JUDGMENT

This criminal appeal is preferred by the appellant/sole accused in Crime No.310 of 2018, against the judgment passed in Spl.S.C.No.77 of 2019 (Old SCC.43/2018) dated 13.07.2022 on the file of the Special Court for Exclusive Trial of Cases under POCSO Act, Thanjavur, wherein the learned trial Judge convicted the appellant for the offence under Section 366 IPC and sentenced him to undergo 5 years rigorous imprisonment and pay a fine of Rs.10,000/-, in default, to undergo one year rigorous imprisonment.

2.Case of the prosecution.

On 15.09.2018 early morning at 1.30 a.m, the appellant is said to have kidnapped the victim girl/PW.1 from the custody of her parents by making uttered sweet words to marry her. He is said to have married the victim girl before the Muniswaran Temple in Mayiladudurai road at Thiruvalangadu village. After marriage he has taken the victim girl to the Sembanarkoil to his paternal uncle's house and had sexual intercourse with the victim girl. Therefore, on the basis of the complaint given by PW.2/mother of the victim girl, the respondent police registered the case in Crime No.310 of 2018 for the offence under Section 363 IPC altered into Section 366 IPC, Section 3(a) r/w 4 of the POCSO Act and Section 9 of the Prohibition of Child Marriage Act, 2006. The respondent police after conducting investigation, filed the final report for the offence under Section 366 IPC, Section 3(a) r/w 4 of the POCSO Act and Section 9 of the Prohibition of Child Marriage Act, 2006 before the Court below. On the basis of the final report the learned trial Judge taken the case on file in Spl.S.C.No.77 of 2019.

2.1. The learned trial Judge called for the appearance of the appellant and furnished the documents relied by the prosecution under Section 207 Cr.P.C;

2.2. The prosecution proved the charges against the appellant by examining PW.1 to PW.17 and marking Ex.P1 to Ex.P14 and MO.1 to MO.6. On the basis of the above evidence of the prosecution, the learned trial Judge put the incriminating materials available against the appellant and questioned the appellant under Section 313 Cr.P.C and the appellant denied the same and also stated that a false case has been foisted against him and hence, he stood for trial;

2.3. The learned trial Judge, after considering all the evidence, acquitted the appellant for the offence under Section 3(2)r/w4 of the POCSO Act and 9 of the Prohibition of Child Marriage Act, 2006 and convicted the appellant only under Section 366 IPC and sentenced him to undergo 5 years rigorous imprisonment and to pay a fine of Rs.10,000/-, in default, to undergo one year rigorous imprisonment. Challenging the said conviction and sentence, the appellant is before this Court.

3.The learned counsel for the appellant submitted that the learned trial Judge, held that the appellant has not committed the offence of penetrative sexual offence and also the marriage between the appellant and the victim girl is also not proved by evidence and hence acquitted the appellant for the other offences and erroneously convicted the appellant under Section 366 IPC. The learned counsel further elaborated his argument by quoting the provision of Section 366 IPC and he also submitted that as per Section 366 IPC, two ingredients must be established by the prosecution, ie., the victim girl was kidnapped with criminal intent; and either to marry against her will or forced to have illicit sexual intercourse. In the present case, as per the finding of the learned trial Judge, both are absent. Hence, the learned trial Judge ought not to have convicted the appellant under Section 366 IPC. To substantiate the same, he produced the following judgments of the Hon'ble Supreme Court:

1. 2003(1) SCC 605

2. 2002(7)SCC721 3. 2006(5)SCC740

4. Per contra, the learned Additional Public Prosecutor submitted that though the learned trial Judge acquitted the appellant for the offence under Section 3(a) r/w 4 of the POCSO Act and Section 9 of the Prohibition of the