JUDGMENT : Aggrieved by his conviction and sentence for the offences punishable under Sections 366, 343 and 376 of IPC and Section 6 of the Protection of Children from Sexual Offences Act, 2012 (‘POCSO Act’ for short), the accused in Special Case No.65/2014 on the file of Additional District & Sessions Judge, Special Judge, Hassan has preferred the above appeal. 2. The appellant was prosecuted in Special Case No.65/2014 for the aforesaid offences on the basis of the charge sheet filed by Hassan Extension Police Station. 3. PW.1 is the father of the complainant, PW.2 is the victim girl. PW.10 is the maternal uncle of PW.2. During the year 2014, PW.2 was staying in BCM Hostel, Hassan studying diploma. She went missing from the said hostel from 05.03.2014. PW.1 filed missing complaint as per Ex.P1. In the complaint, he suspected one Manja, Murali and Riya as cause for missing of PW.2. He claimed that the victim was aged 17 years. 4. On the basis of such complaint, PW.19 Sub-Inspector of Police of Hassan Extension police station registered the first information report as per Ex.P20 for the offence punishable under Section 363 of IPC. PW.16 and CW.38 were deputed to trace the victim PW.2. They said to have traced PW.2 and the appellant on the basis of their call detail records on 21.03.2014 in Ingalagi, Kalaburagi District in the parental house of the accused. PW.16, PW.10 and CW.38 after tracing the victim brought her back and produced her before PW.19. 5. PW.19 got produced PW.2 before the Child Welfare Committee, Hassan. On recording the statement of PW.2 and the accused, PW.19 incorporated the offences of kidnapping, sexual abuse punishable under the Indian Penal Code and the POCSO Act. After conducting the spot mahazar and getting the accused medically examined, PW.19 handed over the further investigation to PW.20. PW.20 got PW.2 medically examined, got her statement under Section 164 of Cr.P.C., recorded through judicial Magistrate, conducted further investigation and filed the charge sheet. 6. The case of the prosecution is as follows: That victim was aged 17 1/2 years. The appellant befriended her by face book chatting and kidnapped her on 04.03.2014 at 11.00 a.m. from Hassan Bus stand, took her to his aunt’s house in Bengaluru. From there luring her of love and marriage took her to his parental house in Ingalagi village of Gulbarga District. The appellant befriended her by face book chatting and kidnapped her on 04.03.2014 at 11.00 a.m. from Hassan Bus stand, took her to his aunt’s house in Bengaluru. From there luring her of love and marriage took her to his parental house in Ingalagi village of Gulbarga District. The appellant married her on 19.03.2014 in Nagamma-Yellamma temple. After such marriage upto 21.03.2014 he kept her in his parental house and committed repetitive penetrative sexual assault on her, thereby he has committed the offence punishable under Section 366, 376 and Section 6 of the POCSO Act. 7. The trial Court on taking cognizance tried the appellant in Spl.Case No.65/2014. On conducting such trial by the impugned judgment, the trial Court convicted the appellant for the offences punishable under Section 366, 343 and 376 of IPC and section 6 of POCSO Act. Further by the impugned order, the trial Court sentenced the appellant as follows: Sl. No. Convicted for the offence punishable under Section Sentence of imprisonment Fine amount in Rupees Default sentence 1. 366 of IPC Simple Imprisonment of 3 years 2,000/- Simple imprisonment of 3 months in all 2. 343 of IPC Simple Imprisonment of 6 months - 3. 376 of IPC Simple Imprisonment of 7 years 5,000/- 4. 6 of POCSO Act Rigorous Imprisonment of 10 years 5000/- 8. The trial Court relying on the evidence of PW.13 and Ex.P18 held that as on the date of the offence PW.2 was aged below 18 years. The trial Court held that the allegations of the kidnapping of victim, wrongful confinement and sexual assault were proved by the evidence of PW.2-the victim, PW.1 her father, PW.10-her maternal uncle and PW.14 doctor and Ex.P4 the medical examination report of the victim. Submissions of Sri K.C. Pratheep, learned counsel for the appellant questioning the correctness of the impugned judgment and order are as follows: 9. To invoke the provisions of POCSO Act, the victim should be below 18 years. PW.1 did not speak about the age of the victim. As per the evidence of PW.13 and his report Ex.P18 the age of the victim was above 17 years and below 18 years. He claims to have arrived at the conclusion based on the radiological report, but the said radiological report was not produced. There was no ossification test report. PW.1 did not speak about the age of the victim. As per the evidence of PW.13 and his report Ex.P18 the age of the victim was above 17 years and below 18 years. He claims to have arrived at the conclusion based on the radiological report, but the said radiological report was not produced. There was no ossification test report. Even in such cases the marginal error of plus or minus 2 years has to be given in arriving the conclusion. As per the prosecution itself, the victim was studying in Diploma. Therefore, there was no difficulty for the Investigating Officer to collect