ORDER : 1. Learned counsel for the appellant seeks permission to withdraw I.A.No.11744/2024, which is first application for suspension of sentence and grant of bail on behalf of appellant-Guruprasad Kushwaha @ Vicky and prays for final hearing of the appeal. Prayer is allowed. Application for suspension of sentence is permitted to be withdrawn. Accordingly, I.A.No.11744/2024 is dismissed as withdrawn. With the consent of learned counsel for the parties the appeal is heard finally. 2. This appeal has been filed by the appellant/accused-Guruprasad Kushwaha under section 415 of the BNSS, 2023 being aggrieved by the judgment of conviction and sentence dated 03.5.2024 passed by Special Judge, POCSO Act, Seoni in SCATR No. 47 of 2022 [State of M.P. Vs. Guruprasad Kushwaha] convicting the appellant as under:- Conviction Sentence Fine In default of fine Section 366 IPC 05 years RI Rs.500/- 01 month SI Section 344 IPC 03 years RI Rs.300/- 01 month SI Section 376(3) IPC 20 years RI Rs.1000/- 03 months SI Section 5(l) r/w 6 of POCSO Act 20 years RI Rs.1000/- 03 months SI Section 3(1)(w)(ii) of SC/ST (Prevention of Atrocities) Act 05 years RI Rs.300/- 01 month SI Section 3(2)(v-a) of SC/ST (Prevention of Atrocities) Act 20 years RI Rs.1000/- 03 months SI Section 3(2)(v) of SC/ST (Prevention of Atrocities) Act Life Imprisonment Rs.1000/- 03 months SI 3. As per appellant, prosecution story in brief, is that on 01.3.2022 PW.3 lodged a report (Exhibit-P/6) regarding missing daughter at Police Station, Ghansour, in which, she has stated that she and her husband had gone to Nagpur for work. She has seven daughters, eldest daughter is about 18 years and third number daughter had studied upto Class-VIIth. On 28.2.2022 at around 07 p.m. prosecturix told her she was going to buy some stuff. After 2-3 hours when she did not return she and her family members made search for her in all nearby places and in relatives’ house and when she was not found, missing report was lodged at Police Station, Ghansour which registered FIR Crime No.106/2022 and investigation was started. The Police inspected the spot and made Exhibit-P/7 spot map. On 11.4.2022 the prosecutrix was recovered and ‘Dastiyabi Panchanam’ Exhibit-P/1 was prepared and statement under section 164 of Cr.P.C. was recorded and she was medically examined in the District Hospital. After completing remaining investigation charge-sheet was filed. 4. The Police inspected the spot and made Exhibit-P/7 spot map. On 11.4.2022 the prosecutrix was recovered and ‘Dastiyabi Panchanam’ Exhibit-P/1 was prepared and statement under section 164 of Cr.P.C. was recorded and she was medically examined in the District Hospital. After completing remaining investigation charge-sheet was filed. 4. Learned trial Court framed charges and accused denied the charges and sought trial. 5. The prosecution examined 13 witnesses, namely, Prosecutrix (PW.1), father of prosecutrix (PW.2), mother of prosecutrix (PW.3), Dashrath Dhurve (PW.4), Dr.L.P.Golhani (PW.5), Jitendra Bhate (PW.6), Prashant Singh Rajput (PW.7), Manju Kumre (PW.8), Hem Kumar (PW.9), Raman Singh Markam (PW.10), Babita Sen (PW.11), Anil Kumar Mandraha (PW.12) and Dr.B.K.Sonkeshariya-ASI (PW.13). 6. After recording of statement of prosecution witnesses the accused when examined under section 313 Cr.P.C. stated that he is innocent but has not produced any defence witness. 7. Learned trial Court on the basis of oral and documentary evidence on record passed the impugned judgment holding the appellant guilty of offences and convicted & sentence him as stated in paragraph 1 of the this judgment. 8. In this appeal challenge has been made on the ground that prosecution has failed to produce any reliable evidence. PW.13, the doctor who has given medical report (Exhibit-P/30) has not given any definite opinion on record regarding forceful sexual intercourse. No outer or inner injury was found on the body of the prosecutrix. In statement of prosecutrix under section 164 Cr.P.C. it is clear that she stated that her relationship with the accused was with consent. In ‘Dakhil Kharij’ register (Ex.P/14) the date of birth has not been proved as per section 94 of the Juvenile Justice At. Therefore, prayer has been made to allow the instant appeal and set aside the impugned judgment of conviction and sentence and accordingly, appellant be acquitted. 9. On the other hand, Shri Ajay Tamrakar learned Government Advocate and Shri S.K.Mishra, learned counsel for the respondent/objector have opposed the appeal and supported the impugned judgment passed by the learned trial Court. 