Order This instant appeal has been filed U/s 374 r/w Section-383 CrPC challenging the impugned Judgment & Order dated 27.06.2014 passed by the Special Judge, Fast Track Court, Nongstoin in GR Case No. 94 of 2010 convicting the accused U/s 376 IPC. 2. The Memo of Appeal disclosed the appellant’s case in brief is that, “the appellant herein is assailing the impugned Judgment & Order dated 27.06.2014 passed by the Special Court/Fast Track Court, Nongstoin. The accused/appellant was charged under Section-376 IPC on the basis of the fact that he was found indulging in sexual activities with the victim from 02.04.2010 which continued till 02.06.2010. Further, the learned Court below has passed the impugned Judgment & Order without considering the fact and evidence on records especially the deposition of PW-15 who is an expert in determining the age of the victim. Moreover, the accused/appellant was convicted on the wrong provision of law as the alleged incident took place on 02.04.2010 and the accused/appellant was convicted under Section 376 IPC as per the Amended provision of Section-376 IPC which came into effect from 03.02.2013. Hence this appeal.” 3. Mr. B Bhattacharjee, learned counsel appeared for on behalf of the appellant argued that, the learned Court below has totally failed to appreciate the law and facts of the case. The learned counsel further argued that, in this instant case an FIR was lodged by the NGO and from the evidence of the victim, it is clear that sexual intercourse has taken place with mutual consent between the accused and the victim, as such, it cannot be considered as rape, besides that, the age of the victim has not been proved beyond doubt. The learned counsel also argued that, at the time of commission of the offence, Provision of Section 375 IPC i.e. definition of rape is different from the present Amended Act and further argued that the case has been registered on 4.06.2010. As per the FIR, the offence continued from 02.04.2010 till 02.06.2010, therefore, the law laid down in IPC prior to Amended 2013 should apply and further prayed that the impugned Judgment dated 27.06.2014 need to be set aside. In support of his submission, the learned counsel relied on 2002 (2) GLT 103 (Para-24), (2004) 10 SCC 699 (Para- 30 & 33) and (2005) 3SCC 702 (Para-30). 4. On the other hand, Mrs. In support of his submission, the learned counsel relied on 2002 (2) GLT 103 (Para-24), (2004) 10 SCC 699 (Para- 30 & 33) and (2005) 3SCC 702 (Para-30). 4. On the other hand, Mrs. NG Shylla, the learned counsel appeared for on behalf of the State argued that that, there is nothing wrong in the said Judgment & Order dated 27.06.2014 passed by the Special Judge, Fast Track Court, Nongstoin in GR Case No. 94 of 2010 convicting the accused U/s 376 IPC and also argued that from the evidence, it is clear that there was sexual assault upon the victim by the convict which is proved beyond doubt and the victim was a minor at the time commission of offence. The learned counsel also argued that, the learned Court below has given only 2 years sentence which needs to be enhanced. In support of her submission, she relied on (2008) 16 SCC 758 (Para-9), (2005) 5 SCC 412 (Para-17 & 21), (2003) 8 SCC 13 (Para-17) and (2012) AIR SCW 3237 (Para- 19, 20, 22 & 23). 5. To answer this instant appeal, let me examine and discuss the evidence as recorded by the learned Court below. 6. From the deposition of PW-1, it appears that she has recorded the statement of the victim and 3(three) others witnesses and exhibited the statement as Ext-1, Ext-2, Ext-3 & Ext-4. 7. On perusal of Ext-1, i.e. statement given by the victim to the Magistrate-PW-1, it appears that sexual intercourse has taken place voluntarily and with the consent of the victim. Ext-1 is reproduced herein below: “I am 15 years old. I am studying at Rilyngngam School and reading in Class VIII. For the last few months I have stopped studying. The incident took place on 2nd April 2010. On that day I came from my village Myriam and arrived Nongstoin at 9 P.M. Being night time I dare not proceed to my sister’s place near Petrol Pump, Nongstoin. Accordingly I had gone to my friend’s place who is staying in rented house. The accused Lucky Kalita also stays in that same house on rent. On reaching there and while chatting around with some other friends, Kalita joined us, we were five of us, self, my friend Miss Pyniarlin Dkhar, Shri Nalon, Shri Kalita and Duh Duh (name is not known). The accused Lucky Kalita also stays in that same house on rent. On reaching there and while chatting around with some other friends, Kalita joined us, we were five of us, self, my friend Miss Pyniarlin Dkhar, Shri Nalon, Shri Kalita and Duh Duh (name is not known). All of us were sitting on the bed of Shri Nalon who also live on rent in that same