ORDER : Avanindra Kumar Singh, J. This appeal is filed by the appellant being aggrieved of judgment dated 07.12.2023 passed by the Special Judge (POCSO Act, 2012), Narmadapuram in Special Case No.110/2021 [State of M.P. Vs. Babu Saur] whereby appellant/accused has been convicted under sections 363, 366, 376(3), 376(2)(n) of the Indian Penal Code and sections 5 (l) r/w 6 & 5(j)(ii) of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as the “POCSO Act”) and sentenced as below:- Conviction Sentence Fine In default of fine 366 IPC 05 years RI Rs.2,000/- 02 months RI 376(3) IPC 20 years RI Rs.2000/- 02 months RI 5(l)/6 of POCSO Act 20 years RI Rs.2,000/- 02 months RI 5(j)(ii) of POCSO Act 20 years RI Rs.2,000/- 02 months RI 2. Against the judgment of conviction and sentence this appeal has been filed on the ground that prosecution failed to prove its case beyond reasonable doubt. There is no reliable proof of date of birth. Evidence shows that when the prosecutrix left her parental home she was more than 18 years and she left the house at her own volition and, therefore, appeal should be allowed and judgment of conviction & sentence should be set aside. 3. On the other hand, learned Government Advocate supports the impugned judgment and prays for dismissal of this criminal appeal. 4. We have perused the record and considered the arguments of learned counsel for the parties. 5. Prosecution case, in brief, is that on 10.4.2021 father (PW.3) of the prosecutrix (PW.1) lodged a missing person report (Exhibit-P/7), in which, he stated that her daughter, who is third child out of his six children and who is studying in Class-VIII aged about 13 years 08 months, date of birth 26.7.2007), is missing since 09.4.2021. She had gone to attend the call of nature towards Nasirabad Road, but she did not return. Thereafter, search was made but she could not be traced and he suspects that someone enticed and abducted her. Therefore, ‘Rojnamca Sanaha’ No.32 was recorded and on the same facts an FIR (Exhibit-P/8) bearing Crime No.195/2021 was registered for an offence under section 363 of IPC. During the course of investigation, prosecutrix was recovered from the possession of appellant and accordingly, ‘Dastiyabi Panchnama’ (Exhibit-P/1) was made. After obtaining permission for medical examination, the prosecutrix was medically examined. Therefore, ‘Rojnamca Sanaha’ No.32 was recorded and on the same facts an FIR (Exhibit-P/8) bearing Crime No.195/2021 was registered for an offence under section 363 of IPC. During the course of investigation, prosecutrix was recovered from the possession of appellant and accordingly, ‘Dastiyabi Panchnama’ (Exhibit-P/1) was made. After obtaining permission for medical examination, the prosecutrix was medically examined. Statement of the prosecutrix under section 164 Cr.P.C. (Ex.P/3) was recorded. Thereafter, she was handed-over to her father. 6. As per prosecution story, prosecutrix states that she liked the accused/appellant who was asking her to marry her, therefore, she left the house without informing anyone and she went to Salkanpur Temple alongwith him (appellant) on a Pulsar motorcycle. They stayed there for two days. Thereafter, they went to Raipur and after 08 days they solemnized marriage and had physical relationship like a married couple. Thereafter, they came to Budhni and rented a room where they lived. Then Police recovered the prosecutrix and thereafter other offences under the provisions of POCSO Act and IPC were added in FIR. Medical report of the prosecutrix is Exhibit- P/11. Prosecutrix was found to be pregnant. Her pregnancy report is Exhibit- P/13. Seized material was sent for chemical examination. The accused was arrested and medically examined. His blood sample for DNA test was taken and the same was also sent for chemical examination. Prosecutrix aborted her pregnancy and blood sample of foetus was also sent for DNA report. Exhibit- P/40 is the DNA report. ‘Dakhil Kharij’ register (Exhibit-P/14) and Exhibit- P/15 extract of date of birth were seized regarding age of the prosecutrix. After completing the investigation charge-sheet was filed. 7. When the accused was charged by the trial Court under sections 363, 366, 376(3), 376(2)(n) of IPC and sections 5(l) r/w 6 and section 5(j)(ii) r/w section 6 of POCSO Act, he denied the charges and sought trial. 8. After prosecution evidence when the accused was asked to explain the circumstances, he denied the prosecution evidence and has not produced any defence evidence. 9. The trial Court convicted and sentenced the appellant/accused as stated above. 10. In the light of grounds of appeal and arguments of defence and prosecution, the foremost important point of consideration would be the age of prosecutrix at the time of incident. 9. The trial Court convicted and sentenced the appellant/accused as stated above. 