JUDGMENT : Rakesh Kumar, J. 1. In both the Appeals appellants were convicted and sentenced in POCSO Case No. 11 of 2016 by Sri Ranjan Kumar, learned Additional Sessions Judge – I, Supaul (Bihar) (hereinafter referred to as the “trial judge”), and as such, both Appeals were taken up together and are being disposed of by this common judgment. 2. Both the appellants were convicted on 03.02.2017 for commission of offence under Sections 341/376(D) of the Indian Penal Code, 1860 (hereinafter referred to as the “I.P.C.”) and Section 4 & 6 of Protection of Children From Sexual Offences Act, 2012 (hereinafter referred to as the “POCSO Act”) and by order dated 21.02.2017 both the appellants were sentenced to undergo rigorous imprisonment for twenty years for commission of offence under Section 376(D) of the I.P.C. and were imposed fine of Rs. 50,000/- each. Under Section 4 of the POCSO Act they were sentenced to undergo imprisonment for seven years and to pay fine of Rs. 10,000/- each. Under Section 6 of the POCSO Act both were sentenced to undergo imprisonment for ten years and to pay fine of Rs. 25,000/- each. Surprisingly, though charge under Section 506 of the I.P.C. was not framed nor both appellants were held guilty for commission of offence under this Section, to the reasons best known to the learned trial judge both appellants were sentenced to undergo imprisonment for two years for commission of offence under Section 506 of the I.P.C. All the sentences were directed to run concurrently. 3. Short fact of the case is that on 04.03.2016 Sub Inspector of Police Smt. Premlata Bhupasri (P.W. 5) at 12.30 P.M. recorded fardbyan of victim aged about twelve years in Mahila Police Station Supaul. In the fardbyan victim disclosed that on 01.03.2016 at about 1.00 in the night she was witnessing a marriage in Shiv Mandir in her village with her other friends. After some time she went for urinating on Northern side. In the meanwhile, both the appellants namely: Naresh Mukhiya, S/o Sri Vishnudev Mukhiya in CR. APP (DB) No. 418 of 2017 and Chandan Mukhiya @ Channa Mukhiya , S/o Tetar Mukhiya in CR. After some time she went for urinating on Northern side. In the meanwhile, both the appellants namely: Naresh Mukhiya, S/o Sri Vishnudev Mukhiya in CR. APP (DB) No. 418 of 2017 and Chandan Mukhiya @ Channa Mukhiya , S/o Tetar Mukhiya in CR. APP (DB) No. 368 of 2017, both resident of village:- Belaganj, P.S.-Bhimpur, District – Supaul closed her mouth and taken her in the field of one Rajendra Mukhiya, and thereafter, they pushed cloth in her mouth and tied both the hands. After undressing, she alleged that she was raped one by one by both appellants and thereafter, threatened her not to disclose this fact to anyone. Anyhow, she could come near the shop of one Ramkishun Sah carrying her salwar in her hand. She was in pain and bleeding was going on. Thereafter, her neighbor namely Sulekha Devi (not examined) and Shobha Devi (P.W. 3) who were returning back after witnessing marriage came to her and the victim gave description of the entire occurrence to them. She claimed to identify both accused persons and shown those accused persons to those witnesses. Aforesaid two ladies tried to apprehend them but they were also assaulted by the accused and subsequently accused persons returned back with the member of barati. The victim was carried by both witnesses to her house and everything was disclosed to her grand mother (P.W. 1). She disclosed that her father was doing labour work in Punjab and he had gone there. She claimed that she approached Mukhiya and Sarpanch without any result and her condition deteriorated and this was the reason for belatedly coming to Police Station. Fardbyan was read over to her and after finding it correct her mother Nirmala Devi (P.W. 2) and grand mother-Most. Lukhiya Devi (P.W. 1) put their L.T.I. and the victim put her signature on the fardbyan. On the basis of the said fardbyan on the same day i.e. on 04.03.2016 at about 12.30 P.M. a formal F.I.R. vide Mahila P.S. Supaul Case No. 20 of 2016 was registered for commission of offence under Sections 341/376(D)/506 of the I.P.C. and Section 4/6 of the POCSO Act against both the appellants. During investigation, as per Police accusation was found true and on 31.03.2016 charge-sheet was submitted against both the accused persons. Thereafter, on 18.04.2016 learned Spl. During investigation, as per Police accusation was found true and on 31.03.2016 charge-sheet was submitted against both the accused persons. Thereafter, on 18.04.2016 learned Spl. Judge took cognizance of offences and on 4.6.2016 joint charge was framed against both appellants for offence under Sections 341, 376D of the