JUDGMENT 1. This appeal is by the accused challenging his conviction in relation to o ffences punishable under sec. 376 IPC and Sec. 4, 6 and 8 of the Prevention of Children from Sexual Offences Act ('POCSO' for short), in Spl.Case .No .150/2017 on the file of Special, 2nd Addl. District and Sessions Judge, Chitradurga. 2. FIR was registered on 19.5 .2017 in regard to incident that took place in the intervening night of 17/18/5/2017. PW.1 is the daughter of PW.7 - Man junatha and PW.8 - Manjula. In the evening of 17 .5.2017, PW.1, 7 and 8 attended the marriage of their relative . By 9 .00 p .m., PW.1 had dinner and about 11.30 p .m., the accused asked her to come out as he wanted to speak to her. But she did not go . Around 12 O'clock in the night as she returned home feeling sleepy, she opened the door of her house, the accused who had also followed, came inside the house and asked her to bring a glass of drinking water. As she went inside to bring water, he bolted the door and then committed rape on her. When they were inside, PW.7 came and knocked at the door. PW.1 opened the door; PW.7 came inside and beat the accused seeing him inside the house. The accused ran away from that place . PW.1 went to the backyard of the house fearing that her father might beat her and spent time sitting near a bush till dawn. 3. At the conclusion of trial, analysing the evidence of 22 witnesses, and 26 documents as per Exs.P.1 to P.26, the trial court found the accused guilty of the offences aforesaid. The findings of the trial court are that evidence given by PWs.1, 2, 7 to 9 is very much important. PW.1 has given a clear account of the incident. Her testimony is corroborated by the evidence of PWs.2, 7, 8 and 9. The evidence given by doctors examined as PWs.13, 15 and 16 strengthens the prosecution case and therefore the prosecution has been able to prove its case beyond reasonable doubt. 4. Smt. Budrunnissa, learned counsel for the appellant, assailing the impugned judgment argued that the trial court has failed to notice unexplained delay in lodging FIR. The evidence of the material witnesses is not properly assessed . 4. Smt. Budrunnissa, learned counsel for the appellant, assailing the impugned judgment argued that the trial court has failed to notice unexplained delay in lodging FIR. The evidence of the material witnesses is not properly assessed . It has not noticed the fact that there is no proof with regard to actual age of PW.1. It has come in the evidence of PW.1 that she was in love with the accused and because the marriage did not take place, there was enmity between the two families. This was the reason for a false case being registered against the accused. The medical evidence does not support the prosecution case. The doctor has clearly given evidence that there were no signs of recent sexual intercourse. Ex.P.15, the FSL report is also against the prosecution. In this view there is no corroboration to the testimony of PW.1 . PW.7 and 8 are interested witnesses being parents. The trial court has failed to notice all these aspects and therefore the judgment o f the trial court needs to be set aside and the accused, acquitted. 5. The learned Government Pleader argued that Ex.P.13 is the age proof. PW.1 was born on 11/2/2002 and therefore on the date of incident her age was less than 16 years. PW.1 has clearly narrated the incident. She has not been assailed in the cross-examination. She also gave statement before the Magistrate under sec. 164 Cr.P.C. as per Ex.P.8. Sole testimony o f PW.1 itself is believable . PW.7 is the father of PW.1, he has clearly stated that when he returned home in the midnight, he saw the accused in half naked position and that the accused fled away from that place . PW.8 also testifies the same aspect. The evidence of PW .13, the doctor who examined PW.1 is very clear that there was possibility of vaginal penetration. Even though in the FSL report, it is mentioned that seminal stains were not detected in the clothes and the swabs of the girl, it does not mean that the incident had not taken place. This being the evidence on record, there are no grounds for allowing this appeal. The trial court has come to right conclusion to convict the accused and therefore appeal is to be dismissed . 6. I have considered the arguments and perused the entire evidence on record. 7. This being the evidence on record, there are no grounds for allowing this appeal. The trial court has come to right conclusion to convict the accused and therefore appeal is to be dismissed . 6. I have considered the arguments and perused the entire evidence on record. 