JUDGMENT : V.M. DESHPANDE, J. 1. By the present appeal, the appellant is challenging his conviction recorded by the learned Additional Sessions Judge, Achalpur in Special (P) Case No. 106 of 2016 on 04.2.2017. By the impugned judgment, the appellant is convicted for the offence punishable under Section 363 of the Indian Penal Code and for the offence punishable under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as “the POSCO Act” for short). For his conviction under Section 363 of the Indian Penal Code, the appellant is directed to suffer three years rigorous imprisonment and to pay a fine of Rs. 1,000/- and in default of payment of fine, to undergo simple imprisonment for one month. Insofar as his conviction under Section 6 of the POCSO Act is concerned, his sentence is to suffer rigorous imprisonment for Ten years and to pay a fine of Rs. 2,000/- and in default of payment of fine to undergo simple imprisonment for two months. 2. The prosecution case in nut shell is as under: PW-1 Lalsingh on 02.5.2016 filed his oral report (Exh.10) against the appellant. On the basis of said oral report, under Exh.11 which is a printed First Information Report, the offence was registered under Sections 363, 366A of the Indian Penal Code. During the course of the investigation, after medical examination of the victim (PW-2), the offence under Section 376(2)(n) of the Indian Penal Code and offence under Section 6 of the POCSO Act were added. 3. As per the first information report, the first informant is having two sons and one daughter (victim). In the first information report, her age is disclosed as 17 years and intimated that she was taking education in 11th standard. As per the first information report, during the period of harvesting, the first informant used to reside in agricultural field along with his wife and his two sons and daughter used to reside in the village. The first information report further recites that on 28.4.2016, in the evening when the first informant was present in the agricultural field along with his wife, one of his sons by name Niraj came and informed that the victim, who is his elder sister, is not available in the house. On getting this information, the first informant came to the village and made search of his daughter. On getting this information, the first informant came to the village and made search of his daughter. However, she was not found and/or noticed. On 30.4.2016, one Ramkisan intimated him that his daughter had gone along with the appellant. In the first information report, it is stated that their love affair was going on as per Ramkisan. Thereafter, Ramkisan had been to the house of the appellant. At that time, it was intimated to him that within 45 days, they will be brought back. However, till the date of report, they were not brought and therefore the report was lodged. 4. PW-5 API Shrikrushna Pawar was entrusted with the investigation of crime which was registered as Crime No. 215/2016. Exh.30 is spot panchanama drawn by him. It pertains to the spot from where the victim was taken away by the appellant. He also drew the spot panchanama (Exh.31) of the spot where sexual intercourse took place. The appellant was arrested under arrest panchanama (Exh.32). After giving the requisition for medical examination of the victim, PW-3 Dr. Kanchan Jawanjal examined the victim and gave the certificate Exh.16. So also is the Exh.17 which is requisition to the Medical Officer to examine the accused. The Investigating Officer collected the blood samples of the victim as well as the appellant under Seizure memos Exh.26 and Exh.27. The clothes of the victim as well as the appellant were seized under seizure memos Exh.25 and Exh.26, respectively. After completion of other usual investigation, the chargesheeet was presented before the Court of law. 5. The learned Additional Sessions Judge, Achalpur framed the Charge (Exh.3) against the appellant for the offences punishable under Sections 363, 366A, 376(2)(n) of the Indian Penal Code and under Section 6 of the POCSO Act. The appellant denied the charge and claimed for his trial. 6. In order to bring home the guilt of the appellant, the prosecution has examined in all five witnesses and also relied upon the various other documents duly proved during the course of the trial. After a full dressed trial, the learned Judge of the Court below acquitted the appellant for the offences punishable under Sections 366A and 376(2)(n) of the Indian Penal Code, however convicted him for the offences mentioned in the opening paragraph of the judgment. Against acquittal of the appellant, no appeal is filed by the State. 7. After a full dressed trial, the learned Judge of the Court below acquitted the appellant for the offences punishable under Sections 366A and 376(2)(n) of the Indian Penal Code, however convicted him for the offences mentioned in the opening paragraph of the judgment. Against acquittal of the appellant, no appeal is filed by the State. 7. The foremost submission that was pressed into service by Mr. R.M. Daga, the learned counsel, who is appointed by this Court for the appellant since the counsel appearing for the appellant was not attending the Court, submitted that conviction of the appellant for the offence punishable under Section 6 of the POCSO Act cannot stand to the scrutiny of law for the reason that the prosecution has failed to prove the age of the girl strictly, though heavy burden is on the prosecution to prove the same and for that he relied on the Division Bench decision of this Court in the case of Ravi Anandrao Gurpude vs. State of Maharashtra, 2017 All MR (Cri.) 509, to which I was a party, and submitted that the appeal be allowed. 8. Per contra, it is the submission of Mrs. Kolhe, the learned Additional Public Prosecutor for the State that the Court below has properly evaluated the evidence of the prosecution and found that the victim was below 18 years of age in view of Exh.34 – the Birth Certificate. Therefore, the victim is a 'Child' within the meaning of the provisions of the POCSO Act and as such, though, it appears that the victim may be a consenting party, the punishment is required to be inflicted on the appellant since the consent by the minor has no value in the eye of law. 9. Missing of victim was brought to the notice of the father of the victim by his son on 28.4.2016, however, the prosecution case is totally silent that immediately the father lodged any missing report about his daughter. 