JUDGMENT : Pratyush Kumar, J. The instant appeal filed on behalf of the accused-appellant is directed against the judgment and orders dated 4.5.2015 passed by Shri Ashwani Kumar Singh, Additional Sessions Judge, Court No.1, Ballia in Special Case No.25 of 2014, whereby the appellant has been convicted under Sections 363, 366, 376, IPC & under Section 4 of POCSO Act and sentenced to undergo rigorous imprisonment for five years, five years, ten years and seven years respectively. Consolidated amount of Rs.10,000/-has been imposed as fine. In default of payment of fine the appellant has been further directed to undergo one year's rigorous imprisonment. All the sentences have been directed to run concurrently. 2. Heard Shri S.K. Tiwari, learned counsel for the appellant, Smt. Archana Singh, learned A.G.A. for the State and Shri Arvind Singh Sengar, learned counsel for the complainant. 3. The facts giving rise to the present appeal may be summarized as under:- That on 21.1.2014 at 12.45 p.m. Munna Paswan gave a written report at P.S. Pakdi, District Ballia stating therein that on 14.1.2014 at 5.00 a.m. his daughter (in place of name she is referred as victim hereinafter) was enticed away by Nirbhay Narayan Tiwari in collusion with his father Anil Tiwari. Anil Tiwari asked him not to approach the police. He had requested for suitable action. 4. At this check FIR was scribed. Case Crime No.19/2014, under Section 363, 366, IPC and Section 8 of the POCSO Act was registered. Investigation was entrusted to S.I. Sarnath Singh, the then Station Officer, who started the investigation on the same day and recorded the statement of the first informant and inspected the spot. On 7.3.2014 the Investigating Officer on the information of Mukhbir at Roadways Bus Station, Ballia arrested Nirbhay Narayan Tiwari and recovered the victim, got her medically examined, her statement under Section 164, Cr.P.C. was recorded. Thereafter, charge sheet was submitted against the present appellant. 5. Appellant stood for trial before the Special Judge, where he was charged, tried and convicted as above. 6. Shri S.K. Tiwari, learned counsel for the appellant in support of his appeal has submitted that age of the victim has not been determined in accordance with law. The appellant has not committed any offence. He has been erroneously held guilty. There are material contradictions in the prosecution evidence, medical evidence does not support the prosecution version. 6. Shri S.K. Tiwari, learned counsel for the appellant in support of his appeal has submitted that age of the victim has not been determined in accordance with law. The appellant has not committed any offence. He has been erroneously held guilty. There are material contradictions in the prosecution evidence, medical evidence does not support the prosecution version. He further submits that the conviction and sentence of appellant are based on conjectures and surmises. 7. On behalf of the State-respondents these arguments have been repelled and it has been submitted that evidence has been properly appreciated. Findings recorded by the trial Judge are well substantiated from the record. Cogent reasons have been given in support thereof. The appeal has no substance, it deserves to be dismissed. 8. In reference to my obligations as an appellate court hearing appeal against conviction I would like to refresh the observation made by the Apex Court in the case of Ishvarbhai Fuljibhai Patni Vs. State of Gujarat [1995 Supreme Court Cases (Crl) 222]. Para-4 of the judgment reads as under: "4. Since, the High Court was dealing with the appeal in exercise of its appellate jurisdiction, against conviction and sentence of life imprisonment, it was required to consider and discuss the evidence and deal with the arguments raised at the bar. Let alone, any discussion of the evidence, we do not find that the High Court even cared to notice the evidence led in the case. None of the arguments of the learned counsel for the appellant have been noticed, much less considered and discussed. The judgment is cryptic and we are at loss to understand as to what prevailed with the High Court to uphold the conviction and sentence of the appellant. On a plain requirement of justice, the High Court while dealing with a first appeal against conviction and sentence is expected to, howsoever briefly depending upon the facts of the case, consider and discuss the evidence and deal with the submissions raised at the bar. If it fails to do so, it apparently fails in the discharge of one of its essential jurisdiction under its appellate powers. In view of the infirmities pointed out by us, the judgment under appeal cannot be sustained." 9. If it fails to do so, it apparently fails in the discharge of one of its essential jurisdiction under its appellate powers. In view of the infirmities pointed out by us, the judgment under appeal cannot be sustained." 