JUDGMENT : Rajani Dubey, J. 1. The appeal arise out of the judgment of conviction and order of sentence dated 02.11.2022 passed by the Additional Sessions Judge/First Fast Track Special Court (under POCSO Act), Bastar at Jagdalpur (C.G.), in Special Sessions Trial No.30/2019 whereby the appellant has been convicted and sentenced as under :- Sl. No. Conviction Sentence 1. Under Section 6 of Protection of Children from Sexual Offences Act, 2012. Rigorous Imprisonment for 20 years and fine of amount of Rs.2000/- in default of payment of fine further rigorous imprisonment for 02 years. 2. The prosecution story, in brief, is that appellant Suresh Kunjam had been establishing physical relation with victim for last one year on the pretext of marriage and due to the said relation, victim conceived. The victim repeatedly asked the appellant to get married and many times she made call to the appellant through mobile of her friend but the appellant was evasive. The victim did not disclosed about her pregnancy to anyone. On 02.05.2019, the victim suddenly developed abdominal pain and delivered premature dead child. The relatives of the victim buried the dead child with social custom. After two days of delivery, due to sudden abdominal pain and vomiting of blood, the victim was admitted to Hospital at Dabhra from where she was referred to Medical College, Dimrapal. and on 04.05.2019 she left for heavenly abode during the course of treatment. After merg inquiry, Crime No.0/19 under Section 376(A) of IPC and Section 06 of POCSO Act was registered at Police Station Pakhnar. Based on the merg inquiry, an FIR No.22/19 was registered at Police Station – Darbha. Dead body of deceased was sent for postmortem examination to the Medical College, Jagdalpur, where Dr. Gyanendra Kumar (PW/10) conducted postmortem examination on the body of deceased/victim and gave his report in Ex.P/15 noticing following injuries/symptoms :- (i) Face congested, eye closed, cornea hazy, mouth closed, and tongue inside. (ii) Lips apart, both upper and lower limb straight. (iii) Rigor mortis present could not be ascertained as body kept in freezer on 05.05.2019. (iv) Hypostasis present posterior aspect of body, fixed, pink in colour, except pressure area. I/v prick mark on left cubital fossa, (v) ECG pad mark on chest and abdomen evidence. Dried brownish-greenish mucoid material sticking on right side face. (iii) Rigor mortis present could not be ascertained as body kept in freezer on 05.05.2019. (iv) Hypostasis present posterior aspect of body, fixed, pink in colour, except pressure area. I/v prick mark on left cubital fossa, (v) ECG pad mark on chest and abdomen evidence. Dried brownish-greenish mucoid material sticking on right side face. The doctor has opined that death was due to cardio-respiratory failure as a result of septicemic shock. 3. During investigation, statements of the witnesses were recorded. The accused was arrested on 11.05.2019 vide arrest memo (Ex.P/23). Spot map was prepared vide Ex.P/11. Statements of the witnesses were taken. After obtaining due permission, the dead body of newly born baby was exhumed for conducting D.N.A. test and the D.N.A. samples of appellant and dead child were taken & sent for its examination to FSL, Raipur and report was obtained from FSL, Raipur, which confirmed that the appellant is biological father of dead child. 4. After completion of usual investigation, charge-sheet under Section 376 (A) IPC was filed before the jurisdictional Court. The trial court framed charges against the appellant under Section 376 of the IPC and Section 6 of POCSO Act. The appellant abjured his guilt and pleaded innocence. 5. In order to establish the charge against the appellant the prosecution examined as many as 18 witnesses. The statement of the appellant under Section 313 of CrPC was also recorded in which he denied the material appearing against him and stated that he is innocent and he has been falsely implicated in the case. After appreciation of evidence available on record, the learned trail court has convicted the accused/appellant and sentenced him as mentioned in para 1 of the judgment. Hence, this appeal. 6. Learned counsel for the appellant argued that the prosecution has failed to prove the case against the appellant beyond reasonable doubts. There is no legally admissible evidence with regard to the age of the prosecutrix that on the date of the incident she was minor and less than 18 years of age. The age of the prosecutrix has not been proved by the prosecution. Learned counsel further submits that the prosecutrix was major lady and it has been stated by her that the appellant used to make physical relation with her, which shows her consent and she did not disclose the incident to anyone till deliver of child. The age of the prosecutrix has not been proved by the prosecution. Learned counsel further submits that the prosecutrix was major lady and it has been stated by her that the appellant used to make physical relation with her, which shows her consent and she did not disclose the incident to anyone till deliver of child. It has been also submitted by learned counsel that in absence of any cogent and documentary evidence regarding the age of the prosecutrix, the conviction of the appellant is not sustainable in the eye of law. Therefore, no offence is made out against the appellant and he is entitled for acquittal. 