Judgment : (Arvind Kumar Verma, J.) 1. With the consent of learned counsel for the parties, the matter is heard finally. 2. The appellant has been filed the instant criminal appeal under Section 415(2) of the Bhartiya Nagarik Suraksha Sanhita, 2023 questioning the judgment of conviction and order of sentence dated 18.07.2024 passed by the Special Judge (POCSO Act), Chirmiri, District Koriya (Now MCB) (C.G.) in Special Criminal Case No.06/2023, whereby the appellant has been convicted and sentenced punishable under Section 3/4 of the POCSO Act, rigorous imprisonment for 07 years and fine amount of Rs.2,000/-, in default of payment of fine amount, additional rigorous imprisonment for one month. 3. According to the case of prosecution, in this case, the prosecturix has lodged a report with the allegation that prosecutrix and applicant knew each other since childhood and both of them visited each others house. On dated 19.11.2017 the applicant has gone to the house of prosecutrix when no one was at her place and on the pretext of marriage committed sexual intercourse when she was of the age of 17 years. The applicant has committed sexual intercourse on pretext of marriage on numerous occasions when the prosecutrix was alone at home. That in the year 2018 while the prosecutrix is doing the work of make up artist at Noida then the applicant had gone along with her and stayed together in the rental house. In the year 2020 she got aborted twice on the month of July and December. On dated 01.05.2022 prosecutrix and applicant came back home together at Chirmiri and continued to be together and alleged that sexual intercourse was committed on prosecutrix on pretext of marriage and when the prosecutrix asked the applicant to marry, he couldn't give a definite answer upon which a report was lodged u/s. 376 (2) (n) of IPC and 6 of POCSO Act. 4. Statements of the victim and other witnesses were recorded under Section 161 of the Cr.P.C. On completion of investigation, a charge-sheet was filed against the appellant. 5. In order to bring home the offence, the prosecution examined as many as 07 witnesses. Statement of the appellant under Section 313 of the Cr.P.C. was recorded, wherein he pleaded innocence and false implication. 5. In order to bring home the offence, the prosecution examined as many as 07 witnesses. Statement of the appellant under Section 313 of the Cr.P.C. was recorded, wherein he pleaded innocence and false implication. However, when the defence was recorded, the accused expresses to give defence witness and in defence, the Headmaster of Odia Higher Secondary School, Godripara, Chirmiri, Subhash Chandra and himself were examined. 6. On completion of the trial, the trial Court convicted and sentenced the appellant as mentioned in paragraph three of this judgment. Hence, this appeal. 7. Learned counsel appearing for the appellant contended that the trial Court has wrongly been convicted and sentenced the appellant without there being any sufficient evidence available on record. He further contended that the prosecutrix and the accused knew each other since childhood and since 2017 till 2022 they stayed together at numerous places and without even complaining, the prosecutrix stayed with the appellant and when the appellant refused to marry due to personal reason, upon which the prosecutrix lodged an FIR against the appellant. He further contended that the learned trial judge before has not appreciated the deposition of defence witness Subhash Chandra (DW-1) as he clearly states about the discrepancies regarding the age of the prosecutrix. It is further contended that the age of the prosecutrix has not been proved and even if we take the age of the prosecutrix as per Dakhil Khariji, her D.O.B. is 04.10.1999 at the time of incident, she was a major lady and have given her consent to stay with the appellant. He further contended that as per the statement of PW 3- Vidyashri Tiwari in her Para 5, it has clearly been mentioned that no recent sexual intercourse can be seen and no forceful intercourse can be made out in his opinion. It is further contended that the prosecution has failed to prove their case beyond reasonable doubt and conviction of the appellant is contrary to the rule of prudence and in the light of the evidence available on record conviction of the appellant is bad in the eye of law. It is, therefore most humbly and respectfully prayed that this Court may kindly be pleased to allow this appeal and set aside the conviction passed by the learned trial court and the appellant may kindly be acquitted from the charges. 8. It is, therefore most humbly and respectfully prayed that this Court may kindly be pleased to allow this appeal and set aside the conviction passed by the learned trial court and the appellant may kindly be acquitted from the charges. 8. On the other hand, learned counsels for the State as well as for victim oppose the submission advanced by learned counsel for the appellant and submits that there is no illegality or infirmity in the finding of learned trial Court and the impugned judgment of the Court below needs no interference. 9. I have heard learned counsel appearing for the respective parties and perused the record of the trial Court and other material available on record with utmost circumspection. 