JUDGMENT : V.M. Deshpande, J. By the present appeal, the appellant (hereinafter referred to as, "the accused" for the sake of brevity) is challenging judgment and order of conviction dated 4.12.2018 passed by learned Special Judge under Protection of Children from Sexual Offences Act, 2012 in Special Child Criminal Case No.45/2013. 2. By the impugned judgment and order of conviction, the appellant is found to be guilty for offence punishable under Section 376(1)(i) of the Indian Penal Code and for offence under Section 5(m) punishable under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (for short "the POCSO Act") and is sentenced to suffer rigorous imprisonment for 10 years and to pay a fine of Rs.10,000/- and in default of payment of the fine amount to suffer rigorous imprisonment for 3 months. Learned Judge below observed that the accused is entitled for setoff under Section 428 of the Code of Criminal Procedure since he is in jail. 3. Heard learned counsel Shri S.K.Sable appointed through the High Court Legal Services Sub Committee at Nagpur to represent the appellant and learned Additional Public Prosecutor Shri N.R.Rode for the respondent/State. Both learned counsel took me through record and proceedings and notes of evidence of the case in detail. 4. Criminal law was set into motion by Sharda (PW3). She is mother of victim (PW1). Sharda lodged her oral report with Lakadganj Police Station, Nagpur on 5.3.2013. The oral report is at Exhibit 77. Crime was registered against unknown person vide Crime No.69/2013 for offences punishable under Section 376(1) (2)h) of the Indian Penal Code and under Sections 5(m)(u) and 6 of the POCSO Act. Printed First Information Report is at Exhibit 78. 5. As per oral report (Exhibit 77), husband of first informant Sharda (PW3) is a labour and having two daughters including victim (PW1) and a son. The victim is her elder daughter and taking education at "Vinayakrao Deshmukh Highschool/Jr.College, Shantinagar, Nagpur" in 5th Standard. She used to go to the school at 7:00 in the morning and used to return by 12:30 in the noon. It is stated in the report that on 5.3.2013 at 7:00 in the morning as usual the victim went to the school and Sharda was performing her household duties. She used to go to the school at 7:00 in the morning and used to return by 12:30 in the noon. It is stated in the report that on 5.3.2013 at 7:00 in the morning as usual the victim went to the school and Sharda was performing her household duties. At around 8:00 a.m., one Bhidekar Sir came and informed Sharda that one boy assaulted her daughter and, therefore, she should send her father in the school. Therefore, Sharda sent her husband to the school. After some time, her husband made a phone call and called her to the school. Therefore, Sharda immediately rushed to the school. She found the victim was standing near a lady teacher in a disturbed condition. Therefore, as per the report, Sharda made enquiries with her. Upon that, it was disclosed by the victim that at 6:40 a.m. the victim went to the school. At that time, nobody was there in the school and, therefore, she was sitting alone on a chair kept outside classroom. That time, one boy wearing chocolate colour T-Shirt and night pant having fair complexion and covering his face with mask came and asked her name. Upon that, the victim disclosed her and her mother's name. As per the report, thereafter, the boy said, ^^'kkjnk dh yMdh bruh cMh gks x;kh D;k^^ and, thereafter, he asked the victim to follow him. When it was objected by her, she was dragged to a nearby place. Therefore, the victim started shouting. To silence her voice, according to the report, he removed his handkerchief which was on his face and, thereafter, with the said the victim's mouth was gagged and he then removed clothes of the victim. Firstly, he inserted his finger in her private part due to which there was pain in her private part. It is also stated that in the meanwhile he heard noise of vehicle and, therefore, the boy ran away from the spot. It is stated in the report that, thereafter, the victim somehow came to the school and narrated the incident to Shri Bhidekar, a teacher, who, thereafter, took her to class. With these allegations, the report was lodged. 6. At the relevant time, Police Sub Inspector Dnyaneshwar Bhedodkar (PW9) was attached to Lakadganj Police Station. It is stated in the report that, thereafter, the victim somehow came to the school and narrated the incident to Shri Bhidekar, a teacher, who, thereafter, took her to class. With these allegations, the report was lodged. 