JUDGMENT : Swapna Joshi, J. This Appeal has been directed against the Judgment and Order dated 6th September 2017 decided by the learned Special Court, Chandrapur in Special (POCSO) Case No. 100 of 2015, whereby the learned Special Judge has convicted the Appellant/Accused under Section 376(1) of Indian Penal Code and sentenced to suffer rigorous imprisonment for seven years and to pay a fine of Rs.1000/-, in default, to suffer simple imprisonment for a period of one month. The Appellant/Accused was further convicted for the offence punishable under Section 4 of Protection of Children from Sexual Offences Act and sentenced to suffer rigorous imprisonment for seven years and to pay a fine of Rs.1000/-, in default, to suffer simple imprisonment for a period of one month. The Appellant/Accused was acquitted for the offence punishable under Sections 363 and 366 of Indian Penal Code. 2. The Prosecution case in a nutshell is as under : The complainant - Murgesh Manik Pille (PW-3) was working as a mechanic at Gosikhurd Project at Nagbhid, District Chandrapur. He was residing with his wife and two daughters at Nagbhid. His elder daughter was aged about 17 years old and younger daughter was 16 years old. On the date of incident i.e. 9th July 2015 all the family members went to bed. In the morning Murgesh (PW-3) came to know that his younger daughter was not present in the house. On taking search, she was not found in the vicinity. Murgesh (PW-3) then lodged the missing complaint (Exhibit-27) in respect of his younger daughter at Nagbhid Police Station against the unknown person, suspecting that someone must have taken her away with him. On 19th August 2015 Murgesh (PW-3) received a phone call of one Ticket Checker from Gaya in Bihar State that his daughter was found with one Ajaykumar and they both were at Railway Police Station at Gaya. Murgesh (PW-3) then proceeded to Gaya and brought back his daughter with him. Police recorded the statement of the victim so also apprehended the Accused. At the relevant time, lady PSI Pratibha Pralhad Raut (PW-6) was attached to Bramhapuri Police Station. She recorded the statement of the victim. In the meantime, the offence was registered on the basis of the complaint of Murgesh (PW-3) vide Crime No. 83 of 2015. Police conducted the spot panchanama vide Exhibit-16. At the relevant time, lady PSI Pratibha Pralhad Raut (PW-6) was attached to Bramhapuri Police Station. She recorded the statement of the victim. In the meantime, the offence was registered on the basis of the complaint of Murgesh (PW-3) vide Crime No. 83 of 2015. Police conducted the spot panchanama vide Exhibit-16. The statement of relevant witnesses were recorded by PSI Manoj Kashinath Meshram (PW-7). The accused was arrested at Nagbhid Police Station. The victim was referred for medical examination. On conducting the formal investigation, the charge-sheet came to be filed in the court of learned Judicial Magistrate First Class, Nagbhid and the case was committed to the Court of Special Court, Chandrapur. The learned Special Judge framed the charge and after recording the evidence and hearing both the sides, convicted the Accused as aforesaid. 3. I have heard Mr. Mardikar, the learned Senior Counsel a/w Mr. A. M. Kukde for Appellant and Mr. Khan, the learned APP for Respondent-State. With their able assistance I have gone through the case papers. 4. Mr. Mardikar, the learned Senior Counsel vociferously argued that even assuming that the victim accompanied the Accused and thereafter they were apprehended at the Railway Station at Gaya in Bihar State, however, the fact remains that the victim had willingly gone with the Accused. She was no doubt of a tender age as that of Accused and they both willingly had developed a physical relationship, as they both got married with each other. 5. Mr. Mardikar, the learned Senior Counsel contended that in the instant case, the age of the victim is not proved by the prosecution beyond reasonable doubt. In view thereof, it cannot be said that the Accused has committed an offence punishable under Section 376 of Indian Penal Code. 6. As against this, Mr. Khan, the learned APP vehemently contended that the prosecution has proved the age of the victim beyond reasonable doubt, and therefore, it can be safely said that the Accused has committed an offence punishable under Section 376 of Indian Penal Code. 7. Few facts which are not disputed by the defence are that at the relevant time victim was residing with her parents and elder sister at Nabhid. She was acquainted with the Accused, as he used to visit her house along with her father on some occasions. The Accused hails from Orissa State. 7. Few facts which are not disputed by the defence are that at the relevant time victim was residing with her parents and elder sister at Nabhid. She was acquainted with the Accused, as he used to visit her house along with her father on some occasions. The Accused hails from Orissa State. The victim and the Accused were having love affairs. They used to have a telephonic conversation frequently. It is not seriously disputed that the Accused offered the victim to marry with him and accordingly they both first went to Nagbhid and thereafter to Gondia. Thereafter they proceeded to village Boripada in Orissa State. They both got married in one temple. The victim stayed with the accused at Boripada for about one month. The victim along with the accused was apprehended at the Railway Station, Gaya in Bihar State. 