JUDGMENT S.C. Das, J. 1. This criminal appeal, under Section 374 of Cr.P.C. is filed by the appellant named above, challenging the judgment and order of conviction and sentence, dated 19.01.2009, passed by learned Addl. Sessions Judge, Belonia, South Tripura, in Case No. ST 17 (ST/B) of 2008. Learned Addl. Sessions Judge found the appellant guilty of committing offence punishable under Section 376(2)(g) of IPC and sentenced him to suffer R.I. for 10 years and to pay a fine of Rs. 10,000/- in default to suffer S.I. for 6(six) months. 2. Fact of the case, may be summarised as follows:-- 3.1 One 'Bindubasi' (actual name is withheld) set the law in motion submitting an FIR before the O.C. Belonia P.S. on 18.10.2006 at about 12:05 hours alleging that on 16.10.2006, at about 12 O'clock at night, while she was asleep, one Uttam Saha, S/o. Maran Saha, her neighbour, called her with her name and she woke up. She was told that her mother fallen ill at her maternal uncle's house. She opened the door and went out of the hut. At that time, the accused suddenly caught her and gagged her mouth and dragged her away. She was beaten up and was physically tortured, as a result she lost her sense. Subsequently, she regained her sense and returned home. She was feeling pain and was not in a position to urinate. She was also feeling pain in the lower part of her body. Uttam was accompanied with some other persons. Her maternal uncle gave them a less amount towards subscription of Puja and therefore, she was threatened. She prayed for proper investigation and justice. In the margin of the written complaint, which was written by Shyamal Majumder (P.W. 12) names of two accused has been mentioned as Uttam Saha and Raju Baishnab though in the contents of the FIR, name of Raju Baishnab was not mentioned. 3.2 Based on that FIR, police registered the case under Section 376 of IPC and charge-sheet was filed against accused Uttam Saha, Raju Baishnab, Litan Majumder, Milan Baidya and Krishna Debnath for commission of offence punishable under Section 376(2)(g) of IPC. 3.3 On commitment of the case to the Court of Sessions, learned Addl. 3.2 Based on that FIR, police registered the case under Section 376 of IPC and charge-sheet was filed against accused Uttam Saha, Raju Baishnab, Litan Majumder, Milan Baidya and Krishna Debnath for commission of offence punishable under Section 376(2)(g) of IPC. 3.3 On commitment of the case to the Court of Sessions, learned Addl. Sessions Judge framed charge against all the five accused persons namely Uttam Saha, Raju Baishnab, Litan Majumder, Milan Baidya and Krishna Debnath under Section 376(2)(g) of IPC to which the accused persons pleaded not guilty and claimed to be tried. 3. In course of trial, prosecution examined 17 witnesses and two Court witnesses were also examined at the initiation of learned Addl. Sessions Judge. 4. Accused persons adduced no evidence. After recording of prosecution evidence, they were examined under Section 313 Cr.P.C. and the defence case is nothing but denial of the prosecution case. 5. At the conclusion of trial, learned Sessions Judge acquitted accused Uttam Saha, Litan Majumder, Milan Baidhya and Krishna Debnath from the charge framed against them but found accused appellant Raju Baishnab guilty of the charge framed against him and sentenced him as aforesaid. Hence, this appeal. 6. Heard learned counsel, Mr. S. Sarkar for the appellant and learned Addl. P.P., Mr. R.C. Debnath for the State respondent. 7. Learned counsel, Mr. Sarkar at the very outset, argued that the accused appellant was a juvenile on the date of alleged occurrence, He was arrested on 18.10.2006 i.e. on the date of lodging the FIR itself and was produced before the learned Magistrate on 19.10.2006. A prayer was made on that day itself stating that the accused was a juvenile but learned Magistrate without collecting other evidence directed ossification test of the accused appellant and accordingly, ossification test was done where under it was reported that the accused appellant was aged 18 to 22 years at the relevant time of examination. It is submitted by learned counsel, Mr. Sarkar that in the course of investigation I.O. collected a school certificate in the name of the accused appellant which has been proved as Exbt. D-1 and that school certificate shows the date of birth of the accused appellant as on 01.02.1991 which means he was aged below 16 years at that time. That school certificate has not been considered by the trial Court though