JUDGMENT & ORDER : Heard Mr. H. Debnath, learned counsel appearing for the appellant as well as Mr. A. Ghosh, learned P.P. for the state. 2. By means of this appeal filed under Section 374(2) of the Cr.P.C., the judgment of conviction and order of sentence dated 30.04.2016 passed by the Special Judge, North Tripura, Dharmanagar in Special (POCSO) 04 of 2015, convicting the appellant under Section 8 of the Protection of Children from Sexual Offences Act, 2012 and sentencing him to suffer rigorous imprisonment for 5(five) years and to pay a fine of Rs.10,000/-(ten thousand), in default, to suffer further rigorous imprisonment for 6(six) months, has been challenged. 3. Based on the written ejahar filed by one Sri Sukumar Malakar (PW-2) disclosing that when the victim [her name is withheld for protecting the identity] visited the house of the appellant on 29.01.2015 at about 10 O’clock in the morning, the appellant called her inside, laid her back on his bed and tried to disrobe her with ill motive by using force. At that time, one Nirmal Mallik called the appellant from outside the door as the door was bolted from inside. When the appellant opened the door, somehow the victim managed to escape from that room. 4. On the basis of the said written ejahar, Panisagar P.S. Case No. PNS 006/2015 under Section 354 was registered. After investigation, the charge-sheet was filed under Section 8 of the Protection of Children from Sexual Offences Act, 2012 [POCSO Act in short] and under Section 354 of the IPC. When the charge was read to the appellant, he denied the charge and claimed innocence to face the trial. 5. To substantiate the charge, the prosecution adduced as many as 8(eight) witnesses and admitted 4(four) documentary evidence including the written ejahar (Exbt.-1), statement of the victim as recorded under Section 164(5) of the Cr.P.C. (Exbt.-7) etc. After recording the evidence, the appellant was examined under Section 313 of the Cr.P.C when the appellant repeated his plea of innocence. But the appellant did not adduce any evidence at all. Thereafter, on appreciating the evidence on record, the Special Judge delivered the impugned judgment convicting the appellant under Section 8 of the POCSO Act, 2012 and the appellant has been sentenced as stated. 6. Mr. But the appellant did not adduce any evidence at all. Thereafter, on appreciating the evidence on record, the Special Judge delivered the impugned judgment convicting the appellant under Section 8 of the POCSO Act, 2012 and the appellant has been sentenced as stated. 6. Mr. H. Debnath, learned counsel appearing for the appellant has submitted that the evidence in respect of the age of the victim is so inadequate and insufficient that this court would be reluctant to hold that the victim was below the age of 18(eighteen) years. He has urged this court to revisit the evidence on record. By aid of PW-8, Smt. Smiriti Debnath, one certificate dated 03.01.2003 from the Anganwadi Center was introduced in the evidence and admitted as Exbt.-8. According to Mr. Debnath, this is the basis of determining the age of the victim. Mr. Debnath, learned counsel has urged this court that the testimony of PW-8 is not at all reliable, inasmuch as, PW-8 has stated in the examination-in-chief that the victim was admitted in the Anganwadi Center, Jalabassa Barabari Rongomoyee Anganwadi Center, Panisagar, North Tripura on 03.01.2003. PW-8 has further stated in her examination-in-chief that the name of the victim was entered in the register of the Anganwadi Center on 03.01.2003. Even in the cross-examination, PW-8 has stated that, he did not know whether the said certificate (Exbt.-8) is related to the victim or not. Mr. Debnath, has thus stated that such witness cannot be believed by any court. Even though it has been claimed that the original register of the Anganwadi center was brought by PW-8, but neither the said register nor any page thereof had been admitted in the evidence by marking the same nor there is any statement disclosing the source of the birth of the victim. Mr. Debnath, learned counsel has urged this court not to believe those evidence inasmuch such evidence cannot be relied on in view of the decision of the apex court in Alamelu and Another vs. State, Represented by Inspector of Police, reported in (2011) 2 SCC 385 . 7. When the victim (PW-1) was asked about her age, she replied that she does not know her age, but when she was examined under Section 164(5) of the Cr.P.C., she claimed her age as 12 years. 7. When the victim (PW-1) was asked about her age, she replied that she does not know her age, but when she was examined under Section 164(5) of the Cr.P.C., she claimed her age as 12 years. Even PW-2, the victim's father, did not make any endeavour to ascertain the date of birth of her daughter, but in the examination-in-chief he has admitted that the birth certificate of the victim was lost. He has further stated that a certificate of age was issued from the Anganwadi Center of their village, where the date of birth was recorded as 03.01.2003. 8. According to Mr. Debnath, learned counsel appearing for the appellant, PW-3, Sri Anukul Das did not state anything about the age of the victim but he confirmed the seizure of the birth certificate of the victim issued from the Anganwadi Centre. The other statements as made by PW-3 shall not form evidence because he has not disclosed wherefrom he had heard that the victim was disrobed by the appellant. 