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11. So far as the factual background of the case is concerned, it reflects that the victim girl eloped with the accused appellant for the first time as on 29.9.2014 while she was a student of Class-IX and then her mother July Begum lodged an FIR before O/C Golaghat P.S. which was registered as Golaghat P.S.Case No.840/2014 U/S 366A /34 IPC (relates to the present case). After completion of the investigation the charge- sheet has been filed against the accused appellant and the learned trial Court conducted the trial by framing charge U/S 366 IPC read with section 6 of the POCSO Act and convicted him as aforesaid. But during pendency of the present case said victim girl again eloped with the accused appellant as on 26.5.2015 and accordingly her mother lodged an intimation to the O/C concerned and on the basis of which Golaghat P.S.Case No.547/2015 U/S 366A IPC was registered and after completion of the investigation charge-sheet was also submitted against him vide Sessions Case No. 96/2015, which was tried by the learned Sessions Judge, Golaghat U/S 366 IPC. The learned Assistant Sessions Judge who held the trial, finally acquitted the accused appellant from the charge by holding that there was no abduction on the part of the accused in view of the admission of the victim girl that she herself eloped with the accused appellant and performed nikah with him and thereafter consumed the marital life as husband and wife vide Judgment and order dated 18.12.2015. But the trial of the present case (which was filed earlier in the year 2014) concluded in the year 2016 vide order dated 10.2.2016 and by this order the accused appellant has been convicted under Section 366 IPC as well as Section 6 of the POCSO Act, which is now under challenge.

20. Now in the instant case the victim herself went out from her guardianship out of her love and affection, without any pursuation/ enticement on the part of accused/appellant and she remained with him out of own volition and such an affair cannot be held as an enticement in the eye of law. In view of the proposition laid down in the case of S. Vadarajan (supra) and taking note of the evidence on record it c an be held that it is not a case of kidnapping as the same could not be said to be an act of taking away or enticing away a woman below eighteen years of age but it could be a mere case of elopement. Moreover in the given background, charge at best could have been made U/S 363 IPC rather than Section 366 iPC Accordingly it can be arrived at that no offence under Section 363 IPC has been established against the appellant and he is therefore, entitled to acquittal. Accordingly finding of guilt of the accused appellant U/S 366 IPC is hereby set aside.

21. The reliance placed by the learned trial Court upon the statement of the victim U/S 164 CrPC by discarding the evidence given in course of trial appears to be not proper. Resultantly, conviction and sentence U/S 366 IPC is hereby set aside.

22. The accused appellant has also been convicted U/S 6 of the POCSO Act, which prescribes punishment for aggravated penetrative sexual assault, but as it appears while arriving to the said conclusion, the learned trial Court has totally excluded from its consideration as to the statement of the victim, who al through has stated that they resided as husband and wife and continue such sexual affair out of such relation. Such continuance sexual affairs cannot be stated as aggravated penetrative sexual assault as defined under the Act.