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2022 DIGILAW 61 (UTT)

Joni v. State of Uttarakhand

2022-03-25

RAVINDRA MAITHANI

body2022
JUDGMENT : RAVINDRA MAITHANI, J. 1. Present appeal is preferred against the judgment and order dated 07.01.2020/09.01.2020, passed in Special Sessions Trial No. 95 of 2017, State vs. Joni, by the court of FTC/Additional Sessions Judge/Special Judge POCSO, Haridwar, District Haridwar (for short, “the case”). By the impugned judgment and order, the appellant has been acquitted of the charge under Section 366 A IPC. He has been convicted under Sections 363, 376 IPC and Sections 3 (a)/4, 5(j)(ii)/6 of Protection of Children From Sexual Offences Act, 2012 (for short “the POCSO Act”) and sentenced as hereunder: “(i) Under Section 363 IPC, rigorous imprisonment for a period of three years and a fine of Rs. 20,000/-. In default of payment of fine to undergo simple imprisonment for a further period of one month. (ii) Under Section 376 IPC, rigorous imprisonment for a period of ten years and a fine of Rs. 20,000/-. In default of payment of fine to undergo simple imprisonment for a further period of one month. (iii) Under Section 3(a)/4 of the POCSO Act, rigorous imprisonment for a period of ten years and a fine of Rs. 20,000/-. In default of payment of fine to undergo simple imprisonment for a further period of one month. (iv) Under Section 5 (j) (ii)/6 of the POCSO Act, rigorous imprisonment for a period of ten years and a fine of Rs. 20,000/- In default of payment of fine to undergo simple imprisonment for a further period of one month.” 2. Prosecution case, briefly stated is as follows: The victim a girl aged 16 years, left her house on 13.06.2016, for work, but she did not return. The victim had also taken Rs. 20,000/- cash and some jewellery from the house. A search was made, then it was revealed that, in fact, the victim was last spotted with the appellant. Some of the relatives of the appellant were also contacted. When the victim could not be recovered, on 15.06.2016, the father of the victim gave a report to the Police, but FIR was not lodged. It is thereafter, on 28.09.2016, the father of the victim filed an application under Sections 156 (3) of the Code of Criminal Procedure, 1973 (for short “the Code”). After order for investigation, FIR under Sections 363, 366A IPC was lodged against the appellant and a Case Crime No. 239 of 2016 was registered. 3. It is thereafter, on 28.09.2016, the father of the victim filed an application under Sections 156 (3) of the Code of Criminal Procedure, 1973 (for short “the Code”). After order for investigation, FIR under Sections 363, 366A IPC was lodged against the appellant and a Case Crime No. 239 of 2016 was registered. 3. On 04.06.2017, the appellant along with the victim reached the Police Station, SIDCUL, District Haridwar. The victim was medically examined on 04.06.2017 at 1:45 PM. At the time of her medical examination, the victim revealed to the Doctor that she had eloped with the appellant and went to Ghaziabad. They married and stayed as husband and wife. The victim was in touch with her family. The Doctor also found the victim pregnant by 24 weeks. 4. The victim was also examined under Section 164 of the Code, on 05.06.2017. According to her, she married the appellant on 10.05.2016. The appellant did not commit any force with her. She married the appellant on her own free will. She was to give birth to the child of her husband. She told that she was eight months pregnant. In her statement under Section 164 of the Code, the victim also revealed that she wanted to go to her in-law’s house. She stated that her husband, the appellant may be released. According to her, she had worked in a company for two years. 5. The Investigating Officer (“IO”) collected age relating documents from the School, in which, the date of birth of the victim was 25.06.2001, which means she had just completed 16 years, when she left the house. After investigation, charge sheet under and Sections 363, 366A, 376 IPC and Sections 3/4 and 5(j) (ii)/6 of the POCSO Act was submitted against the appellant. 6. On 10.10.2017, charge under sections 363, 366A, 376, 3a/4 and 5(j) (ii)/6 of the POCSO Act was framed against the appellant. To which, he denied and claimed trial. In order to prove the case, the prosecution examined seven witnesses, namely, PW-1 the victim, PW-2 father of the victim, PW-3 brother of the victim, PW-4 mother of the victim, PW-5 Smt. Pushpa, the Principal, PW-6 Sub-Inspector Subhash Chand and PW-7 Dr. Nileema Singh. 7. The appellant was examined under Section 313 of the Code. According to him, he was already engaged with the victim. Nileema Singh. 7. The appellant was examined under Section 313 of the Code. According to him, he was already engaged with the victim. Therefore, he and the victim married and were staying as husband and wife. The victim married to him with her free will. His wife and child are staying in his house. In case, he stays in jail, the future of his wife (the victim) and the child would be ruined. 8. By the impugned judgment and order, the appellant has been convicted and sentenced, as stated hereinbefore. Aggrieved by it, the present appeal has been filed. 9. Heard learned counsel for the parties and perused the record. 