9. PW-4, Smti Archana Malakar, is the grandmother of the victim. She has replicated what she heard from the victim. She is also a hearsay witness. 10. PW-5, Sri Nirmal Mallik, who went to the appellant's house at the relevant point of time and date, has stated briefly that the police did not record his statement at any point of time. For such statement, he was declared hostile by the prosecution and the trial court permitted the public prosecutor to cross-examine him. But from his cross-examination, nothing has emerged to support or defeat the prosecution case. 11. PW-6, Smt. Rinki Debbarma is the I.O. She has stated how she conducted the investigation and facilitated recording of the statement of the victim under Section 164(5) of the Cr.P.C. and the statement of PW.5, Nirmal Mallik or how she prepared the site map. She has stated that the ejahar was recorded by her, as it was the oral ejahar by PW-2. 12. PW-7, Sri Subhadeep Saha, is the Judicial Magistrate, who recorded the statement under Section 164(5) of the Cr.P.C. of the victim. He identified the said statement as Exbt.-7. 13. Mr. She has stated that the ejahar was recorded by her, as it was the oral ejahar by PW-2. 12. PW-7, Sri Subhadeep Saha, is the Judicial Magistrate, who recorded the statement under Section 164(5) of the Cr.P.C. of the victim. He identified the said statement as Exbt.-7. 13. Mr. Debnath, learned counsel appearing for the appellant has submitted that the statement of the victim (PW-1) should not be relied on by this court inasmuch as even PW-5, who, according to PW-1, appeared on the nick of time of the alleged occurrence, but did not support her version. 14. From the other side, Mr. A. Ghosh, learned P.P. appearing for the respondent has submitted that there is no reason to disbelieve the statement of the victim. She had made disclosure statement [as to what she had experienced at the hands of the appellant] to her relatives and later on to her parents. Mr. Ghosh, learned P.P. has also pointed out that the defence has tried to establish their version of animosity from the statements made by PWs against the appellant, but those fell short of the standard of preponderance of probability. As such, what the defence has projected to exculpate the appellant, cannot be trusted by this court. Thus, Mr. Ghosh, learned P.P. has urged this court that even if it is assumed that the prosecution has failed to prove the age of the victim, such failure also will not completely exculpate the appellant from the charge. The appellant in that event is expected to be convicted under Section 354 of the IPC. 15. Having regard to the submission made by the learned counsel for the parties and on scrutiny of the records, this court finds substantive force in the submission of Mr. H. Debnath, learned counsel on proof of age of the victim. The evidence that has been led by the prosecution to ascertain the age of the victim is not only insufficient, but it does not establish any confidence to rely on. Sine qua non of any offence under the POCSO Act, 2012 is that the victim must be below the age of 18 years. In view of definition as provided under Section 2(d) of the said Act, “child” means any person below the age of eighteen years. Sine qua non of any offence under the POCSO Act, 2012 is that the victim must be below the age of 18 years. In view of definition as provided under Section 2(d) of the said Act, “child” means any person below the age of eighteen years. Moreover, for punishment under Section 8 of the said Act, the ingredients of offence under Section 7 of the said Act are required to be proved beyond reasonable doubt. Section 7 of the POCSO Act provides that, whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to have committed sexual assault. 16. In this case, no doubt there is prima facie material of act with sexual intent which involved physical contact without penetration. Thus if the victim's age is proved to be below 18 years, the conviction of the appellant under Section 8 may not have been questioned on that premises. But this court has observed that the prosecution could not prove the age of the victim following the procedure as laid down by the apex court in Alamelu and Another vs. State Represented by Inspector of Police, where it has been held that : 38. We may now take up the issue of Sekar's conviction under Section 376 IPC. Whilst upholding the conviction of Sekar under Section 376 IPC, the High Court has held that the girl would not have voluntarily gone with Sekar. It has also been held that she was not a major at the relevant time. In our opinion, both the conclusions recorded by the High Court are contrary to the evidence on record. 39. We will first take up the issue with regard to the age of the girl. The High Court has based its conclusion on the transfer certificate, Ext. P-16 and the certificate issued by PW 8 Dr. Gunasekaran, Radiologist, Ext. P-4 and Ext. P-5. 40. Undoubtedly, the transfer certificate, Ext. P-16 indicates that the girl's date of birth was 15-6-1977. 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. 31-7-1993. Gunasekaran, Radiologist, Ext. P-4 and Ext. P-5. 40. Undoubtedly, the transfer certificate, Ext. P-16 indicates that the girl's date of birth was 15-6-1977. 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. 31-7-1993. 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 Evidence Act, 1872. However, the admissibility of such a document would be of not much evidentiary value to prove the age of the girl in 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. 