IMPORTANT POINT
The prosecution must prove the victim's age beyond reasonable doubt; failure to do so results in acquittal of charges related to kidnapping and sexual assault.

JUDGMENT :

RAVINDRA MAITHANI, J.

1. The challenge in this appeal is made to the judgment and order dated 27/29.11.2019, passed in Sessions Trial No. 53 of 2016, State vs. Monu, by the court of Additional Sessions Judge/FTSC Haridwar (“the case”). By it, the revisionist has been convicted under Sections 363, 366-A, 376(2)(n) IPC and Sections 5(l), 5(j)(ii)/6 of The Protection Of Children From Sexual Offences Act, 2012 (“the Act”) and sentenced as follows:

(i) Under Section 363 IPC, to undergo rigorous imprisonment for a period of three years with a fine of Rs.5000/-. In default of payment of fine, to undergo rigorous imprisonment for a further period of three months.

(ii) Under Section 366-A IPC, to undergo rigorous imprisonment for a period of five years with a fine of Rs.10,000/-. In default of payment of fine, to undergo rigorous imprisonment for a further period of six months.

(iii) Under Section 6 of the Act, to undergo rigorous imprisonment for a period of ten years with a fine of Rs.50,000/-. In default of payment of fine, to undergo rigorous imprisonment for a further period of one year.

2. Heard learned counsel for the parties and perused the record.

3. The prosecution case, as unfolded is as follows:

On 27.04.2016, a report was lodged by PW1, the father of the victim. According to it, the victim had left her home at 07:00 PM on 21.04.2016 to answer the call of nature, but she did not return. When a search was made Sushil, a villager had told it to the informant that he had seen the victim going along with the appellant and one Mangi. The FIR records that the victim is a minor and the appellant had enticed her and taken her away. Based on this report, an FIR was lodged under Sections 363, 366-A IPC and a case was registered. Subsequently, the victim was recovered, her statement under Section 164 of the Code of Criminal Procedure, 1973 (“the Code”) was recorded. She was medically examined on 02.06.2016 when she stated her age to be 18-19 years. She was pregnant at that time. The victim told it to the doctor at the time of medical examination that she on her own had gone with the appellant. She told that the appellant is her husband. The Investigating Officer collected record with regard to the date of birth of the victim and after investigation has submitted a charge-sheet under Sections 363, 366-A, 376 IPC and Sections 3, 4(l)/6 of the Act. On 15.09.2016, charge under Sections 363, 366-A, 376(2)(n) IPC and Sections 5(l)/6 of the Act were framed against the appellant. On 23.02.2019, additional charge under Sections 5(j)(ii)/6 of the Act was framed against the appellant.

4. In order to prove its case, the prosecution has examined eight witnesses namely, PW1, father of the victim, PW2 Sushil Kumar, PW3 the victim, PW4 mother of the victim, PW5 Dr. Nisha Gupta, PW6 Lady Constable 305 Reena Devi, PW7 SI Tina Rawat, Investigating Officer, PW8 Smt. Vimla Devi, Principal of the school. The appellant was examined under Section 313 of the Code. According to him, he was falsely implicated. He has stated that the victim never studied in the school. The victim on her own had left her home. She is major. She has been made to give false evidence.

5. In his defence, the appellant examined two witnesses namely, DW1, Shankardeep, and DW2, Vimla Devi. Even DW2, Vimla Devi, had already been examined as PW8. The right course would have been to recall PW8 or the defence could have proved their documents when PW8 was examined. But, this was not done and Smt. Vimla Devi, Principal has been again called as defence witness.

6. After hearing the parties, by the impugned judgment and order, the appellant has been convicted and sentenced, as stated hereinabove. Aggrieved by it, instant appeal has been preferred.

7. PW1 is the father of the victim. He has stated that on 21.04.2016, the victim has left her home to answer the call of nature, but she did not return. Subsequently, when a search was made, Sushil had told it to this witness that he had seen the vic