it was a prosecution document collected during investigation. D-1 and that school certificate shows the date of birth of the accused appellant as on 01.02.1991 which means he was aged below 16 years at that time. That school certificate has not been considered by the trial Court though it was a prosecution document collected during investigation. Referring to the evidence of I.O. (P.W. 15), learned counsel submitted that in his deposition in examination-in-chief, I.O. has clearly stated that he collected school certificate of accused Raju Baishnab on 07.11.2006. It is further contended by learned counsel, Mr. Sarkar that the Court witness No. 1 Dwijendra Jamatia has proved the school certificate as Exbt. D-1 and the admission register has been proved as Exbt. D-2. The witness clearly stated that the date of birth of the accused as per the admission register was 01.02.1991. Since the accused appellant was a juvenile at the time of occurrence, according to law the Magistrate was bound to refer the case of the accused appellant to the Juvenile Justice Board. Learned Addl. Sessions Judge also would not take up the trial and would refer the case to the Juvenile Justice Board. Since that has not been done, the trial has already been vitiated. 7.1 On merit also learned counsel, Mr. Sarkar has submitted that the victim prosecutrix made different statement at different stage. The victim prosecutrix committed suicide after 3(three) months of the occurrence. However, the FIR has been proved by P.W. 12 and the statement of the prosecutrix recorded under Section 164 of Cr.P.C. has been proved by P.W. 17, learned Judicial Magistrate 1st Class, Belonia. She made different statement at different stage. Her mother made completely a contrary statement Referring to the evidence of P.W. 1, mother of the victim and P.W. 12, the employer of P.W. 1 and the scribe of the FIR, learned counsel, Mr. Sarkar has submitted that mother of the victim was habitual in making false FIR of rape. Fact of such a rape case instituted earlier by her against P.W. 12, was admitted by both the witnesses. P.W. 11 Dr. Tapan Kumar Dutta examined the victim prosecutrix and he found no injury on the person of the victim including private parts rather, stated that the prosecutrix was habitual in sexual intercourse. If five persons committed gang rape, at least there would have been some injuries in her vaginal orifice but no injury was found. P.W. 11 Dr. Tapan Kumar Dutta examined the victim prosecutrix and he found no injury on the person of the victim including private parts rather, stated that the prosecutrix was habitual in sexual intercourse. If five persons committed gang rape, at least there would have been some injuries in her vaginal orifice but no injury was found. The trial court considering the evidence of P.W. 16 held the accused appellant guilty whereas, the accused Uttam had been acquitted who was named in the FIR specifically. The P.W. 16 did not identify the accused in the dock and she also made contradictory statement. P.W. 13, the wife of P.W. 12 and daughter in law of P.W. 16, stated that she was told by her mother in law that the accused persons were with covered face and the averment in her evidence that the accused Raju called out the prosecutrix, was not found in her earlier statement Under such circumstances on merit also prosecution case is absolutely doubtful and the accused is entitled to get the benefit of doubt. 8. Learned Addl. P.P. Mr. R.C. Debnath has submitted that admittedly the victim committed suicide after three months of the alleged occurrence. He has fairly admitted that the evidence i.e. birth certificate of the accused was collected by I.O. which shows that the accused was a juvenile at the time of occurrence. So, the case ought to have been taken up before the Juvenile Justice Board and the trial taken up in the Court of Addl. Sessions Judge has been vitiated. On merit also, learned Addl. P.P. fairly submitted that there are lots of inconsistencies in the prosecution case and he has nothing to support the conviction and sentence of the accused appellant 9. On the very first day of the production of accused before learned SDJM i.e. on 19.10.2006, a prayer was made on behalf of the accused that he was a juvenile. Learned SDJM on that day passed an order directing ossification test of the accused appellant and no other mode of inquiry was directed. Admittedly, in course of investigation a school certificate of the accused appellant was collected by