41. We may notice here that PW-1 was examined in the Court on 9-8-1999. In his evidence, he made no reference to the transfer certificate (Ext. P-16). He did not mention her age or date of birth. PW 2 was also examined on 9th August, 1999. She had also made no reference either to her age or to the transfer certificate. It appears from the record that a petition was filed by the complainant under Section 311 CrPC seeking permission to produce the transfer certificate and to recall PW 2. This petition was allowed. She was actually recalled and her examination was continued on 26-4-2000. The transfer certificate was marked as Ext. P-16 at that stage, i.e. 26-4-2000. The judgment was delivered on 28-4-2000. In her cross-examination, she had merely stated that she had signed on the transfer certificate, Ext. P-16 issued by the school and accordingly her date of birth noticed as 15-6-1977. She also stated that the certificate has been signed by the father as well as the Headmaster. But the Headmaster has not been examined. Therefore, in our opinion, there was no reliable evidence to vouchsafe for the truth of the facts stated in the transfer certificate. 42. Considering the manner in which the facts recorded in a document may be proved, this Court in Birad Mal Singhvi Vs. Anand Purohit : 1988 Supp SCC 604, observed as follows: (SCC pp. 618-19, para 14) "14. …. 42. Considering the manner in which the facts recorded in a document may be proved, this Court in Birad Mal Singhvi Vs. Anand Purohit : 1988 Supp SCC 604, observed as follows: (SCC pp. 618-19, para 14) "14. …. The date of birth mentioned in the scholars' register has no evidentiary value unless the person who made the entry or who gave the date of birth is examined. ...... Merely because the documents Exts. 8, 9, 10, 11, and 12 were proved, it does not mean that the contents of documents were also proved. Mere proof of the documents Exts. 8, 9, 10, 11 and 12 would not tantamount to proof of all the contents or the correctness of date of birth stated in the documents. Since the truth of the fact, namely, the date of birth of Hukmi Chand and Suraj Prakash Joshi was in issue, mere proof of the documents as produced by the aforesaid two witnesses does not furnish evidence of the truth of the facts or contents of the documents. The truth or otherwise of the facts in issue, namely, the date of birth of the two candidates as mentioned in the documents could be proved by admissible evidence i.e. by the evidence of those persons who could vouchsafe for the truth of the facts in issue. No evidence of any such kind was produced by the respondent to prove the truth of the facts, namely, the date of birth of Hukmi Chand and of Suraj Prakash Joshi. In the circumstances the dates of birth as mentioned in the aforesaid documents have no probative value and the dates of birth as mentioned therein could not be accepted." 43. The same proposition of law is reiterated by this Court in Narbada Devi Gupta Vs. Birendra Kumar Jaiswal : (2003) 8 SCC 745 where this Court observed as follows: (SCC p.751, para 16) "16. …. The legal position is not in dispute that mere production and marking of a document as exhibit by the court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence, that is, by the ‘evidence of those persons who can vouchsafe for the truth of the facts in issue’." 44. In our opinion, the aforesaid burden of proof has not been discharged by the prosecution. Its execution has to be proved by admissible evidence, that is, by the ‘evidence of those persons who can vouchsafe for the truth of the facts in issue’." 44. In our opinion, the aforesaid burden of proof has not been discharged by the prosecution. The father says nothing about the transfer certificate in his evidence. The Headmaster has not been examined at all. Therefore, the entry in the transfer certificate cannot be relied upon to definitely fix the age of the girl. [Emphasis supplied] 17. Having regard to these aspects of the matter, this court is of the view that the conviction of the appellant cannot be sustained and accordingly the same is interfered with and set aside. However, this court finds sufficient material to convict the appellant under Section 354 of the I.P.C. as the criminal force has been applied to outrage the modesty of the victim. Thus it has emerged from the statement of the victim that this court does not find any reason to disbelieve the victim in the context of the case. Moreover, the material part of the post-occurrence conduct of the victim further establishes truthfulness of her statement. The charge under Section 354 of the I.P.C. was framed separately for trial. 18. Having due regard to the nature of the offence, the transaction and the impact of the offence on the victim, this court is of the view that, if the appellant is sentenced to suffer 6(six) months rigorous imprisonment it would suffice the substantive justice. Accordingly, the sentence as determined by the impugned judgment and order is set aside. As consequence thereof, the appellant is sentenced to suffer 6(six) months rigorous imprisonment alongwith a fine of Rs.5,000/-(rupees five thousand), in default, to suffer 1(one) months further rigorous imprisonment. It is needless to say that the detention, if any, as suffered by the appellant, has to be set off from the period of sentence. 19. In the result, appeal is partly allowed. LCRs be returned forthwith.