J U D G M E N T

The respondent police registered a case against the appellant in Crime.No.212 of 2017 for girl missing. Subsequently, on investigation a case was registered for offence under Sections 363, 366, 343 and Section 5(l) r/w. 6 of the POCSO Act and also after completing the investigation, they laid the charge sheet. Since the offence was against woman particularly a child and punishable under the POCSO Act, the learned Sessions Judge after completing the formalities framed the charges against the appellant for offence under Sections 366 and 343 IPC and also Section 5(l) r/w. Section 6 of the POCSO Act.

2. In order to substantiate the above charges, during trial, 8 witnesses were examined as P.W.1 to P.W.8 and 10 documents were marked as Exs.P.1 to P.10. No material objects were marked. After completing the prosecution evidence, the incriminating circumstances culled out from the evidence of the prosecution witnesses were put before the appellant. He denied the same as false. On the side of the defence, no oral or documentary evidence was produced. The learned Special Judge after hearing the arguments advanced on either side, delivered the judgment in which he found that the appellant committed offence under Sections 366, 343 IPC and Section 5(l) r/w. 6 of the POCSO Act. For the offence under Section 366 IPC he was convicted and sentenced to undergo 7 years Rigorous Imprisonment and to pay a fine of Rs.1,000/-, in default, to undergo one month Rigorous Imprisonment; for the offence under Section 343 IPC, he was sentenced to undergo one year Rigorous Imprisonment, and for the offence under Section 5(l) r/w. 6 of the POCSO Act, he was sentenced to undergo 10 years Rigorous Imprisonment and to pay a fine of Rs.5,000/-, in default, to undergo three months Rigorous Imprisonment. Challenging the said judgment of conviction and sentence passed by the Court below, the accused has filed the present appeal.

3. Learned counsel for the appellant would submit that the prosecution has not established the case and also not substantiated the charges framed against the appellant and the Special Court convicted only based on assumption, surmises and conjunctures. The appellant was convicted only based on the evidence of P.W.1 and P.W.2 and there was no corroboration and there is no independent witnesses in this case and even the Doctor has opined that the age of the victim girl was between 18 to 21. Therefore, the age can be taken either way, i.e., two years more or less can be taken. As per the evidence of P.W.5, Doctor, the age of the victim girl was above 18 years. Therefore, she cannot be described as a child as defined under Section 2 (1) (d) of POCSO Act. The prosecution only relied on the evidence of P.W.2 and the appellant was erroneously convicted and there is no independent witness and evidence of P.W.2 is not corroborated by any eye-witness or independent witnesses. Ex.P.6, X-ray, is not conclusive proof to show the age of the victim girl. The victim girl was tutored by her parents and their relatives. In order to prove the age, neither the school authority, nor the concerned officer who issued Ex.P.6 was examined and the ingredients of offence under Sections 366, 343 IPC and 5(l) r/w. 6 of the POCSO Act were not made out and without appreciating the evidence of prosecution, the Special Court convicted the appellant only on sympathetic grounds and there are no grounds to convict the appellant for the above said offences and therefore, it warrants interference. In support of his contention, the learned counsel has cited the judgment of the Hon'ble Supreme Court in the case of Rajak Mohammad Vs. The State of Himachal Pradesh [Crl.A.No.1395 of 2018 dated 23.08.2018].

4. Learned Government Advocate (Crl.Side) would submit that the age of the victim girl was only 17 years and she was subjected to penetrative sexual assault and the prosecution clearly proved the charges framed against the appellant. The victim girl was removed by th