house. Kalita was sitting close to my side, holding my hand and writing with a pen it ‘I love you’. After a while we came out of Nalon’s room and were sitting outside the verandah i.e self, Kalita and Duh duh whereas my friend Pyniarlin and Nabon remained in his room. While sitting in the veranda, my friend was calling out my name. I did not know what for she called me out, what had happened to her inside Nalon’s room but, I could recall she was using the word ‘Please’. Out of fear I ran away from the verandah and were sitting in the staircase along with Duh Duh. It was at that point of time, Kalita asked me and Duh Duh to come inside his rented house. Both of us agreed and after spending time for awhile, Duhduh fell asleep. Taking advantage of the situation, Kalita started holding my hand and made me lie on his bed. Realizing of his body language I have tried to make him understand that I am still studying, young and did not want to disappoint my parents. He was adamant saying that everything will be alright. I have tried to resist the temptation initially but on being excited through foreplay and sweet tongue I could say that I have submitted myself voluntarily to his desire. After, the incident gradually it has become a practice where I have come to like and love the person and finally stayed with him at that rented house for more or less two months till the matter was brought to the notice of the Seng Longkmie, New Nongstoin. I have regretted my own weaknesses; I have no more intention to continue the relationship. I am still a minor and I want to continue my study by next year and I promise not to disappoint my parents anymore.” 8. From the evidence of the victim PW-2 it appears that, initially she was allured and sexually assaulted by the convict. I have regretted my own weaknesses; I have no more intention to continue the relationship. I am still a minor and I want to continue my study by next year and I promise not to disappoint my parents anymore.” 8. From the evidence of the victim PW-2 it appears that, initially she was allured and sexually assaulted by the convict. From her evidence it is also clear that, thereafter, the convict and the victim had several sexual intercourse with the consent of the victim and she also stayed with the convict. In the cross-examination she admitted that, sexually intercourse with the convict was out of her consent and sincerely desired that the said case to be compromised once and for all. 9. On join reading of the deposition of PW-2 as well as statement recorded by the Magistrate (Ext-1) referred to above, it is understood that, sexually intercourse between the parties were with mutual consent. Though, she stated that she had been sexually assault at the first instant but she has not stated the same before the recording Magistrate at Ext-1, therefore, it create doubt about the sexual assault and her evidence definitely made 2(two) interpretations. 10. It is for the prosecution to establish or prove the case beyond doubt and there should not be any ambiguity in the evidence. In case, 2(two) interpretations evolved from evidence, interpretation which is in favour of the accused stands. Since in this instant case, on join reading of Ext-1 i.e. statement of the victim before the Magistrate and deposition before the Trial Court pertaining to the sexual assault contradict with each other. Therefore, deposition about the initial sexual assault cannot be accepted safely because the victim herself has stated in both i.e. in the Ext-1 as well as in the deposition that, sexual intercourse has taken place with her consent whereas victim was silent of sexual assault in her statement before recording Magistrate (Ext-1). 11. From the deposition of PW-3, who is father of the victim, it appears that he has been directed by the NGO to file an FIR but he was reluctant to do so as his daughter never disclosed to him that she has been sexually assaulted by the convict Shri. Lukhi Kalita. 11. From the deposition of PW-3, who is father of the victim, it appears that he has been directed by the NGO to file an FIR but he was reluctant to do so as his daughter never disclosed to him that she has been sexually assaulted by the convict Shri. Lukhi Kalita. From his evidence, it further appears that, he has cautioned his daughter and advised her on earlier occasions, when he saw his daughter in the house of the convict as she was underage and must pursue her studies. So, from the deposition of PW-3, it appears that he had knowledge that his daughter was residing and had a close relationship with the convict which also shows that the victim had consent on all the affairs. 