JUDGMENT : Alok Kumar Verma, J. This Government Appeal is directed against the judgment dated 30.06.2015, passed by learned Special Judge (POCSO)/ F.T.C./Additional Sessions Judge, Haldwani, District Nainital in Sessions Trial No.24 of 2014, “State vs. Krishna Kant alias Krishna Kafaltiya”, whereby, the respondent – accused has been acquitted of the charge under Sections 328, 363, 366, 376 read with Section 511, Section 506 of the Indian Penal Code, 1860, Section 8 and Section 12 of the Protection of Children from Sexual Offences Act, 2012. 2. Briefly stated the prosecution case as it emerges from the evidence on record is that the prosecutrix’s father (PW5) informed the police through his written information dated 06.03.2014 (Ext. Ka.5) that his daughter (PW1), aged about 16 years, left her house on 05.03.2014 at around 11:00 a.m. When she was searched, it was found that Krishna Kant alias Krishna Kafaltiya, who ran a dance class, had taken her with him. 3. On the said information (Ext. Ka.5), an FIR (Ext. Ka.2) was registered by Head Constable Nirmal Singh Latwal (PW4) on 06.03.2014 at 00:45 hrs. 4. The mobile phone of the accused was put on surveillance on 11.03.2014. His location was found in Delhi. The prosecutrix was found at Gate No.1 of Delhi Railway Station on 12.03.2014. Medical examination of the prosecutrix was conducted on 13.03.2014. Her statement was recorded under Section 164 of the Code of Criminal Procedure, 1973. Accused was arrested on 15.03.2014. A copy of the prosecutrix’s Birth Certificate (Ext. Ka.18) was provided to the Investigating Officer by the informant (PW5). Upon conclusion of the investigation, charge-sheet (Ext. Ka.16) was filed by Sub-Inspector Laxman Singh (PW11). 5. Charges were framed against the respondent – accused. As the accused pleaded innocence, trial was held. 6. In order to bring home the guilt of the accused, the prosecution examined as many as twelve witnesses. 7. Statement of the accused was recorded under Section 313 of the Code of Criminal Procedure, 1973. He denied all the incriminating evidence, produced by the prosecution. 8. Mr. J.S. Virk, learned counsel for the State contended that the prosecution’s witnesses have supported the prosecution’s case. The guilt of the respondent is fully proved, therefore, the judgment of acquittal is not justify in the eye of law. 9. We have carefully assessed the evidence, produced by the prosecution. 10. 8. Mr. J.S. Virk, learned counsel for the State contended that the prosecution’s witnesses have supported the prosecution’s case. The guilt of the respondent is fully proved, therefore, the judgment of acquittal is not justify in the eye of law. 9. We have carefully assessed the evidence, produced by the prosecution. 10. The prosecutrix (PW1) has stated that she is a Class XI student, but the prosecution has not filed her High School Certificate to prove her date of birth. 11. The prosecution has examined Rakesh Prasad, Registrar (Birth and Death) (PW12) to prove the prosecutrix’s Birth Certificate (Ext. Ka.18). According to the Birth Certificate (Ext. Ka.18), her date of birth is 05.01.1998. The said certificate was issued on 06.08.2014, i.e. after the alleged incident. It has not been clarified by the prosecution as to what is the basis of date of birth of the prosecutrix recorded in the Birth Certificate (Ext. Ka.18). Therefore, the date of birth of the prosecutrix recorded in the Birth Certificate is found to be entered without any basis, so, the date of birth of the prosecutrix cannot be determined by believing only on the Birth Certificate. 12. Considering the above, this Court has no hesitation to hold that the prosecution has miserably failed to prove that the prosecutrix was a ‘Child’ at the time of the alleged occurrence. 13. As per statements of the prosecutrix (PW1), her mother (PW3) and her father (PW5), she left home because her father scolded her, that is, the respondent – accused did not take her with him. The prosecutrix was not even recovered from the custody of the respondent. 14. PW2 Saurabh Belwal was a student of the same college in which the prosecutrix studied. He has stated that on 05.03.2014, he had received the prosecutrix’s phone call at around 05:30 p.m. She had told him that she was at her friend Gunjan’s house. He again received the prosecutrix’s phone call on 12.03.2014 at around 09:50 a.m.– 10:00 a.m. She had told him that she was at Delhi Railway Station. 15. PW9 Constable Dilbag Singh has stated that the prosecutrix was found at Delhi Railway Station. 16. Sub-Inspector Lalit Mohan Joshi has stated that Dilbag Singh (PW9) had informed him over the phone that the prosecutrix had been found there. 17. 15. PW9 Constable Dilbag Singh has stated that the prosecutrix was found at Delhi Railway Station. 16. Sub-Inspector Lalit Mohan Joshi has stated that Dilbag Singh (PW9) had informed him over the phone that the prosecutrix had been found there. 17. PW7 Smt. Sangeeta Charan has stated that Krishna had come to her house with the prosecutrix and took her with him. 18. PW6 Dr. Babita Joshi stated that she had conducted the medical examination of the prosecutrix on 13.03.2014. She was physically and mentally healthy and there was no injury on her body. 19. PW1 prosecutrix has stated that she joined the dance academy in the first week of February, 2014. At that time, the accused had given her a cold drink. She became unconscious after drinking it. Accused had attempted to rape her and had taken nude photographs of her. 20. PW1 prosecutrix has stated that on 05.03.2014, the accused had taken her to the dance academy. He took her to Sangeeta’s house. He took her to Gunjan’s house. He took her to Lalkuan, Bareilly and Delhi. They stayed in Chopra Hotel in Delhi. In support of the said statement, the prosecution has examined the General Manager (PW8) of Hotel Chopra International. 21. According to the prosecutrix, the accused had taken her with him by threatening to post her nude photographs on the internet and Facebook, but there is no cogent and reliable evidence on record regarding the said photo. 22. The minor’s consent is no consent in eyes of law. But, it has already been held that there is no positive evidence placed on record by the prosecution to prove that the prosecutrix was ‘Child’ at the time of occurrence. In these circumstances, even if the prosecution’s version is accepted that the respondent had taken the prosecutrix with him to several places, the consent of the prosecutrix cannot be denied. 23. Having thus scrutinized the evidence on record, we are of the opinion that there is no reason to interfere with the findings of acquittal, recorded by the Trial Court. As a result, the instant Appeal is liable to be dismissed. The present Government Appeal is dismissed accordingly.