The court established that the prosecution failed to prove the victim's age as a minor, leading to the appellant's acquittal.

JUDGMENT

This Criminal Appeal has been filed to set aside the judgment passed in New S.C.No.50 of 2019 and Old S.C.No.4 of 2018 on the file of the Special Sessions Court, POCSO Court, Chengalpattu, Kancheepuram District, by which the petitioner was convicted and sentenced for the offences as follows:

Under Section Sentence

366 IPC 7 years R.I and fine of Rs.5,000/-, I/d.

6 months S.I

417 IPC 1 year S.I

6 r/w 5(j)(ii) of POCSO Act 10 years R.I and fine of Rs.10,000/-, I/d. 1 year R.I

2. It is the case of the prosecution that the appellant and the victim girl, who was aged about 16 years according to the prosecution were in a love affair; that on 09.03.2016, the appellant lured the victim girl, and on the promise of marriage, took her to a remote place and committed penetrative sexual assault on her, and thus committed the aforesaid offence.

3. On the complaint given by P.W.1, the father of the victim girl, on

12.10.2016, an F.I.R was registered by P.W.11 in Crime No.8 of 2016 for the offence under Sections 417 and 376 IPC. The investigation was thereafter conducted by P.W.13, who, after subjecting the victim to medical examination and recording her statement under Section 164 Cr.P.C., filed the final report before the Special Court. The Special Court framed three charges under Sections 366 and 417 IPC and Section 6 read with 5(j)(ii) of POCSO Act.

4. Before the Trial Court, the prosecution examined 13 witnesses and marked Ext.P.1 to Ext.P13. The Trial Court found the appellant guilty of all the offences and sentenced him as stated above.

5. The learned counsel for the appellant would submit that the victim had throughout stated that her age was 21 years at the time of occurrence; that even in the complaint given by her father, the victim’s age was mentioned as 21 years; that the relationship between the appellant and the victim was consensual; and that in any case, the victim, in her cross examination, had disowned her earlier versions and therefore, the prosecution has failed to establish its case and hence, the impugned judgment is liable to be set aside.

6. Per contra, the learned Additional Public Prosecutor appearing for the respondent submitted that the victim turned hostile two years after her examination-in-chief; and that she had been won over by the appellant; that the prosecution had established the age of the victim by marking the certificate issued by the Head Master of the school in which the victim had studied and therefore, the victim’s perception of her age is immaterial; and that the Trial Court was justified in convicting the appellant for the aforesaid offences and prayed for dismissal of the Appeal.

7. Heard the learned counsel on either side and perused the materials available on record.

8. As stated above, the prosecution examined 13 witnesses. P.W.1 is the father of the victim; P.W.2 is the victim child; P.W.3 is a witness to the Observation Mahazar (Ext.P3); P.W.4, a relative of P.W.1, who corroborated the evidence of P.W.1 and stated that the victim became pregnant; P.W.5 is a witness to the alleged confession of the appellant, who turned hostile; P.W.6 is the Head Master of the school where the victim had studied and who issued the certificate (Ext.P4), in which the date of birth of the victim is mentioned as 02.04.2001; P.W.7 is the nurse who conducted pregnancy test on the victim and signed the Lab Register (Ext.P5); P.W.8 is the doctor who had examined the appellant and issued the Potency Certificate (Ext.P6); P.W.9 is the doctor who examined the victim and had issued the Age Certificate (Ext.P8) and also certified that the victim was pregnant and had give