Consent is determinative; insufficient evidence of victim's age undermines prosecution's case.

JUDGMENT :

SUNDER MOHAN, J.

1. This Criminal Appeal has been filed by Accused No.1, challenging the judgment dated 10.04.2023 in Spl.SC.No.27 of 2019 on the file of the learned Sessions Judge, Special Court (POCSO Cases), Tiruvannamalai, by which he was convicted for the offence under Sections 376 of the IPC and Section 4 of the POCSO Act, 2012 and sentenced to undergo 10 years rigorous imprisonment and to pay a fine of Rs.5,000/- in default to undergo one year simple imprisonment.

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(i) The case of the prosecution is that the appellant and the victim, who was a child at the time of the occurrence, belonged to the same village; that the appellant had lured the victim girl on the promise of marriage and had sexual intercourse with the victim girl 1 ½ months prior to 11.05.2013 and made her pregnant besides warning her of dire consequences if the victim disclosed the said occurrence to any person; that the appellant's wife and his mother, in order to support the appellant, had criminally intimidated the victim and also assaulted the victim and committed the offences under Sections 352 and 506(i) of the IPC and that the appellant had committed the aforesaid offences.

(ii) On the complaint [Ex.P7] given by the mother of the victim [PW2] on 16.05.2013 an FIR [Ex.P8] in Cr.No.6 of 2013 was registered by PW18, the Sub-Inspector of Police, against the appellant and other two accused, for the offence under Sections 376, 506(i) IPC and Section 4 of the Tamil Nadu Prohibition of Harassment of Women Act.

(iii) PW19, the Inspector of Police commenced the investigation and handed over the investigation to PW20. PW20 conducted a portion of the investigation and handed over the investigation to PW21, who handed over the case to PW17. Ultimately, PW17 concluded the investigation and filed a final report against the accused for the offence under Sections 354, 376, 352 and 506(i) of the IPC, Section 4 and 8 of the POCSO Act and Section 4 of Tamil Nadu Prohibition of Harassment of Women Act, before the learned Sessions Judge, Special Court [POCSO Cases], Tiruvannamalai.

(iv) On the appearance of the accused, the provisions of Section 207 Cr.P.C., were complied with and the case was taken on file as Spl.S.C.No.27 of 2019 by the learned Sessions Judge, Special Court [POCSO Cases], Tiruvannamalai. The trial Court framed the charges against the appellant/A1 for the offences under Sections 376 and 354 of the IPC and Sections 4 & 8 of the POCSO Act and Section 4 of the Tamilnadu Prohibition of Harassment of Women Act and against A2 and A3 for the offence under Sections 506(i) and 352(2 counts) of the During the trial, when questioned, the accused pleaded 'not guilty'.

(v) Before the trial Court, the prosecution had examined 21 witnesses as P.W.1 to P.W.21 and marked 15 exhibits as Ex.P1 to Ex.P15. When the accused were questioned, u/s.313 Cr.P.C., on the incriminating circumstances appearing against them, they denied the same. The accused neither examined any witness nor marked any document on their side.

(vi) On appreciation of oral and documentary evidence, the trial Court found that the prosecution had not established the charges against A2 and A3 and convicted the appellant/A1 and sentenced him as stated in paragraph No.1 of this judgment. Aggrieved by the said conviction and sentence, A1 had preferred the instant appeal.

3. Mr.E.Kannadasan, learned counsel for the appellant would submit that the victim's evidence does not inspire confidence; that the victim had not disclosed the alleged occurrence to her mother; that it is stated that only after the victim