6. At the relevant time, Police Sub Inspector Dnyaneshwar Bhedodkar (PW9) was attached to Lakadganj Police Station. His evidence shows that on 5.3.2013, at about 9:40 hours, the victim (PW1) along with her mother, the first informant Sharda (PW3), and a school teacher Veena Ukunde (PW6), came to the police station. Police Sub Inspector Bhedodkar, thereafter, sent the victim along with a lady police constable Manisha Mankar to Mayo Hospital for medical examination by giving requisition (Exhibit 106). Likewise, he also asked to collect medical samples of the victim. Evidence of Police Sub Inspector Bhedodkar, shows that the victim was admitted in the hospital and, thereafter, the mother of the victim, the first informant Sharda, came to the police station along with a social worker Smt.Anupama Mishra and, thereafter, she lodged report. 7. After registration of crime, investigation was taken up by Rajesh Unwane (PW11), who was Senior Police Inspector of Lakadganj Police Station. He visited spot of incident and deployed two police constables on spot for security purpose. He then came to the police station and seized school bag lying in the police station of the victim (PW1), under seizure panchnama Exhibit 115. He, thereafter, visited Mayo Hospital and seized clothes of the victim in presence of two panchas. Those clothes were, one black colour slack having green and white flowers with blood stains; blue colour meedi having white colour belt having white colour spot, and one white colour shirt having blood stains. Also, he seized samples of blood, swab, and nail clippings handed over to him by lady police constable Manisha Mankar. All these articles were seized under seizure panchnama Exhibit 116. He also prepared spot panchnama (Exhibit 69) in presence of panch witness Prabha Bhende (PW2), the school teacher. He also seized blood clots, under seizure panchnama (Exhibit 117), found on the floor of staff room of school with the help of cotton balls. Evidence of Senior Police Inspector Unwane shows that Woman Police Sub Inspector Wallekar recorded statement of the victim and in the said the victim told her that Kalwa raped her. Therefore, Senior Police Inspector Unwane arrested said Kalwa under Arrest Form (Exhibit 118). Evidence of Senior Police Inspector Unwane shows that Woman Police Sub Inspector Wallekar recorded statement of the victim and in the said the victim told her that Kalwa raped her. Therefore, Senior Police Inspector Unwane arrested said Kalwa under Arrest Form (Exhibit 118). Evidence of the said Senior Police Inspector shows that on 8.3.2013 he visited house of the accused shown by the victim and made a search of his house. During the search, he found clothes; white colour full-shirt having faint blood stains, a black jacket, and a blackish ash colour dupatta; kept in polythene bag. Those articles were seized, under seizure panchnama (Exhibit 119), in presence of two panchas. Thereafter, the Investigating Officer sent the accused to Mayo Hospital for his medical examination and obtained samples of his blood, nail clippings, and pubic hair. Those were seized under seizure panchnama (Exhibit 120). The Investigating Officer, thereafter, sent clothes and samples of the victim and the accused to Forensic Science Laboratory for chemical analysis with requisition forms (Exhibits 121 & 122 respectively). He, thereafter, handed over the investigation to Police Inspector (Crime) Shri Sonawane (PW10). 8. After the investigation was entrusted, Police Inspector (Crime) Shri Sonawane (PW10) issued a letter for sending blood samples of the accused for DNA testing. The said letter is dated 11.3.2013, bears his signature, and is at Exhibit 108. He also issued a letter to Mayo Hospital for obtaining blood samples of the accused by giving a letter dated 11.3.2013 (Exhibit 109). Thereafter, he took steps for recording statements of victim (PW1) and other witnesses under Section 164 of the Code of Criminal Procedure and filed chargesheet. 9. Learned Special Judge, under the POCSO Act, Nagpur, framed charge against the accused for offences punishable under Section 376(1)(i) of the Indian Penal Code and under Section 5(m) punishable under Section 6 of the POCSO Act. The accused denied the charge and claimed for his Trial. The prosecution examined in all 11 witnesses and relied upon various documents proved during the court of the Trial. Defence of the accused was of false implication in the crime. Learned Judge of the Court below, after appreciating evidence brought on record, passed judgment and order impugned in the present appeal. Hence, this appeal. 10. At the relevant time, victim (PW1) was taking education in 5th Standard in school known as "Vinayakrao Deshmukh Highschool/Jr.College, Shantinagar, Nagpur". Defence of the accused was of false implication in the crime. Learned Judge of the Court below, after appreciating evidence brought on record, passed judgment and order impugned in the present appeal. Hence, this appeal. 