JUDGMENT : 1. Accused/appellant has preferred this appeal against the Judgment of conviction and order on sentence dated 04 th October, 2018 in Spl.Case.No.172 of 2017 passed by the Principal Sessions Judge, Kodagu Madikeri (for short “the trial Court”). 2. For the sake of convenience, the parties herein are referred to as per the status before the trial Court. 3. Brief facts leading to this appeal are that the Circle Inspector of Police, Madikeri Rural Police, has laid charge-sheet against the accused for commission of offence punishable under Sections 376 of Indian Penal Code and under Sections 4 and 6 of Protection of Children from Sexual Offences Act, 2012 (for short POCSO Act). It is alleged by the prosecution that, victim-CW1 daughter of CW2 being a minor girl aged 16 years, is residing along with her parents at Kuruli, Emmemadu village within the limits of Napoklu Police Station, Kodagu District For the past two years, commencing from September 2015, when the complainant (CW1) was residing alone at her residence, the accused habitually frequented the said premises. The accused, by professing affection towards the complainant, cultivated an intimate relationship with her, and on multiple occasions, engaged in sexual intercourse with the complainant without her consent and against her will. 4. Thus, the accused has committed the offence punishable under Sections 376 of Indian Penal Code and Sections 4 and 6 of POCSO Act. 5. After filing charge-sheet, the Special Court took cognizance against the accused for alleged commission of offence. Since from date for the arrest on 20 th September 2017, accused is in judicial custody. 6. The trial Court has framed charges against the accused for alleged commission of offence under Section 376 (2)(i)(n) of Indian Penal Code and under Sections 4 and 6 of POCSO Act. The same was read over and explained to the accused. Having understood the same, accused pleaded not guilty and claimed to be tried. To prove the guilt of the accused nine witnesses were examined as PW1 to PW9 and ten documents were marked as Exhibits P1 to P10. On closure of prosecution side evidence, statement of the accused under Section 313 of Code of Criminal Procedure was recorded. The accused has totally denied the evidence of prosecution witnesses, but he has admitted that the police have arrested him on 20 th September, 2017. On closure of prosecution side evidence, statement of the accused under Section 313 of Code of Criminal Procedure was recorded. The accused has totally denied the evidence of prosecution witnesses, but he has admitted that the police have arrested him on 20 th September, 2017. Further, he has submitted that there was an altercation between himself and complainant's father regarding work and for that reason, false complaint was filed against him. Thereafter on behalf of accused, one witness was examined as DW1. Having heard the arguments on both sides, the trial Court convicted the accused for the offence punishable under Section 376 (2)(i)(n) of Indian Penal Code and and 6 of POCSO Act and sentence was passed. Being aggrieved by the impugned Judgment of conviction and sentence, the appellant has preferred this appeal. 7. Sri Gaurav S., learned counsel for the appellant/accused, submits that the incident occurred on 15 September 2015, but the complaint was filed after a two-year delay on 18 September 2017. The prosecution offers no satisfactory explanation for this abnormal delay. a. Exhibit P10 (Transfer Certificate from the Headmaster) shows the school received the victim's application on 21 st July 2018—after filing the charge-sheet on 23 rd November 2017. The Investigating Officer obtained this document post-charge- sheet without filing an application under Section 173(8) CrPC for further investigation, rendering it legally unsustainable. b. In the Exhibit P8 (birth certificate) the victim's date of birth is 7 April 2001, registered on 4 th May 2017 with "Court order" noted in Column 11 (Remarks). The authority issued it pursuant to a court order after the alleged offense. The Investigating Officer collected no materials on this court order, the miscellaneous petition filed under Section 13(3) of the Registration of Births and Deaths Act, 1969, or the authority's endorsement on non-registration of birth certificate. The prosecution produced neither the school admission register extract nor SSLC marks card, and offered no explanation for their absence despite reliance on legally inadequate documents. No ossification test certificate exists, and the examining Medical Officer conducted no radiology for age determination. c. No medical evidence corroborates sexual intercourse more than ten times. Material omissions and contradictions undermine the prosecution case. The victim's parents (PWs 2 and 3) admitted ignorance of the victim's date of birth. No ossification test certificate exists, and the examining Medical Officer conducted no radiology for age determination. c. No medical evidence corroborates sexual intercourse more than ten times. Material omissions and contradictions undermine the prosecution case. The victim's parents (PWs 2 and 3) admitted ignorance of the victim's date of birth. The trial court should have drawn an adverse inference: the birth certificate was obtained solely to support a POCSO Act complaint, making it unsustainable. PW1 as stated as tot he frustrated relationship between the accused's father and victim's father CW2. d. Further the Counsel relies on the judgment of Supreme Court in P. Yuvaprakash v. State (REP. BY INSPECTOR OF POLICE) reported in 2023 SCC ONLINE SC 846, and prays that the appeal be allowed. 