JUDGMENT : Rajani Dubey, J. 1. This criminal appeal filed under Section 374(2) of the Cr.P.C. is directed against the impugned judgment of conviction and order of sentence dated 14.07.2015 passed by the learned Additional Sessions Judge, F.T.C. Surguja (Ambikapur (Special Judge under Protection of Children from Sexual Offences Act, 2012), in Sessions Case No. 292/2013, whereby the appellant has been held guilty of commission of offence and sentenced as described below:- Conviction Sentence U/s 363 of IPC. R.I.. for 5 years and fine of Rs. 1000/-, in default of payment of fine, to undergo additional R.I. for 01 month. U/s 366 of IPC R.I.. for 7 years and fine of Rs. 1000/-, in default of payment of fine, to undergo additional R.I. for 01 month. U/s 376(1) of IPC For life imprisonment and fine of Rs. 1000/-, in default of payment of fine to undergo additional R.I. for 01 month. U/s 3 (a)/04 of POCSO, 2012 For life imprisonment and fine of Rs. 1000/-, in default of payment of fine to undergo additional R.I. for 01 month. U/s 5(j) (ii)/6 of POCSO For life imprisonment and fine of Rs. 1000/-, in default of payment of fine to undergo additional R.I. for 01 month. (All the substantive sentences shall run concurrently.) 2. The case of the prosecution, as unfolded from the impugned judgment and the records of the case, is that on 15.04.2013, the prosecutrix lodged a report at Police Station Gandhinagar, alleging therein that in the month of December, 2011, when she was studying at Village Khaliba and residing in her maternal grandfather’s house, at about 7:00 pm., near Hand Pump, the prosecutrix was passing by and the appellant caught hold her and took her to the field side, where the appellant committed forcible sexual intercourse with her by lying her on the ground and taking off her clothes, giving her assurance of marriage and also threatened her for dire consequences if at all she narrates about the said incident to anyone. Thereafter, on several times, whenever he got the opportunity, he committed sexual intercourse with her for over two years, as such, she got pregnant and the same was aborted by taking medicine. Thereafter, on several times, whenever he got the opportunity, he committed sexual intercourse with her for over two years, as such, she got pregnant and the same was aborted by taking medicine. It is further alleged by the prosecutrix that the appellant took her to village Bargai and kept her in his relatives’ house for a month and subsequently, he took her to his uncle’s house at Kulhadi and kept her for 12 days and then to a rented house in Shubhashnagar for three months and they lived together as husband and wife and since last two months, she was residing with the appellant in his house, but now the appellant refused to keep her, regarding the same a social meeting was convened, where the B.D.C. Madan, Sarpanch Hirasay, Uncle Goverdhan etc. were there and they made appellant understand the things, despite this, he did not agree to keep the prosecutrix with him, therefore, she lodged the oral report at Gandhinagar Police Station. On the basis of the above report, F.I.R vide Ex. P/05 was registered against the appellant by (PW-07) C.S. Netam, Inspector. 3. During the investigation, the Inspector C.S. Netam had sent complaint vide Ex. P/11 to the S.D.M. Ambikapur for permission regarding private parts of the prosecutrix (PW-04) and as per Es. P/06, consent for private parts examination was obtained from the prosecutrix and Noharsai. Thereafter, complaint vide Ex. P/1A was sent to Primary Heatlh Centre, Fundurdihari for getting the private parts of the prosecutrix (PW-04) examined on which Dr. Pooja Agrawal (PW-01) had provided the report as per Ex. P/1 and Ex. P/2. On 15.04.2013 after examination of the private parts of the prosecutrix, Constable Sarita Uike, brought the slides and underwear of the prosecutrix and prepared seizure memo vide Ex. P/08 in front of the witnesses. Thereafter, for getting the seized underwear examined, F.I.R. Ex. P/2A was written to P.H.C. Fundurdihari and after going to the spot, the spot map vide Ex. P/07 was prepared and statements of the prosecutrix (PW-04), witnesses Moti, Maansai, Goverdhan Ram, Hirasai and Madan were recorded accordingly. For getting the accused/appellant medically examined, complaint Ex. P/3A was sent to P.H.C. Fundurdihari on which Dr. Sunil Kumar Agrawal (PW-02) had provided the report vide Ex. P/03. P/07 was prepared and statements of the prosecutrix (PW-04), witnesses Moti, Maansai, Goverdhan Ram, Hirasai and Madan were recorded accordingly. For getting the accused/appellant medically examined, complaint Ex. P/3A was sent to P.H.C. Fundurdihari on which Dr. Sunil Kumar Agrawal (PW-02) had provided the report vide Ex. P/03. Thereafter, before Inspector C.S. Netam (PW-07), the accused produced his underwear by removing it and the same has been seized in front of the witnesses and seizure memo was prepared vide Ex. P/04 and arrested the accused/appellant in front of the witnesses vide arrest memo Ex. P/12 and the family members of the accused were informed regarding arrest of the accused vide Ex. P/12A and sent memorandum of the seized articles vide Ex. P/13 for its F.S.L. examination, Raipur, through Superintendent of Police, Surguja (C.G.) and received the receipt for depositing the seized articles vide Ex. P/13A. 4. After completion of due and necessary investigation, charge-sheet was led before the learned Chief Judicial Magistrate, Ambikapur, (C.G.) who, in turn, committed the case for trial. On the basis of the material contained in the charge-sheet, learned trial Court framed charges against the appellant for alleged commission of offence under Sections 363, 366, 376 (1) of IPC and Section 304(a) and Section 5 (j) (ii)/06 of Protection of Children from Sexual Offences Act, 2012. The appellant having abjured guilt was subjected to trial. 