7. It has been argued by Smt. Budrunnissa that there was delay in registration of FIR. I f evidence of PW.7 is seen, he has stated that he brought the incident to the notice of uncle Sri.Krishna Nayaka. He said that since there was marriage, complaint could be lodged on the next day morning. Then along with his daughter, wife, Krishna Nayaka and one Raghu, they all went to Challakere Police Station on the next day. The police did not receive their complaint and asked them to settle the matter. Even though they waited till 6 O'clock, the police did not receive the complaint. They returned home and then they consulted a Women Organization which contacted Challakere police as to why they did not receive the complaint. Evidence of PW.18 shows that on the instruction of PSI he went to District Hospital, Chitradurga with women Sub-Inspector Smt. Meenakshi and recorded her statement as per Ex.P.1 on the basis of which FIR was registered. Therefore there is explanation. 8. Ex.P.13 is the document that the prosecution produced for proving the age of the girl. It is a school admission register extract. Date of birth is mentioned as 11/2/2002. Therefore on the date of incident her age was 15 years 3 months 7 days. PW.1 was a student of 10th standard at that time. Ex.P.13 was marked through PW.12. Learned counsel for the appellant has placed reliance on the judgment of the Division Bench of this court in the case o f Mohan Kumar alias Kumar vs State of Karnataka [ 2021 (2) KCCR 1152 ] and the judgment of the Supreme Court in the case of Sun il vs State of Haryana [ (2010) 1 SCC 742 ] to argue that Ex.P13 should not have been relied upon by the court below. 9. In the case of Mohan Kumar (supra), the Division Bench has taken a view that mere production of extract of school admission register does not amount to its proof. 9. In the case of Mohan Kumar (supra), the Division Bench has taken a view that mere production of extract of school admission register does not amount to its proof. It is to be mentioned here that the reason for arriving at such a conclusion was when the Headmaster of the school was examined in proof of that document, his answer was that he was not the person who had entered the date of birth in the register nor could he testify the date of birth that was entered by some one else. 10. In the case of Sun il (supra), the Supreme Court has held that the conviction of the appellant cannot be based on approximate date which is not supported by any record. In the said case, the father of the prosecutrix was examined and he failed to give the correct date of birth of his daughter. Therefore it is clear that the views in both the cases were based on the factual background. In this case, PW12, the Headmaster of the school was examined, he has not been questioned whether he had personal knowledge of the date of birth of the girl nor at least a suggestion was given to him that the entry found in Ex.P13 was wrong. Entire evidence of PW12 has remained unassailed . In this view, the evidentiary value o f Ex.P13 cannot be simply ignored. 11. In regard to the incident, if the entire testimony o f PW1 is analysed, of course it is possible to arrive at a conclusion that she might be a consenting party for sexual inter course. She came alone at 12 O' clock in the midnight from the marriage hall. She has stated that accused entered the house when she went inside for bringing drinking water and then subjected her to forcible intercourse, and that her father beat the accused. In the cross-examination, suggestions are given as though she was loving the accused and enmity between two families arose when her parents were not ready to perform the marriage. 12. It is true that the testimony of PW1 in the cross-examination appears to have not been assailed. She has also given statement under sec. 164 Cr.P.C narrating the incident. Just because PW1 appears to have not been assailed, it is not possible to infer that she was subjected to forcible intercourse. 12. It is true that the testimony of PW1 in the cross-examination appears to have not been assailed. She has also given statement under sec. 164 Cr.P.C narrating the incident. Just because PW1 appears to have not been assailed, it is not possible to infer that she was subjected to forcible intercourse. This inference can be drawn if evidence of PW7 is considered. His evidence is that when he came home at 1 O' clock in the midnight to check whether the outer door of the house was properly locked or not, he saw the door being bolted from inside. He knocked at the door and the daughter opened it. He has stated that she opened the door, that she looked scared, and when he went inside the house, he saw the accused sitting half naked in a corner and then he beat him . His further evidence is that he went back to the marriage hall and brought his wife. PW8 is the mother. She has given evidence about what she came to know from her husband and what she saw a fter returning home. Therefore if the testimonies of PWs1, 7 and 8 are considered, an inference can be drawn that the accused had intercourse with PW1 inside her house. 