JUDGMENT & ORDER : Rajesh Mazumdar, J. Heard Mr. Lalpianfela Chawngthu, learned counsel for the petitioner. Also heard Ms. Vanneihsiami, Addl. P.P appearing for the State and Mr. Lalrokunga Pautu, learned counsel appearing for the respondent No.2. 2. Brief of the case as reflected from records is that the mother of the victim had lodged an FIR on 18 th of October 2021 stating that her 17 year old daughter has been subject to penetrative sexual assault by the accused/appellant herein. Accordingly, All Women Police Station Case number 48 of 2021 under section 6 of the Protection of Children from Sexual Offences Act, 2012 was registered and investigated into. The statements of the informant and the alleged victim were recorded and the victim was medically examined. The pretrial statement of the victim tendered before a Judicial Magistrate was also recorded. The birth certificate of the victim was seized by the investigating authority and after making a copy of the same, the certificate was returned to the parents. 3. The recordings in the birth certificate show that the victim was born on 10.04.2004. The accused was arrested on 18 th of October 2021 and subsequently released on bail on 14.12.2021. During the Trial, 7 witnesses on whom the prosecution proposed to rely upon to prove that case came to be examined. The pre-trial statement of the alleged victim and the copy of the birth certificate of the alleged victim and the report of her medical examination formed part of the documents which were exhibited. 4. Charge was framed against the appellant on 30.05.2022 under Section 6 of the Protection of Children from Sexual Offences Act, 2012. The accused denied the charge and claimed to be tried. 5. The learned Trial Court framed 3 points for determination i. Whether the alleged victim was a child at the time of the offence for which the accused was charged? ii. If so, whether the accused had committed penetrative sexual assault or assaults on her? iii. If so, whether the penetrative sexual assault or assaults would take an aggravated form or forms under section 5 of the Protection of Children from Sexual Offences Act 2012 and what punishment would be appropriate in the circumstances of the case? 6. ii. If so, whether the accused had committed penetrative sexual assault or assaults on her? iii. If so, whether the penetrative sexual assault or assaults would take an aggravated form or forms under section 5 of the Protection of Children from Sexual Offences Act 2012 and what punishment would be appropriate in the circumstances of the case? 6. The Trial Court considered the Evidence of the mother of the victim (PW- 1), the statement of the alleged victim (PW-2), the statement of a witness who had allegedly accompanied the informant to the police station on 18.10.2021 (PW-3), the statement of the doctor who had examined the alleged victim on 18 th of October 2021 (PW-4), the statement of the doctor who had conducted the medical examination on the appellant (PW-5). There appears to be errors in the learned Trial Court in describing the PWs, since the PW-4 as described by the learned Trial court was numbered as PW-7 and PW-5 as described by the learned Trial Court was numbered as PW 8 at the stage of evidence. This Court also finds that the learned Trial Court did not discuss the evidence led by the learned Judicial Magistrate (PW-9) who had recorded the statement of the victim girl and also ignored the evidence led by the investigating officer (PW-11). 7. The learned Trial Court believed the birth certificate, which it records as having been exhibited by the PW-3 and therefore, came to a conclusion that the victim was a child as defined in the POCSO Act, 2012. The learned Trial Court then referred to the evidence of the victim girl and observed that the accused himself had stressed as his own witness that the victim had sex with him voluntarily. The learned Trial Court had thereafter observed that in the circumstances, the finding, from the matter of record, was that the accused had without reasonable doubt committed a penetrative sexual assault on the victim who was a child at that time. The conviction and the sentencing, as reflected in the order dated 22.05.2024 and the order dated 02.05.2024 respectively followed as natural consequences, which are now under challenge. 8. The learned counsel appearing for the appellant and the learned Additional Public Prosecutor have respectively made strenuous and lengthy arguments against and in favour of the judgment impugned. 9. The conviction and the sentencing, as reflected in the order dated 22.05.2024 and the order dated 02.05.2024 respectively followed as natural consequences, which are now under challenge. 8. The learned counsel appearing for the appellant and the learned Additional Public Prosecutor have respectively made strenuous and lengthy arguments against and in favour of the judgment impugned. 9. The learned counsel for the appellant had placed reliance on the following judgments: i. Sri Utpal Debnath -Versus- The State of Assam and Ors, reported in (2023) 3 GauLT 816 . ii. Decision of this Court in Crl. A./9/2020 State of Mizoram Versus Lalramliana & Another 10. The learned Addl. P.P has relied upon the following judgments; (i). IN RE: Right to Privacy of Adolescents 2024 AIR(SC) 4004 (ii). Raju @ Nirpendra Singh -Versus- The State Of Madhya Pradesh neutral citation being 2025 INSC 392 . 