Conviction upheld with sentence reduction due to consensual relationship with minor.

J U D G M E N T

The appeal challenges the conviction and sentence imposed on the appellant for the offences under Section 366 of IPC and under Section 9 of Prohibition of Child Marriage Act.

2.(i) The case of the prosecuton is that the appellant and the victim, aged about 17 years at the time of occurrence, had a love affair; that on 27.01.2022, the appellant called the victim and promised to marry her; that he took the victim to Tiruppur, married the victim girl, took a house on rent and thereafter, committed penetrative sexual assault (ii) On the complaint given by PW2, the mother of the victim, (which was originally registered for 'girl missing'), an FIR (Ext.P10) was registered by PW8 in Crime No. 45 of 2022. The investigation was conducted by PW9 and thereafter, by PW10. PW10 filed the final report for the offences under Secton 366, 5(l) r/w 6 of the POCSO Act and Section 9 of the Prohibition of Child Marriage Act against the appellant. The charges under Section 366 of IPC, Section 9 of the Prohibition of Child Marriage Act and 5(l) r/w 6 of the POCSO Act were framed against the appellant and when questioned, the appellant pleaded 'not guilty.

(iii) The prosecution examined 10 witnesses and marked

15 documents to prove its case. When the appellant was questioned, u/s.313 Cr.P.C., on the incriminating circumstances appearing against him, he denied the same. The appellant neither examined any witness nor marked any documents.

(iv) On appreciation of oral and documentary evidence, the trial Court found that the petitioner was not guilty of the offence under Section 5(l) r/w 6 of the POCSO Act as the victim girl turned hostile to the prosecution in respect of penetrative sexual assault. The trial Court found the appellant guilty of the offence under Section 9 of the Child Marriage Act and Section 366 IPC and sentenced him to undergo 3 years RI and to pay a fine of Rs.1000/-, (id), to undergo 3 months RI for the offence under Section 366 of IPC and also sentenced him to undergo 1 year RI for the offence under Section 9 of the Prohibition of Child Marriage Act. Hence, the accused/appellant has preferred the appeal challenging the said conviction and sentence.

3.Heard Mr.P.Thinesh, the learned counsel appearing for the appellant/accused, and Mr.S.Raja Kumar, learned Additional Public Prosecutor appearing for the respondent/State. This Court also perused all the materials available on record.

4.Mr.P.Thinesh, the learned counsel for the appellant submitted that the victim was born on 15.12.2004 and was 17 years and 1 month old at the time of occurrence; that her act was voluntary and admittedly, there was a consensual relationship between the appellant and the victim; and that since the appellant was acquitted of the offence under Section 5(l) r/w 6 of the POCSO Act, the appellant ought to have been acquitted of the other charges and in any case, the sentence imposed is excessive and prayed for reduction of sentence.

5.The learned Additional Public Prosecutor (Crl. Side) per contra submitted that the prosecuton had established its case beyond reasonable doubt; that the victim's evidence in so far as the offence committed by the appellant under the Prohibition of Child Marriage Act and kidnapping cannot be disbelieved; and therefore, the impugned Judgment does not call for any interference.

6.As stated above, the prosecution had examined 10 witnesses.

PW1 is the victim girl. PW2 is the mother of the victim girl. PW3 and PW4 are observation mahazer witnesses. PW5 is a seizure mahazar witness. PW6 is the doctor, who had examined the victim. PW7 is the doctor who had examined the appellant and issued the p