The conviction under IPC and POCSO Act was overturned due to failure of prosecution to prove the victim's age, highlighting the necessity for strict adherence to evidentiary standards in such cases.

JUDGMENT :

SUNDER MOHAN, J.

1. This Criminal Appeal challenges the judgment of conviction and sentence imposed by the learned Sessions Judge in Spl.S.C.No.10 of 2017 dated 09.01.2023 on the file of the Fast Track Mahila Court, Dharmapuri.

2. The appellant / A1 was convicted by the trial Court for the offences under Section 363 of IPC and under Sections 5 (l) r/w 6 of Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as POCSO Act) and sentenced as follows:

3. The case of the prosecution is that the appellant and the victim had love affair; that the appellant on the promise of marriage kidnapped the victim from the lawful guardianship of her parents on 14.08.2016 on a bike and stayed in the house of the second accused, who is the paternal uncle of the appellant; that on the complaint given by the mother of the victim, a case was registered under Section 366A IPC and thereafter, the victim was secured. The FIR is marked as Ex.P3. Thereafter, P.W16 conducted the initial investigation and then transferred the investigation to P.W18. P.W18 made arrangement to record Section 164 (5) Cr.P.C statement of the victim and after examination of all the witnesses had filed the final report against the appellant (A1) and the second accused for the offences under Sections 5 (l) r/w 6, 16 r/w 17 of the POCSO Act and under Section 363 of .

4. Before the trial Court, prosecution had examined 18 witnesses and marked Ex.P1 to Ex.P.36. The appellant neither marked any documents nor examined any witnesses. The trial Court acquitted the second accused of the offence under Section 16 r/w 17 of POCSO Act and found the appellant guilty of the offence under Section 363 IPC and Sections 5 (l) r/w 6 of the POCSO Act and sentenced as stated above.

5. Mr.R.John Sathyam, learned Senior Counsel for the appellant would submit that the evidence of the victim as well as her parents would show that the relationship between the appellant and the victim was consensual; that the prosecution had not established the age of the victim in the manner known to law; that no ossification test was conducted to prove her age; that it was suggested to the witnesses that the victim had married another person and given birth to a child which would show that the victim aged was more than 18 years. He would however fairly submit that the appellant had not probablised the said fact of marriage.

6. The learned Additional Public Prosecutor for the respondent, per contra, would submit that the prosecution had established through the evidence of P.W9, who is the Headmaster of the School that the victim was born on 21.06.2002; that on the date of alleged occurrence, she was 15 years old; that hence consent is immaterial; and that therefore, the impugned judgement convicting the appellant of the alleged offence is justified.

7. As stated above, the prosecution had examined 18 witnesses. P.W1 is the victim, P.W2 is the father of the victim and PW3 is the mother of the victim. P.W4 is the brother of the victim and is a hearsay witness, and he spoke about the victim missing from the house from 14.08.2016. P.W5 is a relative of the victim and witness to the observation mahazar, who was treated hostile by the prosecution. P.W6 is another witness to the observation mahazar, who was treated hostile b