8. Sri M.V. Anoop Kumar, learned High Court Government Pleader, would submit that as per the order sheet dated 06 th November, 2018, learned Public Prosecutor filed Application under Sections 230 and 311 of Code of Criminal Procedure along with one document. The same was allowed by the trial Court. Accordingly, summons were issued to the witnesses with a direction to produce Transfer Certificate and SSLC marks card of the victim. Transfer certificate is produced, but the SSLC marks card is not produced. 9. Having heard the arguments on both sides, following points would arise for my consideration: 1. Whether the trial Court has committed an error in coming to the conclusion that the victim comes under the definition of "child" as defined under section 2(d) of POCSO Act as on the date of commission of alleged offence? 2. Whether the appellant has made out grounds to interfere with the impugned judgment of conviction and order on sentence? 3. What order? Regarding Point No.1: 10. I have examined the materials placed before the court. The charges alleged against the accused is under pocso Act. In order to bring home the allegations under pocso it is the burden vested heavily upon the prosecution to prove the age of the victim as minor. 11. It is the case of the prosecution that CW1 being the minor girl aged 16 years residing with her parents at Emmemadu Village within the limits of Police Station, Kodagu for the past two years since September 2015.Factual allegations are that during the period when CW-1 (victim) was alone at the residence, the accused frequently visited the said premises. 11. It is the case of the prosecution that CW1 being the minor girl aged 16 years residing with her parents at Emmemadu Village within the limits of Police Station, Kodagu for the past two years since September 2015.Factual allegations are that during the period when CW-1 (victim) was alone at the residence, the accused frequently visited the said premises. The accused assured CW-1 of love and affection. The accused engaged in sexual intercourse with CW-1 on several occasions without consent and against CW-1's will. Thus has committed offence punishable intersection, 376 of Indian Penal Code and section 4 and 6 of Pocso Act. 12. To prove the age of victim, it is necessary to mention here as the decision of the Hon'ble Court in the case of Jarnail Singh v. State of Haryana reported in AIR 2013 SC 3467 , wherein it was held that the age of the rape victims should be determined according Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007. This Rule states that priority should be given to school documents when determining the age of the victim and medical experts' opinions are only considered in the absence of school documents. Referring to the case of Mahadeo s/o Kerba Maske v. State of Maharashtra reported in (2013)14 SCC 637 , the Hon'ble Supreme Court emphasized the procedure outlined in Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules. The rule mandates that in every case involving a child or juvenile in conflict with law, the age determination inquiry should be conducted by the Court, Board or Committee and evidence should be obtained accordingly. Rule 12(3)(a)(i) of the Rules, reads thus: 13. "12(3)(a)(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.” 13. The Juvenile Justice Act is amended in 2015 i.e., The Juvenile Justice (Care and Protection of Children) Act, 2015 . However, the State Government has not framed separate Rules, but the procedure for determining the age of the juvenile is incorporated in Section 94 of the . 14. The Juvenile Justice Act is amended in 2015 i.e., The Juvenile Justice (Care and Protection of Children) Act, 2015 . However, the State Government has not framed separate Rules, but the procedure for determining the age of the juvenile is incorporated in Section 94 of the . 