her school certificate in proof of date of birth. The benefit of such suppression of material fact shall be given to the accused. Even in the absence of denial by the accused in the cross examination of the witnesses, the prosecution has the burden of proving the age of the victim beyond reasonable doubt. The evidence on record shows that the victim herself befriended the appellant and moved with him from Hassan to Bengaluru and from Bengaluru to Ingalagi and stayed with him for a long time. Nowhere she has raised alarm or protest. Under such circumstances, the trial Court is not justified in holding that it was the case of kidnapping, wrongful confinement and rape. According to the complainant herself, her age was above 17 years and the alleged sexual act took place after marriage. That does not attract Section 376 IPC. 10. In support of his submissions, he relies upon the following judgments : (i) Gulu Santra vs. State of West Bengal, 2020 SCC Online Cal 980 (ii) Madan Gopal Kakkad vs. Naval Dubey and another, (1992) 3 SCC 204 (iii) Rajak Mohammad vs. State of Himachal Pradesh, (2018) 9 SCC 248 (iv) State of Karnataka vs. Narasimha, Crl.A.No.974/2011 (D.D.12.12.2014) (v) Ram Vijay Singh vs. State of Uttar Pradesh, 2021 SCC Online SC 142 Submissions of learned HCGP for justifying the impugned judgment and order are as follows: 11. The accused has not disputed the age of the victim in the evidence of the prosecution witnesses. Therefore, the trial Court has rightly held that she was below 18 years. The overtacts of the appellant were proved by the cogent and consistent evidence of the victim girl. Her evidence was corroborated by the evidence of PW.1, PW.14 and 18. The accused has not disputed the age of the victim in the evidence of the prosecution witnesses. Therefore, the trial Court has rightly held that she was below 18 years. The overtacts of the appellant were proved by the cogent and consistent evidence of the victim girl. Her evidence was corroborated by the evidence of PW.1, PW.14 and 18. Under Sections 29 and 30 of the POCSO Act, there is a presumption of guilt of the accused. Accused did not rebut the said presumption. Even assuming that the victim accompanied the appellant without resistance, minor’s consent is no consent in the eye of law. Therefore, the impugned judgment and order does not warrant interference of this Court. 12. In the light of the rival submissions and the material on record, the question that arises for consideration is “whether the impugned order of conviction and sentence passed against the appellant is sustainable in law?” Analysis: 13. To sustain the conviction under Section 6 of the POCSO Act, the prosecution is required to first prove that the victim was aged below 18 years. To sustain the charges under Sections 366, 343 and 376 of IPC, the prosecution has to prove that the appellant has committed sexual intercourse. Regarding the age of the victim and charge under Section 6 of the POCSO Act. 14. The Investigating Officer has filed charge sheet and the trial Court tried the accused for the offence punishable under Section 6 of the POCSO Act. The POCSO Act was enacted to protect children from sexual offences etc., Therefore to invoke the provisions of POCSO Act, the victim should be a child. The prosecution was bound to prove beyond reasonable doubt that PW.2 was aged below 18 years. 15. In the complaint Ex.P1, at the first instance PW.1 gave the age of the victim as 17 ½ years. In his entire chief-examination PW1 nowhere he whispers about the age of PW.2 or her date of birth. He maintained such unexplained silence in his evidence. PW.2 in her chief-examination stated that in March 2014 she completed 16 years of age and stepped into 17 years. Whereas, the father of the victim in his complaint states that she was 17 ½ years old. 16. The evidence of PWs.1 and 2 and other evidence on record shows that PW.2 was studying in M.V. Polytechnic College, Hassan. PW.2 in her chief-examination stated that in March 2014 she completed 16 years of age and stepped into 17 years. Whereas, the father of the victim in his complaint states that she was 17 ½ years old. 16. The evidence of PWs.1 and 2 and other evidence on record shows that PW.2 was studying in M.V. Polytechnic College, Hassan. Therefore her school records containing her date of birth would have been better record of proof of her age. However, for the reasons best known to the Investigating Officer he does not collect any such school records. 17. It was contended that in the cross-examination of PW.2 the age of the victim was not disputed and the fact of minority is further corroborated by the evidence of Doctor PW.13. In such cases, the prosecution has the burden to prove its case beyond reasonable doubt. The silence of the accused in that matter itself does not amount to proof. 