The central legal point established in the judgment is the requirement for the prosecution to prove the age of the victim and the lack of consent or use of criminal force in cases involving charges under sections 363, 366, and 376 IPC.

Pramod Kumar Srivastava,J.

1. This appeal has been preferred against the judgment dated 29.2.2016 passed by Additional Sessions Judge/ F.T.C., Lucknow in S.T. no. 298 of 2015 (State Vs. Zeeshan Ahmed) arising out of case crime no. 363 of 2011 under sections 363, 366 and 376 IPC, P.S. Wazirganj, Lucknow, by which appellant was convicted for the charges under sections 363, 366 and 376 IPC and was convicted for three years' rigorous imprisonment for charge under section 363 IPC, for three years' rigorous imprisonment for charge under section 366 IPC and for 10 years' rigorous imprisonment with fine of Rs.5,000/- for charge under section 376 IPC.

2. The prosecution case in brief was that on 23.12.2011, the minor daughter of complainant Mohd. Qurban Ali, namely, Sania Ali @ Saba had eloped from her house, then on suspicion, the complainant had lodged report in police against accused Zeeshan Ahmed. During investigation the victim Sania was recovered and had stated in her statement under Section 164 Cr.P.C about her kidnapping by accused. After competition of investigation, charge-sheet was submitted against accused for offence under Sections 363, 366 and 376 IPC. In trial the accused was charged for these offences to which he pleaded not guilty and claimed to be tried. Then in support of charges, prosecution side had examined PW-1 Mohd Qurban Ali (complainant), PW-2 Rashida Bano (mother of the victim), PW-3 Dr. Nutan Sonkar, PW-4 Sania (victim), P.W-5 Dr. A.P. Verma, P.W.6 S.I. Rajesh Singh (I.O.) and PW-7 C.P. Rajesh Singh. These witnesses had proved prosecution documents as Exhibits- Ka- 1 to Ka-10.

3. In his statement under Section 313 Cr.P.C. accused Zeeshan Ahmed had denied the allegations against him and the facts of the charge and pleaded that he is innocent . Defence side had not adduced any defence evidence.

4. After affording opportunity of hearing to the prosecution and defence side, the trial court had convicted the accused for all the charges. Then after hearing on the point of sentence, the trial court had sentenced the accused as above. Aggrieved by the said judgment of conviction, present appeal has been preferred by sole accused of the case.

5. Learned counsel for the appellant contended that neither victim was minor at the time of incident nor any overt act was committed by appellant. He submitted that victim was major who had willingly gone with the appellant, and from evidences it is proved that she had married with the appellant and no criminal force was ever used against the victim. But these points were not considered by the trial court who had erroneously found the victim minor on basis of her own evidence and convicted the appellant, therefore appeal should be allowed.

6. The contentions of learned counsel for the appellant were refuted by Sri Sardar Alok Singh, learned AGA who had submitted that although there appears evidence of consent and non use of criminal offence but victim was minor at the time of incident, so her consent has no value in this matter. There is no error or illegality in the judgment of trial court, therefore, appeal should be dismissed.

7. First and most pertinent point relates to the alleged age of minority of the victim. In FIR, the complainant had stated the age of his daughter as 14 years. In medico-legal examination, her age was found about 17 years. PW-5 Dr. A.P. Verma had proved his report as Ex- Ka 4 which appears to have been prepared on the basis of physical, pathological and radiological tests. From the evidence of PW-5 Dr. A. P. Verma, it is found that at the time of medico-legal examination and X-ray report the epiphysis of right wrist was in process of fusion, whereas epiphysis of knee and right elbow were fused. Dr. had submitted his opinion on the basis of these X-ray reports. From scrutiny of this report and medical jurisprudence the age of girl, when epiphysis of elbow and knee and one wrist is fused and another wrist is in process of fusion, may be about 18 y