JUDGMENT : K. Surender, J. 1. The appellant was convicted for the offence under Section 3 r/w Section 4 of the Protection of Children from Sexual Offences Act, 2012 IPC and sentenced to undergo rigorous imprisonment for a period of ten years, further sentenced to rigorous imprisonment for a period of one year for the offence under Section 417 of Cr.P.C, vide judgment in SC No.51 of 2020 dated 22.12.2021 passed by the First Fast Track Sessions Judge For Expeditious Trial and Disposal of Cases of Rape and Protection of Children from Sexual Offences Act at Khammam. Aggrieved by the same, present appeal is filed. 2. Briefly, the case of P.W.1, who is the victim, is that she got acquainted with the appellant as he was resident of the same village. He used to follow P.W.1 and stated that he was in love with her and wanted to marry her. Believing his words, P.W.1 had sexual intercourse with the appellant, however, it was forcible. Appellant used to go to the examination centre when she was appearing for the intermediate second year examination and after writing the exam, he used to take her to bakery shop and Shivalayam temple. They also went to forest area and appellant tried to have sexual intercourse with her. However, P.W.1 did not agree. Specifically on 18.08.2019 Sunday, when the parents of P.W.1 were not present, the appellant went to their house and stated that he would marry her and raped her. Thereafter, the appellant started neglecting P.W.1. The acts of the appellant were informed to his parents, who are arrayed as A2 and A3. However, A2 and A3 supported A1 and sent him away from the village. Nearly five months thereafter on 11.01.2020, the appellant went to the village to attend funeral of his maternal uncle. Having come to know about the appellant’s presence in the village, PW.1 questioned him as to why the appellant was neglecting her after sexually exploiting her. The appellant allegedly stated that he was not interested in her. P.W.1 informed to her parents. P.W.2 is the father of PW1. The parents of PW1 and other elders called for a panchayat on 22.01.2020 and elders were informed about the acts of the appellant. However, neither the appellant nor his parents appeared before the Panchayat. As advised by the elders, criminal complaint was filed on 25.01.2020. 3. P.W.1 informed to her parents. P.W.2 is the father of PW1. The parents of PW1 and other elders called for a panchayat on 22.01.2020 and elders were informed about the acts of the appellant. However, neither the appellant nor his parents appeared before the Panchayat. As advised by the elders, criminal complaint was filed on 25.01.2020. 3. On the basis of the said complaint, police filed charge sheet for the offence under Sections 417, 376, 506 r/w 34 of IPC, Section 3 r/w Section 4 of the Protection of Children from Sexual Offences Act, 2012 IPC. Charges were framed for the said offences. Learned Special Judge examined the victim as P.W.1 and other witnesses P.Ws.2 to 14. Having considered the said evidence on record, learned Sessions Judge convicted the appellant as stated supra. 4. Learned counsel for the appellant would submit that the prosecution has not proved the age of the victim as below 18 years since the only document relied on is the Secondary School Certificate Ex.P12. The said certificate cannot form basis to correctly state the date of birth of the victim girl. Further, the facts of the case clearly indicate that there was consent amongst P.W.1 and the appellant for sexual intercourse. In the said circumstances of the complaint being made nearly after seven months of the alleged rape, which is evident from the final opinion Ex.P9 given by the Doctor in which it is mentioned that the last sexual contact was in June, 2019. The complaint was filed on 25.01.2020, nearly seven months thereafter. 5. On the other hand, learned Additional Public Prosecutor would submit that consent is of no consequence since the age of the girl was below 18 years. Further the delay in lodging the complaint is also of no consequence since in such cases, the victims are not inclined to lodge complaint as the entire issue would be in public and result in social stigma. In the said circumstances, finding of the lower Court cannot be interfered with. 6. Admittedly, the basis for age determination was the Secondary School Certificate EXP12, which was issued on 03.05.2017. Further, Ex.P6 is the study certificate issued by the Sahithi Junior College on 29.01.2020, evidently on the basis of EXP12. There is no record collected by police prior to 03.05.2017 to state that the age of the girl is 12.05.2002. 6. Admittedly, the basis for age determination was the Secondary School Certificate EXP12, which was issued on 03.05.2017. Further, Ex.P6 is the study certificate issued by the Sahithi Junior College on 29.01.2020, evidently on the basis of EXP12. There is no record collected by police prior to 03.05.2017 to state that the age of the girl is 12.05.2002. Specific instance of sexual intercourse is alleged on 18.08.2019. The age of the girl would be nearly 17 years 3 months. 7. In the absence of either the municipal certificate or hospital certificate which was given at the time of birth, the certificate given by the school and later the Junior College cannot solely form basis to determine the age of the victim. For the reasons best known to the police during investigation, the victim was not sent for ossification test. The Secondary School Certificate, in which date of birth is shown, would be based on the declaration given by the parents or the guardian who admitted PW1. It is not clear as to when the victim girl joined school. In the absence of any convincing evidence of the date of birth of the victim girl and going by the record, the age of the victim girl was 17 years and 3 months, this Court is not inclined to accept the version of the prosecution that the victim girl was aged less than 18 years. No reasons are given by the Investigating Officer as to why the record either at the time of birth or the school records, which were available at the earliest point of time were not collected. 8. According to the victim girl, she used to go along with the appellant to the Bakery shop, temple and also to forest area. On 18.08.2019, it was Sunday and when the parents were not in the house, appellant allegedly went to the house. In the absence of the parents of P.W.1, PW1 permitted the appellant to come to her house. After 18.08.2019, according to P.W.1, the appellant started neglecting her and avoiding her. However, no complaint was filed. On 11.01.2020, when the appellant went to the village, then the appellant was confronted by P.W.1 and her parents in the village. Since the appellant did not heed to the advice of the elders regarding marriage with P.W.1, the complaint was filed. 9. However, no complaint was filed. On 11.01.2020, when the appellant went to the village, then the appellant was confronted by P.W.1 and her parents in the village. Since the appellant did not heed to the advice of the elders regarding marriage with P.W.1, the complaint was filed. 9. The solitary instance of sexual intercourse was on 18.08.2019 according to the statement in the Court. According to Ex.P9, medical examination report, the history was given that she had indulged in sexual intercourse 3 to 4 times, since appellant promised to marry her and subsequently was not willing to marry, criminal complaint was filed. It is further mentioned in the said report that the physical findings are suggestive of sexual exposure. In the said circumstances, it appears that the physical relation was consensual. Further, in the back ground of the prosecution failing to prove that the age of the victim girl was less than 18 years, this Court is inclined to give benefit of doubt to the appellant. 10. Insofar as the allegation regarding promise to marry, P.W.1 has consistently stated that right from the beginning, there was a promise to marry and ultimately, the appellant denied and went away from the village. It appears that the appellant had with an intention of indulging in sexual intercourse had made false promise of marrying her. 11. In the said circumstances, the conviction for cheating under Section 417 of IPC is maintained. The conviction under Section 3 r/w 4 of POCSO Act and Section 376(1) of IPC is set aside. Since the conviction under Section 417 of IPC is only for a period of one year, the appellant is directed to be released forthwith. The appellant is in jail since 26 months, from the date of judgment i.e., 22.12.2021 and sentence under Section 417 of IPC for one year has already been served. 12. Criminal Appeal is partly allowed