Chattisgarh High Court
Shankar @ Doe Nag vs State Of Chhattisgarh on 14 March, 2024
Author: Ramesh Sinha
Bench: Ramesh Sinha
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NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No. 1439 of 2023
• Shankar @ Doe Nag S/o Late Mahodev Nag Aged About 25 Years
Resident Of Korpal, Raut Para, P.S. Parpa, District Bastar (C.G.)
---- Appellant
Versus
• State Of Chhattisgarh Through - Station House Officer, Police Station
Frejarpur (Parpa), District Bastar (C.G.)
---- Respondent
(Cause list is taken from CIS) For Appellant - Mr. Rahil Arun Kochar, Advocate For State/Respondent - Mr. Surendra Kumar Dewangan, PL Hon'ble Mr. Ramesh Sinha, Chief Justice Hon'ble Mr. Ravindra Kumar Agrawal, Judge Order on Board Per Ravindra Kumar Agrawal, Judge 14.03.2024
1. Challenge in the present appeal is the judgment of conviction and sentence dated 15.06.2023 passed by learned Additional Sessions Judge, (FTSC), under POCSO Act, at Bastar, Place - Jagdalpur (C.G.) in Special Sessions Case No.15/2020, whereby the appellant has been convicted for the offences under Sections 376(2)(n), 363, 366-A of I.P.C. and Section 6 of POCSO Act and sentenced as below :-
CONVICTION SENTENCES Under Section 363 Rigorous imprisonment for 3 years and of IPC fine amount of Rs.1,000/-, in default of payment of fine additional R.I. for 06 months.
Under Section 366- Rigorous imprisonment for 5 years and A of IPC fine amount of Rs.2000/-, in default of payment of fine additional R.I. for 1 year.
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Under Section No separate sentence has been
376(2)(n) of IPC awarded.
Under Section 6 of Rigorous imprisonment for 20 years and Protection of fine amount of Rs.3,000/-, in default of Children from payment of fine additional R.I. for 2 years.
Sexual Offences Act, 2012 All the sentence shall run concurrently.
2. Brief facts of the case are that on 12.12.2019, the father of the prosecutrix have lodged a missing report Ex.P/7 to the Police with the effect that his daughter, whose dated of birth is 03.10.2005, is missing from 08.12.2019 at about 08:00 p.m. and her whereabouts could not be traced out. He suspected that some one has kidnapped his minor daughter. On the report of the father of the prosecutrix, the police has registered offence under Section 363 of IPC against unknown person. During the enquiry the prosecutrix was recovered from the possession of the appellant on 15.12.2019 and recovery panchnama Ex.P/1 was prepared in the presence of the witnesses. The prosecutrix was sent for her medical examination to Govt. Maharani Hospital, Jagdalpur, where PW-5 Dr. Shrinkhala Jain has examined her and given her report Ex.P/11. While examining the prosecutrix she has not noticed any external injury on her body. Two slides of her vaginal swab were prepared, sealed and handed-over to the Police for FSL examination. She was referred for her X-ray examination for age determination and the doctor has opined that any definite opinion regarding rape cannot be given. The underwear of the prosecutrix was seized vide Ex.-P/2. With respect to age of the prosecutrix. -3- Progress Report Card of the Class 5 th and Class 7th of the prosecutrix was seized vide Ex.P/8 and in Progress Report Card the date of birth of the prosecutrix is mentioned as 03.10.2005. The spot map Ex. P/9 was prepared by the Police and Ex. P/4 was prepared by the Patwari. The Police has seized School Admission and Discharge Register from Primary School, Tusel vide seizure memo Ex.P/17. in which the date of birth of the prosecutrix is mentioned as 03.10.2003 and in certificate Ex.P/18 her date of birth is mentioned as 03.10.2005. Two slides of her vaginal swab, pubic hair and underwear of prosecutrix were seized vide Ex.P/19. The appellant was arrested on 15.12.2019 and he too was sent for his medical examination to Govt. Maharani Hospital, Jagdalpur, where PW/6 Dr. Dilip Kumar Kashyap has examined him and gave his report Ex. P/13. After examining the appellant the Doctor has found him to be capable for performing sexual intercourse. The vaginal slides, pubic hair and underwear of the prosecutrix as well as the appellant were sent for FSL examination, from where the FSL report Ex.P/33 was received and according to which the semen and sperms were found on the underwear of the prosecutrix, her vaginal slides and underwear of the appellant.
