JUDGMENT :

P. VELMURUGAN, J.

1. This Criminal Appeal has been filed to set aside the conviction passed by the learned Sessions Judge Fast Track Mahila Court, Ariyalur in Special S.C. No. 38 of 2018 dated 29.01.2021.

2. The respondent police initially registered the case in Crime No. 414 of 2018 under Section “Girl Missing” and after enquiry the case was altered into Sections 363, 366(A) IPC, 5(1) read with 6 of POCSO Act and the appellant was implicated as an accused. After completing the investigation, the respondent police laid charge-sheet for the offences punishable under Section 366 IPC and Section 6 of POCSO Act before the Fast Track Mahila Court, Ariyalur, since the offences were against a woman particularly against a child under the definition of Section 2(1)(d) of POCSO Act. The learned Magistrate after completing the formalities taken up the case in Spl. S.C. No. 38 of 2018 and subsequently, framed charges against the appellant for the offences punishable under Sections 366 IPC, Section 6 of POCSO Act and Section 376(2)(n) of IPC.

3. After framing charges, in order to prove the case of the prosecution during trial, on the side of the prosecution as many as 14 witnesses were examined as PW-1 to PW-14 and 12 documents were marked as Ex.P.1 to P.12 and no material objects were exhibited.

4. After completing the evidence of the prosecution witnesses, incriminating circumstances culled out from the evidence of the prosecution witnesses were put before the appellant/accused by questioning under Section 313 Cr.P.C. with reference to the incriminating circumstances appear on the prosecution witness. However, the same were denied by the accused as false and pleaded not guilty. On the side of the defence no oral or documentary evidence was produced.

5. On completion of trial and hearing the arguments advanced on either side and considering the records, the trial Court found guilty of the accused for offence punishable under Section 6 of POCSO Act and convicted and sentenced to undergo 10 years rigorous imprisonment and to pay fine of Rs. 10,000/- in default to undergo a further period of 1 year simple imprisonment and also convicted and sentenced him to undergo 10 years rigorous imprisonment and to pay fine of Rs. 10,000/- in default to undergo a further period of six months simple imprisonment for the offence punishable under Section 366 IPC besides, a sum of Rs. 7 lakhs was awarded as compensation. Challenging the said judgment of conviction and sentence, the accused has filed the present appeal before this Court.

6. The learned Counsel for the appellant would submit that it is the duty of the prosecution to prove that the victim was not completed 18 years and she was a child at the time of occurrence under the definition of Section 2(1)(d) of POCSO Act whereas, in this case, the prosecution has not proved the age of the victim girl. As per the decisions of the Hon'ble Supreme Court as well as this Court in various decisions, the age of the prosecutrix should be proved by the prosecution. In this case, the victim herself has stated in the first instance that her age is 18 years. Whereas, the Investigating Officer has not collected any material or document to show that the victim was a child and without ascertaining the age of the victim, the Investigating Officer proceeded with the case which itself shows that the respondent police have investigated the matter in a wrong direction. In one place the victim herself has stated that her age is 18 years however, in other place, she has stated 17 years. In order to prove that the victim had not completed 18 years and she was a child at the time of occurrence, the only document relied on by the prosecution is Ex.P.8 which is the ITI Educational Certificate of the victim in which, the date of birth of the victim is mentioned as 15.06.2001 and in order to prove Ex.P.8, they examined PW-10, the Principal of the ITI in which, the victim was studying and she has stated that from the 10th std.