JUDGMENT : Sanjay S. Agrawal, J. 1. This appeal has been preferred by the accused under Section 374(2) of the Code of Criminal Procedure, 1973, questioning the legality and propriety of the judgment of conviction and order of sentence dated 28.12.2019 passed by the Additional Sessions Judge (Fast Track Court), Surajpur, District Surajpur in Sessions Trial No.64/2018, whereby the appellant has been convicted and sentenced as under:- CONVICTION SENTENCE Under Section 363 of IPC Rigorous imprisonment for seven year and payment of fine of Rs.100/-, in default of payment of fine, he has to undergo additional RI for 15 days Under Section 366 of IPC Rigorous imprisonment for ten year and payment of fine of Rs.100/-, in default of payment of fine, he has to undergo additional RI for 15 days Under Section 376(3) of IPC Rigorous imprisonment for twenty year and payment of fine of Rs.100/-, in default of payment of fine, he has to undergo additional RI for 15 days Under Section 6 of the POCSO ACT Rigorous imprisonment for ten year and payment of fine of Rs.100/-, in default of payment of fine, he has to undergo additional RI for 15 days All the sentences were directed to run concurrently. 2. Briefly stated the facts of the case are that on 16.10.2018, a written report was lodged by the prosecutrix’s father before the Police Station-Bishrampur, alleging inter alia, that his minor daughter has gone somewhere else on 06.10.2018 at about 12 PM and has raised an apprehension that some unknown person has abducted while alluring her. Based upon the said information, an offence punishable under Section 363 of IPC has been registered by the concerned police against an unknown person and, during investigation, it was revealed that she was seen near the bus stand at Ambikapur with a boy. Based upon the said information, the prosecutrix was recovered from the appellant-Bijendra Malar and accordingly, the Baramadgi Panchnama (Ex.P-1) was prepared and her statement was recorded, who narrated the incident that on the fateful day, i.e. 06.10.2018, the appellant while alluring on the pretext of marriage, took her to brick kiln at Danapur (Patna) and has committed sexual intercourse with her for a period about one month. It was informed further by her that in an earlier occasion also, he has committed sexual intercourse with her on the pretext of marriage. It was informed further by her that in an earlier occasion also, he has committed sexual intercourse with her on the pretext of marriage. After recording her statement, an offence under Sections 363, 366, 376 of the IPC and Sections 4 & 6 of the Prevention of Children from Sexual Offences Act, 2012 (hereinafter referred to as “the POCSO Act”) has been registered against the appellant, who was then arrested on 11.11.2018. The statement of the prosecutrix was recorded under Section 164 of Cr.P.C. on 11.11.2018 and was sent for her medical examination and Dr. Seema Gupta (PW-9), who examined her, recommended for obtaining the report from the Radiologist in order to ascertain her age vide her report (Ex.P-12). For collecting the information pertaining to her age, “Dakhil Kharij Register” was recovered from the Headmaster of the concerned school and after collecting the vaginal slide and her underwear vis-a-vis the underwear of the appellant vide Ex.P-8 & P-9 respectively, sent the same for chemical examination and vide FSL Report (not exhibited), it was found to be proved positive and that by conducting the thorough investigation, a final report while registering the offence under Sections 363, 366 & 376(3) of IPC read with Sections 4 & 6 of the POCSO Act has been filed against the appellant, who denied the charges so framed and claimed to be tried. 3. In order to bring home the guilt of the appellant, the prosecution has examined as many as 9 witnesses, while none was examined by the appellant in rebuttal. 4. After considering the evidence led by the parties, the appellant has been found to be guilty of the alleged offence and accordingly, he has been convicted and sentenced by the learned trial Court as mentioned hereinabove. Being aggrieved, the appellant has preferred this appeal. 