Point of Law: One can take judicial notice that the margin of error in age ascertained by radiological examination is two years on either side.

JUDGMENT :

K. SURENDER, J.

1. The present appeal is filed questioning the conviction of the appellant for the offences under Section 5(1) r/w Section 6 of the Protection of Children from Sexual Offences Act, 2012 (for short ‘the POCSO Act’) and sentenced to undergo rigorous imprisonment for a period of 20 years and also to pay fine of Rs. 2,000/- in default, to undergo simple imprisonment for a period of six months and also sentenced to undergo rigorous imprisonment for a period of three years and to pay fine of Rs. 1,000/- in default, to undergo simple imprisonment for a period of three months for the offence under Section 363 of IPC vide judgment dated 23.02.2022 in P/Sessions Case No. 135 of 2019 passed by the Special Judge for Trial of Cases under POCSO Act-cum-II Additional District and Sessions Judge, Nizamabad.

2. The case of the prosecution is that PW-1, the father of the victim girl (PW-5) filed a complaint under Ex.P1 on 27.12.2018 stating that on 25.12.2018 when they woke up, they did not find PW-5 and she was missing, for which reason, police registered a crime for girl missing. Thereafter, on 15.02.2019, PW-5/victim girl was rescued and on seeing the police, the appellant/accused managed to escape. However on 17.02.2019, the appellant was apprehended by the police.

3. After examination of the victim, PW-5, the section of law was altered to Section 366(A), 376(2)(i) IPC and Section 5(1) r/w Section 6 of POCSO Act, 2012. The accused was also charged for the said offences.

4. During the course of examination, the witnesses PW-1-father, PW-2-mother and PW-3-brother of PW-5 stated that PW-5/victim girl went out of their house by saying that she wanted to attend nature call, but she did not return, for which reason, they went to the police station and filed a complaint.

5. PW-5/victim girl during her examination in the court stated that she knew the accused, who is aged around 19 years doing mason work. She was acquainted with the accused for the past four years and they fell in love. They used to frequently chat with one another in the absence of their parents. As the parents of the accused started searching for marriage alliance, PW-5 and the appellant decided to elope and marry. Accordingly, on 25.12.2018, when the parents were asleep, PW-4 and the appellant went to Bus Stand of Bellal and stayed in Kotagiri bus stand till 6.00 a.m. and at 6.00 a.m. they boarded the bus to Deglur village and they have taken room on rent basis in the house of PW-7 and stayed there. On 27.12.2018, both got married in Anjaneya Swamy temple in Deglur village. It is further the statement of PW-4 that from the date of marriage, they participated in the sexual intercourse and daily routine was that the appellant/accused was attending to agricultural labour work and PW-5 used to stay at home. After one and half month, when the appellant/accused was attending to his labour work, he suffered a snake bite, for which reason, PW-5 called PWs. 1 and 2 on 14.02.2019 and informed about their staying at Deglur village. Thereafter, the police arrived and took PW-5 and her statement was recorded before the Magistrate.

6. PW-5 is aged around 17 years and in proof of the same, Ex.P3, bona-fide certificate is filed, which shows her date of birth as per record as 25.08.2001. On medical examination by PW-14/Doctor, PW-5 was found to be pregnant. PW-14 further stated that the pregnancy test of PW-5 was positive with six weeks gestation. PW-9/Doctor, who conducted dental examination and also radiological examination of PW-5, opined that PW-5 was aged more than 16 years, however less than 18 years. To that effect, Ex.P4, age determination certificate of the victim girl/PW.5 was given. PW-9 also examined the appellant and issued a certificate of potency.

7. Learned counsel for the appellant argues that by virtue of explanation 2 to Section 375 of IPC i.e. “sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is no