14. In view of Section 164A of Cr.P.C., which was inserted in Code of Criminal Procedure (Amendment) Act, 2005, which came into force on 23.06.2006, it is mandatory on the part of the medical practitioner to enter the age of the woman in the examination report of the victim. It is relevant to mention Section 164A of Cr.P.C. hereunder: "164A. Medical examination of the victim of rape 1) Where, during the stage when an offence of committing rape or attempt to commit rape is under investigation, it is proposed to get the person of the woman with whom rape is alleged or attempted to have been committed or attempted, examined by a medical expert, such examination shall be conducted by a registered medical practitioner employed in a hospital run by the Government or a local authority and in the absence of such a practitioner, by any other registered medical practitioner, with the consent of such woman or of a person competent to give such consent on her behalf and such woman shall be sent to such registered medical practitioner within twenty-four hours from the time of receiving the information relating to the commission of such offence. 2) The registered medical practitioner, to whom such woman is sent shall, without delay, examine her person and prepare a report of his examination giving the following particulars, namely- i. the name and address of the woman and of the person by whom she was brought; ii. the age of the woman; iii. the description of material taken from the person of the woman for DNA profiling; iv. marks of injury, if any, on the person of the woman; v. general mental condition of the woman; and vi. other material particulars in reasonable detail. 3) The report shall state precisely the reasons for each conclusion arrived at. 4) The report shall specifically record that the consent of the woman or of the person competent, to give such consent on her behalf to such examination had been obtained. 5) The exact time of commencement and completion of the examination shall also be noted in the report. 4) The report shall specifically record that the consent of the woman or of the person competent, to give such consent on her behalf to such examination had been obtained. 5) The exact time of commencement and completion of the examination shall also be noted in the report. 6) The registered medical practitioner shall, without delay forward the report to the investigating officer who shall forward it to the Magistrate referred to in section 173 as part of the documents referred to in clause (a) of Sub-Section (5) of that section. 7) Nothing in this section shall be constructed as rendering lawful any examination without the consent of the woman or of any person competent to give such consent on her behalf. Explanation: For the purpose of this section, "examination' and "registered medical practitioner' shall have the same meanings as in section 53." 15. The Hon'ble Supreme Court in the Case of P YUVA PRAKASH (supra) , at paragraph 11 to 16 of the judgment, has observed as under: 11. Before discussing the merits of the contentions and evidence in this case, it is necessary to extract Section 34 of the POCSO Act which reads as follows: “34. Procedure in case of commission of offence by child and determination of age by Special Court. – (1) Where any offence under this Act is committed by a child, such child shall be dealt with under the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016). (2) If any question arises in any proceeding before the Special Court whether a person is a child or not, such question shall be determined by the Special Court after satisfying itself about the age of such person and it shall record in writing its reasons for such determination. (3) No order made by the Special Court shall be deemed to be invalid merely by any subsequent proof that the age of a person as determined by it under sub-section (2) was not the correct age of that person.” 12. In view of Section 34(1) of the POCSO Act, Section 94 of the JJ Act, 2015 becomes relevant, and applicable. That provision is extracted below: “94. Presumption and determination of age. In view of Section 34(1) of the POCSO Act, Section 94 of the JJ Act, 2015 becomes relevant, and applicable. That provision is extracted below: “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 of (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 before it shall, for the purpose of this Act, be deemed to be the true age of that person.” 13. It is evident from conjoint reading of the above provisions that wherever the dispute with respect to the age of a person arises in the context of her or him being a victim under the POCSO, the courts have to take recourse to the steps indicated in Section 94 of the JJ Act. It is evident from conjoint reading of the above provisions that wherever the dispute with respect to the age of a person arises in the context of her or him being a victim under the POCSO, the courts have to take recourse to the steps indicated in Section 94 of the JJ Act. The three documents in order of which the Juvenile Justice Act requires consideration is that the concerned court has to determine the age by considering the following documents: “(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 of (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”. 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. 