12. From the evidence of PW-4, it appears that she had investigated the case on the basis of the FIR and stated about the medical report which shows that, there was a recent sexual intercourse. So, from her evidence there is nothing much except recent sexual intercourse and it is obvious as stated by the victim that, she had sexual intercourse with the convict willfully. 13. Deposition given by PW-5. From the evidence of PW-5 it appears that, she had recorded the statement of the accused who confessed his guilt. In the cross-examination, she stated that the victim girl was a minor, so she was not in a position to distinguish between good and bad. 14. As per the deposition of PW-6, the age of the victim girl was 15 years old as stated by the victim and confirmed by the school authority where she was studying. In the cross-examination, she stated that the NGO desired that the case to be closed and dropped. 15. From the deposition of PW-7, it appears that, he had medically examined the victim and found normal without any injury mark, however, he found that there is a sign of recent sexual intercourse. 16. From the deposition of PW-8 also it apparent and it can be assumed safely that there was a contribution from the side of the victim for such sexual intercourse. 17. From the deposition of PW-9, only one point has been given that, the victim was 15 years old at the time of commission of the offence which is according to the statement given by the victim and her parents. 18. 17. From the deposition of PW-9, only one point has been given that, the victim was 15 years old at the time of commission of the offence which is according to the statement given by the victim and her parents. 18. PW-10, one of the Members of the NGO also corroborated the evidence given by the other NGO Members. 19. PW-11 & PW-12 are mere seizure witness of Ext. 5 & 7. 20. From the cross-examination of PW-13, it appears that, she does not know anything about this instant case. 21. PW-14 is the seizure witness of some clothes who signed in the Ext.11 of the seizure list. 22. From the deposition of PW-15, it appears that he is a dental surgeon and the victim was forwarded to him for age determination. In the cross-examination he has stated that, in his opinion the age of the victim is about 15 years on his assumption and further stated that the victim is definitely below 17 years of age on the date of commission of the offence. His evidence is contradictory in nature as he opined that, the age of the victim is 15 years old on mere assumption but on the other hand he also stated that, definitely the victim is below 17 years of age, therefore, his opinion cannot be accepted safely. 23. PW-16, from his evidence it appears that, he has recorded the statement of the convict and exhibited the same as Ext-9. 24. I have perused the statement Ext.9 and nowhere can be found that the accused has forcibly or sexually assault the victim. 25. After analysis all the evidence on record as referred above, I find that sexual intercourse between the victim and the accused has taken place on mutual consent between the parties except in the first occasion where the victim deposed that, she has been sexually assaulted for which she remained silent while her giving statement before the recording Magistrate. 26. After perusal and evaluation of the evidence on record, 2(two) crux issues appear before this Court; firstly, whether this instant case falls within the purview of rape and secondly, whether prosecution has succeeded to establish the exact age of the victim. To answer the first question, definition of Section-375 IPC of the Criminal Law (Amendment) Act, 2006 is reproduced herein under: “375. To answer the first question, definition of Section-375 IPC of the Criminal Law (Amendment) Act, 2006 is reproduced herein under: “375. Rape A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:- First- Against her will. Secondly,- Without her consent. Thirdly- With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt. Fourthly- With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fifthly - With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly - With or without her consent, when she is under sixteen years of age. Explanation- Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. Exception- Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.” 27. At the same time, I also reproduce the definition of rape under Section-375 IPC as per the Criminal Law (Amendment) Act, 2013 which is as under : “375. Exception- Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.” 27. At the same time, I also reproduce the definition of rape under Section-375 IPC as per the Criminal Law (Amendment) Act, 2013 which is as under : “375. A man is said to commit “rape” if he- (a) penetrates his penis, to any extent, into the vagina, mouth urethra or anus of a woman or make her to do so with him or any other person; or (b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or (c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of the body of such woman or makes her to do so with him or any other person; or (d) applies his mouth into the vagina, anus, urethra of a woman or makes her do so with him or any other person, under the circumstances falling under any of the following seven descriptions:- First.