10. At the relevant time, victim (PW1) was taking education in 5th Standard in school known as "Vinayakrao Deshmukh Highschool/Jr.College, Shantinagar, Nagpur". As per oral report (Exhibit 77) lodged by Sharda (PW3), mother of the victim, her age was shown as 10 years. During course of investigation, Investigation Officer collected documents i.e. bona fide certificate (Exhibit 124) and admission register from the school (Exhibit 125). These two documents are admitted by the accused through his counsel, during the course of the Trial. The bona fide certificate (Exhibit 124) shows that at the relevant time the victim was taking education in 5th Standard and was a student of 5th A of the school and her date of birth was shown as 13.10.2002. Also, the admission register (Exhibit 125) shows date of birth of the victim as 13.10.2002. The victim also in her evidence stated that her date of birth is 13.10.2002. The said statement by the victim was not challenged during her cross-examination. Even, before this Court, the date of birth of the victim is not at all challenged by learned counsel for the appellant. Date of incident is 5.3.2013. That shows that on the day of the incident the girl was below 11 years of age and, therefore, she was child within the meaning of the POCSO Act. 11. Dr.Manoj Aglawe (PW4) is Gynecologist. In the year 2013, he was attached to Indira Gandhi Government Medical College, Nagpur as Assistant Professor in OBGY Department. On 5.3.2013, victim (PW1) was referred to him by Casualty Medical Officer for examination. The victim was accompanied by woman police constable Manisha Mankar of Lakadganj Police Station, Nagpur. Dr.Aglawe, obtained consent of father of the victim. On local examination of genital parts of the victim, the doctor found that pubic hairs were not developed. He found that there was tear present on fourchette of size 1.5 x 2 cms. and bleeding was present. There was no evidence of injury mark on vulva and perineum. However, he found that her hymen was torn and fresh injury was present and it was found congested. Accordingly, the doctor prepared medical report (Exhibit 84). 12. He found that there was tear present on fourchette of size 1.5 x 2 cms. and bleeding was present. There was no evidence of injury mark on vulva and perineum. However, he found that her hymen was torn and fresh injury was present and it was found congested. Accordingly, the doctor prepared medical report (Exhibit 84). 12. In First Information Report lodged by Sharda (PW3), the mother of the victim (PW1), as per say of the victim, it is stated that a boy dragged the victim to nearby bushes, lifted the victim's meedi, removed her slack and, thereafter, he inserted his finger inside private part of the victim causing pain to her private part and, therefore, she shouted. Upon that, he kept his hand on her eyes and, thereafter, she could not know what has done and in the meantime after hearing noise of vehicle the boy left. 13. Statement (Exhibit 55) of victim (PW1) under Section 164 of the Code of Criminal Procedure was recorded. 14. In her substantive evidence, the victim deposed that after she was taken to backside of school, the boy removed her clothes and then inserted his finger in her private part. Thereafter, he inserted his private part inside her private part. Thus, her evidence clearly shows that she was sexually assaulted by the boy. In respect of the sexual act on the part of the boy is consistent with the victim's earlier version as it could seen from statement (Exhibit 55) recorded during the course of investigation under Section 164 of the Code of Criminal Procedure. From cross-examination of victim (PW1), it is clear that the act of actual sexual intercourse is not at all challenged, as it was deposed by the victim on oath from the witness box. In the light of unchallenged version of the victim about the sexual act which is duly corroborated by Gynecologist Dr.Manoj Aglawe (PW4) who on date of the incident itself examined the victim clinically. In the light of his observations in Medical Examination Report for Sexual Assault (Exhibit 84) of the victim which were reiterated by the said doctor in his evidence from the witness box, there is no doubt in my mind whatsoever in nature that victim was assaulted sexually on 5.3.2013 on spot of the incident. In the light of his observations in Medical Examination Report for Sexual Assault (Exhibit 84) of the victim which were reiterated by the said doctor in his evidence from the witness box, there is no doubt in my mind whatsoever in nature that victim was assaulted sexually on 5.3.2013 on spot of the incident. There is no doubt in my mind that offence of penetrative sexual assault under Section 3 of the POCSO Act; under Section 375 of the Indian Penal Code punishable under Section 6 of the POCSO Act, and under Section 376(1)(i) of the Indian Penal Code is committed on the girl. 15. Once Court records a finding about penetrative sexual assault on victim girl, next question that Court is required to answer is as to who is culprit of committing the said offence. 16. According to the prosecution, it is the appellant who has committed heinous offence on victim (PW1). Whereas, it is submission of learned counsel for the appellant that the appellant is falsely implicated in crime. 