3. The statement of the prosecutrix under Section 164 of CrPC and the statement of the witnesses under Section 161 of CrPC have been recorded and after completion of usual investigation, charge- sheet was filed before the learned trial Court for the offences under Section 363, 366-A, 376 of IPC and Section 6 of POCSO Act. On 22.02.2020 the learned trial Court has framed charges -4- against the appellant for the offences under Section 363, 376(3) of IPC and Section 4 on POCSO Act. The appellant denied the charges and claimed trial. In order to establish the charge against the appellant the prosecution has examined 14 witnesses. Statement under Section 313 CrPC of the appellant has also been recorded in which he denied material appears against him, plead innocence and have submitted that he has been falsely implicated in the offence. After examination of the prosecution witnesses, on 18.04.2023, the trial Court has amended the charge and added Section 363-A of IPC and in place of Section 4 of POCSO Act, the Section 6 has been amended. The opportunity to re-examined and re-cross examined the prosecution witnesses was provided to the prosecution as well as to the accused and the accused/appellant has submitted that he wants to re-cross examine the prosecutrix and therefore, the prosecutrix was re-examined and re-cross examined on 15.05.2023.
4. On 17.05.2023, the additional statement under Section 313 of CrPC of the appellant was recorded in which he again denied the material appears against him and again submitted that he has been falsely implicated for the offence.
5. After appreciation of oral as well as documentary evidence produced by the prosecution, the learned trial Court has convicted the appellant and sentenced him as mentioned in para-1 of this judgment, hence this appeal.
6. Learned counsel for the appellant would submit that appellant is innocent and has been falsely implicated in the offence. The -5- prosecution has failed to prove its case beyond the reasonable doubt. No legally admissible evidence has been produced by the prosecution with regard to age of the prosecutrix that on the date of incident she was minor and less than 18 years of age. In absence of the author of the School Admission and Discharge Register, the same cannot be taken into consideration for determination of age of the prosecutrix. No any Kotwari register or ossification test report has been produced by the prosecution to determine the actual age of the prosecutrix that on the date of incident she was minor and below 18 years of age. It is further argued by the learned counsel for the appellant that the prosecutrix and appellant were having love affair and she herself eloped with the appellant and both of them were resided together for a considerable period, thus, the prosecutrix was a consenting party and no any complaint has been made by her to anyone regarding her kidnapping or any act of forceful sexual intercourse upon her by the appellant. Hence, the offence under the IPC and POCSO Act are not made out against the appellant and he is entitled for acquittal.
7. On the other hand, learned State counsel opposes the argument advanced by the learned counsel for the appellant and have submitted that the prosecutrix was minor and below 18 years of age on the date of incident which is proved by the School Admission and Discharge Register Article 1 (c) which is proved by PW-9, who is the Assistant Teacher of the School. The said school register is an admissible piece of evidence and date of birth of the -6- prosecutrix is recorded as 03.10.2005 in it. Since the prosecutrix was minor on the date of incident, the consent, if any, in making physical relation with the appellant is immaterial rather the appellant is guilty for kidnapping of a minor girl keeping away from her lawful guardianship and also making physical relation with her which amounts to offence of rape and therefore, the learned trial Court has rightly convicted and sentenced him which is justified and needs no interference.
