J U D G M E N T

This Appeal has been filed against the Judgment passed by the Court of Sessions (Fast Track Mahila) Judge, Namakkal in Special C.C.No.27 of 2020 dated 23.11.2020 and allow the appeal.

2. The respondent police registered a case against the appellant in Cr.No.269 of 2017 for the offences punishable under Section 11 (iv) r/w 12 of Protection of Children from Sexual Offences Act, 2012 (for short 'POCSO Act') and Section 363 of I.P.C. After investigation, the respondent police laid charge sheet before the Sessions (Fast Track Mahila) Court, Namakkal.

3. The learned Sessions Judge, after completing the formalities framed charges for the offence punishable under Section 11 (iv) of POCSO Act, 2012 and 363 I.P.C. and after trial, acquitted the appellant of the charges under Section 11(iv) of POCSO Act, 2012, however, convicted the appellant for the offence punishable under Section 363 I.P.C. and sentenced him to undergo three years rigorous imprisonment and to pay a fine of Rs.1,000/- in default to undergo 6 months simple imprisonment. Challenging the said conviction and sentence, the accused has filed the present Appeal before this Court.

4. The learned counsel for the appellant would submit that the age of the victim girl is 18 years and she voluntarily went along with the appellant and there is no question of kidnapping, which is evident from the deposition of P.W.2- victim girl and, therefore, Section 363 of I.P.C. is not attracted. He would further submit that victim has not stated either before the learned Magistrate or before the police that she was subjected to penetrated sexual intercourse with the appellant. The learned counsel would further submit that though the learned Sessions Judge accepted that the appellant has not committed the offence under Section 11 (iv) of the POCSO Act, but failed to appreciate evidence that the victim girl voluntarily went with the appellant.

5. It is the further contention of the appellant that even P.W.1, P.W.3 and P.W.4 did not support the case of the prosecution and they have not deposed against the appellant. He would further submit that even the victim girl P.W.2 deposed during cross examination that there was no sexual relationship between the appellant and herself. She further deposed that the appellant was in the relationship of a brother with her . He would further submit that there is no independent witness examined to prove the charge and, therefore, the Judgment of conviction and sentence passed by the trial court is liable to be set aside.

6. The learned Government Advocate (Crl.side) would submit that at the time of occurrence the victim girl was only 16 years and without consent of the parents who are the natural as well as lawful guardians, the appellant took away the minor girl and therefore, he has committed offence punishable under Section 363 I.P.C. He would further submit by taking note of the statement recorded under Section 164 Cr.P.C., the Doctor's evidence and the medical report, the trial Court disallowed the case of the prosecution for the offence under Section 11(iv) r/w Section 12 of POCSO Act, but however, from the evidence of victim girl and also the evidence of parents as well as statement recorded from the victim girl by the learned Judicial Magistrate, it is clearly seen that the appellant has removed the victim girl from the custody of lawful guardianship of her parents and, therefore, the appellant has committed an offence under Section 363 I.P.C. and the trial court has rightly convicted and sentenced the appellant as stated above and therefore there is no merit in the appeal and the same is liable to be dismissed.

7. Heard both sides. Perused the records.

8. The case of the prosecution is that on 12.04.2017 at about 8.00 A.M. at Mangalapuram Bus stand, when the victim was travelling in a bus to go to Athur from Rasipuram, by inducement the accused got her down from the bus and for the purpose of marriage kidnapped her from the lawful guardianship