18. In similar case in para No.44 of the judgment in Gulu Santra’s case referred to supra, held as follows: “44. Curious enough to note that nothing was there in the cross-examination of the witnesses challenging the age of the victim girl. In the F.I.R. victim was described to be of twelve (12) year old girl, and in course of evidence victim, declared her age as twelve (12) years. Both the parents of victim girl are, however, silent as regard the age of the victim girl. Though the accused/appellant did not challenge the age of victim girl during the trial, but he cannot be estopped from challenging the same during the appeal for the same being question of law. Even in absence of challenge being raised, disputing with the age of victim girl in all fairness, it is incumbent upon the prosecuting agency to furnish something in proof the age of victim girl at the time of occurrence.” (Emphasis supplied) 19. In the light of the above judgment, the accused not contraverting the evidence of PW.2 about her age itself does not amount to proof of the age by the prosecution. The other evidence relied on by the trial Court was that of PW.13 and his report Ex.P18. PW.13 says that he examined PW.2 on 25.03.2014 and as per Radiology report her age was 17 to 18 years. He does not say that he is a Radiologist. The other evidence relied on by the trial Court was that of PW.13 and his report Ex.P18. PW.13 says that he examined PW.2 on 25.03.2014 and as per Radiology report her age was 17 to 18 years. He does not say that he is a Radiologist. He admitted in the cross-examination that, in his report in Ex.P18 there is no reference to X-ray films. Neither Radiology report nor X-ray films were produced along with the charge sheet. 20. PW.20 the Investigating Officer states that along with Ex.P.18 he has not collected the Radiology report. In such case whether medical experts report/Ex.P.18 would be of any value is the question. 21. The larger bench of the Hon’ble Supreme Court in para 34 of the Judgment in Madan Gopal Kakkad’s case referred to supra in this regard held as follows : “34. A medical witness called in as an expert to assist the Court is not a witness of fact and the evidence given by the medical officer is really of an advisory character given on the basis of the symptoms found on examination. The expert witness is expected to put before the Court all materials inclusive of the data which induced him to come to the conclusion and enlighten the Court on the technical aspect of the case by explaining the terms of science so that the Court although, not an expert may form its own judgment on those materials after giving due regard to the expert's opinion because once the expert's opinion is accepted, it is not the opinion of the medical officer but of the Court. (Emphasis supplied) 22. The above judgment shows that unless the expert witness places before the Court all the materials conclusive of the age which induced him to come to the said conclusion cannot be relied as evidence of facts. Apart from that the age determined by PW.13 is not accurate. He says that her age is between the range of 17 to 18 years. 23. The Division bench of this Court in para No.20 of the judgment in Narasimha’s case referred to supra has held that the law is fairly well settled that assessment of age by the medical officer is subject to margin of error of two years and such benefit shall be given to the accused. 24. 23. The Division bench of this Court in para No.20 of the judgment in Narasimha’s case referred to supra has held that the law is fairly well settled that assessment of age by the medical officer is subject to margin of error of two years and such benefit shall be given to the accused. 24. The Hon’ble Supreme Court in para No.9 of the judgment in Rajak Mohammad’s case referred to supra in this regard held as follows : “9. While it is correct that the age determined on the basis of a radiological examination may not be an accurate determination and sufficient margin either way has to be allowed, yet the totality of the facts stated above read with the report of the radiological examination leaves room for ample doubt with regard to the correct age of the prosecutrix. The benefit of the aforesaid doubt, naturally, must go in favour of the accused.” (Emphasis supplied) 25. In the light of the aforesaid judgments of this Court, Hon’ble Supreme Court and the fact that Ex.P18 was not supported by any technical data to arrive at the conclusion about age, it has to be held that medical evidence was not reliable in that regard. 26. In the light of the aforesaid facts and circumstances firstly, the prosecution did not prove beyond reasonable doubt that PW.2 was aged below 18 years. Secondly, even if the expert’s evidence is considered, the benefit of margin of error should go to the accused. Once it is held that PW.2 being below 18 years was not proved beyond reasonable doubt, Section 6 of the POCSO Act is not applicable. 