IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Jail Appeal No.53 of 2019 Vijendra Pal @ Laturi ......Appellant Vs.

State of Uttarakhand …..Respondent Presence Ms. Neelima Mishra Joshi, learned counsel for the Appellant.

Mr. Akshay Latwal, learned AGA for the State.

Hon’ble Ashish Naithani, J.

The present Criminal Jail Appeal has been preferred under Section 374(2) of the Code of Criminal Procedure, 1973, by the Appellant, Vijendra Pal @ Laturi, challenging the judgment and order dated 09.01.2017 passed by the learned Fast Track Court/Additional Sessions Judge/Special Judge (POCSO), Udham Singh Nagar, in Special Sessions Trial No. 50 of 2017, arising out of FIR No. 351 of 2016, registered at Police Station Kichha, District Udham Singh Nagar.

2. As per the FIR, the victim, stated to be a minor, was allegedly enticed away by the Appellant on 06.12.2016 without the consent of her parents. Based on the written complaint lodged by the father of the victim, the FIR mentioned above was registered under Sections 363 and 366 IPC. Upon recovery of the victim on 09.01.2017, Sections 376(2) IPC and Sections 5/6 of the POCSO Act were added during investigation.

3. After completion of the investigation, a charge sheet was submitted against the Appellant for the offences punishable under Section 376(2) IPC and Sections 5 and 6 of the POCSO Act, 2012. Upon conclusion of the trial, the learned Trial Court convicted the Appellant under Section 376(2) IPC and sentenced him to undergo rigorous imprisonment for a period of ten years along with a fine of ₹50,000/-, and in default of payment of fine, to undergo further simple imprisonment.

4. Aggrieved by the said judgment and order of conviction, the Appellant has preferred the present Criminal Jail Appeal.

5. Learned counsel for the Appellant submitted that the conviction recorded by the learned Trial Court is erroneous, both on facts and law, and is not sustainable.

6. It is contended that the relationship between the Appellant and the victim was consensual. The victim voluntarily accompanied the Appellant without any inducement, force, coercion, or compulsion, and both remained together for over one month before the lodging of the FIR and their recovery.

7. Learned counsel further submitted that even after the arrest of the Appellant, the conduct of the victim demonstrates the voluntary nature of their relationship. It is noted that the victim continued to visit the Appellant in jail on multiple occasions. During each of these visits, the victim identified herself as the ‘Mulakat’

Appellant's wife in the registers. It is further submitted that the Aadhaar card of the victim, placed on record, also mentions the Appellant as her husband, which corroborates the consensual nature of their relationship.

8. It is further submitted that the prosecution has failed to establish the minority of the victim in accordance with the law. The school certificate relied upon by the prosecution to prove the victim's age is not corroborated by any primary admission register or testimony of a competent school authority. The investigating agency made no attempt to produce the original school admission records. Furthermore, no medical examination, ossification test, or any other scientific method was conducted to ascertain the age of the victim.

9. Learned counsel contended that because of the failure to establish the victim's age through cogent and admissible evidence, the statutory presumption under the POCSO Act cannot be invoked. Consequently, the question of consent cannot be brushed aside merely on the assumption of minority.

10. It is further submitted that the statement of the victim recorded under Section 164 CrPC, as well as her deposition before the Trial Court, does not disclose any allegation of force, threat, or coercion. On the contrary, her consistent stand is that she went with the Appellant voluntarily.

11. Learned counsel argued that the learned Trial Court erred in ignoring the material contradictions and