JUDGMENT : Vinit Kumar Mathur, J. 1. The present appeal under Section 374(2) has been preferred by the appellant against the judgment dated 29.09.2018 passed by learned Special Judge, POCSO Act, Jaisalmer in Sessions Case No.02/2018 (01/2017), whereby the accused-appellant has been convicted for the offences under Sections 5 (j) (ii)/6 of Protection of Children from Sexual Offences Act, 2012 and sentenced to undergo life imprisonment with fine of Rs.1,00,000/-, in default of payment of fine to further undergo six months rigorous imprisonment. 2. The prosecution case in short emanates from the complaint filed by Surendra Singh (PW3) to the Station House Officer, Police Station Mahila, Jaisalmer wherein it was stated that he was engaged in agricultural job at 53 Sada Minor District Jaisalmer. His mother-in-law, father-in-law along with two sisters-in-law used to reside and did farming jobs in the Dhani constructed in the field of Balveer Punia located at Chak 30 SLD. Mamraj and his Munim Tulchha Ram used to regularly visit their place. 3-4 months back, Tulchha Ram committed rape on his sister-in-law, aged 16 years (hereinafter referred to as ‘Victim’). Tulchha Ram under the guise of marrying her, he used to repeatedly commit rape upon her. Thereafter, Tulchha Ram regularly used to visit their Dhani and threatened her that he was in possession of some obscene photographs of the victim. The accused-appellant used to blackmail her on the strength of these photographs and commit rape upon her. Mamraj Jat threatened his sister-in-law of dire consequences, if she did not fulfill the demands of accused Tulchha Ram. His sister in law became pregnant and entire family was aware of this fact. Balveer Punia was informed about this incident who also threatened them not to disclose this fact and instructed to get abortion done of the victim, failing which entire family was threatened to be killed. 3. On the aforesaid complaint, a formal FIR No.64/2016 was registered at Police Station Mahila Thana, Jaisalmer against the accused appellant for the offences under Sections 376, 120-B IPC and section 3/4 of POCSO Act and commenced investigation. After completion of investigation, the police filed a charge-sheet against the accused appellant for the offences under section 376 IPC and section 3/4 of POCSO Act. 4. After completion of investigation, the police filed a charge-sheet against the accused appellant for the offences under section 376 IPC and section 3/4 of POCSO Act. 4. Learned Trial Court framed charges against the accused appellant for the offences under Sections 5(j) (ii)/6 of POCSO Act and the same was read over and explained to him but he pleaded not guilty and sought trial. 5. During the trial, the prosecution examined as many as 22 witnesses and exhibited 31 documents in its support. The accused-appellant was examined under Section 313 Cr.P.C. and he was confronted with the evidence adduced against him during the course of trial to which he denied and stated that he had been falsely implicated in the present case and that he was innocent. 6. Learned trial Court after hearing the arguments, convicted and sentenced the accused-appellant vide judgment dated 29.09.2018 for the offences under sections 5 (j) (ii)/6 of POCSO Act. Hence, this appeal. 7. We have heard Mr. J.S.Choudhary, Sr. Advocate assisted by Mr. Pradeep Choudhary appearing on behalf of the accused appellant as well as learned Public Prosecutor. 8. Learned counsel for the appellant submits that in view of the sworn statement of the victim (PW1), it is a case of consensual relationship as the victim was staying with her mother, father in the Dhani constructed at Chak 30 SLD and while they were engaged in farming, their family was regularly visited by the appellant and during these meetings, friendship developed between them. Since, the victim wanted to marry the appellant but there was a stiff resistance from the mother and father of the victim to the same on the ground that they belonged to Rajput community and the appellant was a Jat. For this reason, the present complaint was got filed and the appellant was prosecuted. 9. He further submits that as far as age of the victim is concerned, she is well above the age of 18 years as she herself in her statement gave out her date of birth as 20.04.1998 & therefore, on the date of incident i.e. in the year 2016, she was well above the age of 18 years. 10. He further submits that as per statement of PW-2 Mal Singh (father of the victim), also admitted that his daughter is about 20 years of age. 10. He further submits that as per statement of PW-2 Mal Singh (father of the victim), also admitted that his daughter is about 20 years of age. When she was admitted in the school, she was 6-7 years of age and her teacher had written lesser age in the school record. Therefore, as per Shri Choudhary, Ex.P-14 i.e. certificate of the Principal showing age of the victim is of no consequence. 