JUDGMENT

1. This Criminal Appeal under section 374 of CrPC has been filed against the judgment and sentence dated 11.3.2015 passed by Additional Sessions Judge, Lahar, Distt. Bhind in Sessions Trial No. 332/2014 by which the appellant has been convicted and sentenced for the following offences:-

2. The necessary facts for disposal of the present appeal in short are that on 3.7.2014, at about 8 p.m., the prosecutrix went outside her house in order to answer the call of nature and while she was coming back, she was forcibly taken by the appellant, and when the prosecutrix did not return back, then on 4.7.2014, the father of the prosecutrix lodged a Gum Insaan Report, Ex. P-2. After the prosecutrix was recovered on 7.7.2014, FIR Ex. P-9 was lodged against the appellant. The prosecutrix was sent for medical examination. The seized articles were sent to F.S.L. The Statements of the witnesses were recorded and after completing the investigation, the police filed the charge sheet against the appellant for offence under section 363,366A,376 of IPC and under section 4 of Protection of Children from Sexual Offences Act, 2912 (in short ''POCSO Act '').

3. The trial Court by order dated 12.11.2014 framed charge under sections 363, 366A, 376(1) of IPC and under section 4 of POCSO Act.

4. The appellant abjured his guilt and pleaded not guilty.

5. The prosecution in order to prove its case examined Prosecutrix (PW1), Harvanshlal (PW2), Radhelal (PW3), Ravindra Kumar (PW4), Dr. D.C. Parashar (PW5), Dr. (Smt) Anshu Mishra (PW6), Afsana Khan (PW7), Jagat Singh (PW8), Dharmendra Prajapati (PW9), and Ram Pratap Singh (PW10). The appellant did not examine any witness in his defence.

6. The trial Court by impugned judgment and sentence dated 11.3.2015 has convicted and sentenced the appellant for the above mentioned offences.

7. Challenging the judgment and sentence awarded by the trial Court, the Counsel for the appellant submitted that in fact the prosecutrix was the consenting party and She was major, and the trial Court has wrongly held that the prosecutrix was minor on the date of incident.

8. Per contra, it is submitted by the Counsel for the State that the prosecutrix was minor on the date of incident and although, the prosecutrix was not a consenting party for the simple reason, that she on her own had ran away from the captivity of the appellant, but even for the sake of argument, if the argument advanced by the Counsel for the appellant is considered, then since, the prosecutrix was minor on the date of incident, therefore, her consent is immaterial.

9. Heard the learned Counsel for the parties.

10. Prosecutrix (PW1) has stated that her date of birth is 5.5.1998, whereas her father had given the mark sheet to the police in which her date of birth is mentioned as 1.6.1999. She produced the original mark sheet which is Ex. P-1. In the mark sheet produced by the prosecutrix, her date of birth has been mentioned as 5.5.1998.

11. It is further stated by the prosecutrix that at about 8 p.m., she had gone to answer the call of the nature. While she was coming back, she was caught hold by the appellant and for four days, he took her to different places, which are not known to her. On all the four days, the appellant had committed rape on her. On 7th, when the appellant had gone to answer the call of the nature, she ran away and came to Ghoda Square, where she met with a police personal, who brought her to the police station.

12. The prosecutrix was recovered on 7.7.2014 by recovery memo Ex. P-2. Thus, the statement of the prosecutrix that She ran away