IMPORTANT POINT
IMPORTANT POINT
The appeal was allowed as the prosecution failed to prove the prosecutrix's age and voluntary relationship negated the charges of abduction and rape.

ORDER : 

Avanindra Kumar Singh, J.

This appeal is filed by the appellant being aggrieved of judgment dated 07.12.2023 passed by the Special Judge (POCSO Act, 2012), Narmadapuram in Special Case No.110/2021 [State of M.P. Vs. Babu Saur] whereby appellant/accused has been convicted under sections 363, 366, 376(3), 376(2)(n) of the Indian Penal Code and sections 5 (l) r/w 6 & 5(j)(ii) of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as the “POCSO Act”) and sentenced as below:-

2. Against the judgment of conviction and sentence this appeal has been filed on the ground that prosecution failed to prove its case beyond reasonable doubt. There is no reliable proof of date of birth. Evidence shows that when the prosecutrix left her parental home she was more than 18 years and she left the house at her own volition and, therefore, appeal should be allowed and judgment of conviction & sentence should be set aside.

3. On the other hand, learned Government Advocate supports the impugned judgment and prays for dismissal of this criminal appeal.

4. We have perused the record and considered the arguments of learned counsel for the parties.

5. Prosecution case, in brief, is that on 10.4.2021 father (PW.3) of the prosecutrix (PW.1) lodged a missing person report (Exhibit-P/7), in which, he stated that her daughter, who is third child out of his six children and who is studying in Class-VIII aged about 13 years 08 months, date of birth 26.7.2007), is missing since 09.4.2021. She had gone to attend the call of nature towards Nasirabad Road, but she did not return. Thereafter, search was made but she could not be traced and he suspects that someone enticed and abducted her. Therefore, ‘Rojnamca Sanaha’ No.32 was recorded and on the same facts an FIR (Exhibit-P/8) bearing Crime No.195/2021 was registered for an offence under section 363 of IPC. During the course of investigation, prosecutrix was recovered from the possession of appellant and accordingly, ‘Dastiyabi Panchnama’ (Exhibit-P/1) was made. After obtaining permission for medical examination, the prosecutrix was medically examined. Statement of the prosecutrix under section 164 Cr.P.C. (Ex.P/3) was recorded. Thereafter, she was handed-over to her father.

6. As per prosecution story, prosecutrix states that she liked the accused/appellant who was asking her to marry her, therefore, she left the house without informing anyone and she went to Salkanpur Temple alongwith him (appellant) on a Pulsar motorcycle. They stayed there for two days. Thereafter, they went to Raipur and after 08 days they solemnized marriage and had physical relationship like a married couple. Thereafter, they came to Budhni and rented a room where they lived. Then Police recovered the prosecutrix and thereafter other offences under the provisions of POCSO Act and IPC were added in FIR. Medical report of the prosecutrix is Exhibit- P/11. Prosecutrix was found to be pregnant. Her pregnancy report is Exhibit- P/13. Seized material was sent for chemical examination. The accused was arrested and medically examined. His blood sample for DNA test was taken and the same was also sent for chemical examination. Prosecutrix aborted her pregnancy and blood sample of foetus was also sent for DNA report. Exhibit- P/40 is the DNA report. ‘Dakhil Kharij’ register (Exhibit-P/14) and Exhibit- P/15 extract of date of birth were seized regarding age of the prosecutrix. After completing the investigation charge-sheet was filed.

7. When the accused was charged by the trial Court under sections 363, 366, 376(3), 376(2)(n) of IPC and sections 5(l) r/w 6 and sec