7. On the other hand, learned counsel for the State opposes and contends that the prosecutrix was minor below 18 years of age at the time of incident which is proved by the mark list of class 5th and 10th on which the date of birth of the prosecutrix was written as 13.09.2001. The mark list of 10th class is admissible piece of evidence to determine the age of the prosecutrix as provided under Section 94 of the Juvenile Justice (Care and Protection) Act 2015. Therefore, there is no illegality or infirmity in the findings of the learned trial court. As such, the impugned judgment of conviction and sentence needs no interference. 8. We have heard the learned counsel for the parties and perused the record with utmost circumspection. 9. In order to consider the age of the prosecutrix, we have examined the evidence available on record produced by the prosecution. The prosecution relied upon the mark list of class 5th and 10th of prosecutrix on which her date of birth was written as 13.09.2001, but the prosecution did not file school admission register of prosecutrix's school or birth certificate to ascertain the age of the prosecutrix. Even if it is assumed that the date of birth of the prosecutrix as per the mark list is 13.09.2001 but we find from the evidence of father of prosecutrix (PW/1), who in his examination-inchief has stated that the age of his daughter was 15 years at the time of incident but in cross-examination he has stated that the date of birth of prosecutrix was recorded by the teacher of her school as per their wish and he had not given any document regarding date of birth of the prosecutrix. This witnesses has stated that he had not given any document regarding date of birth of the prosecutrix. This witness also went on to state that the prosecutrix was studying in class 11th and she was aged around 19-20 years. That apart, mother of prosecutrix (PW/3) has not spelled out about the date of birth of the prosecutrix. It is apt to mention here that it is only the parents who can spell the time and date of their children but in this case, the parents did not spell anything specific about the date of birth of their daughter and only on the basis of mark list, it is difficult to determine the exact age of the person. Moreover, even original mark list was not seized by the prosecution and only photocopy of mark list of prosecutrix was seized. Further, Ravi Kumar Baiga (PW/16), Investigating Officer, admitted in para 17 of his crossexamination that he did not seize any birth certificate, kotwari register or school admission register of class 1 of prosecutrix and he only seized photocopy of mark list which in date of birth of the prosecutrix is recorded as 13.09.2001 but he could not tell on what basis the date of birth of prosecutrix was written. Thus, it creates suspicion over the actual date of birth of the prosecutrix. 10. After considering the entire facts and circumstances of the case and evidence available on record, it emerges that the prosecution could not produce the clinching and legally admissible evidence with respect to the date of birth or age of the prosecutrix so as to hold that on the date of incident she was minor and below 18 years of age. Only on the basis of mark list it would not be safe to hold that the prosecutrix was minor on the date of incident. The statement of the father (PW/1), mother of prosecutrix (PW/2) and Investigating Officer (PW/16) are not suggestive of the fact that the date of birth of the prosecutrix was 13.09.2001 and do not inspire confidence of this court to hold that the prosecutrix on the date of incident was minor (17 years and 7 months). 11. In the matter of Ravinder Singh Gorkhi Vs. State of UP, 2006 (5) SCC 584 , relying upon its earlier judgment in case of Birad Mal Singhvi Vs. Anand Purohit, 1988 supp. 11. In the matter of Ravinder Singh Gorkhi Vs. State of UP, 2006 (5) SCC 584 , relying upon its earlier judgment in case of Birad Mal Singhvi Vs. Anand Purohit, 1988 supp. SCC 604, the Hon’ble Supreme Court has held as under : “26. To render a document admissible under Section 35, three conditions must be satisfied, firstly, entry that is relied on must be one in a public or other official book, register or record; secondly, it must be an entry stating a fact in issue or relevant fact; and thirdly, it must be made by a public servant in discharge of his official duty, or any other person in performance of a duty specially enjoined by law. An entry relating to date of birth made in the school register is relevant and admissible under Section 35 of the Act but the entry regarding the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded." 12. In the matter of Alamelu and Another Vs. State, represented by Inspector of Police, 2011(2) SCC 385 , the Hon'ble Supreme Court has held that the transfer certificate which is issued by government school and is duly signed by the Headmaster 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 prosecutrix in the absence of any material on the basis of which the age was recorded. It was observed as under “40.Undoubtedly, the transfer certificate, Ex.P16 indicates that the girl's date of birth was 15th June, 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., 31st July, 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 Indian Evidence Act. 