The court determined that the prosecution failed to conclusively prove the minor status of the prosecutrix, undermining the conviction under sexual offenses.

1. This appeal arises out of the judgment of conviction and order of sentence dated 29.4.2011 passed by the II Additional Sessions Judge, Ambikapur, Distt. Surguja in S.T.No.125/10 convicting the accused / appellant under S.363, S.366 and S.376(1) of IPC and sentencing him to undergo RI for 5 years, pay a fine of Rs.500/-; RI for 5 years, pay a fine of Rs.500/-; and RI for 10 years and pay a fine of Rs. 1000/- with default stipulations respectively.

2. As per the prosecution case, on 21.1.2010 a written report Ex.P / 6 was lodged by PW - 3 Preetram alleging in it that his daughter / prosecutrix (PW - 1), aged 14 years, who was studying in Class 8th has eloped on 8.1.2010 with the appellant who was residing in his house for the last one month. In this report it has also been mentioned that information has been received by this witness that the prosecutrix and the appellant have performed marriage and she is living in the house of the appellant. When this witness had gone to the house of the appellant, the prosecutrix refused to accompany him. Based on this written report, FIR (Ex.P / 7) was registered against the appellant under S.363 and S.366 of IPC on 21.1.2010. On 21.1.2010 the prosecutrix was recovered from the house of the appellant vide recovery panchnama Ex.P / 4. On 21.1.2010 itself the prosecutrix was medically examined vide Ex.P / 15 and the doctor found that her secondary sexual characters were fully developed, her hymen was old tom and she appeared to be habitual to sexual intercourse. However, no definite opinion regarding recent sexual intercourse could be given. During the course of investigation, two mark - sheets (Exs.P / 9C and P / 10C) of the prosecutrix of Class 6th were produced by PW - 3 Preetram, father of the prosecutrix, wherein her date of birth is mentioned as 12.2.1996. After filing of charge sheet, the trial Court framed charges under S.363, S.366 and S.376(1) of IPC against the appellant.

3. So as to hold the accused / appellant guilty, the prosecution examined as many as 9 witnesses. Statement of the accused / appellant was also recorded under S.313 of Cr.P.C. in which he denied the circumstances appearing against him in the prosecution case, pleaded innocence and false implication.

4. The trial Court after hearing counsel for the respective parties and considering the material available on record, by the impugned judgment convicted and sentenced the accused / appellant as mentioned in para 1 of this judgment.

5. Learned counsel for the appellant submits as under:

* that there is no legally admissible evidence showing that the prosecutrix was minor at the time of incident. The author of the mark - sheets (Exs.P / 9C and P / 10C) has not been examined.

* Though PW - 3, father of the prosecutrix, has stated that he had noted the date of birth of the prosecutrix on a separate piece of paper, but that piece of paper has not been produced and it appears that merely on the basis of assumption, her date of birth has been recorded as 12.2.1996.

* that even as per medical report, secondary sexual characters of the prosecutrix were fully developed and she was found to be habitual to sexual intercourse.

* That no ossification test of the prosecutrix was conducted by the prosecution to ascertain her age.

* That the prosecutrix was a consenting party, she remained with the appellant for about 13 days, visited several places without any protest and during this period they also performed marriage.

* That the appellant is in jail since 21.1.2010, thereby has already completed about 7 years of jail sentence and therefore, he may be set fre