8. In this backdrop, the case of the prosecution has to be scrutinized carefully. 9. The Testimony of Murgesh (PW-3), who is the father of the victim shows that since the victim was not seen in the house, he lodged a missing complaint (Exhibit-27) at Nagbhid Police Station on 10th July 2015. Thereafter he was informed by one Ticket Checker from Gaya in Bihar State that his daughter was apprehended along with the Accused at Railway Station, Gaya. Therefore, Murgesh (PW-3) went to Gaya and brought back his daughter along with him. Police recorded his statement as well as the statement of the victim. 10. The testimony of PW-4, who is victim, demonstrates that she was acquainted with the Accused. They used to talk on telephone with each other. So also they used to meet each other frequently. The Accused offered her to marry with him. Accordingly, they both proceeded to his native place at Boripada in Orissa State. They got married in a temple and then the Accused took the victim to his house. They stayed together at Boripada for one month. The accused developed physical relationship with the victim during the said period. The victim talked to her brother Parshuram on mobile phone. At that time her brother informed her that their father is not keeping well and requested the victim to return back home. Therefore, the victim along with the Accused proceeded to Nagbhid, however, they boarded a wrong train and reached to Gaya in Bihar State. The victim talked to her brother Parshuram on mobile phone. At that time her brother informed her that their father is not keeping well and requested the victim to return back home. Therefore, the victim along with the Accused proceeded to Nagbhid, however, they boarded a wrong train and reached to Gaya in Bihar State. The Ticket Checker from the Railway Station, Gaya apprehended them and handed over them to Gaya Railway Police. The victim was then taken to Nagbhid. Her statement was recorded by the police. 11. During the cross-examination of PW-4 victim, improvements were pointed by the defence to the effect that she had refused for sexual intercourse with the accused, as there was no valid marriage amongst them. The Accused forcibly committed sexual intercourse with her and the Accused said that she being his legally wedded wife, there should be no objection for sexual intercourse. The said version does not find place in her statement before the police. Thus, the testimony of the victim clearly indicate that she was having love affairs with the accused. She willingly accompanied the Accused to his native place at Boripada in Orissa State and thereafter they got married and established physical relationship. 12. Now coming to the crucial questions whether the victim was below the age of 18 years of her age when she had physical relationship with the Accused and whether the Accused has committed offence punishable under Section 376 of Indian Penal Code. As far as the age of the victim is concerned, the First Information Report (Exhibit-28) lodged by Murgesh (PW-3) shows the age of the victim as 16 years. No date of birth has been mentioned in the said First Information Report. The testimony of Murgesh (PW-3) does not throw any light on the aspect of date of birth. In the cross-examination his testimony shows that he was not aware about the date of birth of the victim. As such he has not informed about the same to the police. 13. The testimony of the mother of victim namely, Smt. M. Murgamma Murgesh Pille (PW-5) shows the date of birth of the victim as 12th September 1999 and her place of birth is in Solapur District. As such he has not informed about the same to the police. 13. The testimony of the mother of victim namely, Smt. M. Murgamma Murgesh Pille (PW-5) shows the date of birth of the victim as 12th September 1999 and her place of birth is in Solapur District. It is significant to note that as per the deposition of victim (PW-4), her date of birth is 12th September 1999, however, she produced the record sheet (Exhibit-32) showing her date of birth as 12th June 2001 issued by Aided Middle School, Milagakuppam, Keeraisathu. According to the victim, the said date of birth was wrongly mentioned. Thus, it is not clear as to why the victim produced the record sheet (Exhibit-32) during her cross-examination which shows her date of birth as 12th June 2001, which is different than 12th September 1999. The victim herself contradicted on the point of date of birth. 