8. We have heard learned counsel for the parties and peruse the material available on record.
9. In order to consider the age of the prosecutrix, we have examined evidence available on record produced by the prosecution. The prosecution has mainly relied on the School Admission and Discharge Register, article 1(c) which is sought to be proved by PW-9, who is the Assistant Teacher of the School. She has stated in her deposition that she is posted as Assistant Teacher at Govt. Primary School, Tusel, from 2018. The police has seized School Admission and Discharge Register vide Ex.P/17. The School register is article-1 and its attested true copy is article -1(c). As per School register her date of birth is 03.10.2005 and whose name is recorded at serial No.470 of the register. She has stated that at the time of admission of the student in the School, the date of birth of the students are recorded in the School register on the basis of document relating to date of birth of the students like Birth Certificate, Anganbadi Certificate, Aadhar Card etc. In Cross- examination she has stated that along with present School -7- register, there is no Birth Certificate, Anganbadi Certificate or Aadar Card are annexed with the same. She admitted that the certificate P/18 is in her handwriting. The said certificate of Ex.P/18 is issued on the basis of entries made in the School register. She denied that the School register article-1, there is having an overwriting in the year 2003 by making it as 2005. She admitted that in the School register the name, address, date of birth of the students have been entered by a similar ink pen. She further admitted that in the register article-1 the entry made in between 23.06.2010 to 30.12.2010.
10. PW-1, the prosecutrix has stated in her deposition that she could not remember her date of birth. Her age is 14 years. In cross-examination she admitted that she has got prepared her birth certificate in which year of birth has been mentioned as 2005. She admitted that her birth certificate has not been seized by the police. She has got admitted in School by her mother. The documents which she submitted at the time of her admission she could not know. She further admitted that she underwent an X-ray examination during the investigation. She further admitted that her date of birth is 03.10.2003. In para-17 of her deposition she stated that today she is aged about 23 years. The para-17 of her statement was recorded on 15.05.2023 in which she stated she is aged about 23 years meaning thereby she claimed to be aged about more than 18 years on the date of incident i.e. on 08.12.2019.
11. PW-2, the mother of the prosecutrix has stated in her deposition -8- that she could not know the date of birth of the prosecutrix but she is aged about 10-11 years. In cross-examination she has stated that the prosecutrix is her second number daughter. She has got admitted her in the School. She admitted that she recorded her date of birth in the School register on assumption and no any document was submitted in the School at the time of her admission.
12. PW-3, the father of the prosecutrix has deposition in his deposition that he could not remember the date of birth of his daughter and she is aged about 13-14 years. In cross-examination he has stated that he has got married since 25-30 years back, in the very next year of his marriage, his son was born and two years thereafter the prosecutrix born, meaning thereby the age of the prosecutrix is about 21-22 years on the date of recording statement of the PW-3 i.e. on 03.03.2020. He too has admitted that no document with respect to her date of birth were submitted in the School at the time of her admission and her date of birth was recorded in the School register on assumption.
13. In case of Ravinder Singh Gorkhi Vs. State of UP, 2006 (5) SCC 584, relying upon its earlier judgment in case of Birad Mal Singhvi Vs. Anand Purohit, 1988 supp. SCC 604, the Hon'ble Supreme Court has held as under :
"26. To render a document admissible under Section 35, three conditions must be satisfied, firstly, entry that is relied on must be one in a public or other official book, register or record; secondly, it must be an entry stating a fact in issue or relevant fact; and thirdly, it must be made by a public servant in discharge of his official duty, or any other person in performance of a -9- duty specially enjoined by law. An entry relating to date of birth made in the school register is relevant and admissible under Section 35 of the Act but the entry regarding the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded."
