JUDGMENT : This appeal is directed against the judgment dated 14.5.2019 rendered by Special Judge and Additional Sessions Judge, Chandrapur in Special (POCSO) Case 70 of 2016 whereby the appellant – accused is convicted for offence punishable under section 450 of the Indian Penal Code (IPC) and is sentenced to suffer rigorous imprisonment for five years and to payment of fine of Rs.5,000/, in default to suffer rigorous imprisonment for four months, and is further convicted for offence punishable under Section 376(1), 376(2)(i) of the IPC and under section 4 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) and is sentenced to suffer rigorous imprisonment for ten years and to payment of fine of Rs.10,000/, in default to suffer rigorous imprisonment for six months. 2. The prosecution case : (i) The prosecutrix (PW 2) lodged report dated 15.7.2016 at Police Station, Rajura (Exh. 34) alleging that two months prior to the lodging of the report, the accused subjected her to forcible sexual intercourse. (ii) The prosecutrix states in the report that she is aged 14 years and is studying in 8th standard at Jyotiba High School, Rajura. (iii) The prosecutrix states that she is residing alongwith her mother Tara, sister – Sharda and brother – Ganesh and the accused, who is a friend of her brother, resides in the neighbourhood. (iv) The prosecutrix states that on Friday (the prosecutrix was not in a position to recollect the date) her mother, sister and brother had gone for work and she was alone in the house. At 3.00 p.m., the accused came to her house and asked for water which the prosecutrix served. The accused caught hold of her hands, closed the door of the house from inside, dragged the prosecutrix inside the house, brought her down on the floor and subjected her to forcible sexual intercourse. (v) The prosecutrix states that due to fear, she did not disclose the incident to anybody. However, since she missed menses, her mother made inquiries and the prosecutrix disclosed the incident. (vi) On the basis of report Exh. 34, Crime 337 of 2016 for offence punishable under section 376(i) of IPC read with section 4 of the POCSO Act was registered against the accused. (vii) The investigation ensued. The Investigating Officer prepared spot panchanama, the prosecutrix was referred for medical examination. The accused was arrested and referred for medical examination. (vi) On the basis of report Exh. 34, Crime 337 of 2016 for offence punishable under section 376(i) of IPC read with section 4 of the POCSO Act was registered against the accused. (vii) The investigation ensued. The Investigating Officer prepared spot panchanama, the prosecutrix was referred for medical examination. The accused was arrested and referred for medical examination. Biological samples of the accused and the prosecutrix were collected and seized. The clothes of the accused and the prosecutrix were seized. The seized articles were sent to Chemical Analyzer, Nagpur. The admission register of the school which was attended by the prosecutrix was collected and seized and a letter was written to the Municipal Council, Rajura seeking the birth certificate of the victim. The statements of witnesses were recorded and on completion of investigation, final report was filed in the Special Court. (viii) The learned Sessions Judge framed charge (Exh.5) under sections 450, 376(1), 376(2)(i) of the IPC and section 4 of the POCSO Act. The accused abjured guilt and claimed to be tried in accordance with law. (ix) The prosecution examined as many as ten witnesses. Two witnesses namely Shri Manoj Namdeorao Rajgade and Smt. Manjusha Mahadeo Yerne were examined as Court witnesses. The accused did not enter the witness box nor is any witness examined in defence. In the statement recorded under section 313 of the Criminal Procedure Code, the defence is of false implication. (x) The learned Sessions Judge was pleased to convict the accused as aforestated. 3. I have heard Shri Y.B. Mandpe, the learned counsel for the accused and Shri A.R. Chutke, the learned Additional Public Prosecutor for the respondent/State and with their able assistance, the material on record is scrutinized. 4. Shri Y.B. Mandpe, has twin submissions to canvas. The first submission is that the learned Special Judge has committed a grave error in holding that the prosecution established that the prosecutrix was aged less than 18 years. The extension of submission is that even if it is assumed, arguendo, that the accused established sexual contact with the prosecutrix, the relationship was clearly consensual. The first submission is that the learned Special Judge has committed a grave error in holding that the prosecution established that the prosecutrix was aged less than 18 years. The extension of submission is that even if it is assumed, arguendo, that the accused established sexual contact with the prosecutrix, the relationship was clearly consensual. Shri Y.B. Mandpe, the learned counsel invites my attention to several circumstances on record inter alia that the prosecutrix did not disclose the incident to any person including her immediate family members till she missed her menses and the medical evidence in the