JUDGMENT

Pankaj Bhandari, VJ. - Special Bench has been constituted with a view to achieve the goal set up by the Judiciary for "Speedy Justice" and "Access to Justice" to all, for disposal of the criminal appeals, in which convict is in jail for five or more years.

2. This Jail Appeal has been received by Judgment and Order dated 20.09.2016 passed by Special Judge, POCSO Cases, Kota whereby appellant has been convicted for offence under Section 363, 366, 376(2)(n) of IPC and Section 5 (l)/6 of the POCSO Act. For offence under Section 363 of IPC, appellant has been convicted for three years rigorous imprisonment and fine of Rs. 3,000/-, on non payment of fine, to further undergo one month simple imprisonment. For offence under Section 366 of IPC, two years rigorous imprisonment and a fine of Rs. 5,000/-, on non payment of fine, to further undergo two months simple imprisonment and for offence under Section 376(2)(n) read with Section 5 (l)/(6) of the POCSO Act, appellant has been sentenced to ten years rigorous imprisonment and a fine of Rs. 10,000/-, on non payment of fine, to further undergo five months simple imprisonment. All the sentences are to run concurrently.

3. Learned Amicus Curiae appearing on behalf of the appellant contends that prosecution has failed to establish that the prosecutrix is a minor. As per Article 2(a)-School Register, her date of birth was 09.03.1997. School certificate did not relate to the school first attended. As per Rule 12 of the Juvenile Justice Care and Protection of Children Rules for determining the age of a victim, the age of a child or juvenile in conflict with law, the matriculation or equivalent certificate has to be given preference in absence whereof date of birth certificate from the school first attended and in absence whereof birth certificate given by a cooperation or a municipal authority or a Panchayat and in absence of either of the above, the opinion of the duly constituted medical board.

4. It is contended by learned Amicus Curiae that the school register pertains to school first attended and as to who made the entries and the person who made the entries was also not examined. There was no document on the basis of which date of birth was mentioned in the register. It is also contended that the prosecutrix was subjected to medical examination but ossification test report has not been produced before the Court which casts serious doubts on the investigation. It is contended that PW-9 Raunak Ali has deposed that the complainant had handed over the transfer certificate and caste certificate but no transfer certificate was produced before the Court. It is contended that for conviction under the POCSO Act, it is to be established that prosecutrix was a minor.

5. It is also contended that FIR Ex.P-6 was lodged by the mother of the prosecutrix on 08.09.2013 i.e. after three days of the incident. In the FIR, it was mentioned that prosecutrix had left the house on 05.09.2013 and had gone to the market to get her clothes stitched. From there, she was taken away by the appellant. It is contended that prosecutrix was recovered on 07.10.2013 i.e. after more than one month. It is argued that the prosecutrix went on her own free will, stayed with the appellant at different places, travelled in different public transport but never raised any alarm or complained to anyone. Prosecutrix was a consenting party and hence, offence under Section 376(2)(n) is also not made out.

6. Learned Amicus Curiae has placed reliance on " Bablu Pasi vs. State of Jharkhand (2008) 13 SCC 133 ", wherein the Apex Court has held that 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 not of much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded.

7. Reliance has also been placed on " Alamelu & Anr. vs. State (2011) 2 SCC 385 ", wherein Apex Court has held that the transfer certi