14. In case of Alamelu and Another Vs. State, represented by Inspector of Police, 2011(2)SCC-385, the Hon'ble Supreme Court has held that the transfer certificate which is issued by government school and is duly signed by the Headmaster would be admissible in evidence under Section 35 of the Evidence Act 1872. However, the admissibility of such a document would be of not much evidentiary value to prove the age of the prosecutrix in the absence of any material on the basis of which the age was recorded. The Hon'ble Supreme court held that the date of birth mentioned in the transfer certificate would have no evidentiary value unless the person who made the entry or who gave the date of birth is examined.
15. In paragraphs 40 and 48 of its judgment in Alamelu (Supra), the Supreme Court has observed as under :
"40.Undoubtedly, the transfer certificate, Ex.P16 indicates that the girl's date of birth was 15th June, 1977. Therefore, even according to the aforesaid certificate, she would be above 16 years of age (16 years 1 month and 16 days) on the date of the alleged incident, i.e., 31st July, 1993. The transfer certificate has been issued by a Government School and has been duly signed by the Headmaster. Therefore, it would be admissible in evidence under Section 35 of the Indian Evidence Act. However, the admissibility of such a document would be of not much evidentiary value to prove the age of the girl in the absence of the material on the basis of which the age was recorded. The date of birth mentioned in the transfer certificate would have no evidentiary value unless the person, who made the entry or who gave the date of birth is examined.-10-
48. We may further notice that even with reference to Section 35 of the Indian Evidence Act, a public document has to be tested by applying the same standard in civil as well as criminal proceedings. In this context, it would be appropriate to notice the observations made by this Court in the case of Ravinder Singh Gorkhi Vs. State of U.P.4 held as follows:-
"The age of a person as recorded in the school register or otherwise may be used for various purposes, namely, for obtaining admission; for obtaining an appointment; for contesting election; registration of marriage; obtaining a separate unit under the ceiling laws; and even for the purpose of litigating before a civil forum e.g. necessity of being represented in a court of law by a guardian or where a suit is filed on the ground that the plaintiff being a minor he was not appropriately represented therein or any transaction made on his behalf was void as he was a minor. A court of law for the purpose of determining the age of a (2006) 5 SCC 584 party to the lis, having regard to the provisions of Section 35 of the Evidence Act will have to apply the same standard. No different standard can be applied in case of an accused as in a case of abduction or rape, or similar offence where the victim or the prosecutrix although might have consented with the accused, if on the basis of the entries made in the register maintained by the school, a judgment of conviction is recorded, the accused would be deprived of his constitutional right under Article 21 of the Constitution, as in that case the accused may unjustly be convicted."
16. In case of Rishipal Singh Solanki Vs. State of Uttar Pradesh & Others, 2022 (8) SCC 602, while considering various judgments, the Hon'ble Supreme Court has observed in para 33 as under :
"33. What emerges on a cumulative consideration of the aforesaid catena of judgments is as follows:
33.2.2. If an application is filed before the Court claiming juvenility, the provision of sub-section (2) of section 94 of the JJ Act, 2015 would have to be applied or read along with sub-section (2) of section 9 so as to seek evidence for the -11- purpose of recording a finding stating the age of the person as nearly as may be.
XXXX XXXX XXX 33.3. That when a claim for juvenility is raised, the burden is on the person raising the claim to satisfy the Court to discharge the initial burden. However, the documents mentioned in Rule 12(3)(a)(i), (ii), and (iii) of the JJ Rules 2007 made under the JJ Act, 2000 or sub-section (2) of section 94 of JJ Act, 2015, shall be sufficient for prima facie satisfaction of the Court. On the basis of the aforesaid documents a presumption of juvenility may be raised.
33.4. The said presumption is however not conclusive proof of the age of juvenility and the same may be rebutted by contra evidence let in by the opposite side.
33.5. That the procedure of an inquiry by a Court is not the same thing as declaring the age of the person as a juvenile sought before the JJ Board when the case is pending for trial before the concerned criminal court. In case of an inquiry, the Court records a prima facie conclusion but when there is a determination of age as per sub-section (2) of section 94 of 2015 Act, a declaration is made on the basis of evidence. Also the age recorded by the JJ Board shall be deemed to be the true age of the person brought before it.