17. In a criminal case, burden firmly rests on shoulder of the prosecution to prove its case beyond reasonable doubt. The prosecution must adduce a clinching evidence before Court to show culpability of person against whom charge of serious offence is framed like in present case. If the prosecution is not successful to clear clouds of doubts, it will be hazardous for any Court to convict such charged persons looking to nature of severe punishment prescribed in law. 18. In view of the aforesaid cardinal principle of criminal jurisprudence, let us examine the entire prosecution case to record an independent finding as to whether the appellant is a person who subjected victim (PW1) to fulfill his sexual lust. 19. In order to connect the accused in respect of the offence in question, the prosecution relied on evidence of the victim (PW1) and on scientific evidence. The question posed before this Court is, whether the appellant is culprit and whether the prosecution has proved that he committed sexual assault on the victim beyond reasonable doubts. 20. The prosecution examined 4 teachers of victim (PW1) working with "Vinayakrao Deshmukh Highschool/Jr.College, Shantinagar, Nagpur" and they are, Prabha Ramesh Bhende (PW2); Meena Uttam Todase (PW5); Veena Kailash Ukunde (PW6), and Ajay Bapurao Bhidekar (PW8). 20. The prosecution examined 4 teachers of victim (PW1) working with "Vinayakrao Deshmukh Highschool/Jr.College, Shantinagar, Nagpur" and they are, Prabha Ramesh Bhende (PW2); Meena Uttam Todase (PW5); Veena Kailash Ukunde (PW6), and Ajay Bapurao Bhidekar (PW8). Also, the prosecution examined a girl child witness who was classmate of the victim and she is, Apoorva Gautam Pantawane (PW7). Prabha (PW2) was examined by the prosecution to prove spot of occurrence. Investigating Officer Rajesh Unwane (PW11), visited spot of occurrence and in presence of Prabha, panchnama of spot of occurrence was drawn and the said is at Exhibit 69. 21. Meena Todase (PW5), Veena Ukunde (PW6), and Ajay Bhidekar (PW8) are teachers of victim (PW1). A close scrutiny of their evidence would show that there is a difference in between them as to who is that teacher who noticed the victim first after she was sexually assaulted. Meena Todase, deposed that after completion of prayer, when she was going towards her class i.e. 7th Standard, girls students from 5th Standard came to her running and informed her that blood is oozing from private part of the victim and, therefore she told those girls students to bring the victim to her. Accordingly, the victim was brought and, thereafter, Meena Todase took the victim in teachers' room. There, she asked the victim to remove her clothes. After removing her clothes, she noticed that blood was oozing from private part of the victim. Her evidence shows that Veena Ukunde was present in the teachers' room and, therefore, Meena Todase asked Veena Ukunde for bringing sanitary napkin which was brought and the said was given to the victim. Thereafter, Meena Todase made enquiries with the victim. That time, the victim disclosed to them that when she was sitting outside classroom in the premises on a cement bench and was eating biscuit, a boy came from behind her, dragged her, and took her in ground backside of the school building. When she was crying, the boy pressed her mouth. As per evidence of Meena Todase, the victim disclosed to her that the boy was having white dots below his lower lip and was having burn injuries on his hand. Thereafter, the boy removed her clothes and inserted his finger in her private part. Evidence of Meena Todase shows that when she enquired further, the victim did not disclose anything more. Thereafter, the boy removed her clothes and inserted his finger in her private part. Evidence of Meena Todase shows that when she enquired further, the victim did not disclose anything more. As per version of Meena Todase, thereafter, she went to Headmaster Patil and informed him about the incident. Headmaster Patil called Bhidekar Sir (PW8) who went to house of the victim and called her father in the school. Thereafter, the victim's father was informed about the incident. 22. Evidence of Veena Ukunde (PW6), shows something different. According to her evidence, on date of incident i.e. 5.3.2013, at about 7:10 a.m., after she marked her presence in office, a girl student by name Durga Nasre came towards her and she informed her that one boy dragged victim (PW1) and took to backside of school. Immediately, thereafter, she went towards backside of school. The victim was found at the backside of school and when Veena Ukunde made enquiries with the victim, the victim disclosed that one boy came from compound wall from her backside. Veena Ukunde, thereafter, deposed that she brought the victim in open space in front of school and she went towards Assistant Headmaster Patil Sir and informed him that one unknown boy took the victim towards backside of school. Her evidence shows that one Bhidekar Sir brought one student by name Tushar in