JUDGMENT : 1. This appeal is preferred by the accused challenging the judgment and order dtd. 26/2/2018 passed by the Court of LIII Additional City Civil and Sessions Judge, Bengaluru in Special C.C. No.292/2017, convicting and sentencing him for offence punishable under Ss. 366 and 376 of IPC and Ss. 5(l) r/w 6 of the Protection of Children from Sexual Offences Act, 2012 [hereinafter referred to as 'POCSO Act' for short]. 2. Heard the learned counsel for appellant, learned High Court Government Pleader for respondent/State and perused the evidence and material on record. 3. Brief facts of the prosecution case are that, accused got acquainted with complainant's minor daughter (PW.1), while she was staying in her grand mother's house in Kanakapura and pursuing her studies. About 2 to 3 months prior, he secured her near Kabbalamma temple and from there took her to a lodge and committed forcible penetrative sexual assault on her, in spite of her assistance, telling her that he will marry her and he is in love with her. Later threatened her not to disclose the incident to any body. Thereafter started blackmailing her saying that he will inform her family members about the incident, if she did not cooperate. Again on 10/3/2017 at about 5.30 p.m., he secured her near Jaraganahalli park, 6th Stage, J.P Nagar and from there abducted her on a two wheeler to his house situated near water tank, Karadigudda, Kanakapura Taluk and committed forcible penetrative sexual assault on her and thereby committed the charged offence. 4. Charges were framed against the accused/appellant for offences punishable under Ss. 366, 376 of IPC and Sec. 5(l) read with 6 of the POCSO Act and Sec. 506 of IPC. 5. To establish the guilt of the accused, the prosecution got examined 13 witnesses and got marked Exs.P1 to P11 and MO's 1 and 2. 6. The learned Sessions Judge vide impugned judgment and order convicted and sentenced the accused for the charged offence. 7. At the outset, it is pertinent to see that the trial Court has passed sentence against the appellant for both the offences under Ss. 376 of IPC and Sec. 5(l) read with 6 of the POCSO Act. 8. 6. The learned Sessions Judge vide impugned judgment and order convicted and sentenced the accused for the charged offence. 7. At the outset, it is pertinent to see that the trial Court has passed sentence against the appellant for both the offences under Ss. 376 of IPC and Sec. 5(l) read with 6 of the POCSO Act. 8. Sec. 42 of the POCSO Act provides for alternate punishment, wherein, if the offender is found guilty of an offence under the said Act along with similar offence under the Indian Penal Code, which are mentioned therein, he shall be liable to punishment either under the POCSO Act or under IPC, wherein, the punishment provided is greater in decree. Since the trial Court has sentenced the appellant to undergo R.I for a period of 10 years for the offence punishable under Sec. 6 of the POCSO Act, then once again sentencing him to undergo S.I for a period of 7 years for offence under Sec. 376 of IPC is uncalled for. 9. According to prosecution, the victim was a minor aged below 18 years at the time of commission of offence. In order to establish her age, the prosecution has got marked Ex.P9 namely the study certificate/age certificate issued by the principal Government Pre-University College, Jayanagar, Bengaluru. In Ex.P9 the date of birth of the victim is mentioned as 26/6/1999. If the said date is taken into consideration, the victim was aged about 17 years 9 months as on the date of commission of offence. 10. Ex.P9 is marked through the Investigation OfficerPW.11. In his evidence, PW.11 has stated that on 9/6/2017 he obtained the document regarding date of birth of the victim. It is relevant to see that as per Ex.P9 issued by the principal of the college, the date of birth was mentioned as per the records maintained in the said college. The said records on the basis of which the certificate-Ex.P9 was issued has not been produced or marked in evidence. The principal who has issued Ex.P9 is also not examined by the prosecution. Except Ex.P9, the prosecution has not produced any other documents such as the date of birth certificate or SSLC Marks card to establish the exact age of the victim. Further, there is no medical examination conducted to ascertain the age of the victim. The principal who has issued Ex.P9 is also not examined by the prosecution. Except Ex.P9, the prosecution has not produced any other documents such as the date of birth certificate or SSLC Marks card to establish the exact age of the victim. Further, there is no medical examination conducted to ascertain the age of the victim. In that view of the matter it cannot be said that the prosecution has been able to establish beyond reasonable doubt that the victim was a minor at the time of incident in question. 11. In the instant case, the victim who is examined as PW.1 has not supported the case of prosecution and she has totally turned hostile. The remaining evidence is that of her parents namely PWs.2 and 3, the evidence of PWs.4 and 5 and the medical evidence. 