10. In order to consider the age of prosecutrix, I have to examine the evidence/material placed on record by the prosecution. The prosecution has mainly relied upon the Admission Discharge Register of Ex.P-10, wherein date of birth of prosecutrix is mentioned as 04.10.2000. 11. The prosecutrix (PW-1) has stated in her examination-in-chief (Para -1) that her date date of birth is 04.10.2000. She further stated in Para-12 (cross- examination) that as per Aadhar Card, her date of birth is mentioned as 04.10.1999. In Para-13, she stated that according to Aadhar Card, she was completed 18 years in the month of November, 2017. She further stated that at the time of lodging the report, she told her age 23 years. 12. Rajesh Prasad Mishra (PW-2), Headmaster of Sarswati Shishu Mandir School, Godaripara, Chirmiri stated that at the serial No.12 of Dakhil Kharij Register, date of birth of the prosecutrix is mentioned as 04.10.2000. In his cross- examination (Para-3), he stated that the details of the prosecutrix in the Dakhil Kharij Register has not been mentioned by him. It is also not mentioned by whom and on the basis of which document the prosecutrix has been admitted. 13. Subhash Chandra (DW-1), Headmaster posted in Oriya Higher Secondary School, Godripara, Chirmiri, District, M.C.B. since the year 2017 has stated that he has brought the admission registration register of the year 2006. On Page No. 12 of the admission registration, number 1978, the name of the victim, her father and mother is recorded, in which her date of birth is recorded as 04.10.1999. On Page No. 12 of the admission registration, number 1978, the name of the victim, her father and mother is recorded, in which her date of birth is recorded as 04.10.1999. On number 1976 of the same register, the name of the victim's sister and her parents are recorded, in which her sister's date of birth is recorded as 20.04.2001. The said entry has been made by the school Clerk on 26.07.2006. The said entry has been made as per the instructions of the parents or guardians of the students. Admission Registration is Ex.D/2. 14. Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015 provides for presumption and determination of age. The same reads as under : “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. 15. In case 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. The Hon'ble Supreme court held that the date of birth mentioned in the transfer certificate would have no evidentiary value unless the person who made the entry or who gave the date of birth is examined. 16. In paragraphs 40,42,43,44 and 48 of its judgment in Alamelu (Supra), the Supreme Court has 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. The date of birth mentioned in the transfer certificate would have no evidentiary value unless the person,who made the entry or who gave the date of birth is examined.- 42. Considering the manner in which the facts recorded in a document may be proved, this Court in the case of Birad Mal Singhvi Vs. Anand Purohit, observed as follows:- "The date of birth mentioned in the scholars' register has no evidentiary value unless the person who made the entry or who gave the date of birth is examined....Merely because the documents Exs. Anand Purohit, observed as follows:- "The date of birth mentioned in the scholars' register has no evidentiary value unless the person who made the entry or who gave the date of birth is examined....Merely because the documents Exs. 8, 9, 10, 11, and 12 were proved, it does not mean that the contents of documents were also proved. Mere proof of the documents Exs. 8, 9, 10, 11 and 12 would not tantamount to proof of all the contents or the correctness of date of birth stated in the documents. Since the truth of the fact, namely, the date of birth of Hukmi Chand and Suraj Prakash Joshi was in issue, mere proof of the documents as produced by the aforesaid two witnesses does not furnish evidence of the truth of the facts or contents of the documents. The truth or otherwise of the facts in issue, namely, the date of birth of the two candidates as mentioned in the documents could be proved by admissible evidence i.e. by the evidence of those persons who could vouchsafe for the truth of the facts in issue. No evidence of any such kind was produced by the respondent to prove the truth of the facts, namely, the date of birth of Hukmi Chand and of Suraj Prakash Joshi. In the circumstances the dates of birth as mentioned in the aforesaid documents 1988 (Supp) SCC 604 have no probative value and the dates of birth as mentioned therein could not be accepted." 43. The same proposition of law is reiterated by this Court in the case of Narbada Devi Gupta Vs. Birendra Kumar Jaiswal, where this Court observed as follows:- "The legal position is not in dispute that mere production and marking of a document as exhibit by the court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence, that is, by the "evidence of those persons who can vouchsafe for the truth of the facts in issue"." 44. In our opinion, the aforesaid burden of proof has not been discharged by the prosecution. The father says nothing about the transfer certificate in his evidence. The Headmaster has not been examined at all. Therefore, the entry in the transfer certificate can not be relied upon to definitely fix the age of the girl. 48. In our opinion, the aforesaid burden of proof has not been discharged by the prosecution. The father says nothing about the transfer certificate in his evidence. The Headmaster has not been examined at all. Therefore, the entry in the transfer certificate can not be relied upon to definitely fix the age of the girl. 