Thus, the standard of proof in an inquiry is different from that required in a proceeding where the determination and declaration of the age of a person has to be made on the basis of evidence scrutinised and accepted only if worthy of such acceptance.
33.6. That it is neither feasible nor desirable to lay down an abstract formula to determine the age of a person. It has to be on the basis of the material on record and on appreciation of evidence adduced by the parties in each case.
33.7 This Court has observed that a hypertechnical approach should not be adopted when evidence is adduced on behalf of the accused in support of the plea that he was a juvenile.
33.8. If two views are possible on the same evidence, the court should lean in favour of holding the accused to be a juvenile in borderline cases. This is in order to ensure that the benefit of the JJ Act, 2015 is made applicable to the juvenile in conflict with law. At the same time, the Court should ensure that the JJ Act, 2015 is not misused by -12- persons to escape punishment after having committed serious offences.
33.9. That when the determination of age is on the basis of evidence such as school records, it is necessary that the same would have to be considered as per Section 35 of the Indian Evidence Act, inasmuch as any public or official document maintained in the discharge of official duty would have greater credibility than private documents. 33.10. Any document which is in consonance with public documents, such as matriculation certificate, could be accepted by the Court or the JJ Board provided such public document is credible and authentic as per the provisions of the Indian Evidence Act viz., section 35 and other provisions.
33.11. Ossification Test cannot be the sole criterion for age determination and a mechanical view regarding the age of a person cannot be adopted solely on the basis of medical opinion by radiological examination. Such evidence is not conclusive evidence but only a very useful guiding factor to be considered in the absence of documents mentioned in Section 94(2) of the JJ Act, 2015."
17. Recently, in case of P. Yuvaprakash Vs. State represented by Inspector of Police, 2023 (SCC Online) SC 846, Hon'ble Supreme Court has held in para 14 to 17 as under :
"14. Section 94 (2)(iii) of the JJ Act clearly indicates that the date of birth certificate from the school or matriculation or equivalent certificate by the concerned examination board has to be firstly preferred in the absence of which the birth certificate issued by the Corporation or Municipal Authority or Panchayat and it is only thereafter in the absence of these such documents the age is to be determined through "an ossification test" or "any other latest medical age determination test" conducted on the orders of the concerned authority, i.e. Committee or Board or Court. In the present case, concededly, only a transfer certificate and not the date of birth certificate or matriculation or equivalent certificate was considered. Ex. C1, i.e., the school transfer certificate showed the date of birth of the victim as 11.07.1997. Significantly, the transfer certificate was produced not by the prosecution but instead by the court summoned witness, i.e., CW-1. The burden is always upon the prosecution to establish what it alleges; therefore, the prosecution could not have been fallen back upon a document which it had never relied upon. Furthermore, DW--13-
3, the concerned Revenue Official (Deputy Tahsildar) had stated on oath that the records for the year 1997 in respect to the births and deaths were missing. Since it did not answer to the description of any class of documents mentioned in Section 94(2)(i) as it was a mere transfer certificate, Ex C-1 could not have been relied upon to hold that M was below 18 years at the time of commission of the offence.
15. In a recent decision, in Rishipal Singh Solanki vs. State of Uttar Pradesh & Ors. this court outlined the procedure to be followed in cases where age determination is required. The court was dealing with Rule 12 of the erstwhile Juvenile Justice Rules (which is in pari materia) with Section 94 of the JJ Act, and held as follows:
"20. Rule 12 of the JJ Rules, 2007 deals with the procedure to be followed in determination of age. The juvenility of a person in conflict with law had to be decided prima facie on the basis of physical appearance, or documents, if available. But an inquiry into the determination of age by the Court or the JJ Board was by seeking evidence by obtaining: (i) the matriculation or equivalent certificates, if available and in the absence whereof; (ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof; (iii) the birth certificate given by a corporation or a municipal authority or a panchayat. Only in the absence of either
(i), (ii) and (iii) above, the medical opinion could be sought from a duly constituted Medical Board to declare the age of the juvenile or child. It was also provided that while determination was being made, benefit could be given to the child or juvenile by considering the age on lower side within the margin of one year."