I.O. which is proved as Exbt. D-1. Court witness No. 1 produced the Admission Register and proved the certificate i.e. Exbt. D-1 as issued by him which shows the date of birth of the accused as on 01.02.1991. Admittedly, in course of investigation a school certificate of the accused appellant was collected by I.O. which is proved as Exbt. D-1. Court witness No. 1 produced the Admission Register and proved the certificate i.e. Exbt. D-1 as issued by him which shows the date of birth of the accused as on 01.02.1991. There was no cross examination of court witness No. 1. On perusal of the evidence of Court witness No. 1, as I find, he was examined by the Court on 16.07.2008 and was discharged. The Admission Register which was lying with the Court as it appears was returned to Court witness No. 1 Dwijendra Jamatia on 19.07.2008. It is not understood why that witness was again brought on 11.09.2008 and was again examined by learned Addl. Sessions Judge and there was no cross examination. It is clear that the evidence of Court witness No. 1 what he stated in his examination on 16.07.2008 has not been vitiated in any manner. The finding of learned Addl. Sessions Judge in discarding the evidence of Court witness No. 1 and the school certificate cannot be accepted. While according to law a school certificate is to be accepted as a document of juvenility, learned Magistrate and trial Judge would not depend on the ossification test report. 10. Rule 12(3) of the Juvenile Justice (Care and Protection of Children) Rules, 2007 prescribes thus:-- (3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining-- (a)(i) the matriculation or equivalent certificates, if available; and in the absence whereof: (ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof: (iii) the birth certificate given by a corporation or a municipal authority or a panchayat; (b) and only in the absence of either (i), (ii) or (iii) of clause(a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year. and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law. 11. While Exbt. D-1 has clearly established that the accused appellant was a juvenile, the learned Magistrate at the very inception of filing of charge-sheet would refer the case to the Juvenile Justice Board for trial but that has not been done. Learned Addl. Sessions Judge also failed to discharge his duty according to law. I find no cogent evidence to discard the school certificate i.e. Exbt. D-1. While it is proved that the accused was a juvenile at the time of occurrence, learned Addl. Sessions Judge was not authorized to try the case in the ordinary Court of criminal jurisdiction and he would refer the case to the Juvenile Justice Board. Since the trial was taken up by the learned Addl. Sessions Judge, it stands vitiated and at this stage while the accused was in custody from the date of his arrest i.e. 19.10.2006, I find no justification to direct otherwise but to quash the trial and acquit the accused from the charge. 12. On merit also I find that prosecution case is quite doubtful. The prosecutrix was a girl aged about 16 years. In the FIR she stated that she woke up on being called by Uttam Saha and when she went out, Uttam gagged her mouth and taken her away and assaulted her as well as physically tortured her and she became unconscious. After regaining sense she felt pain in the lower part of her body and was feeling pain in passing urine. In the FIR she did not state anything that she was raped by anybody. After regaining sense she felt pain in the lower part of her body and was feeling pain in passing urine. In the FIR she did not state anything that she was raped by anybody. In her statement recorded under Section 164 of Cr.P.C., which is proved as Exbt. P-4, the prosecutrix stated that on 16.10.2006 at about 12 O'clock (night) her neighbour Uttam Saha and Raju Baishnab and other called her that her mother fell ill in her uncle's house and asked her to open the door. When she opened the door they caught her and gagged her mouth and dragged her to the courtyard. They were 5(five) persons, they made her naked and raped her. Because of the incident she lost her sense and was feeling abnormality in passing urine. On the following day she lodged the FIR. 13. Admittedly, the FIR was lodged after one day of the occurrence and the statement under Section 164 of Cr.P.C. was recorded on 19.10.2006 i.e. on the following day of lodging the FIR. The allegation made in the FIR and the allegation made in the statement recorded under Section 164 of Cr.P.C. is found to be not consistent rather inconsistent in material particulars. 