5. Learned counsel appearing for the appellant while inviting attention to the statement of the prosecutrix and her parents, submits that the prosecutrix was major on the date of the alleged incident occurred on 06.10.2018, yet the trial Court, without considering the same in a proper manner and that by placing its reliance upon the date of birth mentioned in the “Dakhil Kharij Register” (Ex.P-6 C), which was, even not duly proved, has committed a serious illegality in holding that she was minor on the alleged fateful day. It is contended further that although, her date of birth is shown to be recorded as 07.09.2003 in the said “Dakhil Kharij Register” (Ex.P-6C), but, since the alleged entry was made on presumption, therefore, the Court below ought not to have placed its reliance upon it in order to attribute him in connection with the alleged crime, particularly when, it has not been supported by any cogent and reliable evidence. The finding of the Court below convicting the appellant, without considering the oral and documentary evidence led by the prosecution in its proper manner is, therefore, liable to be set aside. In support, Shri Prasad, learned counsel appearing for the appellant has placed his reliance upon the decision rendered by the Supreme Court in the case of C. Doddanarayana Reddy (Dead) by legal representatives and others vs. C. Jayarama Reddy (Dead) by legal representatives and others, reported in (2020) 4 SCC 659 . 6. On the other hand, learned counsel appearing for the State/Respondent has supported the impugned judgment of conviction and order of sentence as passed by the trial Court. 7. We have heard learned counsel appearing for the parties and perused the entire record carefully. 8. According to the prosecutrix (PW-1), she went to Patna (Bihar) along with the appellant, who was her brother-in-law (Jijaji), for doing the work in brick kiln and used to reside there in a hut as husband and wife and, she deposed further that they lived together for a month and at that time, they have made relations like husband and wife. In her cross-examination, it was stated that she went to the said place voluntarily as she was frequently tortured by her parents and deposed further that she was never assured by the appellant for solemnization of the marriage. In her statement (Ex.P-2) recorded under Section 164 of Cr.P.C., it was deposed that physical relation was made by the appellant with her for 5 to 6 times and she never objected for it. 9. Prosecutrix’s father (PW-2) has stated that he was not aware regarding the date of birth of his daughter (prosecutrix) and stated further that she was recovered from Patna (Bihar), but has never informed anything to him with regard to the alleged incident. 9. Prosecutrix’s father (PW-2) has stated that he was not aware regarding the date of birth of his daughter (prosecutrix) and stated further that she was recovered from Patna (Bihar), but has never informed anything to him with regard to the alleged incident. Her mother (PW-3) was also not aware with regard to the date of birth of the prosecutrix and, in her statement, it was stated that her daughter, on the fateful day, had gone somewhere else without informing to anyone and after her recovery from Patna (Bihar), it was informed that she was taken by the appellant to Patna (Bihar) contrary to her wish and apart from it, nothing more was informed and deposed further that she does not know as to whether anything wrong was done with her or not. 10. Ramashankar Yadav (PW-4) is the Headmaster of the school and from whose possession, “Dakhil Kharij Register” (Ex.P-6 C) was seized vide Ex.P-5, where date of birth of the prosecutrix has been shown to be as 07.09.2003. It was deposed by him that since the prosecutrix was not given admission by him, therefore, he is unable to state about her actual date of birth. 11. Dr. Seema Gupta (PW-9), who examined the prosecutrix, has not found any symptoms of immediate sexual intercourse and has recommended for the Radiologist report vide her Report (Ex.P-12) in order to ascertain her date of birth, while the statement of others are formal in nature. 12. What is, therefore, reflected from the perusal of the evidence led by the prosecution that she left the house on 06.10.2018 around 12 PM without informing to anyone and report was thereafter lodged by her father(PW-2) only on 16.10.2018. It appears from the testimony of the prosecutrix that she was remained with the appellant for a considerable period of more than a month and after her recovery on 11.11.2018, she did not inform anything about the incident to her parents (PW-2 & PW-3) nor has raised any objection or file a complaint against the appellant and had gone with him voluntarily. The conduct of the prosecutrix would, thus, show that she was neither abducted nor was taken by the appellant forcefully from the custody of her parents and, instead, she was with the appellant on her own wish all the time and, therefore, we do not find that the appellant has either abducted her or has committed sexual intercourse without her consent, as alleged by the prosecution. 13. In view of above, now focal point of decision would be the age of the prosecutrix in order to determine as to whether she was major as to give her consent on the date of occurrence of the alleged incident, which took place on 06.10.2018. 