JUDGMENT & ORDER : 1. Present appeal is directed against the judgment and order dated 20.10.2016 passed by the learned Special Judge, Golaghat in Special (POCSO) case No. 4/2016 convicting the accused/appellant under section 4 of POCSO Act and sentencing him to undergo rigorous imprisonment for 7 years and to pay a fine of Rs. 5,000/- in default to further undergo simple imprisonment for 1 month and to undergo simple imprisonment for 1 year under section 342 of the Indian Penal Code. 2. Prosecution case in a nutshell is that one Smti. Khireswari Baruah lodged an FIR on 6.03.2014 to the effect that her daughter was found missing from the house since 6 pm and she returned herself at 11 pm. On her return she has stated that the accused person has committed rape upon her by confining her in his house. Her daughter also revealed that she has love affair with him for about one year and she planned to elope with him after H.S.L.C examination. It is also alleged in the FIR that the said accused person by flirting with her daughter indulged with sexual intercourse and thereafter she was released with a threatening. 3. On the basis of the said FIR Sarupathar P.S Case No. 35/2014 under section 376/342 IPC read with section 6 of the POCSO Act was registered. The victim was medically examined by Doctor and her one chocolate coloured panty was sized. Her statement under section 164 CrPC was also recorded and on completion of the investigation charge sheet was submitted against the accused/appellant under section 376/342 IPC read with Section 6 of the POSCO Act. Accused/appellant entered his appearance before the Court and the case was committed to the Court of Sessions for favour of trial being the offences are triable by the Sessions Court. On his appearance charge under said section of law was framed and explained to the accused person to which he pleaded not guilty. 4. In support of the case, prosecution examined 9 witnesses including the Medical Officer and the Investigating Officer and one more witness was also examined as court witness. Plea of defence is of total denial and declined to adduce any witness. 5. At the conclusion of the trial the Ld. 4. In support of the case, prosecution examined 9 witnesses including the Medical Officer and the Investigating Officer and one more witness was also examined as court witness. Plea of defence is of total denial and declined to adduce any witness. 5. At the conclusion of the trial the Ld. court found and held the accused guilty under section 4 of the POCSO Act sentenced him to RI for 7 years and a fine of Rs. 5000/- and also sentence to him simple imprisonment for 1 year under section 342 of the Indian Penal Code. Being aggrieved with the aforesaid order of conviction the present appeal has been preferred. 6. According to the learned counsel for the petitioner the impugned judgment of the Lower Court suffers from various infirmities and as such liable to be interfered with. It has been urged that the statement of victim is inconsistent at different stages, like her statement before the police under section 161 and statement under section 164 and thereafter before the court in course of trial, are totally different on material aspect. 7. Referring to the other evidence and her parents as well as conduct of the victim it has been submitted that such a material inconsistency of the evidence of the vital witness, coupled with the fact that, the victim had love affairs with the accused/appellant, same can be held as conscious act on the part of the victim girl, if at all such incident happened. 8. The learned counsel for appellant has led the court through the evidence of the witnesses so far recorded by the prosecution and has urged before the court that the learned Trial Court has erred in the law as well as fact while appreciating the evidence on record. Evidence of Medical Officer raise the scope to hold that the victim may not minor at the time of occurrence. 9. Learned counsel for the state-respondent has however tempt to rely upon the findings of the learned Trial Court by holding that as the victim has stated all about the incident that she was forcefully raped by accused and hence inference of the guilt of the accused can be drawn. According to the admitcard of school, date of birth of victim is 21.5.1997, so the girl can be held to be minor. I have duly considered the submission made before this Court. 10. According to the admitcard of school, date of birth of victim is 21.5.1997, so the girl can be held to be minor. I have duly considered the submission made before this Court. 10. Let us appreciate the evidence of the prosecutrix. In course of trial as PW-1, she has stated while she was proceeding on the road at 6 P.M, the accused caught hold her at hand and by gagging her mouth she was taken to his nearby quarter and then she turned unconscious while the accused committed sexual intercourse upon her for around one hour and thereafter accused went away by locking the house and he again return in a vehicle and then she run away. It is also stated that the house of the accused is nearby their quarter. 