JUDGMENT :

P. VELMURUGAN, J.

1. This Criminal Appeal has been filed against the conviction and sentence imposed by the learned Sessions Judge, (Fast Track Mahila), Namakkal in Special C.C. No. 6 of 2017, dated 05.01.2018.

2. The respondent Police have registered a case in Crime No. 375 of 2016, for the offence under Section 366(A) IPC against the appellant on the complaint (Ex.P1) given by the mother of the victim child (PW-1). After completing investigation, the respondent police altered the charges into Section 366 IPC and Section 3 r/w 4 of the Protection of Children from Sexual Offence Act, 2012 (hereinafter referred to as ‘POCSO Act’) and laid a charge sheet before the learned Sessions Judge, (Fast Track Mahila), Namakkal and the same was taken on file in Special C.C. No. 6 of 2017.

3. After completing the formalities under Section 207 Cr.P.C. since there was a prima-facie material to frame charge against the appellant, the learned Sessions Judge, farmed charges under Section 366(A) and Section 5(l) r/w 6 of the POCSO Act.

4. After completing the trial and hearing the arguments advanced on either side and also considering the oral and documentary evidence, the learned trial Judge found the appellant guilty and convicted and sentenced as follows:-

(i) For offence under Section 366(A) IPC, the appellant to undergo 7 years Rigorous Imprisonment and to pay a fine of Rs. 1,000/- in default to undergo three months Rigorous Imprisonment.

(ii) For offence under Section 5(l) r/w 6 of the POCSO Act, the appellant to undergo 10 years Rigorous Imprisonment and to pay a fine of Rs. 2,000/- in default to undergo six months Rigorous Imprisonment.

5. Challenging the above said Judgment of conviction and sentence, the appellant has filed the present appeal before this Court.

6. The learned counsel for the appellant would submit that there are material contradictions between the prosecution witnesses and also between the statement of the victim child recorded under Section 164 Cr.P.C. (Ex.P4) and the evidence of the victim child (PW-2). The learned counsel would further submit that the prosecution has failed to prove the age of the victim child and also failed to prove whether she was a child under the age of 18 years at the time of occurrence. The victim child (PW-2) while deposing before the trial Court, has stated that she was born on 11.09.2000, on the contrary, the school authority, where the victim child was studied gave the Age Certificate (Ex.P8) that the victim child was born on 30.05.2000. Hence, there are material contradictions and discrepancies regarding the date of birth of the victim child. In these type of cases, it is duty of the prosecution first of all to prove the age of the victim child and she was a minor under the age of 18 years at the time of occurrence and also she was a child comes under the definition of Section 2(1)(d) of the POCSO Act. On the side of the prosecution, no conclusive material was produced regarding the age of the victim child and therefore, the benefit of doubt ought to have been extended in favour of the appellant. The learned trial Judge filed to appreciate the evidence and materials and wrongly came to the conclusion that the victim child was a minor under the age of 18 years without any documentary proof.

7. The learned counsel for the appellant would further submit that the victim child was produced before the learned Judicial Magistrate, Tiruchengode for recording the statement under Section 164 Cr.P.C. In the statement recorded under Section 164 Cr.P.C. (Ex.P4), the victim child has not stated anything against the appellant as though he forcibly kidnapped her by threatening and took her to various places and had aggravated penetrative sexual assault, but subsequently while deposing before the trial Court as PW-2, she has improved her own version that the appellant kidnapped her and took her to various places and forcibly had aggravated penetrative sexual assault. Therefore, there are material contra