11. He further submits that even on earlier occasions, the victim had gone with the appellant of her own free will and volition. Even the victim in her statement stated that the relations were established with her own consent and since she is a major person, her consent is the concluding factor. 12. He further submits that as per Ravi Kumar (PW-5) and Jasnath (PW-6), the victim wanted to marry the appellant and, therefore, on earlier occasion, she had gone away with him. 13. Learned counsel on the strength of these arguments submits that in view of statements of the prosecution witnesses, the prosecution could not prove beyond reasonable doubt that present appellant is guilty of the alleged offences and therefore, the trial court committed grave factual and legal error while convicting the appellant for the alleged offences. 14. On the other hand, the learned Public Prosecutor has vehemently opposed the submissions advanced by learned counsel for the appellant and submitted that it has come on record in the statements of the victim recorded under Section 161 & 164 of Cr.P.C. that she was 16 years of age and the appellant committed rape on her against her wishes and free will. He further submits that during investigation, the police obtained a certificate from the Principal, Government Secondary School, Bhojasar Chhota (Churu) wherein the date of birth of the victim is recorded as 20.09.2000. There is no reason to discard the material piece of documentary evidence available on record and, therefore, he submits that since the victim is below the age of 18 years, her consent in the matter is irrelevant. He, therefore, submits that the learned trial Court was justified in convicting the appellant for the offences under Section 5 (j) (ii)/6 of POCSO Act. 15. We have considered the submissions made at the bar and have closely scrutinized the entire record. 16. He, therefore, submits that the learned trial Court was justified in convicting the appellant for the offences under Section 5 (j) (ii)/6 of POCSO Act. 15. We have considered the submissions made at the bar and have closely scrutinized the entire record. 16. The victim (PW1) deposed before the trial court that she had studied upto 8th standard and was 20 years of age as her date of birth is 20.04.1998. She further stated that a purely consensual physical relationship was established between her and the accused-appellant Tulchha Ram and she wanted to marry him but her mother and father were opposed to such relationship. She further stated that in the school, her date of birth was recorded as 20.10.2000 at the instance of her father. She went with the accused on earlier occasion out of her own wish. Since, examination of the victim was in question and answer form, to appreciate her statement with more clarity, some of the questions and their answers in the statement of PW1 are reproduced herewith in a vernacular :- ^^iz’u %& vki dkSulh d{kk esa i mrj %& vkBoh esa i iz’u %& xyr dke fdlus fd;k \ mrj %& jktheu ls rqyNkjke ls fd;k FkkA rqyNkjke us esjs lkFk xyr dke fd;k Fkk tks esjs jktheu ls gqvk Fkk iz’u %& ?kVuk ekW dks crk;h D;k gqvkA mrj %& ekW dks eSus dgk Fkk fd eS blls 'kknh da:xh rks ekW o ikik us euk dj fn;kA izfrijh{k.k & iz’u % Ldqy esa vkidh mez D;k fy[kh gS \ mrj % 20-10-2000 tUefrFkh fy[kh gSA iz’u % fdlus fy[kok;h Fkh \ mrj & ikik us fy[kok;h FkhA iz’u % rqyNkjke ls fookg djuk pkgrh gks \ mrj & gkWA iz’u % ?kVuk ls igys rqyNkjke ds lkFk igys xbZ Fkh D;k \ mrj % gkWA igys ,d ckj viuh ethZ ls xbZ FkhA** 17. PW2 Mal Singh, father of the victim stated that they were working on the land of Balveer Singh Punia located at Chak 30 SLD where rape was committed with his daughter by accused Tulchha Ram. His daughter told her mother that she wanted to marry the appellant but he refused and lodged the complaint. He further stated that age of his daughter was 20 years but he did not remember her exact date of birth. His daughter told her mother that she wanted to marry the appellant but he refused and lodged the complaint. He further stated that age of his daughter was 20 years but he did not remember her exact date of birth. He admitted his daughter in the school where her date of birth was written by her teacher by showing her to be younger than she actually was. He further stated that marriage of the victim could not be solemnized with the accused-appellant who is Jat by caste and they being of Rajput community. Since his daughter was insisting upon marrying the appellant, he filed this complaint. His daughter never complained that the accused Tulchha Ram had ever forcibly committed rape with her. 18. PW3 Surendra Singh lodger of the FIR was declared hostile. PW4 Santosh Kanwar (mother of the victim) stated almost on the same lines as stated by PW2 Mal Singh. PW5 Ravi Kumar and PW6 Jasnath stated in their statements that they knew the accused-appellant. The victim had gone with the accused Tulchha Ram on earlier occasion out of her own free will and volition. 