5. In order to establish the charges against the appellant, the prosecution has examined as many as 07 witnesses. The statement under Section 313 of Cr.P.C. of the appellant has been recorded, in which he denied the incriminating charges leveled against him and pleaded his innocence and false implication in this case. However, 02 witnesses have been adduced by the appellant in his defence. 6. After hearing learned counsel for the respective parties and appreciation of oral and documentary evidence on record, the learned trial Court convicted and sentenced the appellant as mentioned in the opening paragraph of the judgment. Hence, this appeal. 7. Assailing correctness and validity of the impugned judgment of conviction and order of sentence, learned counsel appearing for the appellant submits that the impugned judgment and sentence passed by learned trial Court dated 14.07.2015 is perverse, erroneous, illegal, contrary to law, facts and circumstances of the case, therefore, it is liable to be set aside. Hence, this appeal. 7. Assailing correctness and validity of the impugned judgment of conviction and order of sentence, learned counsel appearing for the appellant submits that the impugned judgment and sentence passed by learned trial Court dated 14.07.2015 is perverse, erroneous, illegal, contrary to law, facts and circumstances of the case, therefore, it is liable to be set aside. As per the version of the prosecutrix herself, the offence was committed in the month of December, 2011 and the report was lodged on 14.04.2013 i.e., after passage of more than 1 ½ years delay without any cogent explanation. Since the offence was committed in the month of December, 2011, therefore, the impugned conviction under Section 3 (a)/04 & Section 5 (j) (ii)/06 of Protection of Children from Sexual Offences Act, 2012 for short Act 2012 is unsustainable in law, as at the time of commission of alleged offence, the provisions of Act 2012 did not come into effect. Learned trial Court failed to appreciate this fact that as per the version of the prosecutrix herself, she was living with the appellant at several places as his wife, on her own free will, without any protest and without raising any hue and cry for help. Learned trial Court has failed to consider that the prosecutrix was a consenting party to the act of the appellant, as such the impugned conviction under Sections 363, 366 & 376(1) of IPC are also not sustainable in the eyes of law. Learned trial Court also failed to appreciate the statement of prosecutrix in para-9, where she categorically deposed before the social meeting that she expressed her will to live with the appellant. Learned trial Court has failed to appreciate that the prosecution has not adduced any reliable and cogent evidence regarding actual date of birth of the prosecutrix, however, the transfer certificate Ex. P/10 in which the date of birth of the prosecutrix mentioned as 01.04.1997, was issued on 20.06.2012 i.e., after the date of incident. Moreover, the persons who have issued the said certificate have not been examined before the learned trial Court, therefore, the contents of the same are not reliable in law. P/10 in which the date of birth of the prosecutrix mentioned as 01.04.1997, was issued on 20.06.2012 i.e., after the date of incident. Moreover, the persons who have issued the said certificate have not been examined before the learned trial Court, therefore, the contents of the same are not reliable in law. Learned trial Court has also failed to appreciate the statement of (PW/03) (maternal grandfather of the prosecutrix), who has stated that the mother of the prosecutrix was died in the year 1996-97 and at that time, the prosecutrix was aged about 4 years, therefore, it is clearly evident that as on the date of incident, the prosecutrix was a major lady. The maternal grandfather of the prosecutrix (PW-03) has categorically stated that after death of prosecutrix’s mother, the prosecutrix was residing with him and he has entered the date of birth of prosecutrix on the basis of assumption and presumption. Learned trial Court has gravely erred in convicting the appellant under Sections 363, 366 of IPC and Section 3(a)/04 & Section 5 (j) (ii)/06 of Protection of Children from Sexual Offences Act, 2012, though the said offences were not mentioned in the F.I.R. as well as in the final report. Learned trial Court has failed to appreciate that the prosecutrix has