10. Learned counsel for the appellant would submit that the date of birth of the victim is not proved. She is major and born in the year 1996. On her own, she married the appellant. No case is made out and the appellant is entitled to be acquitted of all the charges. 11. On behalf of the State, it is argued that the victim is minor. The school record proves it. Her consent is insignificant. Admittedly, she worked in a company along with the appellant. The case is proved and there is no reason to make any interference. 12. PW-1 is the victim. In her statement recorded on 29.11.2017, she revealed her age as 21 years. According to her, on the date of incident, her age was nineteen and half years. She was staying with her parents and working in a factory. On 13.06.2016, she had some quarrel with her mother. Therefore, without informing anyone in the house, she took a train and went to Delhi. There, she visited her friend, who was working with her in the factory. There, she fell in love with a boy, married to him and got pregnant. Later on, she realised that an FIR has been lodged against the boy. Therefore, she went to the Police Station. PW-1, the victim has also stated about the medical examination and her statement recorded before the Magistrate. She proved her statement as Ex. A1. In fact, the statement was read over to her. She has stated that she gave the statement at the behest of the police. 13. Interestingly, PW-1 the victim has not spoken against the appellant. She has stated that though she knows the appellant, but he did not entice her in any manner. She proved her statement as Ex. A1. In fact, the statement was read over to her. She has stated that she gave the statement at the behest of the police. 13. Interestingly, PW-1 the victim has not spoken against the appellant. She has stated that though she knows the appellant, but he did not entice her in any manner. He did not commit any wrong with her. PW-1, the victim was declared hostile and cross examined. In her cross examination by the appellant, she reiterated her age at the time of incident as nineteen and a half years. According to her, at the time of admission her father had reduced her age, at the behest of the teacher. According to PW-1 the victim, she was born in the year 1996. 14. PW-2, is the father of the victim. In the first line of the statement, he has stated that the date of birth of the victim is 25.06.2001. According to him, 13.06.2016, the victim left her house, but did not return. She had gone along with the cash and jewellery. She was spotted with the appellant. This witness has proved his application under Section 156 (3) of the Code, which is Ex. A2. 15. PW-3 is brother of the victim. According to him, the victim was enticed by the appellant, who was their neighbour as a tenant. According to him, the victim was aged about 15 to 16 years then. 16. PW-4 is mother of the victim. According to her, the victim was born in the year 2001. She did not remember the month and date of her birth. 17. PW-5 Smt. Pushpa is a Principal of the public school. She has proved some school record of the victim, which includes the admission form, scholars register and certificate, in which, the date of birth is recorded as 25.06.2001. According to this witness, the victim had taken admission in Class IV straightway. A student with an extraordinary ability may, according to this witness, be admitted straightway in any Class till Vth standard. 18. PW-6 Sub Inspector, Subhash Chandra conducted investigation. He prepared the site plan, arrest memo and other documents. He also proved the chik FIR and other documents. He proved various other documents including the charge sheet. 19. PW-7 Dr. Nileema Singh medically examined the victim on 04.06.2017. 18. PW-6 Sub Inspector, Subhash Chandra conducted investigation. He prepared the site plan, arrest memo and other documents. He also proved the chik FIR and other documents. He proved various other documents including the charge sheet. 19. PW-7 Dr. Nileema Singh medically examined the victim on 04.06.2017. She has reiterated the statement of the victim given to her at the time of medical examination, which has already been reproduced hereinbefore. At the cost of repetition, it may be reiterated that, at the time of her medical examination, the victim had told to the Doctor that she had eloped with the appellant Joni; married him, stayed with him as husband and wife and she was pregnant from him. 20. PW-7 Dr. Nileema Singh has also found that on 06.06.2017, the deceased was pregnant for 24 weeks. PW-7 Dr. Nileema Singh has also stated that the age of the victim was recorded by her as 19 years, as told to her by the parents of the victim. 21. It may be noted that the FIR is named against the appellant. The FIR records that the victim was spotted with the appellant. PW-3, the brother of the victim has stated that the appellant was their neighbour, who had enticed the victim. The statement of the victim recorded under Section 164 of the Code is proved by the PW-1 the victim. In her statement under Section 164 of the Code, the victim has stated that she on her own joined the company of the appellant and married him on 10.05.2016. She has stated that the appellant Jonny did not commit any force with her. She was pregnant for eight months then. She told at that stage that she wanted to go to her in-law’s house. In the court, PW-1 the victim has not corroborated her statements recorded under Section 164 of the Code. 22. Needless to say, the statements recorded under Section 164 of the Code may be used for corroboration. 