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 v. State Uttar Pradesh and 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. 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. 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 and 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 2021 (12) SCR 502 [2019] 9 SCR 735 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." 16. In the case on hand, the prosecution has produced Exhibit P8-birth certificate issued by the concerned authority, which reveals that the date of birth of victim, 7 th April 2001. Whereas the same is registered on 4 th May 2017. In the birth certificate in column 11, which provides for remark, the same written as “court order”. Hence, it is clear that as per court order, after lapse of 17 years, the concerned Authority has entered the date of birth of the victim in the birth register and issued the birth certificate. The investigating officer has not produced any material with regard to the order passed by the court. Copy of miscellaneous petition filed by the guardian of the victim under Section 13(3) of Births and Deaths Registration Act 1969 and the endorsement issued by the concerned authority as to non- registration of date of birth of the victim is not produced. The investigating officer has not explained anything as to non- production of these material documents though there is no legally acceptable document. The investigating officer has not explained anything as to non- production of these material documents though there is no legally acceptable document. The alleged incident, for the first time as alleged in the complaint-Exhibit P1, took place, in the first week of September 2015. The complaint came to be filed on 18 th September 2017 after lapse of more than two years. Exhibit P8-birth certificate reveals that date of birth of the victim is registered on 4 th May 2017. Therefore, it is crystal- clear that only for the purpose of filing complaint against the accused, prior to filing the complaint, the guardian of the victim had filed application under section 13(3) of Births and Deaths Registration Act, and obtained the order from the concerned jurisdictional magistrate and thereafter, as per court order, birth certificate was issued prior to filing the complaint. To obtain birth certificate by the victim, clearly establishes that, only as an afterthought, in order to file complaint against the accused under POCSO Act, Exhibit P8 is produced. The investigating officer would have produced the copy of endorsement issued by the concerned Authority or would have produced the criminal miscellaneous petition filed under section 13(3) of Births and Deaths Registration Act and the deposition or the affidavit filed by the petitioner, then this Court would have scrutinized the same. The investigating officer has not placed those materials before this court. In the absence of such material piece of evidence, adverse inference can be drawn against the prosecution and section 114(g) of Indian evidence act 1872 that, evidence which could be and is not produced would, if produced, be unfavorable to the person who withholds it. For the aforesaid reason, it is not safe to rely on birth certificate-Exhibit P8 issued by the concerned Authority. 17. The investigating officer has not produced the SSLC marks called and the School Admission Register extract and has has not explained anything as to non-production of these material documents. On the contrary, the investigating officer has produced Exhibit P10-transfer certificate in which the date of birth of the victim is shown as 7 th April 2001. Exhibit-P9 is the certificate issued by the Headmaster, Government High School, Emmemadu, Madikeri Taluk, which reveals that the date of birth of victim is shown as 7 th April 2001. On the contrary, the investigating officer has produced Exhibit P10-transfer certificate in which the date of birth of the victim is shown as 7 th April 2001. Exhibit-P9 is the certificate issued by the Headmaster, Government High School, Emmemadu, Madikeri Taluk, which reveals that the date of birth of victim is shown as 7 th April 2001. PW9-Sukru Devegowda, Headmaster of Emmemadu Government School has deposed as to issuance of certificate Exhibit P9 and also transfer certificate Exhibit P10,however has not deposed anything as to on what basis said date has entered as to the of birth of the victim in the School Admission Register. The medical officer who has examined the victim has not conducted radiology test to determine the age of the victim. The registered medical practitioner has not complied with the mandatory provisions of section 164A of Code of Criminal Procedure to determine the age of the victim. 18. The investigating officer has not complied with the mandatory provisions of section 34 of POCSO Act and not obtained ossification test certificate from the concerned medical officer. PWs2 and 3 parents of victim, have clearly admitted that they do not know the date of birth of the victim. 