11. I have considered the submissions made on behalf of the contesting parties, perused the records of the learned Trial Court and applied my mind to the different citations referred to by the learned counsels. 12. The learned counsel appearing for the appellant had drawn attention of this Court to the fact that initially the learned Trial Court had framed charges under Section 6 of the POCSO Act, 2012, which related to punishment for aggravated penetrative sexual assault but had punished the appellant for having committed penetrative sexual assault, which is relatable to Section 4 of the POCSO Act, 2012. The learned counsel for the appellant has submitted that this Court, in similar circumstances, had, in Crl. A. No. 9/2020 State of Mizoram -Versus- Lalramliana and Another (supra), remanded the matter back to the Learned Trial Court to reframe the charges under proper provisions of law and thereafter considering all the materials available on record and by giving due opportunity to both parties, including adducing additional evidence, dispose of the case in accordance with law. He has stated that in the present case also, since the charges were framed under the incorrect provisions of law, the judgment of the learned Trial Court deserves interference in this appeal. 13. He has stated that in the present case also, since the charges were framed under the incorrect provisions of law, the judgment of the learned Trial Court deserves interference in this appeal. 13. This Court does not find much merit in the submission of the learned counsel for the appellant, since, in the case referred to by the learned counsel, the accused was initially charged under Section 4 of the POCSO Act, 2012, the Court while considering the appeal had come to a finding that the case was required to be tried for committing an offence described under Section 5(n) of the POCSO Act, 2012 and not under Section 4 of the Act of 2012. No such circumstances appear in the present case at hand. While it is true that the charges were framed in the present case under Section 6 of the Act of 2012, the findings of the Court has been of a single instance of penetrative sexual offence and therefore, this court does not find any fault with the learned Trial Court initially framing charges under Section 6 of the Act of 2012 since as per the charge sheet, the act complained of had occurred more than once, thus bringing it into the fold of Section 5(l) of the Act of 2012. 14. Before directing attention to the second ground of appeal adopted for the appellant, this Court has considered the submissions made by the learned Addl.PP, which she had substantiated by referring to the judgments referred in the foregoing paragraphs. This Court is in complete agreement with the argument placed by the learned Addl. P.P that once it is proved that the victim of the sexual act was a child as per the Act of 2012, no leniency can be shown by the Courts. This Court further agrees that once the victim is shown to be a child as defined in the Act of 2012, the alleged consent or the alleged absence of any motive to commit a sexual assault looses all importance and such defence, even if pleaded have to be considered only to be rejected. 15. This Court further agrees that once the victim is shown to be a child as defined in the Act of 2012, the alleged consent or the alleged absence of any motive to commit a sexual assault looses all importance and such defence, even if pleaded have to be considered only to be rejected. 15. Turning now to consider the argument of the learned counsel for the appellant that the age of the victim had not been proved in accordance with law, for which the learned counsel has relied upon the judgment of Sri Utpal Debnath -Versus - The State of Assam and Ors (supra), this court notices that the mother of the victim had specifically stated that as on the date of occurrence, the victim was a student of class XI at St. Josephs School, Aizawl. Therefore, it is but obvious that the best proof of the age of the victim would be the School leaving certificate of the victim. 16. In P. Yuvaprakash Versus State , reported in 2023 AIR(SC) 3525 the Apex Court has held as follows; “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 Act, 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”. 17. In the present case, the school leaving certificate did not form the base for determining the age of the victim. No reasons for not bringing the same on record has been put forth by the prosecution. 17. In the present case, the school leaving certificate did not form the base for determining the age of the victim. No reasons for not bringing the same on record has been put forth by the prosecution. Assuming that the same was not available with the parents of the victim at the relevant point of time, even then, the original Birth certificate of the victim had neither been brought on record nor exhibited during the trial. This Court has noticed another factor. The Learned Trial Court in the impugned order has observed that; “PW-3, Ramsangzuall, 26, deposed that she had accompanéed the informant to the Police Station on 18.10.2021. The informant had brought X's original birth certificate with her, as requested by the Polica, who prepared a photostat copy of it, seizing the copy and returning the original to the informant. PW-3 said that she signed the seizure memo, Exit. P-3, as a witness to the seizure. The birth certificate, entered in evidence by PW-3 as Exbdt.