The court emphasized the necessity of proving consent in cases of alleged rape, highlighting that discrepancies in the victim's testimony and absence of objective evidence consistently undermined the prosecution's case.

JUDGMENT :

ACHAL SACHDEV, J.

1. Heard Sri Abhishek Mayank, learned counsel for the appellant, Sri Vinay Kumar Singh, learned counsel for the informant and Sri Sanjay Singh, learned A.G.A.-I for the State.

2. This criminal appeal has been filed by the appellant against the judgement and order dated 05.09.2019 and sentence order dated 06.09.2019 passed by Special Judge (POCSO), Additional Sessions Judge, Court No.07, District- Jhansi, in Special Sessions Trial No. 41 of 2015 ( State of U.P. Vs. Bhagwat Kushwaha ) arising out of Case Crime No. 64 of 2015, Police Station-Sakrar, District-Jhansi, whereby the appellant has been convicted and sentenced to undergo five years imprisonment and fine of Rs.10,000/- u/s 366 I.P.C. and ten years imprisonment and fine of Rs.20,000/- u/s 376 I.P.C. along with default stipulation.

3. The facts of the case in brief, as per the prosecution case are that on 28.05.2015 at 12:25 pm, a written report was made by the informant Ramswaroop, son of Ghanshyam, resident of village- Luhari, Police Station- Sakrar, District- Jhansi stating that his daughter had gone missing since 3:00 am on 28.05.2015 and then they realized that their daughter had been kidnapped by Bhagwat, son of Munnu Kushwaha, of their village.

4. The police registered a criminal case as Case Crime No. 64 of 2015 dated 28.05.2015 on the basis of the information against the appellant, Bhagwat under Sections 363, 366 and Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes Act (hereinafter referred to as the ‘S.C./S.T. Act’) and commenced investigation.

5. The victim was recovered by the police on 29.05.2015 from Mauranipur railway station by the police and her statement was recorded and medical examination was conducted on 30.05.2015 and ossification test for determination of age was done on 02.06.2015 wherein the victim was found to be aged 17 years. The statement of the victim was recorded before the Magistrate on 04.06.2015. The accused/appellant was arrested on 04.06.2015. The Investigating Officer, after completion of evidence, filed charge-sheet against the accused/appellant under Sections 363, 366 and 376 I.P.C., Section 4 of Protection of Children from Sexual Offences Act (hereinafter referred to as the ‘POCSO Act’) and Section 3(2)(v) of the S.C./S.T. Act.

6. The trial court, after taking cognizance of offences described in the charge-sheet, after giving the appellant an opportunity of being heard, framed charge under Sections 363, 366 and 376 I.P.C., Section 3/4 POCSO Act and Section 3(2)(v) of the S.C./S.T. Act.

7. The prosecution examined 8 witnesses to prove their case and has proved 8 documents in documentary evidence. The list of witnesses examined is as follows :-

8. Their testimony, in brief, is enumerated hereunder –

(i) PW-1 Ramswaroop is the informant of the case and father of the victim. The informant is not an eye witness. The informant, in his evidence before the court, in his examination in chief, has stated that on 28.05.2015, they were sleeping inside their house and their daughter, the victim was also sleeping on rooftop of the house. They were sleeping under neem tree. That at around 3:00 hrs at night, when his wife woke up, she found that their daughter (victim) was missing and she had been taken away by Bhagwat Kushwaha. On a previous occasion as well, the appellant took away his daughter and in relation to that incident, an F.I.R. was registered against him and the case is pending. His wife told him that Bhagwat was seen roam