9. In the case of Lal Mandi, Appellant v. State of West Bengal, Respondent [1995 CRI.L.J.2659 (Supreme Court), 2659], the Apex Court in para-5 of the report has given caution to the High Court reminding its duty in the matter of hearing of appeal against conviction. It would be gainful to reproduce the observation made in para-5 of the report, extracted below: "5. To say the least, the approach of the High Court is totally fallacious. In an appeal against conviction, the Appellate Court has the duty to itself appreciate the evidence on the record and if two views are possible on the appraisal of the evidence, the benefit of reasonable doubt has to be given to an accused. It is not correct to suggest that the "Appellate Court cannot legally interfere with" the order of conviction where the trial court has found the evidence as reliable and that it cannot substitute the findings of the Sessions Judge by its own, if it arrives at a different conclusion on reassessment of the evidence. The observation made in Tota Singh's case, which was an appeal against acquittal, have been misunderstood and mechanically applied. Though, the powers of an appellate court, while dealing with an appeal against acquittal and an appeal against conviction are equally wide but the considerations which weigh with it while dealing with an appeal against an order of acquittal and in an appeal against conviction are distinct and separate. The presumption of innocence of accused which gets strengthened on his acquittal is not available on his conviction. An appellate court may give every reasonable weight to the conclusions arrived at by the trial court but it must be remembered that an appellate court is duty bound, in the same way as the trial court, to test the evidence extrinsically as well as intrinsically and to consider as thoroughly as the trial court, all the circumstances available on the record so as to arrive at an independent finding regarding guilt or innocence of the convict. An Appellate Court fails in the discharge of one of its essential duties, if it fails to itself appreciate the evidence on the record and arrive at an independent finding based on the appraisal of such evidence." 10. Before entering into the merits of the argument it would be convenient for me to place on record the evidence of the parties. Summary of the evidence adduced by the prosecution is as follows:- 11. Munna Paswan, PW-1 is the first informant and father of the victim. He has reiterated the facts mentioned in the first information report, Exhibit Ka-1 and further stated that at that time his daughter was studying in Class VIIth in Higher Secondary College, Phulwaria. At that time she was aged about 12 years. The appellant used to give tuition to his daughter. 12. Victim, PW-2 has supported the prosecution version and reiterated the facts stated by her father. According to her, on the pretext of some discussion about study she was taken away to Mau by a bus. On the way the appellant had threatened him not to raise alarm otherwise she would be killed. From there she was taken to Surat where she was confined in one room. The appellant committed rape with her forcibly. The police recovered her from there and brought to Ballia. She has proved her statement recorded under Section 164, Cr.P.C., Exhibit Ka-2. 13. Dr. Jyotsana Singh, PW-3 is the Medical Officer, who on 10.3.2014 medically examined the victim. According to her, there was no external mark of injury on her person. Her physical growth was well developed. For determination of age she advised X-ray and ultrasound of lower abdomen and urine examination. Slide of vaginal smear was prepared. She has proved medical examination report, Exhibit Ka-3, Supplementary Report, Exhibit Ka-4, Reference Slips for X-ray and ultrasound reports, Exhibit Ka-5 and Ka-6 and consent of the father of the victim, Exhibit Ka-7. According to her, hymen of the victim was old torn. At that time she was major. 14. S.I. Sarnath Singh, PW-4 is the Investigating Officer. He gave details of the steps taken in the course of investigation. According to him, after statement of the victim under Section 164, Cr.P.C., Section 376 was added to the case crime number. According to her, hymen of the victim was old torn. At that time she was major. 14. S.I. Sarnath Singh, PW-4 is the Investigating Officer. He gave details of the steps taken in the course of investigation. According to him, after statement of the victim under Section 164, Cr.P.C., Section 376 was added to the case crime number. He has proved site plan and charge sheet, Exhibit Ka-8 and Ka-9, Check FIR, Exhibit Ka-10 and copy of the report of the General Diary, Exhibit Ka-11. 15. Rajpati Ram, Principal Junior High School, Phulwaria, PW-5 has stated that on 20.7.2012 victim was admitted in Class VIth. Her date of birth in the admission register has been entered as 1.8.2002. He has filed photocopy of the extract of the admission register, Exhibit Ka-12. 16. After close of prosecution evidence statement of the appellant was recorded under Section 313, Cr.P.C. wherein he has denied the facts stated by the prosecution witnesses. In reference to the statement of the doctor Jyotsana Singh he has stated that her statement is correct. Admission entry is fictitious. Due to partibandi of the village he has been falsely implicated after he was taken from his house. 17. In the defence oral evidence was given. One letter Exhibit Kha-2 purported to be written by the victim has been filed. In the defence information about missing of the victim published on behalf of the Investigating Officer, Exhibit Kha-1 has been filed. 