stated regarding her visit to Jail to meet with the appellant. As such, looking to the conduct of the prosecutrix and the material collected by the prosecution, it is a clear case of consent, therefore, the impugned judgment of conviction and order of sentence of the appellant is not sustainable in the eyes of law and the same deserves to be quashed. Learned trial Court has erred in disbelieving the statement of defence witnesses. Learned trial Court has erred in convicting the appellant only on the basis of testimony of interested witnesses, however the independent witnesses have not supported the case of prosecution. Learned trial Court has failed to appreciate that the prosecution has not proved the offence against the appellant beyond all reasonable doubts and the benefit of doubt should have been given to the appellant. The findings given by the learned trial Court against the appellant are perverse and contrary to evidence available on records and based upon no evidence, consequently the same are liable to be set aside. The findings given by the learned trial Court against the appellant are perverse and contrary to evidence available on records and based upon no evidence, consequently the same are liable to be set aside. There is no cogent or reliable evidence produced by the prosecution against the appellant, hence the conviction of the appellant is unsustainable in the eyes of law. The ingredients of alleged offences are not attracted against the appellant. The impugned judgment of conviction and order of sentence imposed upon the appellant is harsh and excessive looking to the facts and circumstances as well as material available on record, thus it is liable to be set aside/quashed. Learned trial Court has failed to appreciate the evidences and documents produced before it in its proper perspective, thus, the conviction of the appellant is bad-in-law. As such, the impugned judgment is liable to be set aside. 8. Reliance has been placed on this Court’s decision in the matter of Bhuvan Verma vs. State of C.G. reported in 2025(2) C.G.L.J. 9. Ex adverso, learned counsel for the State opposes the submissions of learned counsel for the appellant and has submitted that the prosecution has proved its case beyond all reasonable doubts and the learned trial Court has minutely appreciated the oral and documentary evidence and thereby rightly convicted the appellant for the alleged offences, as such the impugned judgment of conviction and order of sentence needs no interference by this Court. 10. We have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the original records of the learned trial Court with utmost circumspection. 11. It is evident from record of learned Trial Court that it framed charges against the appellant for offence under Sections 363, 366, 376(1) of IPC and Section 3(a)/04 and Section 5(j) (ii)/06 of Protection of Children from Sexual Offences Act, 2012 and after appreciation of oral and documentary evidence, the learned trial Court convicted the appellant for the offence punishable under Sections 363, 366, 376(1) of IPC and Section 3(a)/04 and Section 5(j) (ii)/06 of Protection of Children from Sexual Offences Act, 2012. 12. First of all we proceed to examine the evidence to ascertain whether on the date of incident, the prosecutrix was below 18 years of age or not? 13. As per the prosecution on 14.04.2013, the prosecutrix was below 18 years of age. 12. First of all we proceed to examine the evidence to ascertain whether on the date of incident, the prosecutrix was below 18 years of age or not? 13. As per the prosecution on 14.04.2013, the prosecutrix was below 18 years of age. The grandfather of the prosecutrix (PW-03) has stated that on the date of incident his granddaughter was aged about 14-15 years. In his cross-examination, he admitted that he is not aware of her date of birth and further stated that father of the prosecutrix has admitted her in the school and he told her date of birth on the basis of assumption and presumption. He also admitted that on the basis of primary school certificate, he enrolled her in Mendrakhud school. 14. Prosecutrix (PW-04) stated that her school certificate is Ex. P/09 and transfer certificate is Ex. P/10. In her cross-examination, she stated that she was admitted in school by her grandfather (DW-01). 15. (DW-02) Anil Kumar Gupta, teacher of primary school Rajkishore Nagar produced the admission register certificate of school and he stated that in this register at serial No. 441, the name of the prosecutrix was written and as per this register, date of birth of the prosecutrix is 01.04.1997 and there is no document attached in the register that on what basis her date of birth was entered. The dakhil-kharij register is Ex. D/01 and its copy is Ex. D/01C. In the mark-sheet Ex. P/09 and transfer certificate Ex. P/10, the date of birth of the prosecutrix was entered as 01.04.1997 and no birth certificate was produced by the parents. He further stated that it is not mentioned in Ex. D/01 as to on what basis, the said entry regarding date of birth of the prosecutrix was made herein. 