JUDGMENT : G. BASAVARAJA, J. The appellant/accused No.1 has preferred this appeal against judgment of conviction and order of sentence passed by the Addl. District and Sessions Judge, FTSC-I, Tumakuru in Spl.C. No.20/2022 dated 22.06.2023. 2. For the sake of convenience, the parties herein are referred to as per their status before the trial Court. 3. Brief facts leading to this appeal are that, the CPI of C.N.Halli Circle has filed charge-sheet against accused Nos.1 to 4 for the offence punishable under Sections 363, 354(A), 376, 504, 506 read with 34 of Indian Penal Code and Sections 6 and 8 of POCSO Act. 4. It is alleged by the prosecution that, on 06.12.2021 at 07.00 p.m., PW1 has alleged that the accused for the past one year was assuring her that he would marry her. On 24.06.2021, in the night about 01.00 a. m. the accused came and knocked the door of her house. She opened the door, at that time, the accused forcibly took her along with him in his Innova car bearing No.KA-17/M-7337 to the temple near Dindavara Village, Hiriyur Taluk and tore her clothes, touched her body inappropriately and despite her protest, committed penetrative sexual assault on her and threatened to commit the murder of her parents if she revealed the same to anyone, further, he would throw acid on her face. Thereafter, when they had gone to the village of the accused, the accused stated that he was not in love with her and he would not marry her. Further, the brother and parents of the accused No. 1 i.e., accused Nos. 2 to 4 abused them in filthy language and refused to get accused No.1 married to her and supported the accused No.1. Hence, she sought for action to be taken against the accused. 5. After investigation, the Investigating Officer has submitted the charge-sheet against the accused for the alleged commission of offences. Accused Nos.2 to 4 have obtained anticipatory bail in Crl.Misc No.1485/2021. Accused No.1 is in Judicial custody. On hearing the charges, trial Court framed the charges for the alleged Commission of Offences. Having understood the same, accused pleaded not guilty and claimed to be tried. 6. To prove the guilt of the accused, in all, examined 8 witnesses as PWs1 to 8, 50 documents were marked as Exhibits P1 to P50, 46 material objects were marked as MOs.1 to 46. Having understood the same, accused pleaded not guilty and claimed to be tried. 6. To prove the guilt of the accused, in all, examined 8 witnesses as PWs1 to 8, 50 documents were marked as Exhibits P1 to P50, 46 material objects were marked as MOs.1 to 46. On closure of prosecution side evidence, the statement under Section 313 of Cr.P.C were recorded. The accused have totally denied the evidence of prosecution. However, they did not choose to lead any defence evidence on their behalf. 7. Having heard the arguments on both sides, the trial Court has acquitted accused Nos. 1 to 4 for the offence punishable under Section 504 read with 34 of Indian Penal Code and convicted accused No.1 for the offences punishable under Sections 4 and 8 of POCSO Act and Sections 363, 376 and 506 of Indian Penal Code. Being aggrieved by the judgment of conviction and order on sentence, the appellant has preferred this appeal. 8. Learned counsel for the appellant would submit that the complainant-PW1 specifically deposed that she was aged about 18 years and completed SSLC and was having relationship with accused on the promise of marriage. Prior to filing the complaint she approached the police and police issued an endorsement on 02.12.2021 as per Exhibit P38 dated 30.11.2021 and the statement of the appellant was recorded as per Exhibit P39 and the statement of the father of the complainant was recorded as per Exhibit P40. The complainant clearly indicates that there was a false implication by the complainant in order to get married the appellant. 9. The prosecution has examined PW1, who is the alleged victim in the case who has specifically denied the entire incident. The prosecution has examined PW2, who is the signatory to Exhibit P3, who has turned hostile. PW7, who is the father of the victim girl, also not supported the case of the prosecution. PW1 has turned hostile. The age of the victim is also not proved. On all these grounds sought for allowing this appeal. 10. As against this, the learned counsel for the respondent No.2 would submit that respondent No.2 has no objection to allow this appeal and acquitted the accused. The learned High Court Government Pleader would support the judgment passed by the trial Court. 11. On all these grounds sought for allowing this appeal. 10. As against this, the learned counsel for the respondent No.2 would submit that respondent No.2 has no objection to allow this appeal and acquitted the accused. The learned High Court Government Pleader would support the judgment passed by the trial Court. 11. Having heard the arguments on both sides and perusal of materials placed before this Court, the following points would arise for my consideration: 1. Whether the trial Court has justified in come to the conclusion that the prosecution has proved that the victim was a child as defined under Section 2(d) of POCSO Act? 2. Whether the appellant has made out a ground to interfere with the impugned judgment of conviction and order on sentence passed by the trial Court? 