IMPORTANT POINT
Consent of a mature victim negates charges under IPC and POCSO when age is proved to be above majority.

ORDER : 

Vivek Agarwal, J.

Shri Ashish Kumar Kurmi, learned counsel for the appellant instead of pressing I.A. No.2309/2025, which is second application under Section 389(1), Cr.P.C. for suspension of sentence and grant of bail to appellant Deepak Singh Thakur S/o Nirpat Singh Thakur, prays that this appeal be heard finally.

2. Accordingly, I.A. No.2309/2025 is dismissed as not pressed and with the consent of the parties, this appeal is heard finally.

3. This criminal appeal under Section 374(2) of the Code of Criminal Procedure, 1973 is filed by the convicted appellant - Deepak Singh Thakur being aggrieved of the judgment dated 24.06.2023 passed by the learned Special Judge (Protection of Children from Sexual Offences Act), Panna, District Panna (M.P.) in Special case No.122/2021 (State of Madhya Pradesh Vs. Deepak Singh Thakur), whereby the appellant has been convicted for offence under Sections 363 , 366A of the Indian Penal Code, 1860 and sentenced to undergo R.I. for 3 years (fine of Rs.1,000/-) and R.I. for 5 years (fine of Rs.2,000/-) with default stipulation to undergo additional R.I. for 1 month and R.I. for 2 months, respectively. The appellant is also convicted for offence under Section 376 (2)(n) of the Indian Penal Code, 1860 with Section 5 (L)/6 of the Protection of Children from Sexual Offences Act, 2012 (for brevity 'POCSO Act') and sentenced to undergo R.I. for 20 years (fine of Rs.5,000/-) with default stipulation to undergo additional R.I. for 6 months.

4. Shri Ashish Kumar Kurmi, learned counsel for the appellant submits that the appellant is innocent. Relationship is not disputed. DNA report too is not disputed. What is disputed is the age of the victim. As victim PW-1 was adult and a consenting party, therefore, conviction under Sections 363 , 366A, 376(2)(n) of IPC and Section 5 (L)/6 of the POCSO Act, cannot be sustained. 5. Reading from the evidence of PW-1 victim it is pointed out that she stated names of her brothers and sisters and stated that her eldest brother is aged about 27-29 years. There is age difference of 2 years amongst all brothers. Second brother is aged about 26 years and third brother is aged about 24 years. She stated that she has one elder sister also whose marriage was performed 10 years back after she completed 18 years of age and at that th time, her sister was studying in 12 class. She admitted in paragraph 3 of her cross-examination that at the time of the incident, she was 18½-19 years of age and in school mark-sheet her age has been mentioned after reducing it. Hence, it is submitted that this is a good case for acquittal of the appellant.

6. Shri Ajay Tamrakar, learned Public Prosecutor supports the impugned judgement of conviction and sentence and submits that no interference is called for in the same.

7. After hearing learned counsel for the parties and going through the record, it is evident that PW-2 father of the victim admitted in his cross- examination that his eldest son was born in the year 1989, taking his age to be 32 years at the time of the incident. Second son's date of birth is mentioned as 15.08.1992, then date of birth of third daughter is mentioned as 04.05.1994 and, thereafter, another son's date of birth is mentioned as 04.05.2001. He has not produced any documentary evidence in support of date of birth of the victim. He admits that he had doubt over the victim as she was talking to the appellant on mobile phone. He was also annoyed with his daughter on account of her such conduct. He also admitted that on 16.08.2021, he had performed marriage of his daughter with somebody else. That means that by implication he accepted that daughter was adult in August, 2021.

8. PW-3 Ramswaroop Singh, Incharge Headmaster of Government school stated that no document was given by the father of the victim or the victim in support of her date of birth. Whatever was narrated by her father was recorded by him