23. In the case of R. Shaji vs. State of Kerala (2013) 14 SCC 266 , the Hon’ble Supreme Court has categorically held that “the statement given under Section 164 may be used for the purposes of corroboration and contradiction.” 24. PW-2 the father of the victim and PW-3 her brother have stated that the appellant was spotted with the victim. The appellant was their neighbour. PW-2 the father of the victim and PW-3 her brother have stated that the appellant was spotted with the victim. The appellant was their neighbour. PW-4 the mother of the victim has also stated that it is the appellant, who enticed the victim. PW-1 the victim has stated that she was in love with a boy and she got pregnant from him. The statements of PW-2, the father of the victim, PW-3 the brother of the victim and PW-4 the mother of the victim prove that, in fact, the victim had gone with the appellant. She came back at the Police Station, SIDCUL, Haridwar on 04.06.2017 with the appellant. PW-1, the victim has stated that she on her own came to the Police Station on 04.06.2017. Therefore, it is proved and established that the victim had gone with the appellant on her own free will and she stayed with him for about a year. 25. The question is as to what was the age of the appellant on 13.06.2016, when she left her house? Was she below 18 years of age? 26. On behalf of the State, it is argued that, in fact, the victim was studying in a school where her date of birth is recorded as 25.06.2001. 27. The Juvenile Justice (Care and Protection of Children) Act, 2015 (for short “the J.J. Act”) provides for presumption and determination of age. Section 94 of it provides as hereunder: “94. Presumption and determination of age: (1) Where, it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under section 14 or section 36, as the case may be, without waiting for further confirmation of the age. (2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining: (i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available: and in the absence thereof. (ii) the birth certificate given by a corporation or a municipal authority or a panchayat. (iii) and only in the absence or (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board. Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order. (3) The age recorded by the Committee or the Board to be the age of person so brought befoe it shall, for the purpose of this Act, be deemed to be the true age of that person.” 28. The determination of age of an offender may be determined in accordance with the J.J. Act and the age of the victim in the cases like an instant one may also be determined in the same manner. 29. In the case of Manoj vs. State of Haryana and Others, MANU/SC/0189/2022, the Hon’ble Supreme Court observed about the school leaving certificate as hereunder: “11. The school leaving certificate (Ex. A-3) has been proved by examining Umesh Kumar, Head Teacher of Adarsh Siksha Sadan, Pinna. As per the statement of the witness, the school was functioning in the year 1999 in Village Kheri, Dudadhari and was shifted to Village Pinna in the year 2009-2010 where he had been working as Head Teacher from the year 2000. As per the certificate, the Appellant was a student of such school from 12.7.1999 till 2.7.2003. In cross-examination, he admits that the school is a private school and the father of the Appellant has not produced any certificate of the Appellant attending the first class. The Appellant was admitted directly in the 2nd standard. He admits that Exhibit A-1, the admission form, is a loose sheet prepared in his handwriting and it does not bear any counter signature of any higher authority. The Appellant was admitted directly in the 2nd standard. He admits that Exhibit A-1, the admission form, is a loose sheet prepared in his handwriting and it does not bear any counter signature of any higher authority. He has not even produced any proof of registration of the school with the Education Department. 12. The so-called admission form was filled up by him in 1999, so was the school leaving certificate of the year 2003. A perusal of the school leaving certificate shows that it was issued on 29.9.14 by Principal of Adarsh Siksha Sadan, Village Kheri, Dudadhari, though the school had shifted to Village Pinna in the year 2009-2010. It is unclear and amusing as to how a certificate be issued by a particular school which has been shifted to another village. This makes the process of issuance of certificate doubtful. 13. On the other hand, Ex R-1 is the certificate produced by the State stating that no school exists by the name of Adarsh Siksha Sadan in the village Kheri, Dudadhari. Such certificate has been issued by Kanishkvir Singh of Primary School, Kheri. 14. The learned Additional Sessions Judge or the High Court have not relied upon such certificate. We find that such school leaving certificate is unreliable and that the certificate is only a procured document for proving juvenility before the court.” 