10. The report is lodged on 02.5.2016, on the basis of which initially offence under Section 363 and 366A of the Indian Penal Code was registered with Police Station, Dharni. In the report itself the age of the victim was disclosed by the author of the first information report as 17 years. 10. The report is lodged on 02.5.2016, on the basis of which initially offence under Section 363 and 366A of the Indian Penal Code was registered with Police Station, Dharni. In the report itself the age of the victim was disclosed by the author of the first information report as 17 years. What is important to note from the first information report is that it was intimated to him that there was a love affair between the appellant and the victim. On the face value of the first information report, it is clear that the first informant remained silent and did not activate the wheels of criminal justice by approaching to the police station since he was labouring under the impression that within 45 days, the victim and the appellant will return to village and since they did not return, he approached the police station. 11. Missing of young girl from the house and village is a very serious matter. Therefore, it was expected from the father of said girl that the first information report or the missing report is promptly lodged. The said if not filed can be one of the factor for consideration that may weigh in favour of the appellant. 12. PW-2 is the victim. She has stated her date of birth as 25.8.1999. PW-1 Lalsingh Dhande has neither disclosed the date of birth of the victim in the first information report or in his substantive evidence. The incident took place on 28.4.2016. Therefore, if the date of birth of the victim is considered as 25.8.1999, then definitely she is below the age of 18 i.e. the age prescribed for giving consent. The point this Court is expected to decide in view of the rival submissions made by the learned counsel for the appellant and the learned Additional Public Prosecutor for the State is that whether by any cogent and inspiring evidence, the prosecution has proved the date of birth of the victim as 25.8.1999. 13. As observed in preceding paragraphs, though at the cost of repetition it may be stated that Lalsingh, the father of victim, is not only silent about the date of birth in the first information report (Exh.10), but he is totally silent even from the witness box regarding disclosing the date of birth of the victim. 14. The victim has stated her date of birth as 25.8.1999. 14. The victim has stated her date of birth as 25.8.1999. The learned Additional Public Prosecutor has vehemently submitted that Exh.34 is a documentary proof showing the date of birth of the victim as 25.8.1999. It is also her submission that the said certificate is issued by the authority, who is entrusted to keep the record of Birth and Death. Therefore, the said certificate will have to be given due weightage. 15. The evidence regarding the date of birth given by the victim is challenged during her cross-examination. Through her cross-examination, it is brought on record that she is unaware as to how her father has entered her date of birth as 25.8.1999. Though, the suggestion is denied by the victim, it was the case of the appellant that the date of birth of the victim is not 25.8.1999. 16. PW-1 Lalsingh is not claiming that he disclosed the date of birth of his daughter to the Investigating Officer in his evidence. Nor it is the Investigating Officer's evidence that during the course of the investigation with the father of the victim, he ascertained and/or gathered the date of birth of victim. The Investigating Officer's evidence also does not show that any document was given to him by the father of the victim, which shows that the date of birth of the victim is 25.8.1999. 17. The source of Exh.34 the birth certificate given by the Gram Sewak of Gram Panchayat, Ratnapur is the requisition letter (Exh.33). Exh.33 is issued by the Investigating Officer API Pawar (PW5) to the Secretary of Gram Panchayat, Ratnapur. It is dated 16.7.2016. The relevant portion of the recitals in the said are reproduced herein-below: xxx xxx xxx 18. From the aforesaid, it is clear that prior to issuance of this requisition letter, the Investigating Officer was in possession of a document in the nature of writing on the pad of Secretary, Gram Panchayat, Ratnapur, wherein the date of birth of the victim is disclosed. Mr. Daga, the learned counsel for the appellant submitted that though, this was well in the custody of the Investigating Officer, the said is not placed on record. The learned Additional Public Prosecutor for the State also was required to cut sorry figure for this major lapse on the part of the Investigating Officer. 19. Mr. Daga, the learned counsel for the appellant submitted that though, this was well in the custody of the Investigating Officer, the said is not placed on record. The learned Additional Public Prosecutor for the State also was required to cut sorry figure for this major lapse on the part of the Investigating Officer. 19. The first information report was lodged on 02.5.2016, whereas the requisition Exh.33 is issued on 16.7.2016 and no explanation whatsoever is offered by the Investigating Officer for issuing the said requisition so belatedly. In the light of that not producing the letter pad on which the date of birth was written as per the recitles in Exh.33 speaks volumes against the prosecution. 