19. Viewed from any angle, I do not find any cogent, convincing, clinching, corroborative legal evidence before this court to come to the conclusion that the prosecution has proved that the victim was "child" as defined under section 2(d) of POCSO Act as on the date of commission of alleged offence. Accordingly, prosecution has failed to prove that the victim was a "child" as on the rate of commission of alleged offence. Accordingly, I answer point No.1 in the affirmative. Regarding Point No.2: 20. Regarding the other accusation made against the accused is concerned, the incident took place in the month of first week of September 2015 and after lapse of two years, the complaint is filed. It is alleged by the prosecution that the accused has made friendship with the victim and told her that he loves her and developed intimacy with her. During the month of September 2015, he came to the house of the victim when she was alone and had sexual intercourse on several occasions on the pretext that he loves her and would marry her. During the month of September 2015, he came to the house of the victim when she was alone and had sexual intercourse on several occasions on the pretext that he loves her and would marry her. When the accused refused to marry her, she had intimated the same to her parents, thereafter, after lapse of two years, complaint is filed. PW1-complainant has also deposed the same in her evidence. In Column 15 of medical certificate-Exhibit P2, the history of sexual violence is described as under: “October 2015, victim became friends with the Isak. They exchanged phone numbers, each other and became closer. After 15-20 days, as Isak promised that he will marry her, she agreed for sexual intercourse. They used to meet at victim's home and nobody was there at home and used to have sexual intercourse every 3-4 days. The same continued till December 2015. The last act was in December 2015. After this, Isak left to Bangalore for work purpose. They had phone contact throughout, he was reassuring her that he is going to marry her. Since one month, he refused to marry her. So she gave complaint to Napoklu Police Station.” 21. The doctor has opined that the possibilities of sexual assault could not be ruled out as the last sexual assault was one year nine months prior to medical examination. She has further opined that the victim is capable for a sexual act. Since the last sexual act was in December 2015 as per the history given by victim, there are no signs/evidence of sexual act at the time of examination. The medical officer Dr.Sowmya, has also deposed the same as to the history as shown in Exhibit P2. A perusal of the evidence on record makes it crystal-clear that absolutely there is no force sexual intercourse by the accused. Even if it is presumed that there is sexual intercourse between the victim and the accused, the same is a consensual sex which does not come under the definition of offence under section 375 of Indian Penal Code as the prosecution has failed to prove that the victim was a child as on the date of commission of alleged offence. Viewed from any angle, I do not find any cogent, clinching, corroborative, legal evidence before this Court to prove that the accused has committed alleged offence. Viewed from any angle, I do not find any cogent, clinching, corroborative, legal evidence before this Court to prove that the accused has committed alleged offence. Since the prosecution has failed to prove that the victim was child as defined intersection, 2(d) of the POCSO Act. The prosecution has failed to prove that the accused has committed offence punishable and sections 4 & 6 of POCSO Act. The prosecution has also failed to prove the essential ingredients of rape as defined under Section 375 of Indian Penal Code to prove that the accused has committed offence punishable under Section 376 (2)(i)(n) of Indian Penal Code . The trial court has not properly appreciated the evidence in its proper perspective and convicted the accused which is not sustainable under law. Accordingly, the appellant has made out ground to interfere with the impugned judgment of conviction and order on sentence. Hence, I answer Point No.2 in the affirmative. Regarding Point No.3: 22. For the reasons aforestated and discussions, I proceed to pass the following: ORDER i) Appeal is allowed; ii) Judgment of conviction and order on sentence dated 03 rd October, 2018 passed in Special Case No.172 of 2017 by the Principal Sessions Judge, Kodagu at Madikeri, is set aside; iii) Accused is acquitted of the offence punishable a section 376(2)(i)(n) of Indian Penal Code and sections 4 and 6 of POCSO Act; iv) The bail bond of the accused and the surety stand cancelled; v) Registry is directed to send intimation to the concerned jail authorities through email to release the accused/appellant forthwith, if he is not involved in any other case.