JUDGMENT : RAJANI DUBEY, J. 1. The present appeal is directed against the judgment of conviction and order of sentence dated 20.05.2019 passed by the learned Special Judge, SC/ST (Prevention of Atrocities) Act, 1989, Bemetara, District Bemetara (C.G.) in Special Case (Atrocities) No.03/2018, whereby the appellant has been convicted under Sections 366 and 376 of IPC read with Section 3 (2) (v) of the SC/ST (Prevention of Atrocities) Act and Section 5 (Tha) read with Section 6 of POCSO Act and sentenced to undergo RI for 10 years with fine of Rs.100/- and life imprisonment with fine of Rs.100/- respectively, with default stipulations. 2. The prosecution case, in brief, is that on 03.12.2017 mother of the prosecutrix lodged a missing report, stating that the prosecutrix was not found in the house thereafter she searched her in the village, she enquired about the prosecutrix with the brother of accused and she came to know that the accused was also not found in the house. On the basis of report lodged by the mother of prosecutrix, the police registered and thereafter searched the appellant and prosecutrix and the prosecutrix was found in possession of appellant. After investigation, charge sheet was filed before the Magistrate concerned. On the basis of the evidence adduced by the prosecution and material available on record, learned trial court convicted the accused/appellant, as mentioned in para 1 of the judgment. 3. Learned counsel for the appellant submits that the judgment passed by the learned Trial Court is contrary to law and material available on record. There are material omissions and contradictions in the statements of the prosecution witnesses. The prosecution has not produced any authentic document with regard to date of birth of prosecutrix. The prosecutrix, her mother and her brother have given different statements about the date of her birth, which clearly shows that at the time of incident the proseuctrix was major. The prosecutrix is consenting party, she herself went with the appellant on her own. She went difference places and also resided as husband and wife since long time. The leaned Trial Court has also failed to consider the evidence of PW-22 Dr. The prosecutrix is consenting party, she herself went with the appellant on her own. She went difference places and also resided as husband and wife since long time. The leaned Trial Court has also failed to consider the evidence of PW-22 Dr. Anamika Minj who has clearly stated that the prosecutrix is habitual of sex and recent intercourse was not found and also not found any injury in her private part, but the learned Trial Court has not considered the above said aspects of the matter and has wrongly convicted the appellant. Therefore, the appeal deserves to be allowed. Reliance has been placed on the judgments rendered by the Hon’ble Supreme Court in the matter of Birad Mal Singhvi vs. Anand Purohit , AIR 1988 SC 1796 and P. Yuvaprakash vs State Rep. by Inspector of Police , AIR 2023 SC 3525 . 4. Per contra, learned State counsel supports the impugned judgment and submits that the learned Trial Court has minutely appreciated the evidence available on record and has rightly convicted the appellant. Therefore, the appeal is liable to be dismissed. 5. Heard learned counsel for the parties and perused the material available on record. 6. It is clear from the record of the learned Trial Court that the learned Trial Court framed charges under Sections 363, 366 & 376 of IPC and Section 5 read with Section 6 of POCSO Act and Section 3 (2) (v) of SC/ST (Prevention of Atrocities) Act against the appellant and after appreciation of oral and documentary evidence, the learned Trial Court acquitted the appellant under Section 363 of IPC and convicted and sentenced the appellant, as mentioned in para 1 of the judgment. 7. As per prosecution, at the time of incident, the prosecutrix was below 18 years of age. The prosecutrix (PW-1) stated that her date of birth is 09.06.2001. In the cross-examination, she admitted that she has stated her date of birth on her mother’s saying. The mother of the prosecutrix (PW-2) stated that the date of birth of the prosecutrix is 26.09.2002. In the cross- examination, she admitted that in the FIR and her police statement, she stated the date of birth of the prosecutrix as 09.06.2000. In the cross-examination, she admitted that she has stated her date of birth on her mother’s saying. The mother of the prosecutrix (PW-2) stated that the date of birth of the prosecutrix is 26.09.2002. In the cross- examination, she admitted that in the FIR and her police statement, she stated the date of birth of the prosecutrix as 09.06.2000. PW-9 Arun Kumar Soni, Principal of Primary School Temri stated that he was posted in this school since 2014 and as per school admission discharge register, name of prosecutrix is entered at Sr. No.467 and as per this register, the date of birth of the prosecutrix is 09.06.2000. She was admitted in the school on 17.06.2006 in Class-1 and she left the school on 30.06.2012. The police seized this register as per seizure memo (Ex-P/16). In the cross-examination, he admitted that it is true that at the time of entry of the prosecutrix in the school, he was not posted in the school. He cannot say as to on what basis the same was entered. It is clear from the statement of the prosecutrix (PW-1), her mother (PW-2) and Principal (PW-9) that every witness disclosed different dates of birth of the prosecutrix. PW-9 principal admitted this suggestion of defence that at the time of entry of the prosecutrix in the school, he was not posted and he was not the author of this entry. 8. 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. 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. 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.” 