- Against her will. Secondly.- Without her consent. Thirdly. - With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or hurt. Fourthly.- With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fifthly.- With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly.- With or without her consent, when she is under eighteen years of age. Seventhly.- When she is unable to communicate consent. Explanation 1. – For the purpose of this section, “vagina” shall also include labia majora. Explanation 2. Sixthly.- With or without her consent, when she is under eighteen years of age. Seventhly.- When she is unable to communicate consent. Explanation 1. – For the purpose of this section, “vagina” shall also include labia majora. Explanation 2. – Consent means an unequivocal voluntary agreement with the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act: Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity. Exception 1. - A medical procedure or intervention shall not constitute rape. Exception 2.- Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.” 28. On perusal of the above definition of Section- 375 IPC, it is understood that, as per the definition of the Criminal Law (Amendment) Act, 2006, any sexual intercourse with or without consent when she is under 16 years of age is considered as rape but on the other hand, as per the definition of the Criminal Law (Amendment) Act, 2013, any sexual intercourse with or without her consent when she is 18 years of age is considered as rape. Therefore, on join reading of both the definitions referred to above, it is clear that prior to 2013 Amendment any sexual intercourse with or without consent of the victim who is under 16 years of age is considered as rape but as per the 2013 Amendment made it clear that, with or without consent when the victim is under 18 years of age is considered as rape. In this instant case, the commission of offence took place in the year 2010 when the definition of the Amendment 2006 was still in force, so naturally it was applicable for trial of this instant case as the commission of offence occurred in the year 2010. Therefore, in my considered view, the definition of Amendment of 2013 cannot apply in this instant case as law cannot be enforced retrospective. With regard with the second issue i.e. the exact age of the victim at the time of commission of the offence, that remained un-answered. Therefore, in my considered view, the definition of Amendment of 2013 cannot apply in this instant case as law cannot be enforced retrospective. With regard with the second issue i.e. the exact age of the victim at the time of commission of the offence, that remained un-answered. PW-15 could not come to any clear-cut conclusion, on one hand he said that the age of the victim was 15 years and on the other hand he stated that the victim was below 17 years of age. In such a circumstances, it is difficult on the part of the Court to come to any conclusion whether the age of the victim girl was 15 years, 16 years or 16 ½ years. From record also it appears that, school register was not called for by the prosecution nor age proof certificate produced before the Court except Xerox copy of age proof certificate issued by the Church; that too was also not examined. Prosecution should have produced age proof certificate from the school which is one of the best and acceptable evidence to prove the age. Hon’ble Apex Court in the case of Mohindra Singh & Anr. vrs State of Madhya Pradesh reported in (2004) 10 SCC 699 (Para-30) has observed that : “30. It is now well settled that benefit of doubt belonged to the accused. It is further trite that suspicion, however grave may be, cannot take place of a proof. It is equally well settled that there is a long distance between “may be” and “must be.” 29. In the case of Mohinder Singh vrs State of Punjab reported in (2005) 3 SCC 702 (para-13), the Apex Court was pleased to observed that : “13. As observed by this court in Umesh Chandra v. State of Rajasthan ordinarily oral evidence can hardly be useful to determine the correct age of a person, and the question, therefore, would largely depend on the documents and the nature of their authenticity. Oral evidence may have utility if no documentary evidence is forthcoming. Even the horoscope cannot be reliable because it can be prepared at any time to suit the needs of a particular situation. Entries in the school register and admission form regarding date of birth constitute good proof of age. Oral evidence may have utility if no documentary evidence is forthcoming. Even the horoscope cannot be reliable because it can be prepared at any time to suit the needs of a particular situation. Entries in the school register and admission form regarding date of birth constitute good proof of age. There is no legal requirement that the public or other official book should be kept only by a public office and all that is required under Section 35 of the Evidence Act that it should be regularly kept in discharge of official duty. In the instant case the entries in the school register were made ante litem motam.” 