30. Recently in the case of Rishipal Singh Solanki vs. State of Uttar Pradesh and Others, Manu/SC/1081/2021 the Hon’ble Supreme Court discussed the law on this point and culled out the principles with regard to the determination of age as hereunder: “29. What emerges on a cumulative consideration of the aforesaid catena of judgments is as follows: (i) A claim of juvenility may be raised at any stage of a criminal proceeding, even after a final disposal of the case. A delay in raising the claim of juvenility cannot be a ground for rejection of such claim. It can also be raised for the first time before this Court. (ii) An application claiming juvenility could be made either before the Court or the JJ Board. (ii-a) When the issue of juvenility arises before a Court, it would be Under Sub-section (2) and (3) of Section 9 of the JJ Act, 2015 but when a person is brought before a Committee or JJ Board, Section 94 of the JJ Act, 2015 applies. (ii-a) When the issue of juvenility arises before a Court, it would be Under Sub-section (2) and (3) of Section 9 of the JJ Act, 2015 but when a person is brought before a Committee or JJ Board, Section 94 of the JJ Act, 2015 applies. (ii-b) If an application is filed before the Court claiming juvenility, the provision of Sub-section (2) of Section 94 of the JJ Act, 2015 would have to be applied or read along with Sub-section (2) of Section 9 so as to seek evidence for the purpose of recording a finding stating the age of the person as nearly as may be. (ii-c) When an application claiming juvenility is made Under Section 94 of the JJ Act, 2015 before the JJ Board when the matter regarding the alleged commission of offence is pending before a Court, then the procedure contemplated Under Section 94 of the JJ Act, 2015 would apply. Under the said provision if the JJ Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Board shall undertake the process of age determination by seeking evidence and the age recorded by the JJ Board to be the age of the person so brought before it shall, for the purpose of the JJ Act, 2015, be deemed to be true age of that person. Hence the degree of proof required in such a proceeding before the JJ Board, when an application is filed seeking a claim of juvenility when the trial is before the concerned criminal court, is higher than when an inquiry is made by a court before which the case regarding the commission of the offence is pending (vide Section 9 of the JJ Act, 2015). (iii) That when a claim for juvenility is raised, the burden is on the person raising the claim to satisfy the Court to discharge the initial burden. However, the documents mentioned in Rule 12(3)(a)(i), (ii), and (iii) of the JJ Rules 2007 made under the JJ Act, 2000 or Subsection (2) of Section 94 of JJ Act, 2015, shall be sufficient for prima facie satisfaction of the Court. On the basis of the aforesaid documents a presumption of juvenility may be raised. However, the documents mentioned in Rule 12(3)(a)(i), (ii), and (iii) of the JJ Rules 2007 made under the JJ Act, 2000 or Subsection (2) of Section 94 of JJ Act, 2015, shall be sufficient for prima facie satisfaction of the Court. On the basis of the aforesaid documents a presumption of juvenility may be raised. (iv) The said presumption is however not conclusive proof of the age of juvenility and the same may be rebutted by contra evidence let in by the opposite side. (v) That the procedure of an inquiry by a Court is not the same thing as declaring the age of the person as a juvenile sought before the JJ Board when the case is pending for trial before the concerned criminal court. In case of an inquiry, the Court records a prima facie conclusion but when there is a determination of age as per Sub-Section (2) of Section 94 of 2015 Act, a declaration is made on the basis of evidence. Also the age recorded by the JJ Board shall be deemed to be the true age of the person brought before it. Thus, the standard of proof in an inquiry is different from that required in a proceeding where the determination and declaration of the age of a person has to be made on the basis of evidence scrutinised and accepted only if worthy of such acceptance. (vi) That it is neither feasible nor desirable to lay down an abstract formula to determine the age of a person. It has to be on the basis of the material on record and on appreciation of evidence adduced by the parties in each case. (vii) This Court has observed that a hyper-technical approach should not be adopted when evidence is adduced on behalf of the Accused in support of the plea that he was a juvenile. (viii) If two views are possible on the same evidence, the court should lean in favour of holding the Accused to be a juvenile in borderline cases. This is in order to ensure that the benefit of the JJ Act, 2015 is made applicable to the juvenile in conflict with law. At the same time, the Court should ensure that the JJ Act, 2015 is not misused by persons to escape punishment after having committed serious offences. This is in order to ensure that the benefit of the JJ Act, 2015 is made applicable to the juvenile in conflict with law. At the same time, the Court should ensure that the JJ Act, 2015 is not misused by persons to escape punishment after having committed serious offences. (ix) That when the determination of age is on the basis of evidence such as