Conviction under IPC and POCSO Act cannot stand if prosecution fails to prove victim's age and evidence of consent is established.

JUDGMENT Per: Justice Vivek Agarwal With consent of learned counsel for the parties, this Criminal Appeal is heard finally.

This Criminal Appeal is filed by the appellant being aggrieved of the judgment dated 17.08.2023 passed by learned 2nd Addl. Sessions Judge, Gadarwara District Narsinghpur (M.P.) in S.C. No. 05 of 2020 whereby learned trial Court has convicted the appellant under Section 366 of IPC and sentenced him to undergo RI for 05 years and fine of Rs.2000/- with default stipulation RI for one month, under Section 5 (l)/6 of POCSO Act and sentenced to undergo Rigorous Imprisonment for 20 years and fine of Rs.5000/- with default stipulation of 03 months Rigorous Imprisonment.

2. It is submitted that, victim was major at the time of incident.

Signature Not Verified Prosecution has not proved her date of birth. Prosecution has also not produced her first school entry register. Evidence of father of the victim (PW-3) leads to a conclusion that victim was major at the time of the incident, therefore, it is submitted that, it being a case of consent, mere positivity of DNA report is not sufficient for conviction.

3. Shri Ajay Tamrakar, learned Government Advocate relying on the DNA report opposes the prayer.

4. After hearing learned counsel for the parties and going through the records, PW-1 victim has stated that incident took place three months back. She was at her residence. At about 08:30 she had come to her courtyard and Anil Yadav had taken her to Salichouka Railway Station, from where she had travelled with him to Itarsi, from Itarsi to Narsinghpur, from Narsinghpur to Ghatpindrai, from Ghatpindrai to Maihar and from Maihar to Kareli. He had taken her to the house of his Mama Halku Yadav. She had stayed with Anil Yadav at the house of Halku Yadav where Anil had violated her privacy then from there she had come to Gadarwara and then called her father.

5. In cross-examination, this witness (PW-1) admitted that appellant is not a resident of her village. In para-8 of her cross-examination, she admits that she had developed a friendship with the appellant at Village Sahawan. She has admitted that her parents had seen her talking to the appellant. She has also stated that there was an altercation between her parents on account of witnessing her conversation with the appellant. After such altercation she had left her home on her own volition. She admitted that Signature Not Verified she stayed with the appellant and had not given any statements to the Police at Rampura. She had signed on spot map (Ex.P-8) at Police Station. She admitted that she had not gone to the Police Station on her own, but later on she had accompanied her parents. She admits that she was talking to the appellant on phone. She also admits that during whole course of journey and stay, she never raised any alarm nor informed anybody about she being kidnapped or her privacy being violated.

6. PW-2 is the mother of the victim. She has admitted that the day on which victim had left their home, she and her husband had scolded her as they had seen her talking on phone.

7. PW-3 father of the victim admitted in para-4 of his cross-

examination that he has five daughters and one son. Victim is the eldest child. He had recorded her date of birth on estimation. He further admits that when the incident took place and at that time he was already in talks for marriage of the victim and on his own stated that her engagement was broken. In para -6 he admits that after 03-04 months when his daughter had returned back, then he had lodged a report at Police Station Salichowka.

8. When this evidence of PW-1 to PW3 is read alongwith the evidence of PW-6 Headmaster of the school, he has admitted that victim had not taken admission in Class-I in is school. He cannot say that as to and what basis the date of birth is recorded in Ex.P-11. He admits that parents got date of birth on the basis of estimation.

9. PW-10 Dr. Babita Singh stated that victim was fully conscious.

She was well ori