13. PW13 is the doctor who examined PW1. Her evidence is that she did not find injuries on her genitals, but hymen was ruptured. She gave opinion that there were no signs o f recent sexual act, but there was possibility of vaginal penetration. Ex.P16 is her report. 14. From the available evidence, it is possible to say that the appellant had sexual intercourse with PW1. It appears to be consensual, but the age of the girl on the date of incident was 15 years 3 months 7 days. She was a child within the meaning of POCSO Act. Her consent was no consent. In this view, the appellant cannot claim the benefit. Offence punishable under sec. 4 of the POCSO Act has been established. Therefore I come to conclusion that the trial court has rightly held the accused guilty of the offence punishable under sec. 4 of the POCSO Act, and of course, the offence under sec. 376 IPC also gets established in view of clause sixthly of sec. 375 being applicable. 15. 4 of the POCSO Act has been established. Therefore I come to conclusion that the trial court has rightly held the accused guilty of the offence punishable under sec. 4 of the POCSO Act, and of course, the offence under sec. 376 IPC also gets established in view of clause sixthly of sec. 375 being applicable. 15. However, it is necessary to be noted here that the trial court has found the appellant guilty of the offences under Sec. 6 and 8 of the POCSO Act and sentenced him for those o ffences also . The prosecution case does not indicate any offence of aggravated penetrative sexual assault being committed. In order to convict an accused under sec. 6 of the POCSO Act, the prosecution must establish the child being subjected to repeated sexual assault; Sec. 5(l) should answer. In the case on hand, prosecution case is that PW1 was subjected to intercourse only one time during the intervening night of 17/18/5/2017. It is not the prosecution case that PW1 was subjected to intercourse repeatedly by the appellant. Therefore convicting the appellant for offence under sec. 6 was totally unwarranted and it is against evidence. For the same reason, the appellant's conviction under sec. 8 of the POCSO Act also can be held to be bad because there is no material for that. In this view, the appellant succeeds so far as holding him guilty for the offences under Sec. 6 and 8 of the POCSO Act. His conviction for these two offences cannot be sustained. 16. Sec. 42 of the POCSO Act clearly states that where an act or omission constitutes an offence punishable under the Act and also under Sec. 166A, 354A, 354B, 354C, 354D, 370A, 376, etc., the offender found guilty of such offence shall be liable to punishment under the POCSO Act or under the Indian Penal Code whichever is greater in degree. Since the offence took place in the year 2017, the minimum punishment of imprisonment prescribed for the offence under sec. 4 at that time was 7 years. In view o f the fact that age of PW1 on the date of incident was below 16 years, the penal clause is sec. 376(2) IPC as it stood before the amendment given into effect from 21/4/2018 . The minimum sentence of imprisonment to be imposed is 10 years. Since the punishment prescribed under sec. In view o f the fact that age of PW1 on the date of incident was below 16 years, the penal clause is sec. 376(2) IPC as it stood before the amendment given into effect from 21/4/2018 . The minimum sentence of imprisonment to be imposed is 10 years. Since the punishment prescribed under sec. 376(2) IPC is of higher degree, appellant is to be punished accordingly. Hence, the following : ORDER a) Appeal is partly allowed. b) The appellant is acquitted of the offence under Sec. 6 and 8 of the POCSO Act. c) The sentence of imprisonment for a period of seven years and fine of Rs.10, 000.00 imposed on the appellant separately for the offence under sec. 4 of the POCSO Act is set aside. However, sentence o f imprisonment with fine imposed on the appellant by the trial court for the o ffence under sec. 376 IPC is confirmed without any modification. The period of sentence already spent by the appellant in the jail is ordered to be set off.