10. In the light of grounds of appeal and arguments of defence and prosecution, the foremost important point of consideration would be the age of prosecutrix at the time of incident. On this aspect while in school the age of the prosecutrix is recorded as 26.7.2007, as per School’s Date of Birth Certificate (Ex.P/15). PW.5-Incharge Headmaster of the School in paragraph 3 of his cross-examination has stated that father and mother of the prosecutrix are not literate. They can only make signatures. At the time of admission they did not produce any proof of date of birth but stated the age of the prosecutrix by estimation, therefore, he mentioned the date of birth of the prosecutrix in Exhibit-P/14 as told to him. 11. PW.1-Prosecutrix in paragraph 4 of her cross-examination stated that her father got her age recorded in school by estimation. She also admitted that while recording her statement under section 164 Cr.P.C. (Exhibit-P/3) the age of the prosecutrix is recorded as 17 years. On perusal of the record it is seen that in court statement of prosecutrix (PW.1) age is recorded as 15 years, which proves that the age of the prosecutrix is doubtful. 12. PW.2-mother of the prosecutrix has been declared hostile by the prosecution, although in examination-in-chief she stated that the age of the prosecutrix is 13 years but in paragraph 4 of the cross-examination she stated that she does not remember her marriage date. She does not know her own age. It may be 50 years also. She has six children. She does not know the date of birth of her children. Whatever age has been told by her in school, she has stated so by estimation. 13. PW.3-father of the prosecutrix in paragraph 3 of his cross-examination has stated that by estimation his age would be 48 years but he does not know his correct date of birth or age. He does not know the correct date of birth of his children. He got recorded the age of the prosecutrix in school by estimation. 14. PW.4-Dr.Namrata Ghosh in paragraph 4 of her cross-examination has stated that physical appearance of the prosecutrix was like that of an adult person. He does not know the correct date of birth of his children. He got recorded the age of the prosecutrix in school by estimation. 14. PW.4-Dr.Namrata Ghosh in paragraph 4 of her cross-examination has stated that physical appearance of the prosecutrix was like that of an adult person. She cannot say whether age of the prosecutrix was over 18 years or not but it is correct to say that all genitals of the prosecutrix were fully developed like an adult woman. 15. Learned trial Court in paragraph 41 of the impugned judgment held that the age of the prosecutrix at the time of incident is less than 16 years but looking to the oral and documentary evidence on record it is found that there is no valid basis, on which, the date of birth was recorded in school. 16. In the case of Jitendra Jatav Vs. State of M.P. [Criminal Appeal No.11320/2022 decided on 13.1.2023] a case involving offences under sections 363, 366 of IPC and section 3 /4, 5(j)(ii) r/w 6 of the POCSO Act on a appeal by the accused the Division Bench of this Court in paragraphs 26 & 27 has referred to the decision in the case of Vishnu Vs. State of Maharashtra , (2006) 1 SCC 283 :- 26. In Vishnu v. State of Maharashtra [ (2006) 1 SCC 283 : (2006) 1 SCC (Cri) 217] while dealing with a similar issue, this Court observed that very often parents furnish incorrect date of birth to the school authorities to make up the age in order to secure admission for their children. For determining the age of the child, the best evidence is of his/her parents, if it is supported by unimpeccable documents. In case the date of birth depicted in the school register/certificate stands belied by the unimpeccable evidence of reliable persons and contemporaneous documents like the date of birth register of the municipal corporation, government hospital/nursing home, etc., the entry in the school register is to be discarded. 27. Thus, the entry in respect of age of the child seeking admission, made in the school register by semi-literate chowkidar at the instance of a person who came along with the child having no personal knowledge of the correct date of birth, cannot be relied upon.” 17. In P.Yuvaprakash Vs. 27. Thus, the entry in respect of age of the child seeking admission, made in the school register by semi-literate chowkidar at the instance of a person who came along with the child having no personal knowledge of the correct date of birth, cannot be relied upon.” 17. In P.Yuvaprakash Vs. State represented by Inspector of Police, 2023 SCC Online SC 846 in a case under section 366 IPC and section 6 of the POCSO Act. Hon’ble Supreme Court in paragraph 17 has referred to judgment of three-judge Bench of Hon’ble Supreme Court in the case of Abuzar Hossain @ Gulam Hossain Vs. State of West Bengal, (2012) 9 SCR 224, in which it was held that burden of proving that someone is a juvenile (or below the prescribed age) is upon the person claiming it. In the appeal at hand before this Court it is the prosecution on behalf of the prosecutrix who is claiming that prosecutrix was less than 18 years at the time of incident. 