18. The first ground raised on behalf of the appellant is the age of the victim. In this reference learned counsel for the appellant has placed reliance on the judgment dated 25.8.2015 passed by Division Bench of this Court in Special Appeal No.559 of 2015 (Ali Mohammad Vs. State of U.P. And 7 others). This authority has been cited in reference to provisions contained in Rule 12 of the Juvenile Justice Rules 2007. For ready reference Rule 12 is quoted as below:- "12. Procedure to be followed in determination of Age.--(1) In every case concerning a child or a juvenile in conflict with law, the court or the Board or as the case may be, the Committee referred to in rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose. (2) The court or the Board or as the case may be, the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be, the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail. (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 Naziya Bano the age as regards such child or the juvenile in conflict with law." 19. Thereafter, Division Bench of this Court while relying on the judgment of the Hon'ble Apex Court given in Jarnail Singh Vs. State of Haryana, AIR 2013 SC 3467 has laid emphasis about the manner in which the evidence envisaged in Rule 12(3) of the 2007 Rules should be considered. 20. On the strength of this authority, learned counsel for the appellant submits that in the present case victim was not matriculation passed. State of Haryana, AIR 2013 SC 3467 has laid emphasis about the manner in which the evidence envisaged in Rule 12(3) of the 2007 Rules should be considered. 20. On the strength of this authority, learned counsel for the appellant submits that in the present case victim was not matriculation passed. According to him, as per Rule 12(3) Clause (a)(ii) of the 2007 Rules date of birth entered in the school first attended could have been considered as determinative, but according to him, evidence of Rajpati Ram, PW-5 has been relied upon by the learned trial Judge in violation of the said rule because it was not the first school attended by the victim. Admittedly, she was admitted there in Class VIth. He further submits that as per clause (a)(iii) no certificate was filed by the prosecution, therefore, the medical evidence should have been considered as determinative of the age of the victim. Though this argument is substantiated from Clause (b) Rule 12(3) of the 2007 Rules, but I do not think that in the present case medical evidence is in conformity with the said provision. The opinion given by Dr. Jyotsana Singh, PW-3 is an individual opinion. It is not an opinion given by the Medical Board. For this reason, I find myself unable to take her opinion as determinative of the age of the victim. 21. When the determinative factors envisaged in Rule 12(3) of the 2007 Rules have not been proved, it is the duty of the Court to determine the age of the victim with the help of the evidence available on record. On this point there are other kinds of evidence. In the form of evidence of Munna Paswan, PW-1 and victim, PW-2 the prosecution submits that age of the victim should be held to be 12 years. On the other hand on behalf of the appellant X-ray report has been referred and statement of Dr. Jyotsana Singh made during the cross examination has been quoted where she has opined that on the basis of X-ray report victim was major. 22. I have gone through the original X-ray report. It has not been exhibited, but it has been filed on behalf of the prosecution. Jyotsana Singh made during the cross examination has been quoted where she has opined that on the basis of X-ray report victim was major. 22. I have gone through the original X-ray report. It has not been exhibited, but it has been filed on behalf of the prosecution. Though radiologist has not been examined, but considering the fact that he is a public servant and in discharge of official duty he has signed X-ray report, it has been relied by Dr. Jyotsana Singh. I think defence is entitled to base its argument on its basis. According to this X-ray report at the relevant time all epiphysis of the victim were found fused, thus, radio logically the victim appears to be major. 23. Statement of Munna Paswan, PW-1 on this point appears to be vague. He was married in the year 1989. His elder son was born in the year 1995. He has admitted that his elder son was registered voter in the year 2009. He has refused to disclose the date of birth of his younger daughter. He has stated that the victim was born in the Mayka of his wife. From these evasive replies I do not think that any reliance can be placed on his statement. 24. Statement of Victim, PW-2 is also not confidence inspiring on this point. She has refused to disclose difference of years between her age and age of her elder brother. She has also failed to disclose at what age she had attended Class Ist. According to her, she was born in the hospital. According to her, she did not know what age has been entered in the school register for the reason admission form was submitted by her mother. Obviously the victim has not given straight answers. Development of her body and fusion of epiphysis appear to be more indicative of the fact that at the relevant date victim was major. 