14. As discussed above, the evidence of the father of the victim (PW-3) is silent on the aspect of the date of birth of the victim. No doubt, the mother of the victim mentioned the date of birth as 12th September 1999 and stated that the birth of the victim had taken place in Solapur District, however, she failed to state the name of the village or a town where the victim was born. So also, it is not clear as to on what basis the mother of the victim mentioned the date of birth as 12th September 1999. In this regard, it is worthwhile to note that the record sheet (Exhibit-32), on which the prosecution relied, has not come from the custody of the complainant (PW-3) i.e. the father of the victim. 15. The prosecution has relied upon the testimony of Vijay Haribhau Deshpande (PW-8), who is the Junior Clerk serving in Kurudwadi Nagar Parishad since 1991. He produced the original record in respect of the birth of the victim. He stated that as per the birth register, there is an entry at Sr. No. 914 dated 12th September 1999 regarding the birth of the victim. The said entry was made in the register on 17th May 2000. The said entry was with regard to the name of the victim. 16. According to Vijay Deshpande (PW-8), the birth of the said girl took place at Santosh Hospital, Kurudwadi, District Solapur. No. 914 dated 12th September 1999 regarding the birth of the victim. The said entry was made in the register on 17th May 2000. The said entry was with regard to the name of the victim. 16. According to Vijay Deshpande (PW-8), the birth of the said girl took place at Santosh Hospital, Kurudwadi, District Solapur. He brought the original birth certificate (Exhibit-55) issued by the Municipal Council, Kurudwadi and the copy of the extract of birth and death register (Exhibit-56). During the cross-examination, PW-8 fairly stated that he has no personal knowledge about the birth of the victim, however, he is deposing on the basis of the official record and he had not brought any record from Santosh Hospital, Kurudwadi, on whose information an entry at Exhibit-56 was taken. He further clarified that he had not sent the report of Santosh Hospital, Kurudwadi. He further admitted that column no.23 of Exhibit-56, where the signature of the informant is required, is blank and in column no.24 there is no signature on the register of Exhibit 56. 17. On careful scrutiny of the testimony of Vijay Deshpande (PW8) coupled with the documents (Exhibit-55 and 56) it is amply clear that Vijay Deshpande (PW-8) had deposed on the basis of the official record and the entry at Exhibit-56 was taken on the basis of the record of Santosh Hospital, Kurudwadi, which was not placed before the Court. Thus, the original record from Santosh Hospital, Kurudwadi was missing which was the basis for the date of birth of the victim. 18. Moreover, in the said extract (Exhibit-56), the column no.23 which was for the signature of the informant was also blank. It is not clear as to who informed about the date of birth of the victim, which was in the record of the hospital to the concerned authority, who took the entry at Exhibit 56. In column no.24, the Registrar, who maintained the Birth and Death Register, who was supposed to sign column no.24, did not put his signature on the said column. Thus, the column nos.23 and 24 in the said register (Exhibit-56) are kept blank, for the reasons best known to the concerned authority. The fact remains that the link of the evidence is missing which would have connected the authority from Santosh Hospital, Kurudwadi to the authority of Municipal Council, Kurudwadi, District Solapur. 19. Thus, the column nos.23 and 24 in the said register (Exhibit-56) are kept blank, for the reasons best known to the concerned authority. The fact remains that the link of the evidence is missing which would have connected the authority from Santosh Hospital, Kurudwadi to the authority of Municipal Council, Kurudwadi, District Solapur. 19. It is worthy to note that neither the mother of the victim nor her father stated before the court as to in which hospital exactly the victim was born. None of them have thrown any light on the said aspect. Significantly, the mother of the victim have failed to state as to exactly in which village or town she gave birth to the victim. In these circumstances, the entry in birth certificate (Exhibit-55) so also the entry at Exhibit-56 are not found to be reliable and trustworthy documents. 20. Section 35 of the Evidence Act, 1872 contemplates that : "35. Relevancy of entry in public (record or an electronic record) made in performance of duty - An entry in any public or other official book, register or [record or an electronic record], stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specifically enjoined by the law of the country in which such book, register or [record or an electronic record] is kept, is itself a relevant fact." 21. Mr. Khan, the learned APP has placed reliance on the Judgment of the Apex Court in the matter of Murugan alias Settu V/s State of Tamil Nadu, (2011) AIR SC 1691, wherein, it is held that the entries made in the school register made ante litem motam can be relied upon. However, in paragraph no.12 of the said Judgment it is clarified by the Hon'ble Apex Court that under Section 35 of the Evidence Act, the court has to examine the probative value of the contents of the document. The authenticity of the entries may also depend on whose information such entry stood recorded and what was his source of information, meaning thereby, that such document may also require corroboration in some cases. 