10. Heard learned counsel for the parties and perused the record. It is seen that DNA report (Exhibit-P/27) is positive. In terms of DNA report, source (male DNA-Y) obtained from the blood of the accused was also present in the vaginal slide of the prosecutrix. FSL report (Exhibit-P/26) mentions that on slide A from the vaginal slide of the prosecutrix, sperms were present. It is seen that DNA report (Exhibit-P/27) is positive. In terms of DNA report, source (male DNA-Y) obtained from the blood of the accused was also present in the vaginal slide of the prosecutrix. FSL report (Exhibit-P/26) mentions that on slide A from the vaginal slide of the prosecutrix, sperms were present. In statements under section 164 of the prosecutrix on 28.4.2022 before learned Judicial Magistrate First Class, Lakhnadon, District Seon it is found that she has stated that she and accused/Vicky likes each other. Vicky has done wrong with her. Thereafter, she went to Bhopal and then to Mumbai with him. In Mumbai she and accused-Vicky made physical relations with her consent then she came back to parents home as she was missing her mother. In her court statement prosecutrix (PW.1) has stated in paragraph 1 that accused said to her that he wants to marry her. Thereafter, he enticed her and took her to Bhopal. He did wrong with her. Thereafter, she went to Mumbai. There also accused did wrong with her and after about one month she came back to her house. The Police recovered and made ‘Dastiyabi Panchnama’ (Exhibit-P/1). “Naksha Mouka” is Exhibit-P/2. In paragraph 5 of cross-examination she has stated that she knows her date of birth as told by her father. In paragraph 12 she stated that while travelling to Mumbai she did not inform or complain to anyone either in Railway platform or at any other place, where there were many people in general public. In paragraph 15 she stated that Police did not get her medically examined. Police told her what to state in Court and accordingly she is stating so. Thereafter, she stated that she had given statement as per her own will. In paragraph 17 she denied the suggestion that accused did not take her to different places and did not do any wrong with her. 11. Father of the prosecutrix (PW.2) has supported the prosecution case. In paragraph 5 of his cross-examination he has stated that he does not know about the date of birth of his daughter, but she is 15 years and some months of age. In paragraph 8 he stated that his date of birth has been written as 40-42 years, which is wrong. There is some mistake in ‘Adhaar’ Card. In paragraph 5 of his cross-examination he has stated that he does not know about the date of birth of his daughter, but she is 15 years and some months of age. In paragraph 8 he stated that his date of birth has been written as 40-42 years, which is wrong. There is some mistake in ‘Adhaar’ Card. But he admitted that he did not go to school for recording the age of prosecutrix in school record. He also stated that date of dates of birth of his eldest daughter and middle daughter has been recorded by him on the basis of estimation. He does not know if her daughter (prosecutrix) is more than 18 years of age. 12. Mother of the prosecutrix (PW.3) has supported the case of prosecution. She has lodged FIR (Exhibit-P/6) which bears her signature from portion “A” to “A”. Her daughter was recovered after about one month of lodging of FIR. In para 9 of cross-examination this witness has stated that she does not remember the date of her marriage. She does not remember the date of birth of eldest daughter or exact date of birth of any of her children. 13. Manju Kumre-PW.8 (Incharge Headmaster) has produced original ‘Dakhil Kharij’ register (Exhibit-P/14) and has stated that at Sr.No.2152 the age of the prosecutrix has been recorded as 25.4.2006. Original Birth Register is Exhibit-P/15 and certificate of birth of the prosecutrix is Exhibit- P/16. In paragraph 6 of cross-examination she stated that in ‘Dakhil Kharij’ there is correction in Exhibit-P/14 with use of white ink (‘Safeda’). In paragraph 7 she also admitted that in Exhibit-P/15 the birth date of the prosecutrix has been cut and another date of birth has been recorded and in certificate there is no signature or seal. In paragraph 8 he further stated that she does not know, what was the basis of recording of date of birth of the prosecutrix. In paragraph 9 she admitted that date of birth of the prosecutrix may be wrong also. 14. PW.10 (Inspector Raman Singh) in paragraph 3 of his cross-examination has stated that in report (Exhibit-P/6) the date of birth of the prosecutrix is not mentioned. In paragraph 4 he has admitted that missing person report is Exhibit-P/5, which has been made against unknown person. 