shape of the medical examination report of the prosecutrix to buttress the said submission. Shri Y.B. Mandpe, the learned counsel would submit, that the defence of consent is without prejudice to the submission that the prosecution has failed to establish that the accused established sexual contact with the prosecutrix. Per contra, the leaned Additional Public Prosecutor Shri A.R. Chutke, would support the judgment impugned. Shri A.R. Chutke, would submit that the prosecution has successfully proved the age of the prosecutrix and since she was minor as on the date of the incident, the consent, if any, is irrelevant. Shri A.R. Chutke, the learned Additional Public Prosecutor would submit that the delay in lodging First Information Report is satisfactorily explained. The prosecutrix has stated that she did not disclose the incident due to fear, which is a reasonable explanation, is the submission. Shri A.R. Chutke would submit that since the evidence of the prosecutrix is implicitly reliable, it is not necessary to seek corroboration or even assurance short of corroboration and the conviction can rest on the sole uncorroborated testimony of the prosecutrix. 5. In the context of the rival submissions, the seminal issue is whether the prosecutrix was aged less than 18 years as on the date of the incident. The question needs to be answered at the very threshold since if the prosecutrix was not child within the meaning of section 2(d) of the POCSO Act, then obviously the provisions of the POCSO Act including the statutory presumption under section 29 and 30 thereof would not come into play, and secondly and more importantly, if the age of the prosecutrix is not proved to be less than 18 years, the alternate defence theory that the sexual relationship, if any, was consensual, would need serious consideration. 6. 6. The evidence on the age determination may now be analyzed. Exh. 95 purports to be certificate dated 20.2.2007 issued by the Municipal Council, Rajura under the provisions of the Births and Deaths Registration Act, 1969. Interestingly, the certificate refers to Births & Deaths Registration Act, 2000. The certificate Exh. 95 records the date of birth of Laxmi Shankar Goradwar who according to the prosecution is the prosecutrix, as 20.9.2001 and the date of registration of birth is 8.10.2001. Shri Manoj Namdeo Rajgade is examined as Court witness 1. Manoj Rajgade has deposed that he is working as a Peon in the Municipal Council, Rajura and since no clerk is available in the births and deaths registration section, he is in-charge of the said section in view of the order of Chief Executive Officer of the Municipal Council. Manoj Rajgade states that he received summons from the Court seeking production of the register regarding the registration of the birth of the prosecutrix. Manoj Rajgade states that since the date of birth of the prosecutrix was stated as 20.9.2001 in the summons, he searched the entire record of the year 2001 and yet could not locate the entry of the date of birth of the prosecutrix. Manoj then states that he searched the register of births for the year 2000, 2001 and 2002 in order to locate the entry of the registration of birth of the prosecutrix, but in vain. Manoj then states that he visited the house of the victim and inquired with her father whether the date of birth of the prosecutrix is registered with the Municipal Council, Rajura and the response of the father of the prosecutrix was that since she was born at home, her date of birth is not registered at the Municipal Council, Rajura. 7. The other evidence which the prosecution is relying on is the school record which is proved by Court witness 2 – Smt. Manjusha Mahadeo Yerne. Manjusha Yerne is the in-charge Head Mistress of Dr. Sarvapalli Radhakrishnan Primary School, Rajura since 2011. She has deposed that the name of the prosecutrix is entered at serial 2095 in the admission and leave register of the school for the period 2004 till 2018. Smt. Manjusha states that the prosecutrix was admitted in her school on 20.6.2007 in the 1st standard. Sarvapalli Radhakrishnan Primary School, Rajura since 2011. She has deposed that the name of the prosecutrix is entered at serial 2095 in the admission and leave register of the school for the period 2004 till 2018. Smt. Manjusha states that the prosecutrix was admitted in her school on 20.6.2007 in the 1st standard. Manjusha states that while obtaining admission, the parents of the prosecutrix furnished her birth certificate. It is Smt. Manjusha who has produced the original birth certificate (Exh.-95) on the record of the trial Court. 