30. After analysis the evidence as discussed above as well as law and citation given by the Hon’ble Apex Court, I find that in this instant case sexual intercourse between the victim and the convict was with mutual consent, though the victim in her deposition before the Trial Court has stated that intercourse was sexually assaulted but she Crl. Appeal No. 4 of 2014 remained silent about the first sexual assaulted while giving her statement before the recording Magistrate and from her conduct and deposition, it appears that she had full consent in the sexual intercourse. With regard to the second question, I could not satisfy myself that the victim was 16 years of age as already discussed above because neither the Doctor could determined the exact age of the victim nor prosecution produced the school admission register where the victim was studying. Therefore, in my view as per the Criminal Law (Amendment) Act, 2006, she cannot be considered as 16 years of age. On the other hand, I may not be wrong to say that, whatever evidence given on record cannot be relied on safely to decide this instant case as doubts remained about the exact age. It is a settled principle of law that, Court cannot convict a person for moral satisfaction, prosecution to establish the case beyond doubt, if there is doubt, it must be resolved in favour of the accused. If there are two interpretations, one in favour of the prosecution and the other in favour of the accused, it must be resolved in favour of the accused. 31. If there are two interpretations, one in favour of the prosecution and the other in favour of the accused, it must be resolved in favour of the accused. 31. I have also perused the impugned Judgment & Order in question and after given my anxious thought keeping in mind the position of law, I am unable to agree with the decision given by the learned Court below. 32. The observations made by the Hon’ble Supreme Court in the case of State of Rajasthan v. Vinod Kumar reported in (2012) AIR SCW 3237 (Para- 19, 20, 22 & 23) relied by the respondent’s counsel is regarding punishment. In the case of State of Madhya Pradesh vrs Pappu Alias Ajay reported in (2008) 16 SCC 758 (Para-9) relied by the respondent’s counsel is pertaining to bail. In the case of State of M.P. vrs Ghanshyam Singh in reported in (2003) 8 SCC 13 (Para-17 & 20) relied by the respondent’s counsel also speaks about decision of sentence. In the case of State of M.P. vrs. Babbu Barkare Alias Dalap Singh reported in (2005) 5 SCC 413 (Para-17 & 21) relied by respondent’s counsel also speaks about punishment. 33. In every each and every criminal trial, it is the duty of the prosecution to establish the case against the accused beyond reasonable doubts, then only conviction follows. Unless and until conviction is satisfied, the question of quantum of sentence either reducing or increasing does not arise. Since in this instant case, after evaluation of the evidence on record as well as the law, I am of the opinion that, prosecution could not succeed to establish their case beyond doubts. Therefore, I am unable to uphold the impugned Judgment & Order dated 27.06.2014 passed in GR Case No. 94 of 2010. Hence, I do not see that the Judgments referred to above by the respondent’s counsel have any relevancy with the facts and circumstances in this instant case. 34. For the reasons as discussed above, the impugned order dated 27.06.2014 passed in GR Case No. 94 of 2010 is hereby set aside and the Special Judge, Fast Track Court, Nongstoin is directed to take necessary steps to release the accused person namely; Shri. Lukhi Kalita in case, if he is not required in any other case or cases. 35. For the reasons as discussed above, the impugned order dated 27.06.2014 passed in GR Case No. 94 of 2010 is hereby set aside and the Special Judge, Fast Track Court, Nongstoin is directed to take necessary steps to release the accused person namely; Shri. Lukhi Kalita in case, if he is not required in any other case or cases. 35. Registry is directed to roll back the Lower Court case record to the Court concerned along with a copy of this order. 36. Accordingly, this instant appeal is allowed and the matter stands disposed of.