3. What order? Regarding point No.1: 12. This case arise out of the complaint filed by PW1-victim, in which it is stated as under: 13. To prove the age of the victim, the prosecution has produced Exhibit P13 - Birth Certificate issued by the Registrar of Births and Deaths, office of City Municipality, Tumakuru. Exhibit P28- Admission Register Extract, which reveals that the date of birth of the victim is 19.09.2003. The author of the document who has issued Exhibit P13- Birth Certificate has not been examined by the prosecution. The name of the victim is not entered in this birth certificate and the date of birth is shown as 19.03.2004. the date of registration is 22.03.2006. Though the date of birth of the girl child is entered after lapse of more than two years from the date of birth, the Investigating Officer has not collected any materials, as to how the date of the birth certificate is obtained without the order of the Court as required under Section 13(3) of Births and Deaths Registration Act, 1969. The reason for non-mentioning the name of the child in the birth certificate is not explained by the prosecution. The date of birth shown in Exhibit P13 is entirely different from Exhibit P28-School Admission Register Extract, which reveals that date of birth of the victim is 19.09.2003. The author of this document who has issued this Admission Register Extract also not examined by the prosecution. The Investigating Officer has not explained anything as to the differences between the date of birth entered in Exhibit P13 and Exhibit P28. The author of this document who has issued this Admission Register Extract also not examined by the prosecution. The Investigating Officer has not explained anything as to the differences between the date of birth entered in Exhibit P13 and Exhibit P28. After lapse of one year, the concerned authority has no right to enter the date of birth in the birth register, without order of jurisdictional Magistrate as required under Section 13(3) of Births and Deaths Registration Act, 1969. However, the Investigating Officer has not collected any materials in this regard. Therefore, on the basis of Exhibit P13 and P28, it is not possible to come to the conclusion that, the victim was Child as defined under Section 2(d) of POCSO Act. 14. Additionally in Exhibits P1-complaint and Exhibit P8-statement under Section 164 of Cr.P.C, PW1-the victim herself has stated that her age is 18 years. Exhibit P2- Medical Certificate, Medico Legal Examination Report of sexual violence reveals that the age of the victim is 18 years. Exhibit P20, the final opinion of the doctor, reveals that the age of the victim is 18 years. 15. Viewed from any angle, it is crystal clear that the Investigating Officer has not complied the mandatory provisions of Section 94 of Juvenile Justice (Care and Protection of children) Act, 2015 and also Section 34 of POCSO Act, 2012. As already discussed above, there is no consistency in the Birth Certificate and also the School Certificate Exhibit P13 and Exhibit P28. The oral evidence adduced by the prosecution and medical evidence reveals that the age of the victim was 18 years at the relevant point of time. Accordingly, prosecution has failed to prove that the victim was the Child as defined under Section 2(d) of Protection of Children from Sexual Offences Act, 2012. Hence, I answer point No.1 in the negative. Regarding Point No.2: 16. Since the prosecution has failed to prove that the victim was Child as on the date of commission of offence, the question of committing offence under the penal provision of Protection of Children from Sexual Offences Act, 2012 does not arise. 17. Hence, I answer point No.1 in the negative. Regarding Point No.2: 16. Since the prosecution has failed to prove that the victim was Child as on the date of commission of offence, the question of committing offence under the penal provision of Protection of Children from Sexual Offences Act, 2012 does not arise. 17. With regard to the alleged commission of other offences under Section 376, 363, 506, of Indian Penal Code are concerned, though PW1-victim girl has stated in her evidence that the accused has committed rape, in her cross-examination, she has clearly admitted that the accused has not committed sexual intercourse with her and accused did not take her to Murugan temple, Tangamalai. Further, she has clearly admitted that in order to get married with accused No.1, she lodged a false complaint against this accused. 18. PW2-Devraju, has not supported the case of the prosecution. 19. There is no medical evidence to prove the alleged sexual intercourse by this accused. That there is a delay of 6 months in filing the complaint. Exhibit P19-FSL report also not support the case of the prosecution. The presence of seminal stains were not detected in any items. 20. On careful examination of the entire evidence placed before this Court, I do not find any cogent, convincing, clinching, corroborative legal evidence to convict the accused for the offence under Section 363, 376 and 506 of Indian Penal Code. The trial Court has not properly appreciated the evidence on record in proper perspective. Hence, I answer point No.2 in the affirmative. Regarding Point No.3: 21. For the foregoing reasons and discussions, I proceed to pass the following: ORDER i) Appeal is allowed. ii) The judgment of conviction and order on sentence passed by Addl. District and Sessions Judge, FTSC-I at Tumakuru in Spl. C. No.20/2022 dated 22.06.2023, is set aside. iii) Accused No.1/appellant is acquitted of the offence under Section 4 and 8 of POCSO Act and Section 363, 376 and 506 of Indian Penal Code. iv) The trial Court is directed to refund the fine amount, if any, deposited by the accused in accordance with law. v) Registry is directed to send the copy of this judgment along with Trial Court records to the concerned Court.