14. P.W. 1, mother of the victim stated that she returned home at about 11:00 p.m. and found her daughter (victim) missing. She searched in the neighbourhood and found her daughter in the jungle at a distance of about 20 cubits from her house in a naked condition lying senseless. This statement is in total contradiction of the victim's statement recorded under Section 164 of Cr.P.C. in the statement, the victim stated that she was dragged in the courtyard and there the accused persons committed rape on her. The victim stated nothing that she was brought back by her mother and that she regained sense after being nursed by her mother. 15. Let us now see the evidence of P.W. 11, the medical officer and the medical examination report which is marked as Exbt. P-3. In his deposition P.W. 11 stated that on 18.10.2006 he examined the prosecutrix in the hospital and he found no external injury, no seminal blood stain in her cloth. Both the breasts were normal. No foreign pubic hair. No injury in the valva. Hymen was absent. He opined that she had sexual intercourse. P-3. In his deposition P.W. 11 stated that on 18.10.2006 he examined the prosecutrix in the hospital and he found no external injury, no seminal blood stain in her cloth. Both the breasts were normal. No foreign pubic hair. No injury in the valva. Hymen was absent. He opined that she had sexual intercourse. In cross he stated that the girl was habituated in sexual intercourse. On going through the Exbt. P-3, the medical examination report of the prosecutrix, I find that the doctor observed that her valva was loose and no injury in the valva. No seminal mark in the labia majora and labia minora and those were closed. Hymen was absent. Vagina was healthy. Cervix was closed. Uterus was of normal size. Vaginal swab was collected and no spermatozoa was found so far the examination report (not exhibited) is placed on record. The doctor has opined that from the findings it reveals that she had sexual intercourse. The evidence of the doctor does not suggest that the prosecutrix was raped rather it suggests that the prosecutrix was habituated in sexual intercourse. 16. The evidence of P.W. 1 and P.W. 12 makes it abundantly clear that P.W. 1 earlier falsely made an allegation of rape against P.W. 12 since P.W. 12 did not pay her wages. Therefore, it cannot be ruled out that a false allegation of rape at the instance of mother might have been lodged by the daughter, the prosecutrix. 17. P.W. 16 is the eye witness of the occurrence according to the prosecution. She was sleeping along with the victim prosecutrix in the same cot and she stated that two persons, one Raju called the prosecutrix and she went out. With a false information that her mother fallen ill she was called out and that time Raju and his companion gagged her mouth and forcefully took her away. On the next day in the morning, she (victim prosecutrix) told her that she was tortured by accused Raju and another. There is nothing in her statement that prosecutrix was raped. No identification of accused persons by this witness was made though the incident occurred at night. In cross examination she stated that she told Darogababu that Raju and others requested her to call the prosecutrix. Her that version was not found in her previous statement. There is nothing in her statement that prosecutrix was raped. No identification of accused persons by this witness was made though the incident occurred at night. In cross examination she stated that she told Darogababu that Raju and others requested her to call the prosecutrix. Her that version was not found in her previous statement. Therefore, even without examining the other lapses in the prosecution case, I find that the story as narrated by the witnesses does not inspire to record a conviction. 18. The trial Court ignored the inconsistencies in the evidence on record and recorded a finding of conviction and sentence of the accused appellant. Therefore, the judgment and order of conviction and sentence, passed by learned Addl. Sessions Judge, Belonia, South Tripura, in case No. ST 17(ST/B) 2008 is set aside. 19. The accused appellant, therefore, is acquitted from the charge and he be set at liberty at once if not released on bail, in the meantime and if, no other case is pending. 20. The appeal accordingly stands allowed. Send back the L.C. record along with a copy of this judgment. __________________