12. PWs.2 and 3 are the parents of the victim. PW.2, the father of the victim has set the law into motion by lodging a missing complaint on 11/3/2017 as per Ex.P5. In the said complaint he has stated that his daughter aged about 16 years 9 months studying in II PUC at Yadiyuru Government College on 10/3/2017 at about 6.00 p.m., was watching TV and therefore, he reprimanded her saying that why she is always watching TV. At that time she went out of the house and did not return. Hence, he lodged the said complaint suspecting that the appellant might have kidnapped his daughter. On the basis of the said complaint a case in Crime No.110/2017 was registered at Puttenahalli Police Station against the accused/appellant under Sec. 363 of IPC. 13. PW.2 in his evidence has deposed that after lodging the complaint, his daughter returned to his house and on enquiry she revealed that accused asked her to come near Jaraganahali Park and from there he by inducing her took her to Kabbalamma temple and from there took her to a lodge and in the said lodge he committed rape on her. 14. PW.3-mother of the victim has deposed that on 10/3/2017 at about 6.00 p.m., her daughter went out of the house and did not return and therefore they searched for her and on the next day her husband lodged the complaint as per Ex.P5. Thereafter on 13/3/2017, her daughter returned to the house. 14. PW.3-mother of the victim has deposed that on 10/3/2017 at about 6.00 p.m., her daughter went out of the house and did not return and therefore they searched for her and on the next day her husband lodged the complaint as per Ex.P5. Thereafter on 13/3/2017, her daughter returned to the house. On enquiry she informed that the accused called her near Jaraganahalli park and from there took her to Karadigudda in Kanakapura and spoiled her. She has further stated that the accused took her daughter to Kabbalamma temple and from there to a lodge and committed rape on her and thereafter threatened her with dire consequences. 15. The learned counsel for appellant has vehemently contended that both PWs.2 and 3 are hearsay witnesses and there are contradictions in their evidence. He contends, when the victim herself has denied the case of prosecution then the evidence of PWs.2 and 3 cannot be accepted as gospel truth. 16. From the evidence of PW.2 and the cross-examination of PW.3, it can be gathered that while the victim was watching TV at about 6.00 p.m., on 10/3/2017, she was scolded by PW.2 as to why she is always watching TV, at that time she switched off the TV and went out of the house and did not return to the house. PW.2 lodged the complaint as per Ex.P5 suspecting that the accused might have kidnapped his daughter. According to him after lodging the complaint the victim returned to the house and when he enquired with her, she disclosed about the incident. 17. According to PW.2, victim on enquiry revealed that the accused by inducing her took her near the temple and from there took her to a lodge and committed rape on her. He has not stated that the accused threatened the victim with dire consequences not to disclose the incident to others. Whereas, according to PW.3 the accused threatened her with dire consequences. 18. According to PW.3, after lodging of complaint, on 13/3/2017, the victim returned to her house. However PW.11, the Investigation Officer has stated that he took over investigation on 11/3/2017 from PW.13 and on the same day the victim along with her parents appeared before the Police Station. Hence, a doubt arises as to whether the victim was along with accused till 13/3/2017 as stated by PW.3 in her evidence. 19. However PW.11, the Investigation Officer has stated that he took over investigation on 11/3/2017 from PW.13 and on the same day the victim along with her parents appeared before the Police Station. Hence, a doubt arises as to whether the victim was along with accused till 13/3/2017 as stated by PW.3 in her evidence. 19. The prosecution has examined PWs.4 and 5 to establish that the accused kidnapped the victim. According to prosecution the victim was secured near Kabbalamma temple by the accused and from there he took her on a two wheeler to a lodge, wherein, he committed sexual assault on her. PW.4 has turned hostile and his evidence is not helpful to the prosecution. PW.5 has deposed that when he was drinking tea near Jaraganahalli Park he saw accused No.1 and PW.1 near the park. On seeing him, they immediately went on a two wheeler. After 2-3 days PW.2 informed about missing of his daughter. 20. From the evidence on record it can be gathered that on 10/3/2017 when PW.2 scolded the victim for watching TV, she herself went out of the house. Further, according to PW.5 he saw the victim as well as the accused near the park and on seeing him they hurriedly went on a two wheeler from there. From the said evidence it cannot be concluded that the accused has either kidnapped the victim or it is he who secured her near the park. 21. According to PW.12, manager of the lodge, the accused came along with a girl to his lodge on 10/3/2017 and took room No.7 in the said lodge. Thereafter, the police came near the lodge along with the girl saying that the accused has committed rape on her and also showed the photograph of the accused. It is relevant to see that the prosecution has not produced any material to show that in fact the accused had booked any room in the said lodge. Neither the register of the lodge or any receipt has been seized by the police. In the cross-examination PW.12 has admitted that they will issue receipt to the customers who stays in the lodge and he has issued receipt to the accused as well. It is also admitted that they will enter the name of the customers in a ledger. However, no such receipt or ledger has been either seized or produced by the prosecution. In the cross-examination PW.12 has admitted that they will issue receipt to the customers who stays in the lodge and he has issued receipt to the accused as well. It is also admitted that they will enter the name of the customers in a ledger. However, no such receipt or ledger has been either seized or produced by the prosecution. Both P.Ws.5 and 8 have denied that the Police have prepared a mahazar as per Ex.P1 in Kabbalamma lodge. 