In criminal cases involving consent, the conviction may be overturned if there is a reasonable mistake of fact regarding the victim's age, absolving the accused under Section 79 IPC.

JUDGMENT :

SUNDER MOHAN, J. 

The Criminal Appeal challenges the judgment dated 18.04.2023 passed in Spl.S.C.No.37 of 2021 by the learned Sessions Judge, Fast Track Mahila Court, Krishnagiri, Krishnagiri District, convicting and sentencing the appellant/sole accused as follows:

2. (i) The case of the prosecution is that the appellant and the victim girl, aged about 17 years, had a love affair; that the parents of the victim girl came to know of that and they had cautioned the victim girl and warned her of the consequences; that on 09.08.2021, at about 6.00 p.m., the appellant came to the victim's house and was waiting outside the house; that the victim girl went along with the appellant; that on the promise of the marriage, he took her to a village in Thirupathur District and stayed with the victim girl till 12.08.2021; that he committed penetrative sexual assault during that period; and thus committed the aforesaid offences.

(ii) A complaint [Ex.P1] was lodged by PW1, the father of the victim girl stating that the victim girl went missing on 09.08.2021 and on such complaint, an FIR [Ex.P16] in Crime No. 11 of 2021 was registered for the offences under Sections 363 and 366 IPC by PW16-Inspector of Police. PW16, thereafter took up the investigation, examined all the witnesses, made arrangements to record the Section 164 Cr.P.C. statement of the victim, and after completing all the formalities, had filed the final report for the offence under Sections 363 and 366 of the IPC and Section 5 (l) r/w 6 of the POCSO Act against the appellant before the learned Sessions Judge, Fast Track Mahila Court, Krishnagiri.

(iii) On the appearance of the accused, the provisions of Section 207 Cr.P.C., were complied with. The case was taken on file as Spl.S.C.No.37 of 2021 by the learned Sessions Judge, Fast Track Mahila Court, Krishnagiri, Krishnagiri District. The trial Court framed charges against the appellant for the offences under Section 366 of the IPC and Section 5 (l) r/w6(l) of the POCSO Act and when questioned, the accused pleaded 'not guilty'.

(iv) To prove its case, the prosecution had examined 16 witnesses as P.W.1 to P.W.16 and marked 20 exhibits as Exs.P1 to Ex.P20. When the accused was questioned, u/s.313 Cr.P.C., on the incriminating circumstances appearing against him, he denied the same. Though the accused did not examine any witness, has marked four exhibits as Ex.D1 to Ex.D4 on his side.

(v) On appreciation of oral and documentary evidence, the trial Court found that the appellant, aged about 26 years at the time of occurrence had committed the aforesaid offences and accordingly convicted and sentenced him as stated above. Hence, the appellant has preferred the instant appeal challenging the said conviction and sentence.

3. The learned counsel for the appellant would submit that the victim was born on 21.11.2003; that the alleged occurrence took place on 09.08.2021, when the victim girl was 17 years and 9 months old; that admittedly it was a case of consensual affair; that the evidence adduced on the side of the appellant, viz.,WhatsApp chat between the appellant and the victim girl [Ex.D1] and the other evidence on record would show that the victim girl claimed that she was a major, born on 21.11.2002 and her Aadha