25. The second submission on behalf of the appellant is that the victim is a consenting party. She was not kidnapped. She has left her house with her own free will and she lived with the appellant due to love and affection felt by her. The victim, PW-2 in her statement has admitted that the letter, Exhibit-Kha 2 was in her handwriting. She was not kidnapped. She has left her house with her own free will and she lived with the appellant due to love and affection felt by her. The victim, PW-2 in her statement has admitted that the letter, Exhibit-Kha 2 was in her handwriting. In this letter she has disclosed her plan to the appellant how she would leave her house and join him. Though during the examination-in-chief she supported the prosecution version, but during cross examination she admitted that appellant waited for her in front of her house on a bicycle. After running she sat on the bicycle herself. At that time day had not broken out. None had seen her leaving the house. She lived for about two months with the appellant, but she did not raise any alarm. When these facts are taken into consideration along with her letter, Exhibit Kha-2, her stay at Surat appears to be voluntary. 26. On behalf of the appellant it has been submitted that according to the victim, PW-2, she was recovered by the police at Gujrat whereas according to prosecution version, she was recovered at Bus Station, Ballia. On the strength of this discrepancy learned counsel for the appellant submits that where the recovery of the victim remained under mystery, FIR was lodged with delay, medical evidence did not support the prosecution version, the evidence of prosecutrix should not be relied upon. In support of this argument he has referred the case of Mohd. Ali Vs. State of U.P., 2015(7) SCC 272 . 27. He has further submitted that during her journey from the village up to Surat and her stay at Surat the victim never raised any alarm. This makes her testimony to be suspicious. In support of this argument he has referred the case of Alamelu Vs. State, (2011) 2 SCC 385 . He has placed reliance on the observations made by the Hon'ble Apex Court in para 55 of the report. The relevant observation is quoted herein below. “55.Earlier also, the girl had many opportunities to complain or to run away, but she made no such effort. It is noteworthy that she made no protest on seeing some known persons near the car, after her alleged abduction. She did not make any complaint at the residence of Selvi, sister of Sekar (A-1) at Pudupatti. “55.Earlier also, the girl had many opportunities to complain or to run away, but she made no such effort. It is noteworthy that she made no protest on seeing some known persons near the car, after her alleged abduction. She did not make any complaint at the residence of Selvi, sister of Sekar (A-1) at Pudupatti. Again, there was no complaint on seeing her relatives allegedly assembled at the temple. Her relatives apparently took no steps at the time when mangalsutra was forcibly tied around her neck by Sekar (A-1). No one sent for police help even though a car was available. She made no complaint when she was taken to the house of PW5, Thiru Thirunavukarasu and stayed at his place. Again, there was no protest when Sekar (A-1) took her to the police station on the fifth day of the alleged abduction and told at the Tiruchi Police Station that they had already been married. The above behaviour would not be natural for a girl who had been compelled to marry and subjected to illicit sexual intercourse.” 28. In view of the above, on the fact of kidnapping, confinement and commission of rape, I do not think that testimony of victim, PW-2 can be relied upon. Aside her testimony there is no corroborative evidence. Medical evidence does not support her allegations. Her letter Exhibit Kha-2 is contradictory to what she has stated before the Court, therefore, no reliance can be placed on her statement. 29. In view of the above, I find some substance in the argument advanced on behalf of the appellant that the learned trial Judge has not appreciated the evidence in reference to determination of the age and commission of crime in legal prospective. The findings recorded by him are erroneous and not substantiated from the record. The impugned judgment and orders are against weight of the material on record and law. They deserve to be set aside. Since the prosecution has failed to prove charges beyond doubt against the present appellant, appellant deserves to be acquitted from the charges framed against him. 30. Accordingly, appeal is allowed. Impugned judgment and orders dated 4.5.2015 passed by Shri Ashwani Kumar Singh, Additional Sessions Judge, Court No.1, Ballia in Special Case No.25 of 2014 as also the conviction and sentences of the appellant are set aside. 30. Accordingly, appeal is allowed. Impugned judgment and orders dated 4.5.2015 passed by Shri Ashwani Kumar Singh, Additional Sessions Judge, Court No.1, Ballia in Special Case No.25 of 2014 as also the conviction and sentences of the appellant are set aside. Appellant Nirbhay Narayan Tiwari is acquitted from the charges under Sections 363, 366, 376, IPC and Section 4 of the POCSO Act. He is in jail. If he is not wanted in any other case, he be released forthwith. 31. Office is directed to communicate this order to the court concerned forthwith to ensure compliance and further sent back the lower court record. ———————