I.P.C. and Section 4/6 of the POCSO Act. 4. To prove the case from the prosecution side altogether six witnesses were examined who are :- P.W. 1 ( Most. Lukhiya Devi-grand mother of victim), P.W. 2 ( Nirmala Devi mother of victim), P.W. 3 – (Shobha Devi, co-villager), P.W. 4 (victim), P.W. 6 (Dr. Reeta Singh) who examined the victim and P.W. 5 (Prem Lata Bhupasri-the investigating officer of the case). During trial signature of the victim on her medical/injury report was proved as Exhibit-1, her signature on her statement recorded under Section 164 of the Cr.P.C. was marked as Exhibit-1/1 and medical report/injury report in respect of victim was marked as Exhibit-2. During trial neither formal F.I.R. nor fardbyan was got exhibited. 5. Sri Ansul, learned counsel, assisted by Sri Arun, learned counsel for the appellants after referring entire evidence has argued that it is a peculiar case in which without any evidence the learned trial judge has incorrectly and illegally passed judgment of conviction and sentence. He submits that during trial there was no evidence to suggest as to whether the appellants were involved in the so- called occurrence or not, even then, the learned trial judge has passed judgment of conviction. By way of referring to medical evidence i.e. report of the victim which was prepared by P.W. 6 (Dr. Reeta Singh), learned counsel for the appellant has argued that though the age of the victim was assessed in between 12 - 13 years, no mark of sexual assault was found on the person of the victim but even then, without any material, both were convicted and they are languishing in jail. Learned counsel for the appellants has argued that of-course during investigation the so- called statement of victim under Section 164 of the Cr.P.C. was got recorded but the said statement was neither got exhibited nor the victim was confronted with her so-called Section 164 Cr.P.C. statement. On the contrary, during evidence the victim has said that on being told by Police she disclosed the name of appellants. On the contrary, during evidence the victim has said that on being told by Police she disclosed the name of appellants. He further submits that neither mother, grand mother of the victim nor the co-villager who was said to be witness after the occurrence has supported the prosecution case. None of those witnesses have claimed to identify either of the appellants during trial. In sum and substance, it has been argued that without any basis the learned trial judge has passed judgment of conviction and sentence, which requires to be interfered with. 6. Sri Ajay Mishra, learned Additional Public Prosecutor though tried to oppose the Appeal but was not in a position to defend the prosecution case. 7. Besides hearing, we have also examined entire evidence on record and after going through the same we are surprised that even in such case the learned trial judge has passed judgment of conviction and sentence. There was no admissible evidence on record to hold both the appellants guilty. The illegality of learned trial judge is very much apparent from the face of the judgment itself. The learned trial judge only in five pages has held both appellants guilty and also sentenced them. It is surprising that charge under Section 506 of the I.P.C. was neither framed nor during trial appellants were held guilty or convicted under Section 506 of the I.P.C. but to the reasons best known to the learned trial judge he has passed the order of sentence under Section 506 of the I.P.C. and directed appellants to undergo imprisonment for two years and pay a fine of Rs. 100/- each for commission of offence under Section 506 of the I.P.C. This categorically reflects regarding the approach of the trial judge. Before recording judgment of acquittal, it would be necessary to cursorily refer the evidence of witnesses. 8. P.W. 1 (Most. Lukhiya Devi - grand mother of victim) in her examination-in-chief has not disclosed regarding identification of any of the appellants, however, in cross-examination in paragraph no. 4 she has categorically said that both the appellants are innocent and innocent persons were apprehended by the Police. Similarly, P.W. 2 (mother of victim-Nirmala Devi) in her examination-in-chief has not at all whispered regarding identification of appellants. 