11. In her statement under section 164 she has stated that after taking her to his house accused committed rape upon her for around half an hour and thereafter she turned unconscious and it was the accused who sprinkle water upon her face and open the door then she returned to her house. She has also admitted about love relation with the accused since earlier. 12. IO has confirmed that her statement recorded under section 161 and she admitted about the love affairs with the accused more than 3 years and she did not state before him that accused kept her confined by closing the door. 13. Now, let us examine the evidence of her parents the PW-2 Smti. Khireswari Baruah and PW-3 Gautam Baruah. In her statement PW-2 has stated that in the evening PW-1 was found missing from the house at around 6 PM and at about 11 PM she returned herself to home and upon asking she reported that she was taken away by the accused and kept her in his room. While asking matters through others she said that accused committed rape upon her in his house. It was said by the PW-3 that while his daughter returned at about 10:30 PM upon asking she told that she was hiding in the Jungle so he assaulted her. His evidence is peculiar while he says that on the next day he came to know from the nearby people that the accused took and confined her in his house but he has no way indicated that the victim was subjected to sexual assault by the accused/appellant. His evidence is peculiar while he says that on the next day he came to know from the nearby people that the accused took and confined her in his house but he has no way indicated that the victim was subjected to sexual assault by the accused/appellant. Virtually his evidence is totally silent on the point of rape upon the victim girl. 14. Such evidence on the part of the parents in complete different manner on the same subject matter, is highly suspicious. Facts to be noted the victim girl herself returned to her house normally, without complaining anything. In the circumstances even if according to the victim she was confined in the house of the accused since 6 P.M to 11 P.M forcefully, then natural response of a person will be, to fled away from the place of occurrence to report the matter to the parents and relatives. As has been indicated above the victim returned to her house naturally and she immediately did not report anything to her parents and she given different version to the PW-2 and PW-3 which reflects there is supression and exaggeration as to the actual truth. 15. The victim girl as well as her mother has admitted that there was love affairs between the parties since long and they even had a plan of elopement and in the circumstances that has been depicted above reflect that the victim girl by her own consent went to the house of the accused not by force but as she was charged by her parents for her late coming she projected a story to save her skin. In the circumstances I am unable to accept the submission of prosecution that testimony of victim has made out the offence. Testimony of the victim cannot be treated as gospel of truth. The evidence of victim always to be tested regarding its authenticity, credibility having regard to the facts and circumstances of each case. We have seen that the victim girl has changed her version on material aspect while giving her statement at different stage. 16. On the next, the evidence of PW-4 Smti. Sumitra Basfor and PW-5 Muni Basfor have not at all supported the case of prosecution. Although, they have appeared in the house of the informant but they were not reported by any of PW-1 to PW-3 regarding the incident. Similarly the evidence of PW-7 Md. 16. On the next, the evidence of PW-4 Smti. Sumitra Basfor and PW-5 Muni Basfor have not at all supported the case of prosecution. Although, they have appeared in the house of the informant but they were not reported by any of PW-1 to PW-3 regarding the incident. Similarly the evidence of PW-7 Md. Usman Ali and PW-8 Sri Panna Hazarika have not uttered a whisper as about the allegation that has been raised by the victim. PW-7 happen to be relative of the accused/appellant has stated that on the day of occurrence at about 8/9 PM accused came to his house and dropped him by his car at his house. The accused appellant happen to reside along with PW-8 in the same quarter and he has also stated that he found the accused coming out from his house at about 7 PM and proceeded to the town on the day of occurrence. There is no whisper as about the offence committed upon the victim/girl. 17. On the next as regard the age of the victim girl it is found that the Medical Officer who examined the victim girl Dr. Mukul Sharma/PW-6 has stated that there was no sexual intercourse or injury on the private part on the person of the victim girl and she is stated to be below 18 years. It is established principle of law that the evidence of MO as regarding the age is simply opinion and it is not conclusive. In view of law laid down in the Jaya Mala Case 1982 it can be held that age of the victim in such circumstances can be added three years on either way. In case of Jaya Mala Vs. Home Secretary AIR 1982 SC 1397 the Apex Court in has observed that if the age of victim has been determined by the doctor medically, then 3 years have to be added to such age and the said judgment is constantly followed. 