14. PW.10 (Inspector Raman Singh) in paragraph 3 of his cross-examination has stated that in report (Exhibit-P/6) the date of birth of the prosecutrix is not mentioned. In paragraph 4 he has admitted that missing person report is Exhibit-P/5, which has been made against unknown person. In FIR (Exhibit-P/6) in Column 7 relating to name of suspect, the name of accused has not been mentioned. 15. PW.13- Dr.Bharti Sonkeshariya who has medically examined the prosecutrix has given medical report (Exhibit-P/30), in which, she found that she did not have any internal or external injuries. No definite opinion can be given about the sexual intercourse. She had advised X-ray to confirm the age of the prosecutrix. In paragraph 13 she submitted that for medical examination consent of the family members of the prosecutrix was not taken. She submitted that consent of the prosecutrix was taken but she admitted that in case of minor prosecutrix consent of family members is necessary. In paragraph 15 admitted that inspite of her advice the Police did not get the ossification test of the prosecutrix done, therefore, she cannot say whether prosecutrix was more than 18 years of age or not, but looking to physical condition of the prosecutrix, she seemed to be of more than 18 years. 16. On perusal of the Birth Register (Exhibit-P/15) it is seen that at Sr.No.2152 name of the prosecutrix is mentioned but there is over-writing in the month and is not counter signed by the concerned appropriate authority of the School. Therefore, looking to the entire evidence including cutting/over-writing of month in Exhibit-P/15 and looking to the fact that lady doctor (PW.13) opined that prosecutrix at the time of examination had all the characteristics of a person aged more than 18 years and inspite of her advice, ossification test was not got done, therefore, it is not clear to this Court that what was the basis of recording of age of the prosecutrix, as PW.2 & PW.3 have not stated anything definitely by clear-cut mentioning of date of marriage of father and mother of the prosecutrix and birth dates of all the children. 17. 17. On the contrary, father of the prosecutrix (PW.2) has stated that his date of birth has wrongly been recorded as 40-42 years and on perusal of the charge-sheet it is seen that age of the father of prosecutrix is mentioned as 40 years in statement under section 161 Cr.P.C. recorded on 02.5.2022, whereas in the court statement PW.2 (father of prosecutrix) has mentioned the date of birth on 22.9.2022 as 37 years. PW.2 has further stated in paragraph 2 that in his Adhaar Card there wrong recording of his age. 18. Therefore, on the basis of entire evidence it is found that prosecution has failed to establish beyond reasonable that on the date of incident i.e. 28.2.2022 the prosecutrix was minor. Accordingly, finding of the learned trial Court in paragraph 31 of its judgment that on the date of incident i.e. 28.2.2022 the prosecutrix was less than 18 years, is not proved. 19. Second question is regarding consent. Looking to the fact that doctor (PW.13) did not find any external or internal injury on the parts of body of prosecutrix, the prosecutrix went to different places including Bhopal and Mumbai and lived there with accused on her own. She did not raise any alarm while travelling to different places. She came back to her parents house on her own. Looking to the entire fact situation, it cannot be held that there was no consent of the prosecutrix, who is not proved to be of less than 18 years on the date of incident i.e. 28.2.2022, in going away with appellant. Therefore, in the matter of consent, in the factual situation in this case, no offence is proved between two adults/consenting parties. 20. Accordingly, appeal is allowed. The impugned judgment of conviction and sentenced by the trial Court is set aside. The appellant is acquitted of the charges levelled, but order of compensation as per paragraph 98 of the impugned judgment is not interfered with. The disposal of the property shall be as per paragraph 104 of the judgment of the trial Court. The appellant be released from jail forthwith, if his custody is not required in any other case.