19. PW8 Dr. Anil Mathur who was member of the Board examined the victim and opined that on examination of the victim, it was found that there was no injury on her private parts and she was carrying a fetus of one month. 20. PW13 Jetha Ram is the investigating officer who conducted the investigation of the matter and stated that he prepared the site plan, recorded statements of the witnesses, collected the samples and after conducting the investigation, as prescribed in law, submitted his report before the court of competent jurisdiction. In the cross examination, he stated that as per the statements of the victim recorded under section 161 and 164 of Cr.PC, she mentioned her age as 16 years and therefore, he had taken a certificate from the school and no other certificate with respect to the date of birth of the victim was collected by him. He further stated that there was no birth certificate in the record of the school on the basis of which the victim was admitted in the school for the first time. He further stated that there was no birth certificate in the record of the school on the basis of which the victim was admitted in the school for the first time. He stated that he asked for the admission form so as to ascertain the date of birth of the victim but the school had provided him only the certificate showing her date of birth. He further stated that in the Ex.P/14 i.e. certificate issued by the Principal, there was no mention as to when the victim was admitted in the school. 21. Ex.P/3 is the report of medical jurist wherein it was mentioned that on clinical examination, nothing suggested that the victim is virgin. 22. Ex.P-12 is sonography report of the victim. 23. Ex.P-14 is the certificate issued by the Principal, Government Secondary School, Bhojasar Chhota (Churu) wherein as per the Scholar register, the name of the victim is mentioned at serial No.660 and date of birth is shown as 20.09.2000. 24. We note that statements of the victim (PW1), her father Mal Singh (PW2) and mother Santosh Kanwar (PW6) depicts the entire story. The victim was having proximity and affinity with the accused-appellant who used to regularly visit their Dhani and since both of them were aged 18 years and 25 years respectively, the relationship between them blossomed physically also leading to the prosecutrix conceiving. When the fact of the victim being pregnant was noticed by her mother and father, they counselled their daughter but the victim was adamant to marry the accused appellant. Her father resorted to lodging the complaint against the appellant in order to dissuade his daughter from continuing her relationship with the appellant because the families hailed from different castes. As stated in the statement of PW2 Mal Singh just to separate his daughter from the appellant, he had filed the present complaint against him. Even the testimony of PW2 Mal Singh and PW4 Santosh Kanwar (father and mother of the victim) is clear that their daughter was more than 18 years of age as on the date of the incident. It has also come on record that the victim pressurized her parents to solemnize her marriage with the accused-appellant but the parents were not ready for the same. It has also come on record that the victim pressurized her parents to solemnize her marriage with the accused-appellant but the parents were not ready for the same. Prior to the lodging of this complaint also, she left her home out of her own will and volition and went with the accused-appellant who left the place for some time and went to his village, therefore, in our opinion, the entire chronology of events clearly shows that it is a case of voluntary and spontaneous physical relationship between two consenting adults i.e. victim and the appellant. 25. As far as age of the victim is concerned, although the school certificate (Ex.P-14) shows her date of birth to be 20.09.2000 but in the statements of the victim (PW1), her father Mal Singh (PW2) and mother Santosh Kanwar (PW4), it has come on record that the victim was 20 years of age in the year 2017, therefore, on the date of the incident, she was well above the age of 18 years. 26. While relying upon the school certificate (Exp.14), the trial court referred to the principles laid down under section 35 of the Evidence Act and raised a presumption regarding genuineness of the official document produced by the prosecution. However, we feel that approach of the trial court was not appropriate in view of the fact that a complete mechanism for determination of age of juvenile has now been provided under section 94 of the Juvenile Justice Act (Care and Protection of Children) Act, 2015. Section 94 ibid is reproduced as under :- “94. Presumption and determination of age. 1. Where, it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under section 14 or section 36, as the case may be, without waiting for further confirmation of the age. 2. 