 of 2019 on the file of the learned Sessions Judge for the Sexual Offences against the Children Special Court, Thanjavur and acquit the appellant/sole Accused of the charge.

1. The accused in Special S.C. No. 54 of 2017 (129 of 2019), who had suffered conviction for offence punishable under Section 366 of IPC and sentenced to undergo 10 years rigorous imprisonment and fine of Rs. 5,000/- in default one year simple imprisonment and also suffered conviction for punishment of offence under Section 5(l) read with Section 6 of POCSO Act, 2012 and sentenced to life imprisonment and fine of Rs. 5,000/- in default one year simple imprisonment by Judgment dated 28.02.2020 by the learned Mahila Court, Thanjavur, has filed the present Criminal Appeal.

2. The victim child was a student of 11th standard. She was in relationship with the accused for two years. She had come home for the summer vacation in May 2017. It was her contention that the accused presurrised her to marry him. This was objected to by her parents, who complained to the parents of the accused.

3. It is contended on behalf the prosecution that on 19.05.2017, the accused enticed the victim child to go with him and took her from her normal place of residence at Thiruvaiyaru to the outskirts of Chennai to the house of his uncle. She was confined there for about 2½ months. It is further contended that he sexually assaulted her. Thereafter, since her father had given a complaint, enquires were made and fearing reprisal, the accused brought the victim child back. A complaint has been lodged consequent to which FIR in Cr. No. 2 of 2017 had been registered on 19.05.2017 under Section 366A IPC. After investigation, the final report had been filed before the Mahila Court/Fast Track Mahila Court, Thanjavur, which was taken cognizance as Spl. S.C. No. 54 of 2017 for commission of offences punishable under Section 366(A) IPC and Section 6 POCSO Act, 2012. After following due procedure, charges had been framed under the aforementioned provisions on 05.09.2019. The accused denied the charges and claimed to be tried.

4. The prosecution was then called upon to prove the charges. The prosecution examined PW-1 to PW-13 witnesses and marked as exhibits, Exs.P-1 to P-14. No material objects were produced. On completion of examination of prosecution witnesses, the accused was questioned with respect to the incriminating evidence as enunciated under Section 313(1)

5. On 28.02.2020, additional charges were framed against the accused for offences under Section 366 IPC and under Section 5(l) read with 6 of POCSO Act, 2012. The gist of the charges remained the same. The provision of law alone were altered. No additional evidence was taken.

6. By Judgment dated 28.02.2020, on the same day when the additional charges had been framed, the accused was convicted for offences punishable under Section 366 IPC and under Section 5(l) read with 6 of POCSO Act, 2012 and sentenced as aforementioned.

7. The present Appeal has been filed questioning such conviction and sentence.

8. The facts of the case are that the victim child, who according to the birth certificate in her school transfer certificate marked as Ex.P-8 was born on 21.12.1999, but according her evidence was born on 10.10.2000, at any rate, less than 18 years of age as on 19.05.2017 was enticed away from her house by the accused, who was known to her for the past two years and taken from Thiruvaiyaru to the outskirts of Chennai to the house of his uncle PW7 and kept in confinement for about two months. During that time, it is in her evidence that she was subjected to sexual assault. Later, when it transpired that her father/PW-1 had given a complaint consequent to which FIR in Cr. No. 2 of 2017 had been registered against the accused for offence punishable under Section 366A IPC and on enquiries being