The court affirmed that consent is irrelevant in cases involving minors, emphasizing the necessity of credible evidence for age determination.

C A V Judgment

1. This appeal is directed against the judgment dated 15.11.2022 passed by the learned Additional Sessions Judge, Fast Track Special Court (POCSO Act), Ramanujganj, District Balrampur in Special Sessions Trial (POCSO) Case No. 46 of 2018 (C.G) whereby the learned sessions Judge while acquitting the accused/appellant u/s 506 (ii) IPC found that the charges u/s 363 & 366 IPC are proved, however, it converted section 376(2)(J) into section 376(1). The trial Court also held the appellant guilty u/s 4 of the POCSO Act and accordingly, the appellant has been convicted and sentenced as under :

2. The father of the prosecutrix (P.W.2) made written complaint on 24.11.2018

(Ex.P-6) before Sanawal Police Station that his minor daughter after returning from School at evening 05.00 p.m. on 17.11.2018, went to look after the farm and did not return at night. Even after enquiry made regarding her whereabouts, she could not be traced. On 18.11.2018, he informed to Up-Sarpanch of his village and his relatives through Phone. The Up-Sarpanch and brother-in-law (Sala) of the complainant along with other persons went to Bhisur (U.P) in search of the prosecutrix and the prosecutrix was found with the present appellant on motorcycle No. C.G. 16 CF 7288 on 19.11.2018 and was caught hold. The brother-in-law of complainant brought back the prosecutrix at his home and thereafter dropped the prosecutrix at her house on 23.11.2018. The prosecutrix narrated the entire facts to the complainant that the appellant had taken her away to forest on 17.11.2018 and kept her in forest for a whole night where he committed rape and on the next day, he took her away towards U.P., by motorcycle. On the basis of said written complaint, Crime No.76/2018 was lodged by the Sanawal Police Station for the alleged offence u/s 363, 366, 376(2)(j), 506 IPC & Section 4 of POCSO Act. After completion of investigation, the charge sheet was filed for the offence u/ss 363, 366- A, 376(2)(j), 506 IPC & Section 4 of POCSO Act.

3. The accused pleaded innocence and claimed to be tried. The prosecution examined as many as 7 witnesses on its behalf and exhibited 23 documents. In defence, the accused examined two witnesses and exhibited two documents. The learned Additional Sessions Judge after evaluating the evidence convicted the accused u/ss 363, 366, 376(1) of IPC read with Section 4of POCSO Act while acquitting him u/s 506 IPC.

4(i) Learned counsel for the appellant submits that the appellant has been falsely implicated in this case due to enmity. He next contends that report is delayed by 7 days as the the report was filed on 24.11.2018 after recovery of prosecutrix by her family members whereas the incident is said to have taken place much before on

17.11.2018. He submits that no plausible explanation has been given by the prosecution for such delay, therefore, the prosecution case is doubtful. He further submits that the minority of prosecutrix has not conclusively been proved in this case and she was a consenting party to the sexual act performed with the appellant. He further submits that the prosecutrix did not raise any alarm while she was travelling all along with the appellant and she herself voluntarily accompanied the accused and participated in performance of sexual act.

5(ii) So far as the age is concerned, learned counsel for the appellant refers to th