school records, it is necessary that the same would have to be considered as per Section 35 of the Indian Evidence Act, inasmuch as any public or official document maintained in the discharge of official duty would have greater credibility than private documents. (x) Any document which is in consonance with public documents, such as matriculation certificate, could be accepted by the Court or the JJ Board provided such public document is credible and authentic as per the provisions of the Indian Evidence Act viz., Section 35 and other provisions. (xi) Ossification Test cannot be the sole criterion for age determination and a mechanical view regarding the age of a person cannot be adopted solely on the basis of medical opinion by radiological examination. Such evidence is not conclusive evidence but only a very useful guiding factor to be considered in the absence of documents mentioned in Section 94(2) of the JJ Act, 2015.” 31. At this stage, reference may be made to Section 35 of the Indian Evidence Act, 1872 (“the Evidence Act”), it makes provisions with regard to relevancy of entry in public record. It is as hereunder: “35. Relevancy of entry in public 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 performances of a duty specially 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.” 32. In order to attract the provisions of Section 35 of the Evidence Act, first and foremost, it has to be established that the entry is made in a public or other official book by the public servant. 33. In order to attract the provisions of Section 35 of the Evidence Act, first and foremost, it has to be established that the entry is made in a public or other official book by the public servant. 33. In the case of Jabar Singh vs. Dinesh and Others, (2010) 3 SCC 757 , reliance was placed on the school record of Jesus Marry Public School and other documents. The trial court did not rely on the documents, but in revision, the finding of the trial court was reversed by the High Court based on the admission forms, school records, transfer certificate etc. In this background, the Hon’ble Supreme Court observed that “The entry of date of birth of Respondent 1 in the admission form, the school records and transfer certificates did not satisfy the conditions laid down in Section 35 of the Evidence Act inasmuch as the entry was not in any public or official register and was not made either by a public servant in the discharge of his official duty or by any person in performance of a duty specially enjoined by the law of the country and therefore, the entry was not relevant under Section 35 of the Evidence Act for the purpose of determining the age of Respondent 1 at the time of commission of the alleged offence.” 34. In the case of Satpal Singh vs. State of Haryana, (2010) 8 SCC 714 , the Hon’ble Supreme Court observed as hereunder: “28. Thus, the law on the issue can be summarised that the entry made in the official record by an official or person authorised in performance of an official duty is admissible under Section 35 of the Evidence Act but the party may still ask the court/authority to examine its probative value. The authenticity of the entry would depend as to on whose instruction/information such entry stood recorded and what was his source of information. Thus, entry in school register/certificate requires to be proved in accordance with law. Standard of proof for the same remains as in any other civil and criminal case.” 35. The Head Master of the private school where the victim allegedly studied cannot be termed as public servant. Therefore, the entries in the school register, as proved by PW-5 Smt. Pushpa are not under the purview of Section 35 of the Evidence Act. In fact Ex. The Head Master of the private school where the victim allegedly studied cannot be termed as public servant. Therefore, the entries in the school register, as proved by PW-5 Smt. Pushpa are not under the purview of Section 35 of the Evidence Act. In fact Ex. A4, A5 and A6 are proved by PW-5 Smt. Pushpa, are extract of scholar register, copy of the application for school admission and date of birth certificate, respectively. 36. The next question which comes for discussion is as to whether the age recorded in the school record may be taken for the age of the victim? 37. In the case of Alamelu and Another vs. State, (2011) 2 SCC 385 , the Hon’ble Supreme Court, inter-alia, observed that “the date of birth mentioned in the transfer certificate would have no evidentiary value unless the person, who made the entry or who gave the date of birth is examined. The Hon’ble Supreme Court observed as hereunder: “40. Undoubtedly, the transfer certificate, Ext. P-16 indicates that the girl's date of birth was 15-6-1977. Therefore, even according to the aforesaid certificate, she would be above 16 years of age (16 years 1 month and 16 days) on the date of the alleged incident i.e. 31-7-1993. The transfer certificate has been issued by a government school and has been duly signed by the Headmaster. Therefore, it would be admissible in evidence under Section 35 of the Evidence Act, 1872. However, the admissibility of such a document would be of not much evidentiary value to prove the age of the girl in the absence of the material on the basis of which the age was recorded. The date of birth mentioned in the transfer certificate would have no evidentiary value unless the person, who made the entry or who gave the date of birth is examined.” 