18. In Birka Shiva Vs. State of Telangana [Criminal Appeal arising out of SLP (Crl.) 1445/2025] in a case under sections 376, 366, 342 of IPC in paragraph 8.1 Hon’ble Supreme Court referred to Birad Mal Singhvi Vs. Anand Purohit, 1988 Supp SCC 604 , relevant paragraphs 14 & 15 are reproduced below:- “14. … If entry regarding date of birth in the scholar's register is made on the information given by parents or someone having special knowledge of the fact, the same would have probative value. … 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. The entry contained in the admission form or the scholar's register must be shown to be made on the basis of information given by the parents or a person having special knowledge about the date of birth of the person concerned. If the entry in the scholar's register regarding date of birth is made on the basis of information given by parents, the entry would have evidentiary value, but if it is given by a stranger or by someone else who had no special means of knowledge of the date of birth, such an entry will have no evidentiary value. … 15. … 15. Section 35 of the Indian Evidence Act lays down that entry in any public, official book, register, record stating a fact in issue or relevant fact and made by a public servant in the discharge of his official duty specially enjoined by the law of the country is itself the relevant fact. To render a document admissible under Section 35, three conditions must be satisfied, firstly, entry that is (2003) 8 SCC 745 1988 Supp SCC 604 relied on must be one in a public or other official book, register or record; secondly, it must be an entry stating a fact in issue or relevant fact; and thirdly, it must be made by a public servant in discharge of his official duty, or any other person in performance of a duty specially enjoined by law. An entry relating to the date of birth made in the school register is relevant and admissible under Section 35 of the Act, but the entry regarding the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded. … The courts have consistently held that the date of birth mentioned in the scholar's register or secondary school certificate has no probative value unless either the parents are examined or the person on whose information the entry may have been made is examined…" In paragraph 8.5 of same judgment Hon’ble Supreme Court referred to the judgment of Alamelu Vs. State (2011) 2 SCC 385 , paragraph 40:- “40………..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.” In the same judgment of Birka Shiva (supra) Hon’ble Supreme Court in paragraph 12 has observed thus:- “12. Well, suffice it to say that Courts of law cannot make a determination of guilt in thin air, based on estimations. Well, suffice it to say that Courts of law cannot make a determination of guilt in thin air, based on estimations. In the present facts and circumstances, the proof submitted by the prosecution in the form of Ex.P11 (birth certificate issued by the school) was not sufficient to arrive at a finding that the prosecutrix was less than sixteen/eighteen years of age, especially when such a document was not sufficiently corroborated. Therefore, it was neither safe nor fair to convict the appellant based on it, particularly in the context where the age of the victim was such a pivotal factor.” 19. Therefore, in the light of discussion above, evidence on record of the trial Court it is found that prosecution has failed to prove that at the time of incident i.e. on 09.4.2021 the prosecutrix was minor being less than 18 years of age. 20. After finding on age of the prosecutrix, if the evidence of PW.4-Dr.Namrata Ghosh is seen it is apparent that she has deposed that there was no external or internal injury on the body of the proseutrix. There were no marks of forceful sexual intercourse and it is also seen that she was pregnant. 21. PW.1-Prosecutrix has stated in examination-in-chief that her age is perhaps 14 years. Accused wanted to marry her and, therefore, she went away with him. He treated her well and thereafter they got married. Out of their relationship she became pregnant and subsequently she got her pregnancy aborted. 22. Once it is held that at the time of incident prosecutrix was not minor and when it is found that prosecutrix on her own went away with the appellant and got married with him and subsequently got pregnant out of their relationship, then no crime is made out against the accused/appellant. Even otherwise, PW.2 (mother of the prosecutrix) has stated in her examination-in-chief that prosecutrix went away on her own volition. In paragraph 5 of her cross-examination she again stated that when prosecutrix was recovered she did not want to meet her. Even otherwise, PW.2 (mother of the prosecutrix) has stated in her examination-in-chief that prosecutrix went away on her own volition. In paragraph 5 of her cross-examination she again stated that when prosecutrix was recovered she did not want to meet her. PW.3 (father of the prosecutrix) in paragraph 4 of his cross-examination stated that when they met the prosecutrix at Police Station, Babai she did not want to come with them to home but when the Police pressurized her (prosecutrix) that she had to go with her parents then she came to live with him, prosecutrix did not give details of the incident to them. 23. Thus, in the light of above discussion of evidence on record it is also not proved that accused committed any crime with the prosecutrix. Accordingly, conviction of appellant u/s 363, 366, 376(3), 376(2)(n) of IPC and 5(l) r/w 6 and section 5(j)(ii) r/w 6 of POCSO Act are set aside. 24. In the result, appeal is allowed and appellant is acquitted of the charges. If the custody of the appellant is not required in any other case, he be released immediately. Order of compensation as per paragraph 86 of the impugned judgment is maintained. The disposal of property shall be as per direction in paragraphs 83 to 85 of the judgment by the learned trial Court.