JUDGMENT

Per: Justice Vivek Agarwal

1. With the consent, the case is taken up for final disposal in motion hearing.

2. Learned counsel for the appellant submits that he is not pressing I.A. no.7457/2024 an application for suspension of sentence and grant of bail and it is dismissed as withdrawn.

3. Appellant is aggrieved of the judgment dated 3.11.2022 passed by learned II Additional Sessions Judge and Special Judge, Protection of Children from Sexual Offences Act, 2012, Begumganj, District-Raisen in S.C. No.44/2020 whereby learned trial Court has convicted and sentenced appellant in the following manner:

4. It is submitted that appellant is innocent. The matter of consent has been converted into that of violation of privacy in the hands of appellant. Reading from the statement of the prosecutrix under section 164 of Cr.P.C. as are available on record as Ex.D-1, it is pointed out that prosecutrix before the concerned Magistrate had clearly stated that in January 2019 between 1:00 am to 1:30 am, she had left her home to be with her lover Uvesh. She had gone to Bhopal with her lover on her own volition. They had taken a room on rent in which they stayed. On next day of her elopement, she had performed Nikah with the appellant. After Nikah, they stayed together and two days prior, she had come back to Bhopal when they were caught by Police. In para-2 of the cross-examination, prosecutrix stated that as she wants to live with Uvesh, she had gone with him on her own volition and he had not coerced her for performance of Nikah. She had performed marriage on her own.

5. It is also submitted that even father of the prosecutrix had knowledge of daughter going on her own violation with the appellant. It is further submitted that age of the victim is doubtful. Reading from the evidence of father of the victim (PW-2), it is pointed out that father of the victim admitted that her daughter had studied in a Government School. In cross-examination, he admitted that his marriage was performed 20 years back. He has five children. Prosecutrix is the eldest. She was born about two years after marriage. Father of the victim (PW-2) admitted that prosecutrix was born in a hospital but then said that he had not obtained any certificate from the hospital. He also stated that his wife was subjected to vaccination during pregnancy but no card is available. He further admitted that at the time of admission of the prosecutrix in the school, he had not produced any certificate as to the date of birth of the prosecutrix and her date of birth was recorded on rough estimation. It has also come on record that in the Ration Card, date of birth of the victim is mentioned as 2000. Shashikala Gautam School Teacher (PW-9) admitted that there is overwriting in regard to date of birth on Ex.P-28C. She admitted that at the time of admission of the prosecutrix, she was not working as In-charge of Headmaster of the school. No certificate of date of birth was produced by his school Headmaster which would have been made available alongwith the admission form. Thus, date of birth of the prosecutrix is doubtful. Her age has become doubtful. It is submitted that there is overwriting in the Ex.P-28C and it has been changed from 2000 to 2002. There are no initials over this overwriting.

6. Shri Yash Soni, learned Deputy Advocate General submits that the DNA report Ex.P-50 is positive. It has come on record that the child born to the victim and the present appellant is a biological daug