20. Mr. Daga, the learned counsel for the appellant also seriously criticized the birth certificate. Obviously, in view of the Investigating Officer's evidence, this certificate (Exh.34) was issued in pursuance to requisition (Exh.33). Perusal of Exh.34 shows that the said certificate was issued on 22.7.2016. In the certificate, the date of birth is noted as 25.8.1999 and the date of registration is given as 26.8.1999. Thus, on the next day of the birth, registration was made. What is important to note is that in Exh.34 under the caption, full name of the victim is disclosed. Neither the victim nor the father of the victim (PW-1) state before the Court that on the day of the birth, or on the next day, the naming ceremony was done. Further, the entire prosecution is conspicuously silent as to on what date the name of newly born child was communicated to the authority. If that be so, I am bound by the law laid down by this Court in Ravi Gurpude's case (cited supra), to which I was a party, which ruled down the law that: “From the provisions of the POCSO Act, it is crystal clear that the prosecution is under bounden duty to prove that the victim is a child. Unless the prosecution successfully establishes that the victim is a child within the meaning of clause (d) of Section2 of the Act, a person cannot be convicted for the offence punishable under Section 6 of the Act.” It is further observed by the Division Bench that: “The provisions of the Act are stringent in nature. Even there is a statutory presumption under Section 29 of the Act. Even there is a statutory presumption under Section 29 of the Act. Since the enactment is stringent in nature, the degree of proof is stricter. The prosecution is under bounden duty to prove the age of the prosecutrix to show that at the time of the incident, the prosecutrix was “Child” within the meaning of provisions of the Act. The burden is on the prosecution to prove that the age of the prosecutrix, on the date of the occurrence, was less than 18 years.” 21. In the present case, after evaluating the evidence brought on record by the prosecution in respect of the age of the victim, as discussed above, in my view, makes a room for doubt as to really the date of birth of the victim was 25.8.1999 as claimed by the prosecution. In that view of the matter, it is my opinion that the prosecution has utterly failed to discharge its bounden duty to prove the age of the victim that she is a child within the meaning of clause (d) of Section 2 of the POCSO Act and therefore, the benefit will have to be extended in that behalf in favour of the appellant/accused. 22. Insofar as the medical evidence is concerned, the victim was examined by PW-3 Dr. Kanchan Jawanjal. According to her opinion, the sexual intercourse has happened with the girl and the hymen is ruptured. In my view, much importance cannot be given to this medical opinion since, the girl herself has stated that she had sexual intercourse with the appellant. However, according to the girl from the witness box, the appellant had established sexual relations against her wish. 23. Evidence of the victim girl is at Exh.12. Her evidence would show that there was a promise of marriage by the appellant and believing the said promise, she had been with him. As per her evidence, for whole night they stayed in a hut. Thereafter, they had gone in the forest area outside the village. In the forest they stayed for four days and thereafter they returned to the village. Her examination-in-chief is totally silent that at any point of time the appellant had used any force and/or the girl was prevented from moving here and there. Thereafter, they had gone in the forest area outside the village. In the forest they stayed for four days and thereafter they returned to the village. Her examination-in-chief is totally silent that at any point of time the appellant had used any force and/or the girl was prevented from moving here and there. In her cross-examination, she has stated that they had gone from Ritkhed to Hiwarkhed by train and then she had been to the job of cutting groundnuts for a day. In her cross- examination, she has admitted that she stayed with the appellant believing the promise of marriage. After minutely scrutinizing the evidence of the girl, there cannot be two opinions that the girl was a consenting party. As observed above, it was the bounden duty of the prosecution to prove that the girl was a 'Child' within the meaning of POCSO Act. However, in the present case, the prosecution has failed to prove the same and therefore, this Court has already extended the benefit in that behalf in favour of the appellant. In that view of the matter, there is a room to record a finding that the victim girl, who is not a Child, accompanied the appellant, stayed with him for 45 days and during that period had sexual intercourse. 24. As observed in the opening paragraph of the judgment, the appellant is acquitted for the offences punishable under Sections 366A and 376(2)(n) of the Indian Penal Code and the State has not filed any appeal against the said. If the prosecution has utterly failed to prove the age of the girl as below 18 years within the strict sense as observed in Ravi Gurpude's case (cited supra), in my view, the conviction recorded against the appellant for the said offence cannot sustain. The appellant is in jail from 04.5.2016. 25. The re-appreciation and evaluation of the prosecution case, leads me to pass the following order: ORDER 1. The criminal appeal is allowed. 2. The judgment and order of conviction passed by the learned Additional Sessions Judge, Achalpur in Special (P) Case No. 106 of 2016 on 04.2.2017 convicting the appellant for the offence punishable under Section 363 of the Indian Penal Code and for the offence punishable under 6 of the Protection of Children from Sexual Offences Act, 2012, is hereby quashed and set aside. 3. 3. The appellant who is in jail should be released forthwith if not required in any other offence. 4. Mr. Daga, the learned counsel who is appointed by this Court to represent the appellant and who has ably assisted the Court, is entitled for the remuneration, which is quantified at Rs. 5,000/-. Mr. Daga, the learned counsel submit that in stead of giving the said to him, the High Court Legal Services Sub Committee, Nagpur be directed to deposit the said sum with the District Bar Association, Nagpur as donation on the part of Mr. Daga, Advocate. Order accordingly. 5. With this, the criminal appeal is allowed and disposed of.