18. The Court witness/CW-1 that was examined by the Court has simply exhibited the photocopy of mark-sheet where date of birth of the victim girl has been mentioned cannot be, a exclusive piece of evidence regarding the age. Firstly, because the proper date of birth certificate was not produced at the time of recording such age of the victim and secondly, it is a zerox copy. Firstly, because the proper date of birth certificate was not produced at the time of recording such age of the victim and secondly, it is a zerox copy. Now, the most crucial aspect of the matter regarding age lies in the mouth of the informant/PW-2. In course of investigation PW-2 sworn an affidavit which she filed before the IO vide Exhibit-Ka’ that the age of the victim girl was 01.01.1995 which is also admitted by the IO in his evidence. That being the position we need not to go for age proof of the victim girl as the same is conclusively asserted by the guardian of the victim. If we gone through the age as on date of occurrence on 5.3.2014 from the date of birth 1.1.1995, the age of the victim will be 19 years 2 months 4 days as on date of occurrence. We are not hesitant to accept the age of the person which is given by her parents. Accordingly, this court is of opinion that the victim girl was at least major on the date of occurrence and in that case the provision of POCSO Act will not be applicable. The appreciation on this aspect by the Trial Court regarding the age and conduct of the victim girl appears to be not proper. 19. The law is settled that the conviction in a case under section 376 IPC can be based on solitary statement of victim provided it is fully reliable and trustworthy. In (2001) 9 Supreme Court Cases 452, DILIP AND ANOTHER Vs. STATE OF MP, the Hon’ble Apex Court held that it is well settled that the prosecutrix in a sexual offence is not an accomplice and there is no rule of law that her testimony cannot be acted upon and made the basis of conviction unless corroborated in material particulars. However, the rule about the admissibility of corroboration should be present to the mind of the judge. In 2008 (Suppl) GLT 138 the statement of the victim girl held to be unreliable because of her contradictory statement under section 161 and 164 CrPC. The Hon’ble Supreme Court has also insisted for corroboration of testimony of a prosecutrix by holding that court should not rely solely on the testimony of the prosecutrix, as her statement requires corroboration if there is contradiction and is not corroborated by other witnesses. The Hon’ble Supreme Court has also insisted for corroboration of testimony of a prosecutrix by holding that court should not rely solely on the testimony of the prosecutrix, as her statement requires corroboration if there is contradiction and is not corroborated by other witnesses. Upholding the order of acquittal in 2014 STPL (Web) 2134 (HP) STATE OF HIMACHAL PRADESH Vs. VED RAM it has been held that in view of the contradiction in the statement of prosecutrix which has no link with medical evidence and her statement discrepant in nature and goes contrary on material particulars of the case, her evidence is not worthy of credence. In 2014 STPL (Web) 1540 (HP) HP MADAN LAL ALIAS SONU TIDU Vs. STATE OF HIMACHAL PRADESH it has been held that the Trial Court committed gave illegality by not correctly and completely appreciating the evidence and the contradiction in statement of prosecutrix and the relevant facts and circumstances of the case which has resulted into travesty and miscarriage of justice causing serious prejudice to the accused persons. 20. Having regard to the conduct of the victim who has a long love affairs with the accused/appellant and she remained in the house of the accused/appellant for more than 5 hours without any protest and thereafter reporting the matter in different manner to her parents indicated that she was a consenting party to all the affairs. Of course in the offence of rape the conviction can sustain on the sole testimony of the victim if it is found to be clear and convincing and inspiring in the mind of court. Authenticity of testimony is hall mark of truth on the basis of which one can accept the testimony of victim of rape without even any corroboration also. But in the given case as discussed above the authenticity of the evidence of victim is found far from truth and hence cannot be wholly relied upon. In the facts and circumstances of the case, the accused/appellant ought to have been accorded at least benefit of doubt. 21. From what has been discussed above, this court is of the opinion that the evidence on record is highly inadequate to hold the accused/appellant guilty of the offence at any rate and he is entitled to get benefit of doubt. 21. From what has been discussed above, this court is of the opinion that the evidence on record is highly inadequate to hold the accused/appellant guilty of the offence at any rate and he is entitled to get benefit of doubt. In the result and for the reasons discussed above, the appeal succeeds the impugned judgment and order of conviction and sentence accordingly set aside and quashed. The accused/appellant is held not guilty of the offence and accordingly acquitted from the charge. 22. Return the LCR.