16. Speaking about provisions of the Juvenile Justice Act, especially the various options in Section 94 (2) of the JJ Act, this court held in Sanjeev Kumar Gupta vs. The State of Uttar Pradesh & Ors that:
"Clause (i) of Section 94 (2) places the date of birth certificate from the school and the matriculation or equivalent certificate from the 2021 (12) SCR 502 [2019] 9 SCR 735 concerned examination board in the same category (namely (i) above). In the absence thereof category (ii) provides for obtaining the birth certificate of the corporation, municipal authority or panchayat. It is only in the absence of (i) and (ii) that age determination by means of medical analysis is -14- provided. Section 94(2)(a)(i) indicates a significant change over the provisions which were contained in Rule 12(3)(a) of the Rules of 2007 made under the Act of 2000. Under Rule 12(3)(a)(i) the matriculation or equivalent certificate was given precedence and it was only in the event of the certificate not being available that the date of birth certificate from the school first attended, could be obtained. In Section 94(2)(i) both the date of birth certificate from the school as well as the matriculation or equivalent certificate are placed in the same category.
17. In Abuzar Hossain @ Gulam Hossain Vs. State of West Bengal, this court, through a three-judge bench, held that the burden of proving that someone is a juvenile (or below the prescribed age) is upon the person claiming it. Further, in that decision, the court indicated the hierarchy of documents that would be accepted in order of preference."
18. The prosecutrix was not subjected to ossification test to ascertain her actual age. The Investigating Officer PW-13 has stated in his deposition that he has not investigated about the dated of birth of the prosecutrix from the Anganbadi Centre. He admitted that the prosecutrix was not subjected to ossification test or X-ray examination. He admitted that with respect to the age of the prosecutrix he has not inquired from her parents. From the evidence laid by the prosecution with respect to the date of birth/age of the prosecutrix. The School Admission and Discharge Register shows that her date of birth is 03.10.2005, as per the prosecutrix her date of birth is 03.10.2003. The seizure memo Ex.P/17 bears with the date of birth as 03.10.2003. Her mother says that the prosecutrix is aged about 10-11 years whereas her father says that she is aged about 13-14 years. The author of the School Admission and Discharge register has not been examined. There is no ossification test report of birth certificate of the -15- prosecutrix.
19. From the above evidence it could not be established by the prosecution beyond reasonable doubt that on the date of incident the prosecutrix was minor and below 18 years of age, yet learned trial Court has held her minor.
20. With respect to the kidnapping and forceful sexual intercourse by the appellant with the prosecutrix is concerned, we have carefully examined the evidence of the prosecution witnesses. The PW-1, the prosecutrix have stated in her deposition that she knew the appellant because he usually visited to her house since last 2 years. On the date of incident the appellant came to her house at about 07:00 p.m. and asked her to accompany with him and taken her with him. He kept her with him in the house of his brother for about 1 week and made physical relation with her repeatedly, thereafter she was being taken to his sister's house where they stay for about 2 days and made physical relation with her. From his sister's house, her father has taken her with him.