8. The birth certificate Exh. 95 has no evidentiary value whatsoever. In the teeth of the admission of Court witness Manoj that he could not locate the entry of birth of prosecutrix in the record of the year 2000, 2001 and 2002, the birth certificate Exh. 95 must be shut out from consideration. The date of entry is recorded as 8.10.2001 in the birth certificate. However, if I may say so, the learned Sessions Judge has given a convoluted reason to explain the obvious infirmity in the case of the prosecution. The learned Sessions Judge observes that since the prosecutrix was admitted in the 1st standard in 2007, obviously, her parents must have registered her birth in the year 2007 in order to obtain and produce the birth certificate at the school. It is difficult to appreciate the reasoning of the learned Sessions Judge. The learned Sessions Judge has travelled in the domain of the surmises and conjunctures which she ought not to have done. Exh. 95 is the certificate which is produced on record by the Court witness. Manoj Rajgade, who is the employee of Municipal Council, Rajura and is looking after the birth and death registration section, has veritably destroyed the probative value of certificate Exh. 95 by deposing that he could not locate any entry of the registration of birth of prosecutrix in the record pertaining to the year 2000, 2001 and 2002. It is nobody's case much less the case of the prosecution, that the date of birth of the prosecutrix was registered in the year 2007. The certificate which the prosecution relies on, records the date of registration of birth as 20.9.2001. It is inexplicable as to how and why the learned Sessions Judge ventured to observe that the parents of the prosecutrix are likely to have registered her birth in the year 2007. The certificate which the prosecution relies on, records the date of registration of birth as 20.9.2001. It is inexplicable as to how and why the learned Sessions Judge ventured to observe that the parents of the prosecutrix are likely to have registered her birth in the year 2007. The school record has no evidentiary value. The entries taken in the school record are on the basis of the birth certificate Exh. 95 which is found to be of no evidentiary value and therefore, the entry taken in the school record on the basis of the said certificate Exh. 95 would be of little significance. 9. I am satisfied, that the prosecution miserably failed to prove that the prosecutrix was aged less than 18 years as on the date of the incident. 10. The next question is whether the prosecutrix was subjected to forcible sexual intercourse. The answer must be clearly in the negative. The fact that the prosecutrix did not complain to any person nor did she disclose the incident to her mother till she missed the menses is significant. The medical evidence is not conclusive. The hymenal tear is old. The version of the prosecution that the prosecutrix conceived and that she was administered certain tablets by the accused to bring about medical termination of the pregnancy is extremely doubtful and fragile. In the examination in chief, the prosecutrix has not stated that she medically terminated the pregnancy. Inexplicably, the learned crossexaminer brought it on record by putting questions to the prosecutrix in the cross-examination. Be that as it may, there is no cogent medical evidence on record to prove that the prosecutrix was pregnant when she was medically examined on 15.7.2016. PW 9 – Dr. Priti Yadav who examined the prosecutrix admits that no sonography test or any other scientific test was conducted to determine whether the prosecutrix was pregnant. The opinion of the doctor that the prosecutrix was pregnant is predicated only on the size of the uterus. It is admitted by the doctor that the size of the uterus can increase due to several reasons. The explanation of the doctor is that since the prosecutrix was less than 20 years, the other reasons are not likely to be the cause of the increase of the size of the uterus. It is admitted by the doctor that the size of the uterus can increase due to several reasons. The explanation of the doctor is that since the prosecutrix was less than 20 years, the other reasons are not likely to be the cause of the increase of the size of the uterus. I am afraid, the opinion of the doctor which rests solely on the size of the uterus is not determinative. No conclusion can be reached with any degree of certainty that the prosecutrix was pregnant when she was medically examined on 15.7.2016. 11. Concededly, there is no scientific evidence to suggest that the accused established sexual contact with the prosecutrix. Indeed, since the First Information Report was lodged more than two months after the alleged sexual contact, the existence of such evidence is not likely. Be that as it may, I am satisfied that the conviction can not be rest on the bare words of the prosecutrix. The evidence of the prosecutrix is not of such sterling quality as would obviate the need of corroboration. The fact that the prosecutrix did not utter a single word till she missed her menses two months after the alleged sexual intercourse would suggest that the sexual intercourse, if any, is likely to be consensual. In any event, sufficient doubt is created as regards the veracity of the prosecution version and the benefit of the doubt must clearly go in favour of the accused. 12. The judgment impugned is unsustainable and is set aside. 13. The accused is acquitted of offence punishable under sections 450, 376(1), 376(2)(i) of the IPC and section 4 of the POCSO Act. 14. Fine paid, if any, shall be refunded. 15. The accused shall be released forthwith from custody unless his custody is required in connection with any other crime. 16. The appeal is allowed.