2. In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining — i. the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof; ii. the birth certificate given by a corporation or a municipal authority or a panchayat; iii. and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board: Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order. 3. The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person.” 27. As per clause 2 (i) of the Act of 2015, the date of birth certificate issued from the school is a governing factor for deciding the age of juvenile. However, considering in light of various pronouncements of Hon’ble Supreme Court including the observations made in the case of Birad Mal Singhvi V/s Anand Purohit reported in AIR 1988 Supreme Court, 1796, it is manifest that for satisfying the court regarding genuineness of the school certificate (ExP.14) (in view of the fact that the father of the victim has himself gave evasive reply regarding the exact date of birth of the girl as recorded in the school certificate), the prosecution was required to produce on record and prove the date of birth of the prosecutrix as recorded in the concerned school at the time of her initial admission in the school. 28. The Hon’ble Supreme Court in the case of Birad Mal Singhvi (supra) has held as under:- “15. The High Court held that in view of the entries contained in the Exs. 28. The Hon’ble Supreme Court in the case of Birad Mal Singhvi (supra) has held as under:- “15. The High Court held that in view of the entries contained in the Exs. 8, 9, 10, 11 and 12 proved by Anantram Sharma PW 3 and Kailash Chandra Taparia PW 5, the date of birth of Hukmichand and Suraj Prakash Joshi was proved and on the assumption it held that the two candidates had attained more than 25 years of age on the date of their nomination. In our opinion the High Court committed serious error. Section 35 of the Indian Evidence Act lays down that entry in any public, official book, register, record stating a fact in issue or relevant fact and made by a public servant in the discharge of his official duty specially enjoined by the law of the country is itself the relevant fact. 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 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 to 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. In Raja Janaki Nath Roy & Ors. v. Jyotish Chandra Acharya Chowdhury, AIR 1941 CAL. 41 a Division Bench of the Calcutta High Court discarded the entry in school register about the age of a party to the suit on the ground that there was no evidence to show on what material the entry in the register about the age of the plaintiff was made. v. Jyotish Chandra Acharya Chowdhury, AIR 1941 CAL. 41 a Division Bench of the Calcutta High Court discarded the entry in school register about the age of a party to the suit on the ground that there was no evidence to show on what material the entry in the register about the age of the plaintiff was made. The principle so laid down has been accepted by almost all the High Courts in the country, see Jagan Nath v. Moti Ram, AIR 1951 Punjab 377, Sakhi Ram v. Presiding Officer, Labour Court, North Bihar, Muzzafarpur, AIR 1966 Patna 459; Ghanchi Vora Samsuddish Isabhai v. State of Gujarat, AIR 1970 Guj 178 and Radha Kishan Tickoo v. Bhushan Lal Tickoo, AIR 1971 J & K 62. In addition to these decisions the High Courts of Allahabad, Bombay, Madras have considered the question of probative value of an entry regarding the date of birth made in the scholar's register or in school certificate in election cases. The Courts have consistently held that the date of birth mentioned in the scholar’s register of secondary school certificate has no probative value unless either the parents are examined or the person on whose information the entry may have been made, is examined, see Jagdamba prasad v. Sri Jagannath Prasad (1969), 42 ELR 465 (All), K. Paramalali v. L.M. Alangam (1967) 31 ELR 401 (Mad), Krishna Rao Maharu Patil v. Onkar Narayan Wagh, (1958) 14ELR 386 (Bom).” 28. Therefore, in the facts and circumstances of the case, we have no reason to disbelieve the statements of the victim (PW1), her father Mal Singh (PW2) and mother Santosh Kanwar (PW4) that the age of the victim was more than 18 years at the time of the incident. Therefore, it is a clear case of consensual relations and since the victim was above the age of 18 years on the date of the incident, the provisions of Protection of Children from Sexual Offences Act were wrongly applied in the present case as observed by us in the detailed discussion made above. 29. Resultantly, the appeal is allowed. The judgment dated 29.09.2018 passed by Special Judge, POCSO Act, Jaisalmer is quashed and set aside. The appellant is acquitted from the charges leveled against him and it is ordered that the appellant shall be released from judicial custody forthwith, if not wanted in any other case.