22. In the instant case, no doubt, the birth certificate was issued by the Municipal Council, Kurudwadi, however, since the column nos. The authenticity of the entries may also depend on whose information such entry stood recorded and what was his source of information, meaning thereby, that such document may also require corroboration in some cases. 22. In the instant case, no doubt, the birth certificate was issued by the Municipal Council, Kurudwadi, however, since the column nos. 23 and 24 of the extract of birth and death register (Exhibit-56) are kept blank meaning thereby that it is not clear as to who had reported about the date of birth of the victim to the Municipal Council, and therefore, the name is missing in the said document. Similarly the evidence of parents of the victim do not throw any light on the aspect of giving birth to the victim in Santosh Hospital, Taluka Kurudwadi, District Solapur. 23. Mr. Mardikar, the learned Senior Counsel for Appellant has placed reliance on the Judgment of the Apex Court in the matter of Birad Mal Singhvi V/s Anand Purohit, (1988) AIR SC 1796. In paragraph no. 14 the Hon'ble Apex Court held as under : "14. As already stated neither of the parents of the two candidates nor any other person having special knowledge about their date of birth was examined by the respondent to prove the date of birth as mentioned in the aforesaid documents. Parents or near relations having special knowledge are the best person to depose about the date of birth of a person. If entry regarding date of birth in the scholar's register is made on the information given by parents or some one having special knowledge of the fact, the same would have probative value. The testimony of Anantram Sharma and Kailash Chandra Taparia merely prove the documents but the contents of those documents were not proved. The date of birth mentioned in the scholar's register has no evidentiary value unless the person who made the entry or who gave the date of birth is examined. The entry contained in admission form or in the scholar register must be shown to be made on the basis of information given by the parents or a person having special knowledge about the date of birth of the person concerned. The entry contained in admission form or in the scholar register must be shown to be made on the basis of information given by the parents or a person having special knowledge about the date of birth of the person concerned. If the entry in the scholar's register regarding date of birth is made on the basis of information given by parents, the entry would have evidentiary value but if it is given by a stranger or by someone else who had no special means of knowledge of the date of birth, such an entry will have no evidentiary value. Merely because the documents Exh. 8, 9, 10, 11 and 12 were proved." In paragraph no. 15 of the said Judgment it is held as under : "15. 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 material on which the age was recorded." 24. Mr. Mardikar, the learned Senior Counsel has also placed reliance on the Judgment of Divisional Bench of this Court (Coram : Gavai Bhushan Ramkrishna & Deshpande V. M. JJ.) in the matter of Ravi Anandrao Gurpude V/s State of Maharashtra,2016 DGLS(Bom) 1699. In paragraph no.9 of the said Judgment the Divisional Bench held as under : "9. The provisions of the POCSO Act are stringent in nature. Even there is a statutory presumption under Section 29 of the Act. Since the enactment is stringent in nature, the degree of proof is more strict. 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. Even there is a statutory presumption under Section 29 of the Act. Since the enactment is stringent in nature, the degree of proof is more strict. 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." 25. The aforesaid case law has good bearing on the present case. In view of the facts and circumstances of the present matter, Judgment and Order passed by the learned Special Court, Chandrapur needs to be quashed and set aside. The learned trial judge should have appreciated the evidence led by the prosecution in its right perspective. Since the age of the victim is not proved to be below 18 years, it is held that prosecution has failed to prove its case. Hence, the following order. ORDER (1) Criminal Appeal No.783 of 2018 is allowed. (2) The impugned Judgment and Order of conviction and sentence passed by the learned Special Court, Chandrapur dated 6th September 2017 in Special (POCSO) Case No. 100 of 2015 is hereby set aside. (3) The Appellant - Ajaykumar s/o Sambhunath Naik is acquitted of the offence punishable under Sections 376(1) of Indian Penal Code and Section 4 of the Protection of Children from Sexual Offences Act. (4) The Appellant - Ajaykumar s/o Sambhunath Naik is in custody. He be set at liberty forthwith, if he is not required in any other case. (5) The fine amount, if paid, be refunded to him. (6) Muddemal property be destroyed after the appeal period is over.