16. This Court in the matter of Bhuvan Verma (supra) held in paras 12 & 13 which reads as under:- “ 12 . The Hon’ble Apex Court in the matter of Alamelu and another Vs. State, represented by Inspector of Police , (2011) 2 SCC 385 observed in paras 40 & 48 of its judgment as under: "40. Undoubtedly, the transfer certificate, Ex.P16 indicates that the girl's date of birth was 15th June, 1977. The Hon’ble Apex Court in the matter of Alamelu and another Vs. State, represented by Inspector of Police , (2011) 2 SCC 385 observed in paras 40 & 48 of its judgment 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. 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. 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 party to the lis, having regard to the provisions of Section 35 of the Evidence Act will have to apply the same standard. A court of law for the purpose of determining the age of a 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.” “ 13 . The Supreme Court in the matter of Manak Chand alias Mani Vs. State of Haryana reported in 2023 SCC Online SC1397, has reiterated the law laid down by it in the matter of Birad Mal Singhvi Vs. Anand Purohit , 1988 (Supl.) SCC 604, and observed that the date of birth in the register of the school would not have any evidentiary value without the testimony of the person making the entry or the person who gave the date of birth. It was further reiterated that if the date of birth is disclosed by the parents, it would have some evidentiary value but in absence the same cannot be relied upon. For sake of brevity para No. 14 & 15 of the judgment are reproduced hereunder:- “14. This Court in Birad Mal Singhvi v. Anand Purohit (1988) Supp SCC 604 had observed that the date of birth in the register of a school would not have any evidentiary value without the testimony of the person making the entry or the person who gave the date of birth. “14. The date of birth mentioned in the scholar’s 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 for or in 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. The entry contained in the admission for or in 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. In our opinion, the proof submitted by the prosecution with regard to the age of the prosecutrix in the form of the school register was not sufficient to arrive at a finding that the prosecutrix was less than sixteen years of age, especially when there was contradictory evidences before the trial Court as to the age of the prosecutrix. It was neither safe nor fair to convict the accused, particularly, when the age of the prosecutrix was such a crucial factor in the case.” 17. In the light of above cited judgment and in the present case also, in the school register (Ex. D/1-C) , transfer certificate and mark-sheet of the prosecutrix, the age is recorded as 01.04.1997 and the school teacher (DW- 02) Anil Kumar Gupta has stated that it is not mentioned in the (Ex. D/1-C) as to on what basis the said entry regarding the date of birth of the prosecutrix was made therein. However in the statements of the prosecutrix (PW-04) and her grandfather (DW-01) the date of birth of the prosecutrix was not disclosed. Thus, in the light of aforesaid decisions of the Hon’ble Apex Court, we find that in the present case, there is no such clinching and legally admissible evidence brought on record by the prosecution to prove the fact that the prosecutrix was minor on the date of incident, yet the learned trial Court has recorded in the impugned judgment that she was minor. Hence, we set aside the findings so recorded by the learned trial Court and hold that the prosecution has not been able to prove the date of birth of the prosecutrix beyond reasonable doubt. 18. Hence, we set aside the findings so recorded by the learned trial Court and hold that the prosecution has not been able to prove the date of birth of the prosecutrix beyond reasonable doubt. 18. Now we are to see whether the appellant had abducted or kidnapped and had committed forcible sexual intercourse with the prosecutrix or it was a consensual act? 19. (PW-04) Prosecutrix has stated that on the date of incident the accused/appellant caught hold her hand and took her to the field side, where the appellant committed forcible sexual intercourse with her by lying her on the ground and taking off her clothes and he gave assurance of marriage to her and also threatened her for dire consequences if at all she narrates about the said incident to anyone. Thereafter, on several times, whenever he got the opportunity, he committed sexual intercourse with her and this continued for about 2 years as a result of the same she got pregnant and when the accused/appellant came to know that the prosecutrix got pregnant, he took her to the doctor and forcibly administered abortion pills to her due to which miscarriage happened. She further stated that in August, 2012 the accused/appellant took her to a rented house in Shubhashnagar and there they lived together for three months and after that he ran away from there and as he did not return, she lodged the report in police station Gandhinagar vide Ex. P/05 and she admitted her signature on A to A part. In para 7 of her cross-examination