JUDGMENT

The criminal appeal has been filed against the judgment of conviction and sentence made in Spl.S.C.No.13 of 2016 dated 06.12.2019 by the learned Special Judge, Under the POCSO Act, 2012, Puducherry.

2 The respondent police registered a case in Cr.No.172 of 2015 against the appellant for the offence under Sections 4 and 6 of Protection of Children from Sexual Offences Act, 2012 (for brevity “the POCSO Act”). After completing investigation, the respondent police laid a charge sheet before the learned Special Judge, Under the POCSO Act, Puducherry, which was taken on file in Spl.S.C.No.13 of 2016. The learned Sessions Judge, after hearing both the accused and the prosecution and after perusing the records, since there is prima facie case, framed charges against the appellant/accused for the offence under Sections 4 and 6 of the POCSO Act.

3 Before the trial Court, in order to prove the case of the prosecution, as many as 19 witnesses were examined as P.Ws.1 to 19 and 19 documents were marked as Exs.P1 to P19 and 6 material objects were exhibited as M.O.1 to M.O.6. After completing examination of prosecution witnesses, when incriminating circumstances culled out from the evidence of prosecution witnesses were put before the accused by questioning under Section 313 Cr.P.C., he denied the same as false and pleaded not guilty. On the side of the defence, no one was examined and two documents were marked as Exs.D1 and D2 and no material object was exhibited.

4 The learned Special Judge, on completion of trial and hearing arguments advanced on either side, by judgment dated 06.12.2019 convicted the appellant/accused and sentenced him to undergo rigorous imprisonment for a period of ten years and imposed fine of Rs.2,000/-, in default, to undergo rigorous imprisonment for a further period of three months for the offence punishable under Section 6 of the POCSO Act. Aggrieved against the said judgment of conviction and sentence, the accused has preferred the present criminal appeal before this Court.

5 The learned counsel appearing for the appellant/accused would submit that the victim P.W.1 and P.W.2 mother of the victim assert that P.W.1 was major at the time of occurrence. To prove the same, the appellant produced Ex.D1 copy of Adhar Card of the victim and Ex.D2, victim girl's horoscope. P.W.1 was a Nursing School Student, who was residing in the appellant's house for sometime, during that stay P.W.1 and the appellant had physical relationship. P.W.1 assert that the act of physical relationship was volunteer and it was on her own will. P.W.2/mother of the victim has also deposed the same. P.W.7/Doctor, who attended delivery of P.W.1 states that during delivery, the victim was aged about 19 years as stated by P.W.1. As per Ex.D1, based on which, the victim was admitted in the Hospital and delivery was attended, the victim was major at the time of occur.

5.1 P.W.2/mother of the victim categorically states that P.W.1 was admitted in the School belatedly, since she was suffering from infirmity and her correct date of birth is 01.03.1996. Since it was late admission, the school authority/P.W.13 recorded the age of the victim as 01.03.1999. The age found in Ex.P13 and Ex.P17 have been recorded by the school authority on their own. P.W.2 mother of the victim assert the same and it is also found that P.W.1 was over age when she got admitted in first standard and there are some discrepancies and contradiction in her age at various places in various documents. Hence when the prosecution failed to prove the age of the victim and she is a child falls under the definition of Section 2(1)(d) of the POCSO Act, offence under the POCSO Act would not at all attract and the appellant cannot be convicted for the offence under the POCSO Act. The victim girl had voluntarily given consent for sexual intercourse with the appellant. The learned counsel would further contend that the trial Court failed to look into the discrepancies with regard to the age