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. 48. Therefore, it would be admissible in evidence under Section 35 of the Indian Evidence Act. 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. 48. We may further notice that even with reference to Section 35 of the Indian Evidence Act, a public document has to be tested by applying the same standard in civil as well as criminal proceedings. In this context, it would be appropriate to notice the observations made by this Court in the case of Ravinder Singh Gorkhi Vs. State of U.P. held as follows:- "The age of a person as recorded in the school register or otherwise may be used for various purposes, namely, for obtaining admission; for obtaining an appointment; for contesting election; registration of marriage; obtaining a separate unit under the ceiling laws; and even for the purpose of litigating before a civil forum e.g. necessity of being represented in a court of law by a guardian or where a suit is filed on the ground that the plaintiff being a minor he was not appropriately represented therein or any transaction made on his behalf was void as he was a minor. A court of law for the purpose of determining the age of a party to the lis, having regard to the provisions of Section 35 of the Evidence Act will have to apply the same standard. No different standard can be applied in case of an accused as in a case of abduction or rape, or similar offence where the victim or the prosecutrix although might have consented with the accused, if on the basis of the entries made in the register maintained by the school, a judgment of conviction is recorded, the accused would be deprived of his constitutional right under Article 21 of the Constitution, as in that case the accused may unjustly be convicted." 13. In the matter of Rishipal Singh Solanki Vs. State of Uttar Pradesh & Others, 2022 (8) SCC 602 , while considering various judgments, the Hon’ble Supreme Court has observed in para 33 as under : “33. What emerges on a cumulative consideration of the aforesaid catena of judgments is as follows: 33.2.2. In the matter of Rishipal Singh Solanki Vs. State of Uttar Pradesh & Others, 2022 (8) SCC 602 , while considering various judgments, the Hon’ble Supreme Court has observed in para 33 as under : “33. What emerges on a cumulative consideration of the aforesaid catena of judgments is as follows: 33.2.2. 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 subsection (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. XXXX XXXX XXX 33.3. 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 sub-section (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. 33.4. 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. 33.5. 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. 33.6. That it is neither feasible nor desirable to lay down an abstract formula to determine the age of a person. 33.6. 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. 33.7 This Court has observed that a hypertechnical approach should not be adopted when evidence is adduced on behalf of the accused in support of the plea that he was a juvenile. 33.8. 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. 33.9. 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. 33.10. 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. 33.11 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.” 14. Recently, in the matter of P. Yuvaprakash Vs. State represented by Inspector of Police, 2023 SCC Online SC 846, Hon’ble Supreme Court has held in para 14 to 17 as under : “14. Recently, in the matter of P. Yuvaprakash Vs. State represented by Inspector of Police, 2023 SCC Online SC 846, Hon’ble Supreme Court has held in para 14 to 17 as under : “14. Section 94 (2)(iii) of the JJ Act clearly indicates that the date of birth certificate from the school or matriculation or equivalent certificate by the concerned examination board has to be firstly preferred in the absence of which the birth certificate issued by the Corporation or Municipal Authority or Panchayat and it is only thereafter in the absence of these such documents the age is to be determined through “an ossification test” or “any other latest medical age determination test” conducted on the orders of the concerned authority, i.e. Committee or Board or Court. In the present case, concededly, only a transfer certificate and not the date of birth certificate or matriculation or equivalent certificate was considered. Ex. C1, i.e., the school transfer certificate showed the date of birth of the victim as 11.07.1997. Significantly, the transfer certificate was produced not by the prosecution but instead by the court summoned witness, i.e., CW-1. The burden is always upon the prosecution to establish what it alleges; therefore, the prosecution could not have been fallen back upon a document which it had never relied upon. Furthermore, DW-3, the concerned Revenue Official (Deputy Tahsildar) had stated on oath that the records for the year 1997 in respect to the births and deaths were missing. Since it did not answer to the description of any class of documents mentioned in Section 94(2)(i) as it was a mere transfer certificate, Ex C-1 could not have been relied upon to hold that M was below 18 years at the time of commission of the offence. 