4 she has categorically said that both the appellants are innocent and innocent persons were apprehended by the Police. Similarly, P.W. 2 (mother of victim-Nirmala Devi) in her examination-in-chief has not at all whispered regarding identification of appellants. P.W. 3 (Shobha Devi ) was co-villager and she was shown to be witness who immediately had seen the victim in injured condition and identified both appellants immediately thereafter, had declined to identify either of the appellants. In cross- examination she categorically deposed that she had not identified two boys nor she had identified the appellants during trial. Victim who was examined as P.W. 4 in her examination-in-chief has not whispered about involvement of appellants, rather in her cross-examination she has deposed that the persons who had committed illegal act with her were not known to her neither could she identify them at the time of occurrence nor after the occurrence. In paragraph no. 6 of her cross-examination she has stated that for lodging case she had gone to police station along with her grand mother and she had not disclosed about the name of the accused persons to her grand mother. In the application before Police what was written her grand mother was not knowing. In paragraph no. 7 of cross-examination she had stated that in her statement in the court she had not disclosed name of any person. She stated that Police had told her that if she fails to give the name of accused persons her grand mother and father will be sent to jail and this was the reason that she was frightened and in fear she stated the name of accused. The investigating officer (P.W. 5- Prem Lata Bhupasri) has tried to justify that she had visited the place of occurrence but there was no meaning for inspecting the place of occurrence since as per prosecution case occurrence was committed at about 1.00 in the night on 01.03.2016 whereas, the so-called inspection of the place of occurrence was made by the investigating officer after recording of fardbyan, which was recorded on 04.03.2016 at 12.30 P.M. In this case evidence of P.W. 6 (Dr. Reeta Singh) has got much relevance. P.W. 6 has stated in her evidence that she on 04.03.2016 was posted in Sadar Hospital, Supaul. Reeta Singh) has got much relevance. P.W. 6 has stated in her evidence that she on 04.03.2016 was posted in Sadar Hospital, Supaul. On 04.03.2016 she had examined the victim and noticed the following fact:- “(1) No any external injury or mark of injury present on her whole body including face, forehead, all exterevities, chest, neck, thighs, abdomen. No lump present on abdomen. (2) Both breast developed and have no mark of injury and auxillary hairs are not appeared. (3) No eodernia, swelling mark of injury and laceration present on vulva including priva measurea, minorea. Thus posterior commessure, the four chette and the periniam has not formed and having no mark of injury. (4) The pubic hairs are present black in colour and matted with blood ( menstrual blood) (5) The hymen is not intact and there is no lacerative injury around the vaginal orifeces, the uterus is less than normal size with all clear forneces, the cervic is healthy having circular external os and the external os shows bleeding from the uterus and his menstrual blood. (6) The vaginal swabs on microscopical examination shows: (i) pus cell – 04-05/H.P.F. (ii) epithelical cell 0-1 / H.P.F. (iii) R.B.C. 03-05/H.P.F. (iv) No spermatozoa found either living or dead – pathologist M.K. Verma (7) Age it is about 12-13 years determined by Dr. M. Chaudhary and by dental examination by S.K. Jha. (8) Opinion – No sign of external injury or sign of violence present. However the possibility of rape can not be excluded.” She also proved the injury report, which was marked as Exhibit – 2. Even during medical examination no injury was found on the person of the victim, whereas age of victim was assessed in between 12-13 years. Had it been a case of rape by two appellants, there was every possibility of finding some injuries or mark on the person of the victim, that too, in a case in which it was alleged that she was raped in a field. 9. On minutely examining entire evidence, we are of the considered opinion that there was no reason for the learned trial judge to pass judgment of conviction and sentence. 9. On minutely examining entire evidence, we are of the considered opinion that there was no reason for the learned trial judge to pass judgment of conviction and sentence. In view of the facts and circumstances, we are of the opinion that judgment of conviction and sentence dated 03.02.2017 & 21.02.2017 respectively passed by Sri Ranjan Kumar, learned Additional Sessions Judge – I, Supaul (Bihar), In POCSO Case No. 11 of 2016 (arising out of Mahila P.S. Supaul Case No. 20 of 2016) is contrary to law as well as against facts, and as such, same is hereby set aside. Since both the appellants are inside jail and their conviction and sentence has been set aside, they are directed to be released forthwith, if not required in any other case. 10. Both Appeals are allowed.