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.4 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 (2006) 5 SCC 584 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.” 17. In case 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 case 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 sub-section (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 XXXX 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 scrutinized 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 courtshould 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.” 18. Recently, in case 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 case 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. 19. 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 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. 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.” 20. Now, reverting to the facts of the present case and after considering the evidence collected by the prosecution and in the light of the aforesaid judgments of Hon’ble Supreme Court, I find that no clinching and legally admissible evidence has been brought by the prosecution to prove the fact that the victim was minor and less than 18 years of age on the date of incident, despite the fact that the trial court in the impugned judgment has held the prosecutrix minor. Accordingly, I set aside the findings given by the trial court that on the date of incident, the victim was minor as the same has not been proved by the prosecution by leading cogent and clinching evidence. 21. In order to consider the consent of prosecutrix, I have to examine the evidence/material placed on record by the prosecution. 22. The prosecutrix (PW-1) has stated in her examination-in-chief (Para -1) that she acquainted with the accused- Javed Ansari alias Raja since childhood, he lives near her house. She used to talk to the accused since 2017 on mobile phone. She further stated that the accused came to her house to meet her, at that time her mother was not at home. The accused asked her to have physical relations and marry with her, she told the accused that she has to study. In the month of June or July 2017, the accused had made physical relations with her at her home. The accused was stayed with her at her home till the next morning. The accused went back in the morning. 23. In Para-2, this witness has further stated that she went to Delhi in the year 2018, after that the accused also came to Delhi. She and the accused used to live separately in Sector 50, Noida. When the accused talked about the marry, they started living together. The accused went back in the morning. 23. In Para-2, this witness has further stated that she went to Delhi in the year 2018, after that the accused also came to Delhi. She and the accused used to live separately in Sector 50, Noida. When the accused talked about the marry, they started living together. The witness now says that when she went to Noida, the accused used to have physical relations with her there. After some time the accused came to her house and told to her mother about her marriage, after that they both went back to Noida. After staying in Noida for some time, they came back to Chirmiri. The accused started making excuses for the marriage and later refused to marry. She became pregnant due to physical relations with the accused. The accused got her aborted twice by giving her medicines. Then the matter was registered against the accused/appellant. 24. Close scrutiny of the evidence led by the prosecution would make it clear that the prosecutrix has nowhere disclosed that at any point of time, the appellant has committed any forceful sexual intercourse with her. The physical relation between them continued upto the period when the prosecutrix became pregnant the accused got her aborted twice by giving her medicines. Then the matter was registered against the accused/appellant. 25. Thus, considering the entire facts and circumstances of the case particularly the evidence with regard to the age and conduct of the prosecutrix, I am of the opinion that the prosecutrix was more than 18 years of age at the time of incident and she was a consenting party. Therefore, in the above facts and circumstances of the case, offence under Section 3/4 of the POCSO Act would not be made out against the appellant. 26. The appeal is allowed accordingly. The judgment of conviction and order of sentence dated 18.07.2024 is hereby set aside. Appellant stands acquitted of all the charges levelled against him. The appellant is reported to be in jail. He be released forthwith, if not required in any other case. 27. 26. The appeal is allowed accordingly. The judgment of conviction and order of sentence dated 18.07.2024 is hereby set aside. Appellant stands acquitted of all the charges levelled against him. The appellant is reported to be in jail. He be released forthwith, if not required in any other case. 27. Keeping in view 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.10,000/- with one reliable surety 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 thereof shall appear before the Hon’ble Supreme Court. 28. The lower court record along with a copy of this judgment be sent back immediately to the trial court concerned for compliance and necessary action.