office. As per evidence of Veena Ukunde, said Bhidekar Sir and the said student informed incident to Patil Sir. Thereafter, said Patil Sir sent one peon for calling class teacher, i.e. Meena Todase (PW5), of the victim. Thereafter, Veena Ukunde went in staff room. Further evidence of Veena Ukunde, is in lines of evidence of Meena Todase in respect of noticing blood oozing from private part of the victim and bringing sanitary pad etc.. 23. Evidence of Ajay Bhidekar (PW8), shows that when he was sitting in office, he noticed victim (PW1) while going and he called her. She came and, thereafter, started weeping in the office. As per evidence of Ajay Bhidekar, the victim told him that one boy beaten her. He along with a peon went to ground backside of school to observe who assaulted the victim. She came and, thereafter, started weeping in the office. As per evidence of Ajay Bhidekar, the victim told him that one boy beaten her. He along with a peon went to ground backside of school to observe who assaulted the victim. Evidence of Ajay Bhidekar, shows that one boy was playing in ground and he made enquiries with him and as per evidence of Ajay Bhidekar, that time the victim stated that he is not the boy who assaulted her. As per evidence of Ajay Bhidekar, the said boy told him that one boy crossed compound wall of school. Therefore, he along with a peon and the said boy went by his motorcycle to backside of school, however nobody was found. 24. Apoorva Pantawane (PW7), is classmate of victim (PW1). Her evidence shows that on day of incident, at about 7:30 a.m., when she was sitting in class, she noticed the victim was weeping. Her evidence shows that she came in school early and at that time 2-3 boys were sitting in ground backside of school under the influence of liquor. As per version of Apoorva, the victim told her that those 2-3 boys did something to her. As per evidence of Apoorva, the victim told her that the boy who did something to her was having Tattoo on his hand. 25. From the evidence of the aforesaid witnesses, the teachers and the classmate of victim (PW1), it is clear that the victim did not disclose name of assailant on her to anybody. Only from the evidence of teacher Meena Todase (PW5), it is brought on record that the victim told this prosecution witness that the offender was having white dots below his lower lip and burn injuries on his hand. Whereas, as per evidence of victim's classmate Apoorva Pantawane (PW7), the victim told her that the offender was having Tattoo on his hand. 26. After sexual assault on victim (PW1) came within knowledge of teachers, they immediately took steps. They called father of the victim who made a phone call to his wife i.e. mother Sharda (PW3) of the victim. Though the father of the victim is not examined by the prosecution, victim's mother Sharda, the first informant, is examined. 27. 26. After sexual assault on victim (PW1) came within knowledge of teachers, they immediately took steps. They called father of the victim who made a phone call to his wife i.e. mother Sharda (PW3) of the victim. Though the father of the victim is not examined by the prosecution, victim's mother Sharda, the first informant, is examined. 27. Evidence of first informant Sharda (PW3), the mother of victim (PW1), discloses that when she went to school of the victim, she noticed that the victim was sitting near one school teacher in a frightened condition. When she made enquiries with her, she started disclosing incident to her. After incident was narrated, Sharda along with teacher Veena Ukunde (PW6) went to police station, as it could be seen from evidence of Investigating Officer Rajesh Unwane (PW11). 28. Police Sub Inspector Dnyaneshwar Bhedodkar (PW9), attached to Lakadganj Police Station, reduced into writing oral report of Sharda (PW3), the mother of victim (PW1). The oral report is at Exhibit 77. The said oral report shows that the victim disclosed to Sharda that when she was sitting in front of class of school on a chair, one boy wearing chocolate colour T-Shirt and night pant who was having fair complexion and whose face was covered with handkerchief came near her and asked her name and about her parents. In the report, it is stated that the said boy asked the victim to follow him. When it was objected by her, she was dragged to a nearby place. Therefore, she started shouting. To silence her voice, according to the report, the boy removed his handkerchief which was on his face and, thereafter, with the said her mouth was gagged and he then removed her clothes and, thereafter, she was sexually assaulted. 29. As per evidence of Investigating Officer Rajesh Unwane (PW11), after oral report (Exhibit 77) was lodged, subsequently Woman Police Sub Inspector Wallekar recorded statement of victim (PW1) wherein she told the said police officer that "Kalwa" raped her. Therefore, the accused was arrested on 7.3.2013 vide arrest panchnama (Exhibit 118). As per the arrest memo, the accused is also known as "Kalwa" in society. Statement of the victim before learned Magistrate was recorded on 19.3.2013 under Section 164 of the Code of Criminal Procedure. The said statement is available on record at Exhibit 55. 