38. PW-5 Smt. Pushpa has stated that the victim was admitted in their school based on an affidavit of her guardian. This affidavit is not on record. The date of birth has been written as 25.06.2021 and PW-2 the father of the victim had put his thumb impression on this admission form, which is Ex-A5. In first line of his examination PW-2 the father of the victim has stated that the date of birth of the victim is 25.06.2001. This affidavit is not on record. The date of birth has been written as 25.06.2021 and PW-2 the father of the victim had put his thumb impression on this admission form, which is Ex-A5. In first line of his examination PW-2 the father of the victim has stated that the date of birth of the victim is 25.06.2001. In his cross examination recorded on 07.05.2018, when asked about the date of birth of his children, PW-2 the father of the victim could not state any date. He said that he does not remember the date of birth of any of his children. In fact, according to him, he does not remember his date of birth. He says that he is illiterate. 39. PW-3 the brother of the victim has stated that his sister, the victim was working in the company. In his cross examination also, in the very first paragraph, he could not reveal the date of birth of any of his siblings. 40. PW-4 the mother of the victim has though stated that the victim was born in the year 2001, but in her cross examination, she could not tell her own date of birth and the date of birth of her children. She has admitted in her cross examination that the victim’s identity card and Aadhar Card have been made, in which, the victim’s date of birth is recorded as the year 2000. PW-2 father of the victim has in his cross examination has admitted that the victim has her Aadhar Card. 41. There are few things which have emerged out from evidence. They are as hereunder: (i) School register is not such public document which is covered by Section 35 of Evidence Act and. (ii) The school from which the record Exs-A4, A5 and A6 are produced is not a government school. (iii) PW-5 Smt. Pushpa is not a public servant. (iv) The date of birth recorded as 25.06.2001 is not supported by any evidence. (v) According to the application for admission form Ex-A5, the admission was made on the basis of affidavit. The affidavit it is not produced or proved. (iii) PW-5 Smt. Pushpa is not a public servant. (iv) The date of birth recorded as 25.06.2001 is not supported by any evidence. (v) According to the application for admission form Ex-A5, the admission was made on the basis of affidavit. The affidavit it is not produced or proved. (vi) It may not be believed that PW-2 the father of the victim could reveal the exact date of birth of the victim, because, had he remembered the date of birth of the victim, when he got her admitted in the school, he would have revealed the date of birth, when cross examined in court, on 07.05.2018. On that date, he said that he does not remember the date of birth of any of his children. The mother of the victim and the brother of the victim could not reveal the date of birth of the victim. 42. It is stated by the witnesses that the victim was working in the company. She was working for the last two years when she left her house. The victim has stated that her date of birth is in year 1996. 43. This Court is of the view that, in fact, the school record which has been filed in support of the age of the victim does not prove the age of the victim. There is no other evidence. In fact, there is no oral evidence with regard to the date of birth of the victim. 44. On the other hand, PW-1 the victim categorically stated that she was above 18 years of age , when she left her house. She was major. In view of it, this Court is of the view that the prosecution has utterly failed to prove that on 13.06.2016, when the victim left her house, she was below 18 years of age. The victim left her house on her own. 45. In view of the above, this Court is of the view that the prosecution has not been able to prove the charge levelled against the appellant and the appeal deserves to be allowed. 46. The appeal is allowed. 47. The impugned judgment and order dated 07.01.2020/09.01.2020, passed in Special Sessions Trial No. 95 of 2017, State vs. Joni, by the court of FTC/Additional Sessions Judge/Special Judge POCSO, Haridwar, District Haridwar is hereby set aside. 48. 46. The appeal is allowed. 47. The impugned judgment and order dated 07.01.2020/09.01.2020, passed in Special Sessions Trial No. 95 of 2017, State vs. Joni, by the court of FTC/Additional Sessions Judge/Special Judge POCSO, Haridwar, District Haridwar is hereby set aside. 48. The appellant is acquitted of the charge under Sections 363, 376 IPC and Sections 3 (a)/4, 5(j)(ii)/6 of the POCSO Act. 49. The appellant is in jail. He be released forthwith, if not wanted in any other case, subject to his furnishing a personal bond and two reliable sureties, each of the like amount to the satisfaction of the court concerned under Section 437 A of the Code. 50. Let a copy of this judgment along with Lower Court Record be transmitted to the Court below for compliance.