The prosecution must prove the age of the victim and consent in cases involving charges under the POCSO Act. Failure to establish these crucial elements can lead to acquittal.

JUDGMENT :

RAVINDRA MAITHANI, J.

1. Present appeal is preferred against the judgment and order dated 07.01.2020/09.01.2020, passed in Special Sessions Trial No. 95 of 2017, State vs. Joni, by the court of FTC/Additional Sessions Judge/Special Judge POCSO, Haridwar, District Haridwar (for short, “the case”). By the impugned judgment and order, the appellant has been acquitted of the charge under Section 366 A IPC. He has been convicted under Sections 363, 376 IPC and Sections 3 (a)/4, 5(j)(ii)/6 of Protection of Children From Sexual Offences Act, 2012 (for short “the POCSO Act”) and sentenced as hereunder:

“(i) Under Section 363 IPC, rigorous imprisonment for a period of three years and a fine of Rs. 20,000/-. In default of payment of fine to undergo simple imprisonment for a further period of one month.

(ii) Under Section 376 IPC, rigorous imprisonment for a period of ten years and a fine of Rs. 20,000/-. In default of payment of fine to undergo simple imprisonment for a further period of one month.

(iii) Under Section 3(a)/4 of the POCSO Act, rigorous imprisonment for a period of ten years and a fine of Rs. 20,000/-. In default of payment of fine to undergo simple imprisonment for a further period of one month.

(iv) Under Section 5 (j) (ii)/6 of the POCSO Act, rigorous imprisonment for a period of ten years and a fine of Rs. 20,000/- In default of payment of fine to undergo simple imprisonment for a further period of one month.”

2. Prosecution case, briefly stated is as follows:

The victim a girl aged 16 years, left her house on 13.06.2016, for work, but she did not return. The victim had also taken Rs. 20,000/- cash and some jewellery from the house. A search was made, then it was revealed that, in fact, the victim was last spotted with the appellant. Some of the relatives of the appellant were also contacted. When the victim could not be recovered, on 15.06.2016, the father of the victim gave a report to the Police, but FIR was not lodged. It is thereafter, on 28.09.2016, the father of the victim filed an application under Sections 156 (3) of the Code of Criminal Procedure, 1973 (for short “the Code”). After order for investigation, FIR under Sections 363, 366A IPC was lodged against the appellant and a Case Crime No. 239 of 2016 was registered.

3. On 04.06.2017, the appellant along with the victim reached the Police Station, SIDCUL, District Haridwar. The victim was medically examined on 04.06.2017 at 1:45 PM. At the time of her medical examination, the victim revealed to the Doctor that she had eloped with the appellant and went to Ghaziabad. They married and stayed as husband and wife. The victim was in touch with her family. The Doctor also found the victim pregnant by 24 weeks.

4. The victim was also examined under Section 164 of the Code, on 05.06.2017. According to her, she married the appellant on 10.05.2016. The appellant did not commit any force with her. She married the appellant on her own free will. She was to give birth to the child of her husband. She told that she was eight months pregnant. In her statement under Section 164 of the Code, the victim also revealed that she wanted to go to her in-law’s house. She stated that her husband, the appellant may be released. According to her, she had worked in a company for two years.

5. The Investigating Officer (“IO”) collected age relating documents from the School, in which, the date of birth of the victim was 25.06.2001, which means she had just completed 16 years, when she left the house. After investigation, charge sheet under and Sections 363, 366A, 376 IPC and Sections 3/4 and 5(j) (ii)/6 of the POCSO Act was submitted against the appellant.

6. On 10.10.2017, charge under sections 363, 366A, 376, 3a/4 and 5(j) (ii)/6 of the POCSO Act was framed against the appellant. To which, he denied and claimed trial. In order to prove the case, the prosecution examined seven witnesses, namely, PW-1 the victim, PW-2 father of the victim, PW-3 brother of the victim, PW-4 mother of the