9. The Hon’ble Apex Court in the matter of P. Yuvaprakash (supra) held in para 18 as under:- “18. Reverting to the facts of this case, the headmaster of M’s School, CW- 1, was summoned by the court and produced a Transfer Certificate (Ex.C- 1). This witness produced a Transfer Certificate Register containing M’s name. The Hon’ble Apex Court in the matter of P. Yuvaprakash (supra) held in para 18 as under:- “18. Reverting to the facts of this case, the headmaster of M’s School, CW- 1, was summoned by the court and produced a Transfer Certificate (Ex.C- 1). This witness produced a Transfer Certificate Register containing M’s name. He deposed that she had studied in the school for one year, i.e., 2009-10 and that the date of birth was based on the basis of the record sheet given by the school where she studied in the 7th standard. DW-2 TMT Poongothoi, Headmaster of Chinnasoalipalayam Panchayat School, answered the summons [2012] 9 SCR 224 served by the court and deposed that ‘M’ had joined her school with effect from 03.04.2002 and that her date of birth was recorded as 11.07.1997. She admitted that though the date of birth was based on the birth certificate, it would normally be recorded on the basis of horoscope. She conceded to no knowledge about the basis on which the document pertaining to the date of birth was recorded. It is stated earlier on the same issue, i.e., the date of birth, Thiru Prakasam, DW-3 stated that the birth register pertaining to the year 1997 was not available in the record room of his office.” 10. In light of the above, it is clear that the prosecution has failed to prove the age of the prosecutrix below 18 years of age at the time of incident so we set aside the finding of the learned Trial Court regarding the age of the prosecutrix below 18 years of age at the time of incident. 11. Now we have to consider as to whether the accused abducted the prosecutrix and committed sexual intercourse with the prosecutrix without her consent. 12. The prosecutrix (PW-1) stated that on 02.12.2017, she eloped with the accused and stayed at Puna for 6 months. She admitted that she herself went with the accused to Puna. She was in love with the accused, therefore, she went with him. She also admitted that the accused did not on his own tell her to go to Puna instead she told him that take her anywhere where they will marry and live together. She admitted that she herself went with the accused to Puna. She was in love with the accused, therefore, she went with him. She also admitted that the accused did not on his own tell her to go to Puna instead she told him that take her anywhere where they will marry and live together. The prosecution declared her hostile and cross-examined then she admitted this suggestion of the prosecution that the accused had written her love letter and she also replied to him. She also admitted this suggestion of the prosecution that the accused took her on motorcycle to his friend’s house, thereafter they went to Puna via train and she again admitted suggestion of defence that she herself stated that it is true that the accused did not forcibly take her to Puna. She on her own went with the accused. He also not given her enticement of marriage and did not try to do and never forced her. She also stated that it is true that the accused never insulted her on her caste as she belongs to Satnami Caste. 13. PW-2 mother of the prosecutrix stated that her daughter had gone somewhere else and thereafter based on suspicion that the accused might have eloped her daughter she lodged a report at the police station concerned vide Ex-P/5. She also admitted that prior to this, the accused had also taken the prosecutrix in the year 2016 to Puna and kept her there for 15 days. In the cross- examination, she admitted that she did not see the prosecutrix going on 02.12.2017 and with whom she eloped and resided she also does not know and when she returned she also does not know. 14. PW-3 Kamal Bandhe, PW-4 Sanjay Koshley, PW-5 Sukhnandan, PW-6 Kiran Koshley stated that they came to know through villagers that the prosecutrix eloped with the accused, thereafter they searched her. They also stated that they did not see the accused taking the prosecutrix. 15. PW-7 Ravi Dandekar stated that Sunil Ratre is his neighbor and when Policemen came and asked him the house of Sunil Ratre, then he told them, thereafter the prosecutrix was recovered from the platform of his house along with the accused and recovery memo (Ex-P/1) was prepared. He admitted his signatures on B to B part of the same. 16. PW-7 Ravi Dandekar stated that Sunil Ratre is his neighbor and when Policemen came and asked him the house of Sunil Ratre, then he told them, thereafter the prosecutrix was recovered from the platform of his house along with the accused and recovery memo (Ex-P/1) was prepared. He admitted his signatures on B to B part of the same. 16. Sunil Ratre (PW-8) stated that outside his house, one girl and on boy came there, thereafter police came there and took them. The prosecution declared him hostile and cross-examined him, then he admitted this suggestion that it is true that the police had informed at Police Station Tilda about the prosecutrix and the accused coming to his house. He denied this suggestion that he knows the prosecutrix. 17. PW-13 Panchram Barle stated that the policemen came to his house and thereafter he went to Village Tulsi, Tilda Nevra along with the police, where from one house, they recovered the prosecutrix with the accused, thereafter recovery memo (Ex-P/1) was prepared and he admitted his signatures on C to C part of the same. 18. A close scrutiny of the statement of the witnesses specially statement of the prosecutrix clearly shows that she is consenting party and she herself admitted that she was in love affair with the accused and she went with the accused on her own sweet will. We find that the prosecution has failed to prove the age of the prosecutrix below 18 years of age and the prosecutrix admitted that she went with the accused on her own sweet will. She also admitted that the accused did not do anything against her will and she is consenting party so the prosecution has failed to prove this fact that the accused abducted the prosecutrix forcefully and committed sexual intercourse with her, as such the finding recorded by the learned Trial Court is not sustainable. 19. Consequently, the appeal is allowed. The impugned judgment of conviction and order of sentence is hereby set aside. The appellant is acquitted of the charges under Sections 366 and 376 of IPC read with Section 3 (2) (v) of the SC/ST (Prevention of Atrocities) Act and Section 5 (Tha) read with Section 6 of POCSO Act. 20. The appellant is reported to be on bail. 21. The appellant is acquitted of the charges under Sections 366 and 376 of IPC read with Section 3 (2) (v) of the SC/ST (Prevention of Atrocities) Act and Section 5 (Tha) read with Section 6 of POCSO Act. 20. The appellant is reported to be on bail. 21. 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/- 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. 22. The Trial Court’s record along with the copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action.