30. Therefore, the accused was arrested on 7.3.2013 vide arrest panchnama (Exhibit 118). As per the arrest memo, the accused is also known as "Kalwa" in society. Statement of the victim before learned Magistrate was recorded on 19.3.2013 under Section 164 of the Code of Criminal Procedure. The said statement is available on record at Exhibit 55. 30. Prior to recording of statement of victim (PW1), under Section 164 of the Code of Criminal Procedure, on 8.3.2013 house of the accused was searched under search panchnama Exhibit 119. From house search, following were seized: (i) a white colour full shirt which appears to be washed having blood stains; (ii) black colour jacket. The said house panchnama shows that near wrist of the said jacket hairs were found, and (iii) a dupatta. 31. In oral report (Exhibit 77), as per description given by victim (PW1) to her mother first informant Sharda (PW3), Sharda disclosed to police authorities that at the time of incident offender was wearing chocolate colour T-Shirt and night pant. Looking to the age of the victim, at the relevant time it cannot be said that she cannot differentiate between white colour and chocolate colour so also between full shirt and T-Shirt. 32. As noticed above, statement of victim (PW1), under Section 164 of the Code of Criminal Procedure, was recorded before learned Magistrate after clothes of the accused from his house were seized and in her statement under Section 164 the victim changed her version and stated that the accused was wearing white shirt and black jacket and was having blue pant on his person. In this backdrop, however, in cross-examination, she stated that at the time of incident the offender was wearing shirt of brownish colour. In addition to all these, when the victim was in witness box, for reasons best known to the prosecution, seized clothes of the accused were not shown to her. 33. As per statement of victim (PW1), recorded under Section 164 of the Code of Criminal Procedure, on one hand of the accused there was Tattoo of horse. Whereas, his another hand was burnt. As per evidence of teacher Meena Todase (PW5), the victim disclosed to her that the offender was having white dots below his lower lip and was having burn injuries on his hand. Meena Todase's evidence is silent regarding disclosure by the victim to her in respect of the Tattoo. Whereas, his another hand was burnt. As per evidence of teacher Meena Todase (PW5), the victim disclosed to her that the offender was having white dots below his lower lip and was having burn injuries on his hand. Meena Todase's evidence is silent regarding disclosure by the victim to her in respect of the Tattoo. As per evidence of victim's classmate Apoorva Pantawane (PW7), the victim narrated her that the boy who did something to her was having Tattoo on his hand. However, her evidence is silent that the victim also disclosed her that hand of the said boy was burned or was having any white dots on his lip. Oral report (Exhibit 77) lodged by victim's mother Sharda (PW3), does not state that the victim did disclose to her mother either about Tattoo, burn hand or white dots on lip of the accused. In this context, arrest panchnama (Exhibit 118) shows that at the time of arrest of the accused no burn injury was found on his hand and though there was Tattoo, the said was of God Shankar. Similarly, there was no white dot on lip of the accused. 34. As per statement of victim (PW1), recorded under Section 164 of the Code of Criminal Procedure, and as per her evidence, she was dragged by "Kalwa" who stays in her neighbourhood. Not only that, sometimes she used to go to house of "Kalwa" for playing with his sister-in-law's daughter meaning thereby the offender was not unknown to her. As per oral report (Exhibit 77), when the victim was dragged to a nearby place by the offender, she started shouting. To silence her voice, according to the report, the offender removed his handkerchief which was on his face and, thereafter, with the said her mouth was gagged. Therefore, it is clear that the face of the offender was exposed, meaning thereby that the victim was knowing that "Kalwa", the accused, was assaulting on her sexually. In spite of that, the victim did not disclose name of the accused to her mother. Therefore, it is clear that the face of the offender was exposed, meaning thereby that the victim was knowing that "Kalwa", the accused, was assaulting on her sexually. In spite of that, the victim did not disclose name of the accused to her mother. Though latitude can be given in favour of the victim that she did not disclose name of the offender to her teachers at the outset, after her parents came and she was in their company that too in police station, where there was full assurance to her, she did not disclose name of the accused as person who sexually assaulted her. Even, she did not disclose his name when she was taken to hospital for her medical examination, as it could be seen from evidence of Gynecologist Dr.Manoj Aglawe (PW4), though she was accompanied by her parents and police. 