21. In cross-examination she admitted that she disclosed in her statement made before Baal Vikas Samiti that she was fallen in love with the appellant. She further admitted that she has also stated there that both of them have made physical relation with each other by their consent regularly. She further admitted that both of them had gone to Village- Niyanar, Gudia on 08.12.2019 without informing to anyone and they wanted to reside together forever. She herself had gone with the appellant on her own will -16- because she wanted to marry with him . She further admitted that from 08.12.2019 to 15.12.2019 they have recided together as husband and wife and they wanted to reside together forever and this is the reason she made physical relation with him on her own will. She further admitted that she was having relation with the appellant since1&1/2 - 2 years.She also admitted that she belongs to Muria Adiwasi and the appellant belongs to Dhruwa Adiwasi, for this reason her parents are not giving their consent for their marriage. She further admitted that she had gone to village Gudia with the appellant by walking . He has not taken her forcefully . On the way she met various persons who were moving around but she has not made any complaint that she was being taken forcefully by the appellant . She has not made any complaint to the vicinity at village - Gudia where they have resided for sometime , despite having opportunity to raise alarm to make complaint to the persons. She further admitted that the appellant has left her to her parents house . She admitted that her parents have presurrsied her for giving statement against the appellant in the Magistrate Court and under pressure she has made statement against the appellant. She specifically admitted that the appellant has never committed any wrong with her against her will but she herself made physical relation with him on her own will due to the love affair between them. In further cross-examination she further admitted that she went alongwith the appellant happily and on her own will. She stayed there on the house of his sister for about 6-7 days but in between that period the appellant has never committed -17- any wrong with her.
22. PW-2, the mother of the prosecutrix has stated in her deposition that she was not being informed by any of the villagers that the prosecutrix was forcefully taken by the appellant. She admitted that the appellant has left the prosecutrix to her house. She further admitted that they belongs to Muria and the appellant belongs to Dhurwa. She further admitted that the marriage between Dhurwa and Muria is prohibited in their community and this is the reason they are not permitting for their marriage and has lodged the report to the police.
23. PW-3, father of the prosecutrix has not stated anything specific in his deposition against the appellant regarding kidnapping and forceful sexual intercourse by the appellant with the prosecutrix.
24. PW-5, Dr. Shrinkhala Jain has not noticed any external injuries on the body of the prosecutrix and has opined that there is no definite opinion with regard to recent sexual intercourse with the prosecutrix.
25. From the evidence laid by the prosecution, it is quite vivid that the prosecutrix was having love affair with the appellant since last 1 ½
- 2 years, she wanted to marry with him and since last 1 ½ - 2 years she was having physical relation with the appellant on her own will. While going with the appellant till her recovery, she has not made any complaint to the persons who met on the way and also while staying with the appellant at different places. She has -18- not raised any alarm and has not made any complaint with respect to any forceful sexual intercourse by the appellant with her rather she is saying that whatever physical relation she has made the same are with her own consent and she herself wanted to marry with the appellant as she is fallen in love with him and she wanted to reside together forever.
26. From the evidence, the prosecution could not establish the fact that she was minor. From the evidence it has been established that the prosecutrix herself wanted to marry with the appellant and made physical relation with him on her own will, which cannot be termed as rape. From the consideration of the evidence led by the prosecution the offence of Section 366-A of IPC is also not made out as the prosecutrix was not proved to be minor. No such ingredients of Section 363, 366-A, 376(2)(n) of IPC and Section 4 of POCSO Act are made out against the appellant.
27. In the result, the appeal is allowed, the impugned judgement of conviction and sentences are set-aside, the appellant is acquitted from all the charges. He is reported to be in jail since 15.12.2019, he be released forthwith, if not required in any other case.
28. Keeping in view the provisions of Section 437-A CrPC, the appellant is directed to forthwith furnish a personal bond in terms of Form No.45 prescribed in the Code of Criminal Procedure of sum of Rs.25,000/- with one reliable surety in the like amount before the Court concerned which shall be effective for a period of six months along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of -19- leave, the aforesaid appellant on receipt of notice thereof shall appear before the Hon'ble Supreme Court.
29. The trial court record along with a copy of this judgment be sent back immediately to the trial court concerned for compliance and necessary action.
Sd/- Sd/-
(Ravindra Kumar Agrawal) (Ramesh Sinha)
Judge Chief Justice
Ravi Mandavi