27. The presumption under Sections 29 and 30 of the POCSO Act is with regard to the commission of the offence and culpable mental state of the accused and not with regard to the age of the victim. Once the fact of victim being child is not proved, POCSO Act is not applicable. Then the question of raising presumption under those provisions or convicting the appellant for the offence punishable under Section 6 of the POCSO Act does not arise. Therefore conviction and sentence under the POCSO Act are unsustainable. Regarding the offence under Sections 366, 343 and 376 of IPC. 28. PW.2 in her chief-examination stated that the appellant befriended her through Face book and induced her to join him at Hassan bus-stand. Therefore conviction and sentence under the POCSO Act are unsustainable. Regarding the offence under Sections 366, 343 and 376 of IPC. 28. PW.2 in her chief-examination stated that the appellant befriended her through Face book and induced her to join him at Hassan bus-stand. She further deposed that in Hassan bus-stand he forced her to go to Bengaluru, therefore she accompanied him. It is already held that she was not a minor or aged below 18 years. She herself stated that she was in BCM hostel. The evidence on record shows that there were some rules in the hostel for leaving the hostel premises without prior permission of the authority. PW.2 left the hostel without intimating her parents and hostel authority. 29. PW2 further says that from Hassan to Bengaluru, Bengaluru to Ingalagi, all journeys were due to pressure of the appellant and subsequent physical relationship between them was also forced one. PW.2 says that she was having mobile phone. Even the evidence of roommate PW.5 shows that PW.2 was chatting with others on mobile phone. PW.5 further says that PW.2 left the hostel and did not return. 30. If PW.2 was taken by force there was ample opportunity to her to resist or raise alarm to seek the help of others. Her evidence shows that they traveled in public transport. Her evidence further shows that she lived in the house of aunt of the accused and parental house of accused at Bengaluru and Ingalagi. She could have revealed about the force of the accused. The marriage said to have taken place in a temple i.e., public place. There also she has not resisted or raised any alarm. 31. Under the aforesaid circumstances, the trial Court was not justified in holding that the appellant kidnapped her forcibly and unlawfully confined her in his parental house. As per prosecution itself, after their marriage on 19.03.2014, the appellant sexually cohabited with PW.2 from 19.03.2014 till 21.03.2014. The deposition of PW.2 also shows that the said sexual relationship was after the marriage. 32. All along from the date of missing till she was traced by the police, she has not informed at least her family members about the offences against her. In the similar circumstances the Hon’ble Supreme Court in para No.10 of the judgment in Rajak Mohammad’s case referred to supra held as follows : “10. 32. All along from the date of missing till she was traced by the police, she has not informed at least her family members about the offences against her. In the similar circumstances the Hon’ble Supreme Court in para No.10 of the judgment in Rajak Mohammad’s case referred to supra held as follows : “10. We will, therefore, have to hold that in the present case the prosecution has not succeeded in proving that the prosecutrix was a minor on the date of the alleged occurrence. If that is so, based on the evidence on record, already referred to, we will further have to hold that the possibility of the prosecutrix being a consenting party cannot be altogether ruled out.” (Emphasis supplied) 33. In this case also, the prosecution has not succeeded in proving that PW.2 was minor as on the date of offence. The evidence on record leads to the inference and probability of the prosecutrix/PW.2 being a consenting party to the sexual cohabitation. PW.2 in her statement before the Magistrate under Section 164 Cr.PC as per Ex.P7 at the earliest point of time has not imputed any forcible sexual intercourse by the appellant. She further stated that she befriended on Face book and developed liking for him and after the marriage he had physical relationship with her. 34. Section 375 of IPC as it stood as on the date of the offence states that sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape. It is already held that PW.2 was above 15 years and admittedly there was a marriage. On that count also, the conviction of the offence punishable under Sections 343, 366 and 376 of IPC does not sustain. 35. The trial Court has failed to appreciate the oral evidence and the legal position discussed above. Therefore the order of conviction and sentence are unsustainable. Consequently, the appeal is allowed. The impugned judgment and order of conviction and sentence dated 09.08.2018 passed by the Additional Sessions and Special Judge, Hassan in Spl.Case No.65/2014 are hereby set aside. The appellant/accused is acquitted of the charges for the offences punishable under Sections 343, 366, 376 of IPC and Section 6 of the Protection of Children from Sexual Offences Act, 2012. He shall be set at liberty forthwith, if his detention is not required in any other case. The appellant/accused is acquitted of the charges for the offences punishable under Sections 343, 366, 376 of IPC and Section 6 of the Protection of Children from Sexual Offences Act, 2012. He shall be set at liberty forthwith, if his detention is not required in any other case. The fine amount deposited, if any, by the appellant shall be refunded to him. The order with regard to disposal of the properties is maintained. Registry shall communicate the operative portion of the order to the trial Court and the concerned jail authority.