The absence of conclusive evidence for the victim's age and indications of consensual relationships justified the acquittal.

JUDGMENT

This Criminal Appeal has been preferred challenging the judgment dated 24.03.2017 passed by the learned Sessions Judge, Fast Track Mahila Court, Thanjavur, in Spl.S.C. No.01 of 2016.

2. The appellant is the sole accused, who has been found to be guilty for the offences under Section 366 IPC , Section 9 of Prohibition of Child Marriage Act , 2006 and Section 6 of POCSO Act. The trial court convicted and sentenced him as under:

3. As per the case of the prosecution, the defacto complainant, who was 16 years old, was studying +2 and the first accused was working as driver in the Mini Bus, in which the victim was travelling to her school. During that time, he developed an affair with the victim girl. The mother and brother of the victim had reprimanded the accused and discontinued the education of the victim and started to find an alliance for her. On 31.01.2014 at about 11.30 am, the defacto complainant went to see the first accused, as her parents were searching some other alliance for her. During that time, the accused 1 to 4 kidnapped the accused knowing that she was a minor and the first accused married her in Kaliamman temple. The accused 2 to 4 have actively assisted for the marriage. Thereafter, the first accused took the victim to Coimbatore and stayed in a rental house. The accused had repeated sexual intercourse with her during that time and due to that, the victim got pregnant. On the complaint as above, a case has been registered and taken up for investigation and after completion of investigation, charge sheet has been filed for the offences under Section 366 IPC , Section 9 of Prohibition of Child Marriage Act , 2006 and Section 6 of POCSO Act.

4. When the charges read over and explained, the accused pleaded not guilty and claimed to be tried. After conclusion of the trial, the accused was found guilty for the offences under Sections 366 IPC , Section 9 of Prohibition of Child Marriage Act , 2006 and Section 6 of POCSO Act and he was convicted and sentenced to undergo the punishment as stated supra. Aggrieved over that, the sole accused preferred the present appeal.

5. The learned counsel for the appellant submitted that the age of the victim is not proved; she was willing to go with the accused and she fell in love with him; the complaint has been given after several months; there is no question of kidnapping since the prosecution has not proved the age of the victim; the physical relationship happened between the accused and the victim, should be considered as a consensual sex and it is not an offence.

6. The learned Additional Public Prosecutor submitted that the school certificate has been produced to prove the age of the victim; she was a minor at the time of occurrence and the question of consent will not arise when the victim is a minor; the learned trial Judge has rightly fixed the guilt against the accused and convicted properly.

7. This Court gave anxious consideration to the submissions made on either side and carefully perused the materials available on record.

8. Before proceeding to deal with the merits of the evidence, it is essential to find out whether the age of the victim has been proved. It is the claim of the prosecution that the date of birth is 08.07.1997 and she was kidnapped on 13.01.2014. The Head Master of the school was examined as P.W.12. In his evidence, he had stated that he had issued the certificate after ver