-1, Is seen to hawea Been issued by the Registrar of Births and Deaths, Civil Hospital, Aizawl, on 26.04.2004 vide Registration No. 1431/2004 dated 16.04.2004. It shows the date of birth of X, D/o Rodinliana (father) and Lalthianghlimi (mother), as 25. 16.4.2004.” 18. Thus the learned Trial Court has observed that the PW-3 had entered the birth certificate of the victim as Exhibit M-1. The PW-3 had adduced evidence on 18 th of October, 2022. If that be so, there can be no plausible explanation as to how the PW-1, whose evidence was recorded on 10 th of August 2022, i.e. prior to PW-3, could have referred to the document as ‘Exhibit M-1” in her statement, when as per records PW-3 had exhibited the document on 18th October 2022. This court has also gone through the Trial court records. There is nothing on record to show that the original Birth Certificate of the victim had been either exhibited before the Trial court or that a copy of the same was retained in the records after having been compared with the original. The Court finds the reliance of the learned counsel for the appellant on the case of Utpal Debnath (supra) to be of relevance at this juncture, the relevant paragraphs of which are reproduced below: “24. The Court finds the reliance of the learned counsel for the appellant on the case of Utpal Debnath (supra) to be of relevance at this juncture, the relevant paragraphs of which are reproduced below: “24. However, if we peruse the documentary evidence, which is available on record, in the instant case, it appears that no certificate regarding age of the victim girl has been exhibited by any of the prosecution witnesses to prove the age of the victim girl. What has been exhibited as Ext.-2 is only a seizure list by which one birth certificate of the victim is shown to have been seized. However, said birth certificate was nor exhibited neither it is available on record and no explanation is given as to why the said birth certificate was not produced before the learned trial Court during trial as a documentary evidence to prove the age of victim girl. Failure on the part of the prosecution side to produce the birth certificate, if it was available, would only lead to the adverse presumption against the prosecution side under section 114(g) of the Indian Evidence Act, 1872.” 19. In the present case also, this Court notices that firstly, no reasons were forthcoming from the prosecution for not relying on the School leaving certificate, when the victim was admittedly attending Class XI in a school as on the date of the incident and secondly, the original birth certificate issued by the Department of Economics and Statistics was neither produced nor the copy of the same had been proved in original. Even if it is assumed that the copy of the certificate had been exhibited, the contents of the same were required to have been proved in accordance with law, which was not done in the present case. 20. In view of what has been discussed hereinabove, this Court is of the unhesitant view that the prosecution had failed in its duty to prove the age of the alleged victim as on the date of the incident. 21. Coupled with the above observation, this Court also notices that the victim had admitted that she had accompanied the accused, had attended a bar/club, had consumed alcohol and even after the first sexual encounter, had accompanied the accused to his friend’s house where they spent the night together. 21. Coupled with the above observation, this Court also notices that the victim had admitted that she had accompanied the accused, had attended a bar/club, had consumed alcohol and even after the first sexual encounter, had accompanied the accused to his friend’s house where they spent the night together. The victim has also admitted in her cross examination that she had a close relationship with the accused. The victim has narrated different versions of the incident at different stages and thus her testimony is not entirely reliable. 22. Having noticed that the prosecution had utterly failed to bring evidence to prove that the victim was a child as on the date of the incident, this Court is of the opinion that the accused is entitled to the benefit of doubt. Having said so, this court is also of the considered opinion that the relationship between the appellant and the victim was consensual. 23. In view of discussions and the reasons expressed in foregoing paragraphs, this court holds that the prosecution side has failed to prove the charges under Section 4 of the POCSO Act, 2012 beyond reasonable doubt and the accused/appellant is entitled to the benefit of doubt. Accordingly, giving benefit of doubt to the accused/appellant, the conviction and the sentence, as reflected in the order dated 22.05.2024 and the order dated 02.05.2024 respectively in SC No. 117/2021/Criminal Trial No. 1576/2021 issued under the hand and seal of the learned Special Judge, POCSO Act, Aizawl Judicial District, Aizawl are hereby set aside. 24. The accused appellant Lalpekhlua, son of B. Lalhnehkima, be set at liberty forthwith unless he is required to be detained in connection with some other case. 25. Send back the LCR along with a copy of this judgment. 26. Criminal Appeal stands disposed of.