15. In a recent decision, in Rishipal Singh Solanki vs. State of Uttar Pradesh & Ors. this court outlined the procedure to be followed in cases where age determination is required. The court was dealing with Rule 12 of the erstwhile Juvenile Justice Rules (which is in pari materia) with Section 94 of the JJ Act, and held as follows: “20. Rule 12 of the JJ Rules, 2007 deals with the procedure to be followed in determination of age. The juvenility of a person in conflict with law had to be decided prima facie on the basis of physical appearance, or documents, if available. Rule 12 of the JJ Rules, 2007 deals with the procedure to be followed in determination of age. The juvenility of a person in conflict with law had to be decided prima facie on the basis of physical appearance, or documents, if available. But an inquiry into the determination of age by the Court or the JJ Board was by seeking evidence by obtaining: (i) the matriculation or equivalent certificates, if available and in the absence whereof; (ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof; (iii) the birth certificate given by a corporation or a municipal authority or a panchayat. Only in the absence of either (i), (ii) and (iii) above, the medical opinion could be sought from a duly constituted Medical Board to declare the age of the juvenile or child. It was also provided that while determination was being made, benefit could be given to the child or juvenile by considering the age on lower side within the margin of one year.” 16. Speaking about provisions of the Juvenile Justice Act, especially the various options in Section 94 (2) of the JJ Act, this court held in Sanjeev Kumar Gupta vs. The State of Uttar Pradesh & Ors that: “Clause (i) of Section 94 (2) places the date of birth certificate from the school and the matriculation or equivalent certificate from the concerned examination board in the same category (namely (i) above). In the absence thereof category (ii) provides for obtaining the birth certificate of the corporation, municipal authority or panchayat. It is only in the absence of (i) and (ii) that age determination by means of medical analysis is provided. Section 94(2)(a)(i) indicates a significant change over the provisions which were contained in Rule 12(3)(a) of the Rules of 2007 made under the Act of 2000. Under Rule 12(3)(a)(i) the matriculation or equivalent certificate was given precedence and it was only in the event of the certificate not being available that the date of birth certificate from the school first attended, could be obtained. In Section 94(2)(i) both the date of birth certificate from the school as well as the matriculation or equivalent certificate are placed in the same category. 17. In Abuzar Hossain @ Gulam Hossain Vs. In Section 94(2)(i) both the date of birth certificate from the school as well as the matriculation or equivalent certificate are placed in the same category. 17. In Abuzar Hossain @ Gulam Hossain Vs. State of West Bengal, this court, through a three-judge bench, held that the burden of proving that someone is a juvenile (or below the prescribed age) is upon the person claiming it. Further, in that decision, the court indicated the hierarchy of documents that would be accepted in order of preference.” 15. Reverting to the facts of the present case and upon due consideration of the prosecution evidence, we find that no any clinching and legally admissible evidence have been brought by the prosecution to prove the fact that the prosecutrix was minor on the date of incident yet the trial court in the impugned judgment has held her minor, hence, we set aside the finding given by the trial Court that on the date of incident the prosecutrix was minor. 16. So far as the issue of forcible sexual intercourse by the appellant upon the deceased prosecutrix is concerned, we have carefully gone through the evidence of father (PW/1) and mother (PW/3) of the prosecutrix. 17. Father of prosecutrix (PW/1) has stated in examination-in-chief that when the prosecutrix started vomiting, she was taken to Darbha Hospital from where she was referred to Dimrapal Medical College. The prosecutrix was admitted in hospital on Saturday and on next morning she died. This witness in para 2 has stated that he came to know from sister of accused/appellant that his daughter/prosecutrix got pregnant from the accused/appellant. This witness has also stated that his daughter Bijo and daughter-in-law Sito had not given any information regarding the incident. This witness in para 4 of his cross-examination has stated that prosecutrix had never informed that she had any relation with the accused/appellant. 