22. The learned High Court Government Pleader contends that the victim has given her statement under Sec. 164 of Cr.P.C. and the said statement is corroborated by the evidence of P.Ws.2, 3 and 5 and the medical evidence. Therefore, she contends that the trial Court was justified in convicting the accused relying on Sec. 29 of the POCSO Act. 23. In so far as Sec. 164 of Cr.P.C. is concerned, the statement itself is not a substantive piece of evidence. The learned counsel for the appellant has relied on the decision of the Hon'ble Apex Court in Ram Kishan Singh Vs. Harmit Kaur and Anr. reported in 1972 Crl.L.J. 267. It is held therein that the statement under Sec. 164 of Cr.P.C. is not substantive evidence. It can be used to corroborate or contradict the statement of a witness. In the instant case, the victim who is examined as P.W.1 has not supported the case of prosecution and she has completely denied the allegations made against the accused. Hence, the statement under Sec. 164 of Cr.P.C. itself cannot be relied upon, as the said statement can be used to corroborate the statement of the witness or to contradict the witness, as held by the Hon'ble Apex Court. 24. The trial Court has relied on Sec. 29 of the POCSO Act and observed that the said provision indicates that the burden is on the accused to prove his innocence and it is not for the prosecution to prove the guilt against the accused. It is further observed that since the accused has been charged not only for the offence punishable under the POCSO Act, but also under the IPC provision, the prosecution has to prove the guilt against the accused initially. Sec. 29 of the POCSO Act reads as follows: "Presumption as to certain offences: Where a person is prosecuted for committing or abetting or attempting to commit any offence under Ss. Sec. 29 of the POCSO Act reads as follows: "Presumption as to certain offences: Where a person is prosecuted for committing or abetting or attempting to commit any offence under Ss. 3, 5, 7 and Sec. 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be, unless the contrary is proved." It is well settled that Sec. 29 of the POCSO Act does not relieve the prosecution from proving its case. However, it lessens its burden. It does not affect the obligation to produce admissible evidence and to prove the essential and fundamental facts. The learned counsel for appellant has relied on a decision in the case of Subrata Biswas and Anr. Vs. State [2019 SCC CAL 1815], wherein it is held that the statutory presumption applies when a person is prosecuted for committing certain offence under the Act and a reverse burden is imposed on the accused to prove the contrary. The word 'is prosecuted' in the said provision does not mean that the prosecution has no role to play in establishing and/or probablising primary facts constituting the offence by leading any admissible evidence. 25. In the instant case, P.W.1, the victim has not supported the prosecution case. She has denied the contents of Ex.P4, the statement recorded by the Police as well as the contents of Ex.P2, the statement recorded under Sec. 164 of Cr.P.C. PWs.2 and 3 are hearsay witnesses. There are contradictions in the evidence of P.Ws.2 and 3. The evidence adduced by PWs.2 and 3 therefore, is not sufficient to convict the accused, since the victim herself has denied the allegations made against the accused. 26. P.W.10, the Medical Officer who conducted medical examination on the victim girl has stated that on examination, she did not find any injury on the private part and there are no recent signs of sexual intercourse. As per prosecution, immediately on return of the victim and lodging of the complaint, she was subjected for medical examination and therefore, the case of the prosecution that the victim was subjected to penetrative sexual assault by the accused is not established by medical evidence. 27. As per prosecution, immediately on return of the victim and lodging of the complaint, she was subjected for medical examination and therefore, the case of the prosecution that the victim was subjected to penetrative sexual assault by the accused is not established by medical evidence. 27. For the above reasons, the trial Court was not proper in convicting the accused by placing reliance on the testimony of P.Ws.2, 3, 5 and 8, observing that the accused failed to discharge his burden as required under Sec. 29 of the POCSO Act and therefore, failed to establish before the Court that he is an innocent man. It is further relevant to make a mention that the trial Court has taken into consideration the Judgment relied upon by the defnece in the case of K.P.Thimmappa Gowda Vs. State of Karnataka, reported in 2011 Crl.L.J. 2591, wherein the Hon'ble Apex Court has observed that sex with women above 16 years of age with her consent is not rape. The trial Court was not proper in observing that 'by relying upon the said citation, probably accused admits that he had sexual intercourse with the victim many occasions with consent of the victim'. 28. The entire approach of the trial court in convicting the accused is therefore, not in accordance with law. The evidence and material on record are not sufficient to hold that the prosecution has been able to establish the guilt of the accused for the charged offences. 29. For the aforesaid reasons and the discussion made supra, the appeal deserves to be allowed. Hence, the following: ORDER Appeal is allowed. The Judgment and Order of conviction and sentence dtd. 26/2/2018 passed in Spl.C.C. No.292/2017 on the file of the Court of LIII Addl. City Civil and Sessions Judge, Bengaluru, against the accused/appellant for offences under Ss. 366, 376 of IPC r/w Ss. 5(l) r/w 6 of the POCSO Act and Sec. 506 of IPC is hereby set aside. The accused/appellant is acquitted of the offences for which he has been convicted and sentenced by the trial Court. He shall be set at liberty, if not required in any other case. Fine amount if deposited, shall be refunded to the accused/appellant.