Prosecution must prove age and consent beyond reasonable doubt, and failure to do so leads to acquittal.

1. This is an Appeal under Section 374 of Cr.P.C. directed against the judgment dated 21.09.2019 in POCSO Special Case No.489 of 2016. By the impugned judgment the learned Special Judge, POCSO Court, Pune has held the Appellant guilty of the Offences under Section 363 , 366, 376(2)(i) of Indian Penal Code ( IPC ) and Section 4 of the Protection of Children from Sexual Offences Act (POCSO), 2012 and sentenced him as under:

(i) rigorous imprisonment for three years with fine of Rs.1000/- i.d. simple imprisonment for three months for offence under Section 363 IPC .

(ii) rigorous imprisonment for three years and fine of Rs.1000/- I.d. simple imprisonment for three months for offence under Section 366 of IPC .

(iii)rigorous imprisonment for 10 years and fine of Rs.5000/- I.d. simple imprisonment for four months for offence punishable under Section 376 (2)(i) of IPC . . No separate punishment has bene awarded for offence under Section 4 of POCSO Act, 2012. The substantive sentence has been ordered to run concurrently.

2. The case of the prosecution in brief is that in the year 2015 the prosecutrix (PW4) was residing with her parents at Lohagaon, Pune. She was studying in 9th standard in BJS College. On 08.04.2015 at about 3.00.pm. while the victim was in the house of her paternal aunt, the appellant came and told that her mother had sent him to pick her up. She accompanied the Appellant on his motorcycle. It is alleged that instead of taking her home, the Appellant forcibly took the prosecutrix to Dadar, Mumbai and thereafter to Pandharpur. The Appellant hired a room at Pandharpur. The prosecutrix has alleged that the Appellant had forcible sexual intercourse with her at Pandharpur. Later, after about 2-3 days they returned to Pune via Jejuri. The Appellant dropped her near Indrayani Hotel, at Wagholi, Pune. She called her brother at the spot and went to the police station along with her brother and father. Her father lodged the FIR against the Appellant for kidnapping and committing rape/ committing sexual assault on the prosecutrix. Pursuant to the said FIR Crime No. 114 of 2015 came to be registered against the Appellant. PW6 Poonam Patil, PSI attached to Lonikand Police Station recorded the statement of the victim. Further investigation was carried out by PW5 Shivshan Lalasaheb Khose. Upon completion of investigation, chargesheet came to be filed against the Appellant.

3. Charge was framed and explained to which the Appellant pleaded not guilty and claimed to be tried. Prosecution in support of its case examined 8 witnesses. The statement of the Appellant was recorded under Section 313 of Cr.P.C. The defence of the Appellant was of total denial. The learned Judge after considering oral as well as documentary evidence, convicted and sentenced the Appellant as stated above. Being aggrieved, the Appellant has preferred the present Appeal.

4. Mr. Jadhav, learned Counsel for the Appellant submits that the prosecution has failed to prove that the proecutrixwas a child within the meaning of Section 2(d) of POCSO Act, 2012. He submits that the School Leaving Certificate at Exhibit 30 was issued subsequent to the date of the incident. He submits that the prosecution has not examined the person who had disclosed the date of birth of the prosecutrix and has not placed on record any material to prove that the date of birth of the prosecutrix was 04.02.2001. He therefore contends that the school leaving certificate has no evidentiary value. He has relied upon the j