she admitted that she and the accused lived in Bargai for a month and admitted that she also helped in the household work at the appellant’s sister house. In para 8 of her cross-examination she admitted that in village Kulhadi, she stayed at the appellant’s uncle house for 12 days and that is where her miscarriage happened. Thereafter, they went to the appellant’s aunt house for a day at village Sargaon. She also admitted in para 9 that on 01.09.2012 in village panchayat people tried to separate them, however, the prosecutrix and the appellant did not agree to them, as such the panchnama was prepared of them to live together as husband and wife. The said panchanama is Ex. She also admitted in para 9 that on 01.09.2012 in village panchayat people tried to separate them, however, the prosecutrix and the appellant did not agree to them, as such the panchnama was prepared of them to live together as husband and wife. The said panchanama is Ex. D/01 and she admitted her signature on A to A part and she also admitted that after the said panchanama she and the accused came back to Shubhashnagar and lived together as husband and wife. She denied the suggestion that the reason he left was because she told him to do household work and she will be doing job. It is clear from para 11 of her cross-examination that even now, she goes to jail for meeting the accused/appellant and she further admitted that she was a consenting party to the appellant's acts, and that physical relations between them were always consensual. 20. Grandfather of the prosecutrix (PW-03) has stated that the prosecutrix went outside the house without even informing him and upon search, it was found that she resides with the accused/appellant in Gandhinagar and both were brought together. He admitted the suggestion of defence that the meeting was convened in the village at the house of the accused and as per the decision of the Panchayat, the prosecutrix was handed over to the family members of the accused/appellant. 21. (PW-05) Motilal also narrated the same story as of the grandfather of the prosecutrix (PW-03). He admitted in his cross-examination that in the panchayat meeting it was decided that both the appellant and the prosecutrix are at liberty to live together as husband and wife. 22. (PW-06) Hirasai has stated that he came at the end of the village meeting and there were 20-25 persons. However, in his cross-examination he admitted that it was decided in the meeting that the prosecutrix will live in the house of the accused/appellant as his wife. 23. Dr. Pooja Agrawal (PW-01) has examined the prosecutrix and she did not find any external or internal injury and she opined that the prosecutrix is habitual to sexual intercourse, however she further stated that she did not find any symptom regarding recent sexual intercourse and further advised the prosecutrix for urine test regarding the pregnancy and she gave her report vide Ex. P/01. 24. P/01. 24. Upon comprehensive evaluation of records and from the close scrutiny of statements of prosecutrix and other witnesses it is evident that the prosecutrix is consenting party to the act of the appellant. Prosecutrix and her family members have admitted the suggestion of defence that the prosecutrix and the appellant were in love with each other and they lived together in various places as a husband and wife. The prosecutrix herself has admitted the suggestion that she is consenting party. Thus, in the given facts and circumstances of the case, looking to the nature and quality of evidence, admission of prosecutrix and her family members coupled with the conduct of the prosecutrix, we are of the opinion that the prosecution has failed to prove beyond reasonable doubt that it is the appellant who kidnapped and abducted the prosecutrix, subjected her to forcible sexual intercourse repeatedly, rather it appears that the prosecutrix was a consenting party to the act committed by the appellant. 25. On the basis of the aforesaid discussions, we are of the opinion that the prosecution has been unable to prove its case beyond reasonable doubt that it is the appellant who committed rape upon her or threatened her to death or any grievous hurt. Being so, the findings of guilt recorded by the learned trial Court are liable to be set aside and the appellant deserves to be acquitted of all charges so levelled against him. 26. Ex consequenti, the appeal is allowed and the impugned judgment dated 14.07.2015 is set aside. The appellant is acquitted of the charge levelled against him under Sections 363, 366, 376 (1) of IPC and under Sectioon 3(a)/04 and Section 5 (j) (ii)/06 of Protection of Children from Sexual Offences Act, 2012. 27. Keeping in view the provisions of section 481 of BNSS 2023, the appellant is directed to furnish a personal bond for a sum of Rs. 25,000/- in the like amount before the court concerned forthwith, 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. 25,000/- in the like amount before the court concerned forthwith, 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 trial Court record along with a copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action.