18. Further, mother of prosecutrix (PW/3) has also stated that when the prosecutrix started vomiting, she was taken to hospital at Darbha from where she was referred to Medical College, Dimrapal. This witness in para 2 of her examination-in-chief has stated that she was informed by prosecutrix that she got pregnant by the accused/appellant and the child which prosecutrix delivered was from the accused/appellant. The prosecutrix was not married. This witness in para 2 of her examination-in-chief has stated that she was informed by prosecutrix that she got pregnant by the accused/appellant and the child which prosecutrix delivered was from the accused/appellant. The prosecutrix was not married. This witness also went on to state that the prosecutrix used to go to the house of Somari, sister of the accused/appellant and she came to know about the pregnancy of prosecutrix when she delivered a child. This witness in para 5 of her cross-examination has stated that the prosecutrix had delivered a child at Bijo's house. In para 6, this witnesses has stated that she did not have any conversation with the prosecutrix on the day she delivered the child. Other prosecution witnesses namely Raju Podyami (PW/2), Sukdev Markam (PW/5), Smt. Sito (PW/6), who are the neighbours and relatives of the prosecutrix, have not stated anything specific about the incident and not supported the prosecution case. 19. Close scrutiny of the evidence, makes it clear that the prosecutrix had been in relation with the accused/appellant and owing to the said relation she conceived & delivered a dead premature child and after two days of this delivery, she left for heavenly abode. The prosecution, in order to bring home the guilt of the accused/appellant, exhumed the body of premature dead child, his and accused/appellant's DNA samples were taken and sent to FSL, Raipur, from where a report (Ex.P/38) was obtained, which is positive and the accused/appellant was declared as biological father of the child and therefore, the learned trial Court convicted the accused/appellant holding that the prosecutrix was minor and the accused/appellant committed sexual intercourse with her on the false pretext of marriage, as such, her consent was immaterial. As regards the consent of the prosecutrix, it is clear from the evidence of father (PW/1) and mother (PW/3) of the prosecutrix, that the prosecutrix did not tell about her relationship with accused/appellant and they only came to know about the relation of accused/appellant when prosecutrix delivered a child and she felt ill. Thus, from the aforesaid evidence of father (PW/1) and mother (PW/3) of the prosecutrix, the only irresistible conclusion can be drawn that the prosecutrix was a consenting party to the act of the accused/appellant. Thus, from the aforesaid evidence of father (PW/1) and mother (PW/3) of the prosecutrix, the only irresistible conclusion can be drawn that the prosecutrix was a consenting party to the act of the accused/appellant. Though from the DNA report (Ex.P/38), it is established that the accused/appellant is biological father of the dead premature child but the prosecution has utterly failed to proved this fact beyond all reasonable doubt that on the date of incident, the prosecutrix was minor and this Court held the prosecutrix to be major for all practical purposes as discussed herein above. 20. The law is well settled that in case of rape, conviction can be maintained even on the basis of sole testimony of the prosecutrix. However, there is an important caveat which is that the testimony of the prosecutrix must inspire confidence. In the instant case, the evidence of prosecutrix could not be recorded as after delivery of child, she left for heavenly abode and from the evidence of father (PW/1) and mother (PW/3) of the prosecutrix the only inference can be drawn that the prosecutrix was a consenting party to the act of the appellant. 21. Considering the entire evidence available on record and the conduct of the prosecutrix, we are of the opinion that the prosecutrix was above 18 years of age at the time of incident, further she was a consenting party with the appellant. Therefore, in the above facts and circumstances of the case, offence under Section 6 of the POCSO Act would not be made out against the appellant. 22. For the foregoing reasons, the appeal is allowed and the judgment and conviction and order of sentence dated 02.11.2022 is set aside. The appellant stands acquitted of the charges under Section 6 of POCSO Act. The appellant is reported to be in jail since 11.05.2019. He be released forthwith if not required in any other case. 23. 22. For the foregoing reasons, the appeal is allowed and the judgment and conviction and order of sentence dated 02.11.2022 is set aside. The appellant stands acquitted of the charges under Section 6 of POCSO Act. The appellant is reported to be in jail since 11.05.2019. He be released forthwith if not required in any other case. 23. Keeping in view of the provisions of Section 437-A CrPC, the appellant is directed to furnish a personal bond in terms of Form No.45 prescribed in the Code of Criminal Procedure of sum of Rs.25,000/- with 2 reliable sureties in the like amount before the Court concerned which shall be effective for a period of six months along with an undertaking that in the event of filing of special leave petition against the instant judgment or for grant of leave, the aforesaid appellant on receipt of notice thereon shall appear before the Hon’ble Supreme Court. 24. The Trial Court's record along with the copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action.