The prosecution failed to prove the age of the prosecutrix, leading to the conclusion that the relationship was consensual, thus negating the charges of kidnapping and sexual assault.

ORDER :

Vivek Agarwal, J.

This criminal appeal is filed under Section 374(2) of the Code of Criminal Procedure being aggrieved of the judgment dated 14/07/2022 passed by the learned Special Judge (POCSO Act) Balaghat in S.C. No. 31/2019 convicting appellant Surendra Uikey under Section 363 of I.P.C. and sentenced to undergo five years R.I. with fine of Rs. 10,000/- with default stipulation of six months R.I., Section 366 (ka) of I.P.C. and sentenced to undergo five years R.I. with fine of Rs. 10,000/- with default stipulation of six months R.I., Section 376 (2) (n) of I.P.C. and sentenced to undergo R.I. for life with fine of Rs. 10,000/- with default stipulation of six months R.I. and Section 5L/6 of POCSO Act is in regard to for offence under Section 376(2)(n) of I.P.C.

2. Learned counsel for the appellant submits that the appellant is innocent. It is submitted that as per the prosecution story on 5/01/2019 at about 9:30 A.M., the prosecutrix left her home to attend her school but when she did not return back till evening, then she was searched in the places of relatives but when she could not be traced, then Crime No.1/2019 was registered at Police Station Changotola against unknown persons under Section 363 of I.P.C and investigation was started. On 27/01/2019, the prosecutrix returned back and on interrogation, she stated that the appellant had taken her under the cause of performing marriage and she was taken to Kavardha (C.G.). At Kavardha, they hired the room. There, the appellant continuously violated her privacy. Thereafter, the appellant had gone to work at the hotel. Then the prosecutrix ran away and came to her house on 27/01/2019 and narrated her woes to her father. Thereafter, she was medically examined and the appellant was arrested. The investigation was completed. The chargesheet was filed. The charges were levied and the appellant abjured his guilt. The trial was conducted and the appellant has been punished as mentioned above.

3. It is submitted that date of birth of the prosecutrix is wrongly mentioned. She was major at the time of the incident. It is a case of consent.

4. The prosecutrix stayed with the appellant from 5/01/2019 to 27/01/2019 and during this period, she did not inform about the incident to anybody which reveals that it is a case of consent.

5. PW-10 Dr. Rashmi Baghmare had conducted medical examination on 28/10/2020 and she found that there was no injury on the vital parts of the prosecutrix and stated that no definite opinion can be given about rape. It is thus submitted that the appellant has been implicated for different reasons than the reason of abduction/kidnapping or violation of privacy of the prosecutrix. He is a youth of 21 years of age and, therefore, his conviction be set aside.

6. Learned Public Prosecutor Shri Ved Prakash Tiwari supports the impugned judgment and submits that record of the case speaks against the appellant and, therefore, no indulgence be shown in the matter.

7. It is pointed out that PW-6 Dr. D. K. Raut Radiologist on ossification test found the age of the prosecutrix to be 17 years and, therefore, when this fact is taken into consideration, then it is apparent that the prosecutrix was minor.

8. After hearing learned counsel for the parties and going through the record, in her 164 statement, the prosecutrix has stated that the appellant is known to her. He belongs to her village. He was working at Kavardha in a hotel. Since, they were known to each other, she had met him at bus stand which is opposite to her school where in the name of marriage, she was taken to Kavardha. There, the appellant established physical relationship with her and he had behaved properly for some time but later on, his behaviour caused suspicion. Therefore, she ran away and came back to her house.

9. In this case, in the F.I.R. itself, it is mentioned that the prosecutrix is th studying in XI Class. However, it is interesting and important to note that th Investigation Officer of the case did