A conviction for kidnapping and rape cannot be sustained where the prosecution fails to establish through cogent, admissible evidence that the victim is a minor, particularly when the victim's conduct suggests a voluntary, consensual elopement and relationship.

Judgment on Board

Per, Ramesh Sinha, CJ.

1 Though the matter was listed for orders on application for suspension of sentence and grant of bail to the appellant, however, despite service of notice none appears on behalf of victim/complainant, therefore, this court proceeds to hear the matter finally.

2 The present appeal has been filed against the impugned judgment of conviction and order of sentence dated 14.10.2024 passed by the Additional Sessions Judge, FTSC, Protection of Children from Sexual Offences Act (in short POCSO Act) Balod, District Balod, in Special Criminal Case (POCSO) No.51/2022, whereby the appellant has been convicted and sentenced as under :

All the sentences are directed to run concurrently.

3 Brief facts of the case are that, on 15.04.2022 the mother of victim, PW-3 lodged a missing report to the police that her minor daughter had gone to village Jamarua in her maternal aunt’s house for some computer work on 14.04.2022 and she proceeded from their at 5:30 AM on 15.04.2022 but could not reach to her home. Despite search, her whereabouts could not be traced out and her mobile phone was found switched off. The police registered an offence under Section 363 IPC against unknown person and registered FIR Ex.P/9. During investigation, the victim was recovered on 02.05.2022 from the possession of appellant and recovery Panchnamas Ex.P/1 & P/2 were prepared in presence of witnesses. She was sent for her medical examination to District Hospital, Balod from where she was medically examined by PW-4, Dr. Sonam Netam, who gave her MLC report Ex.P/14. While medically examining her, no internal or external injuries were found on the body of victim and doctor opined that according to the her examination sexual intercourse has taken place but for confirmation two glass slide of vaginal swab were sent for FSL examination. One underwear was seized from victim vide seizure memo Ex.P/4. With respect to age and date of birth of victim, the school register was seized vide Ex.P/8 and after retaining its attested true copy Article-C, the original register was returned back. According to school register, the date of birth of victim was 04.02.2007. Spot map Ex.P/11 was prepared by the police whereas Ex.P/19 by the Patwari. Middle School Mark sheet and mobile was seized from victim vide Ex.P/13. The appellant was arrested on 03.05.2022 and he too was sent for his medical examination to District Hospital Balod where Dr. Dharam Dhananjay, PW/5 medically examined him and gave his report Ex. P/16 stating the appellant to be capable to perform sexual intercourse. His underwear was also seized vide Ex.P/23. The underwear of victim, vaginal slides and underwear of appellant were sent for its chemical examination to regional FSL Raipur from were report Ex.P/29 was received and semen and sperms were found on the vaginal slide of victim and underwear of appellant whereas, in the underwear of victim no semen and sperms were found.

4 The statement under Section 161 CrPC of witnesses were recorded. The statement of victim under Section 164 CrPC was recorded. After completion of usual investigation, charge sheet was filed against the appellant for the offence under Sections 363,366,386, 376(2)(n) and 376(3) IPC and Section 4,5(l) and 6 of POCSO Act before the trial court. The trial Court framed charge against the appellant for the offence under Sections 363,366 and 376 (2)(n) IPC and Section 6 of POCSO Act. The appellant abjured his guilt and claimed trial.

5 In order to establish charge against the appellant, the prosecution has examined as many as 10 witne