14. According to the statements of the parents of the prosecutrix, it appears that they did not aware the date of birth of their daughter and no Radiologist’s report was produced in order to ascertain her age, despite recommendation was made by Dr. Seema Gupta (PW-9) vide her report (Ex.P-12). There is, thus, no cogent and reliable evidence has been placed on record by the prosecution in order to show that the prosecutrix was minor on the alleged fateful day. 15. Be that as it may, the prosecution in order to establish the minority of the prosecutrix has placed his reliance upon the “Dakhil Kharij Register” (Ex.P-6 C) which was seized from the Headmaster of the concerned school vide Ex.P-5. A bare perusal of it would show that her date of birth has been shown to be recorded therein at S.No.24 as 07.09.2003 without any basis or record, except the declaration form of the father, which was attached to it. Though his declaration form is attached there, but, he was, however, not found to be aware of the date of birth of his daughter as observed hereinabove from his testimony, therefore, no reliance could lay upon it and merely on the basis of his declaration form, it would not be safe to hold the date of birth as mentioned therein is correct, particularly when, the person, who has recorded the alleged entry, was not examined. 16. It is to be seen at this stage, the principles laid down by the Supreme Court in the matter C. Doddanarayana Reddy (Dead) by legal representatives and others (supra), wherein it has been observed at para-15, which is relevant for the purpose, reads as under:- 15. 16. It is to be seen at this stage, the principles laid down by the Supreme Court in the matter C. Doddanarayana Reddy (Dead) by legal representatives and others (supra), wherein it has been observed at para-15, which is relevant for the purpose, reads as under:- 15. “School leaving certificate has been produced by the plaintiff and said to be signed by his father. The person who has recorded the date of birth in the school register or the person who proves the signature of his father in the school transfer certificate has not been examined. No official from the school nor any person has proved the signatures of his father on such certificate. Apart from the self-serving statement, there is no evidence to show that the entry of the date of birth was made by the official in-charge, which alone would make it admissible as evidence under Section 35 of the Evidence Act, 1872. However, the High Court has not found any other evidence to prove the truthfulness of the certificate (Ext. P/1).” 17. Furthermore, the Headmaster of the concerned school namely Ramashankar Yadav (PW-4), from whose possession, the alleged “Dakhil Kharij Register” (Ex.P-6 C) was recovered, was however, unable to state the actual date of birth and the person, who recorded her date of birth in the alleged register was not examined by the prosecution. It is to be seen at this juncture the principles laid down by the Supreme Court in the matter of Birad Mal Singhvi vs. Anand Purohit, reported in, 1988 (Suppl.) SCC 604, wherein it has been observed that the date of birth in the school register has no evidentiary value unless the person who made the entry or who gave the date of birth is examined. The relevant observation made at para 14 reads as under:- 14. ……….. 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 the admission form or in the scholar’s 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 the admission form or in the scholar’s 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……..” 18. In view of the principles laid down by the Supreme Court in the abovereferred matter, vis-a-vis, the evidence led by the prosecution, the entries made in the “Dakhil Kharij Register” (Ex.P-6 C) pertaining to the date of birth of the prosecutrix, therefore, cannot be relied upon and, the conviction of the appellant cannot be based upon an approximate date as the same is not found to be supported by any cogent and reliable evidence. 19. In view of foregoing analysis and conclusions, this Court is of the opinion that the appellant is not guilty of the offence, he was charged with; he is, therefore, acquitted. 20. Consequently, the appeal is allowed and the impugned judgment of conviction and order of sentence dated 28.12.2019 passed by the Additional Sessions Judge (Fast Track Court), Surajpur, District Surajpur in Sessions Trial No.64/2018 is hereby set aside and the appellant shall be set at liberty forthwith, unless required in connection with any other case. Compliance of this order be reported forthwith to the Registry of this Court.