1. This appeal questions the legality and correctness of the judgment and order dated 29th November, 2017, rendered in Special Child Case No.231/2015 by the Special Judge and Additional Sessions Judge, Nagpur.

2. By the judgment and order impugned herein, the appellant has been found guilty of the offences punishable under Section 376(2)(n) of the Indian Penal Code (in short, “I.P.C.”) and Section 4 of the Protection of Children from Sexual Offences Act, 2012 (in short, “PoCSO Act”) and sentenced to suffer rigorous imprisonment of ten years and to pay fine of Rs.2,000/with default sentence of two months.

3. According to the prosecution, there was a love affair going on between the appellant and the prosecutrix since August, 2014 till before filing of the F.I.R. The F.I.R. was filed against the appellant by the prosecutrix on 31.8.2015. She complained that the appellant lured her into having sexual relations with him by giving her a false promise of marriage. She stated in the oral report that her date of birth was 12.3.1998. She also alleged that the physical intimacy between herself and the appellant was in existence since August 2014 and continued a few days before filing of F.I.R. on 31.8.2015. She also stated that as a result of sexual relations, she developed pregnancy and when she insisted upon the appellant to perform marriage with her, the appellant refused to marry her. That was how a Police complaint was made by the prosecutrix.

4. The offences punishable under Section 376(2)(n) of the I.P.C and Section 4 of the PoCSO Act were registered against the appellant and investigation was commenced. After completion of the investigation, a chargesheet was filed. The appellant was prosecuted in this case on the charge of commission of rape punishable under Section 376(2)(n) of the Indian Penal Code and penetrative sexual assault punishable under Section 4 of the PoCSO Act. On merits of the case, learned Special Judge found that both the offences were proved beyond reasonable doubt and accordingly by the impugned judgment and order, convicted and sentenced the appellant, as stated earlier.

5. I have heard Shri Prashant Kawale, learned counsel for the appellant and Shri A.V. Palshikar, learned Additional Public Prosecutor for the respondent State. I have gone through the impugned judgment and order including the record of the case.

6. Now, the following points arise for my determination :

(i) Whether the prosecution has proved that during the relevant period of time when the multiple acts of sexual intercourse took place, the prosecutrix was aged below 18 years and a child and minor?

(ii) Whether the prosecution has proved that during the relevant period, the appellant committed offences of rape and penetrative sexual assault upon the prosecutrix?

(iii) Whether any interference with the impugned judgment and order is required?

7. In the present case, the question of age of the prosecutrix has assumed great importance for the reason that during the relevant period of time when the alleged acts of sexual intercourse took place, the prosecutrix has been alleged to be of the age of about 17 years and that the genesis of the whole case is that of a love affair gone sour. Therefore, it would be essential to first consider the evidence of the prosecution on the point of age of the prosecutrix. PW 2 is the prosecutrix and she has deposed before the Court that her date of birth was 12.3.1998. However, in support of her such statement, she did not produce, in her evidence, birth certificate or school leaving certificate or any other document containing entry of her date of birth which was having a evidentiary value. Therefore, the evidence of PW 2 on the point of her own date of birth, which is otherwise hearsay evidence, cannot be accepted and read in evidence. It is, therefore, rejected.

8. PW 3 is the mother of the prosecutrix, but she did not assist the prosecution to prove the age of the prosecutrix at the relevant time. She kept co