35. Evidence of Gynecologist Dr.Manoj Aglawe (PW4), shows that victim (PW1) gave history of sexual assault by unknown person. 36. When victim (PW1) is assaulted sexually by known person and when she narrated the incident even in presence of police, she is not disclosing name of accused, the said appear to be not only strange but also unnatural. 37. Medical samples of the accused were seized so also of victim (PW1). Muddemal articles including clothes were also sent to Chemical Analyzer. Articles were also sent for DNA Profile. There are two DNA Reports on record and they are exhibited as Exhibit-128. Though another DNA Report is not exhibited in respect of DNA Profile obtained from blood detected on full shirt of the accused to match DNA Profile of the victim, it can be read in evidence in view of Clause (e) of Sub section (4) of Section 293 of the Code of Criminal Procedure. The opinion of DNA Report (Exhibit 128) reads as under: "1) The DNA profiles obtained from blood detected on ex.1 slacks, ex.2 Midi, ex.3 shirt, ex.5 Pad in Bn-1015/13, ex.2 Vaginal swab in Bn-1016/13, ex.1 Cotton swab, ex.2 Paper in Bn1030/13 are identical and from one and the same source of female origin and matched with maternal and paternal alleles present in ex.1 Blood of Bhagyashri Sanjay Wasule in Bn1016/13. (2) The DNA profile obtained from ex.2 Pubic hair and ex.3 Nail clippings in Bn-1031/13 are identical and from one and the same source of male origin and matched with the maternal and paternal alleles present in ex.1 Blood of Deepak Kisanlal Soni in Bn-1031/13. (3) The DNA profile of unknown male is obtained from semen detected on ex.2 Midi in Bn1015/13." From Exhibit 128, it is clear that DNA Profile of unknown male is obtained from semen of the victim and not of the accused. Similarly, DNA obtained from blood detected on full shirt of the accused failed to match with DNA Profile of the victim. Therefore, scientific evidence, which is DNA Report, is such evidence which does not implicate the appellant. Learned Judge of the Court below even did not refer these two important pieces of evidence in judgment while convicting the accused. In my view, therefore, learned Judge of the Court below committed an error while convicting the accused. Similarly, Chemical Analyzer Report Exhibit 129 though shows semen on victim's (PW1) meedi, which is found to be not belonging to the accused in view of DNA Report (Exhibit 128), the said aspect is also not at all considered in its correct perspective. 38. In the aforesaid backdrop, in cross-examination of first informant Sharda (PW3), the mother of victim (PW1), assumes importance. It did figure on record that she knows one Kailash who is her husband's friend and there was a dispute between said Kailash and the accused. Though a suggestion was given to her that her husband and Kailash set on fire shop of the accused, she did accept as under: "It is true to say that the accused had lodged report by mentioning name of my husband in respect of setting his shop on fire." 39. On my re-appreciation of the entire prosecution case in the light of scientific evidence, which clearly absolves the appellant, and in the light of evidence of victim (PW1) regarding identity of the accused, which in my view does not inspire confidence, for reasons sated in the preceding paragraphs of this judgment, I am of the view that false implication of the appellant is not completely ruled out. I, therefore, after re-evaluating the prosecution case, pass following order: ORDER (a) The criminal appeal is allowed. I, therefore, after re-evaluating the prosecution case, pass following order: ORDER (a) The criminal appeal is allowed. (b) The judgment and order of conviction dated 4.12.2018 passed by learned Special Judge under Protection of Children from Sexual Offences Act, 2012 in Special Child Criminal Case No.45/2013 convicting the appellant for offence punishable under Section 376(1)(i) of the Indian Penal Code and for offence under Section 5(m) punishable under Section 6 of the Protection of Children from Sexual Offences Act, 2012 and sentencing the appellant for a period of 10 years, is hereby quashed and set aside. (c) The appellant is acquitted of offence punishable under Section 376(1)(i) of the Indian Penal Code and of offence under Section 5(m) punishable under Section 6 of the Protection of Children from Sexual Offences Act, 2012. (d) The appellant who is in jail shall be released forthwith, if not required in any other case. (e) Fees payable to learned counsel Shri S.K.Sable, appointed through the High Court Legal Services Sub Committee at Nagpur to represent the appellant, are quantified at Rs.5000/-.