The court ruled that in cases of alleged abduction and sexual assault, the prosecution must conclusively establish the victim's age and the absence of consent to support convictions, particularly under related statutory provisions.

JUDGMENT :

M. Nirmal Kumar, J.

The appellant / accused was convicted by the learned Sessions Judge, Fast Track Mahila Court, Krishnagiri (Trial Court) in Spl.S.C.No.23 of 2019 by judgment dated 28.09.2022 and sentenced to undergo four years rigorous imprisonment and to pay a fine of Rs.1,000, in default, three months rigorous imprisonment for offence under Section 366 of I.P.C. and two years rigorous imprisonment and to pay a fine of Rs.2,000/- in default three months rigorous imprisonment for offence under Section 9 of Prohibition of Child Marriage Act, 2006 and ten years of rigorous imprisonment and to pay a fine of Rs.2,000/- in default six months rigorous imprisonment for offence under Section 5(l) r/w Section 6 of Protection of Children from Sexual offence Act. Challenging the same, the present Criminal Appeal is filed.

2.The case of the prosecution is that the victim in this case, who was aged about seventeen and half years, was studying B.A. English Literature, first year at Santhiya Government Girls College, at Krishnagiri and her date of birth is 28.07.2001. On 21.01.2019, after Pongal holidays she had gone to the college. The mother of the victim used to call the college professor and hostel warden to find out her daughter’s safe travel and well being. Likewise, on 21.01.2019, she had called the school professor and she was informed that her daughter not came to college. Thereafter, made enquiry in the village and the mother of the victim was informed that appellant had come to the bus stand, got into the bus and followed the victim and thereafter the victim was unable to be traced. Since it is a village area, the minor victim girl missing was not known to anyone except for P.W.1’s brother-in-law her sister’s husband. Thereafter, P.W.3 college and hostelmate of the victim, who had gone along with her, was enquired and she informed about the appellant coming there in the bus stand along with two others and thereafter victim went and spoke to the appellant. The appellant is two house next to the victim’s house and appellant’s brother was called, enquired and later warned to produce victim without delay and later complaint lodged to P.W.25 on 25.01.2019. On 26.01.2019 the victim and the appellant came in a bus from Ooty and reached Thenkanikottai bus stand where they were identified. Victim was secured and the accused arrested in presence of witness. Victim was thereafter referred to the casualty Doctor P.W.23 at Government Hospital. P.W.23 examined her and thereafter referred her to the Gynaecologist P.W.22, who examined and confirmed Hymen found not intact and gave opinion that penetrative sexual assault cannot be ruled out. After the arrest of the accused he was produced for medical examination, P.W.11 examined the appellant and issued potency certificate. P.W.21, Head Master of St.Joseph Higher Secondary School, Thenkanikottai examined who produced study certificate to confirm date of birth of the victim as 28.07.2001. P.W.1 mother of the victim and P.W.2 victim both produced before magistrate and 164 statement recorded. The investigating officer visited the scene of occurrence collected documents recording statement of witnesses and thereafter filed alteration report on 26.01.2019 altering the Sections from 366 I.P.C to 5(l) r/w 6 of POCSO Act, 2012 and another alteration report on 01.10.2019 to offence including Section 366 I.P.C, Section 9 of Prohibition of Child Marriage Act, 2006 and Section 5(l) r/w 6 of POCSO Act, 2012. On conclusion of investigation charge sheet filed before the trial Court. P.W.1 to P.W.25 examined Ex.P.1 to Ex.P24 marked. On conclusion of investigation the trial Court convicted the appellant as a