The prosecution failed to prove the victim's age as under 18, and the relationship was consensual, thus negating charges under the POCSO Act.

JUDGMENT

This criminal appeal is preferred against the order dated 23.01.2023 passed in Spl.CC.No.102 of 2020 by the learned Principal Special Court for Exclusive Trial of Cases under POCSO Act , Coimbatore, thereby the appellant was convicted for the offence punishable under Section 363 of IPC and Section 5(1), 6 of .

A) CASE OF THE PROSECUTION:

2. The case of the prosecution is that a minor victim girl in this case, who was aged about 17 years 9 months and 12 days, was alone in her home on 19.08.2020. She called her boyfriend to her house. The accused came to her house and both had physical relationship since the parents of the victim girl had gone to Palani. Thereafter, when the parents of the victim arranged marriage of her with her maternal uncle, she eloped with the accused and stayed in his grandparents' house. During their stay there, they again had physical relationship. The specific case of the prosecution was that the accused came to the victim's house and after knowing that her parents went out of station, he induced her to have sexual intercourse on the pretext of marriage. Further, he kidnapped her to his grandparents' house and there, he committed penetrative sexual assault on the victim girl. On the “girl missing” complaint, the respondent registered FIR in crime number 857 of 2020 as 'girl missing'. After investigation, they altered the offence as under Section 366 of IPC and under Section 5(1) r/w 6 of POCSO Act . After completion of investigation, they filed final report and the same was taken cognizance for the offences punishable under (A) of and Section 5(l) r/w 6 of against the accused.

B) ORDER PASSED BY THE TRIAL COURT:

3. On the side of the prosecution, they had examined PW1 to PW19 and marked Ex.P1 to P15. Statement recorded under Section 164 of Cr.P.C. was marked as Ex.C1. The accused had examined DW1 and DW2 and no documents were marked. On perusal of the oral and documentary evidences, that trial court found the accused guilty for the offence punishable under Section 363 of IPC and sentenced him to undergo 5 years rigorous imprisonment and also ordered fine of Rs.5,000/-, in default to undergo six months simple imprisonment. The accused was also found guilty for the offence punishable under Section 5 (l) r/w 6 of POCSO Act and sentenced him to undergo 20 years rigorous imprisonment and to pay fine of Rs.20,000/-, in default to undergo further period of 1 year simple imprisonment. Aggrieved by the same the present appeal has been filed.

C) SUBMISSIONS OF THE APPELLANT'S COUNSEL:

4. The learned counsel for the appellant would submit that the prosecution failed to prove that the victim girl was minor. The occurrence took place when she was studying 2^nd year of B,Sc.Maths. Therefore, she had completed her 18 years of age on the date of the alleged occurrence. The victim categorically deposed that she was not kidnapped by anyone and she eloped along with the accused on her own. On the date of the alleged occurrence i.e. on 19.08.2020, when the victim was alone in her house since her parents went to Palani, she herself informed the accused to visit her house. Thereafter they had sexual intercourse. Therefore, it was consensual and no offence would be attracted against the appellant. In support of his contention, he relied upon the judgment of the Hon'ble High Court of Bombay in the case of Ashik Ramjali Ansari Vs. State of Maharashtra and another , 2023 SCC Online Bom 1390 He also relied upon the judgment of this Court in the case of Vijayalakshmi and another versus State represented by Inspector of police and another , (2021) 2 CTC 191 .

D) SUBMISSIONS OF THE ADDITIONAL PUBLIC PROSECUTOR:

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