JUDGMENT : V.M. Deshpande, J. 1. By the present appeal, the appellant is challenging judgment and order of conviction dated 15.5.2019 passed by learned Special Judge, Bhandara in Special Criminal (Child) Case No. 39/2016. 2. By the judgment and order of conviction, impugned in this appeal, the appellant was convicted for offences punishable under Sections 363 and 376(2)(i) of the Indian Penal Code and under Section 4 of the Protection of Children from Sexual Offences Act, 2012 (for short, "the POCSO Act"). For offence punishable under Section 363 of the Indian Penal Code, the appellant was sentenced to suffer rigorous imprisonment for 3 years and to pay a fine Rs. 3000/- and in default of payment of the fine amount to suffer further rigorous imprisonment for 6 months. For offence punishable under Section 376(2)(i) of the Indian Penal Code, the appellant was sentenced to suffer rigorous imprisonment for 10 years and to pay a fine Rs. 10,000/- and in default of payment of the fine amount to suffer rigorous imprisonment for 1 year. However, he was acquitted of offence punishable under Section 366-A of the Indian Penal Code. For offence punishable under Section 4 of the POCSO Act, no separate sentence was awarded to the appellant. Learned Judge of the Court below directed that all sentences of the appellant shall run concurrently and also set-off was given to him since he was in jail. 3. Police Inspector Suhas Daulatrao Choudhari (PW 9), was attached to Mohadi Police Station in the year 2016. On 15.9.2016, one Rupali (PW 3) came to the police station to lodge a report. Victim (PW 1) was accompanying with her. Rupali lodged her report and it is at Exhibit 20. The said report bears signature of Police Inspector Suhas Choudhari. Thereafter, he gave written instructions to the Station House Officer to register crime. Head Constable Bhandarkar, registered crime. 4. Oral report (Exhibit 20), shows that victim (PW 1) used to reside at village Sukali and was taking education in 10th Std. As per the report, on 9.9.2016, victim told her aunt Rupali (PW 3) that she is going to photo-studio at Dewhadi and left her house. The report states that in evening at 5:30, victim, from an unknown cellphone, made a phone call and informed that she is going to house of her friend Megha and she will not return to house. The report states that in evening at 5:30, victim, from an unknown cellphone, made a phone call and informed that she is going to house of her friend Megha and she will not return to house. On the next day, i.e. 10.9.2016, at 12:30 p.m., victim came at village Sukali and slept. In evening, when she was asked to take dinner, she refused. She was not talking to anybody. Even, on 11.9.2016, she was not talking to anybody, but only was sleeping on bed. Therefore, her mother was called from village Mandhal and even to her also she did not disclose anything. Therefore, elder maternal uncle Deepak asked her forcibly that who is that friend in whose house she halted. Upon that, under fear, as per the report, victim disclosed that on 9.9.2016 at village Dewhadi when she was returning from photo-studio to school, the appellant met her and gave her chocolate and, thereafter by force she was taken to Dewhadi Railway Station and from there they went to Dongargarh by railway and on his say she gave incorrect information that she is going to her friend's house. Thereafter, at Dongargarh, she was taken in a room and against her wish she was sexually assaulted. 5. After registration of the crime, Police Inspector Suhas Choudhari (PW 9), forwarded victim (PW 1) for her medical examination with a covering letter (Exhibit 40). Initially, she was taken to Mohadi Government Hospital, however as lady doctor was not available, she was referred to Bhandara General Hospital, Bhandara from where medical samples of victim were collected. As per evidence of Suhas Choudhari, spot of incident was situated at Dewhadi which falls within the jurisdiction of Tumsar Police Station and, therefore, he forwarded original papers along with covering letter (Exhibit 42) to Tumsar Police Station. 6. After receipt of original papers at Tumsar Police Station, Assistant Police Inspector Nitin Ukey (PW 12), after registration of the crime as Crime No. 106/2016 for offences punishable under Sections 363, 366-A, and 376 of the Indian Penal Code, took case diary for investigation on 16.9.2016. He called two panchas by giving them intimation (Exhibit 22). Along with panchas, he went to village Dewhadi. Victim (PW 1) shown spot of incident from where she was taken away by the appellant. Spot panchnama is at Exhibit 24. Thereafter, they reached to Dongargarh where victim was taken to by the appellant. He called two panchas by giving them intimation (Exhibit 22). Along with panchas, he went to village Dewhadi. Victim (PW 1) shown spot of incident from where she was taken away by the appellant. Spot panchnama is at Exhibit 24. Thereafter, they reached to Dongargarh where victim was taken to by the appellant. Victim shown room of Rajesh Mendhe (PW 6). Spot panchnama of the said room was also drawn and the said is at Exhibit 25. Investigating Officer Nitin Ukey, also seized mattress and bedsheet from Rajesh Mendhe under seizure memo (Exhibit 26). Thereafter, the appellant was arrested under arrest panchnama (Exhibit 50). The Investigating Officer also seized clothes of victim as well as clothes of the appellant under seizure panchnamas (Exhibits 27 and 28 respectively). Medical samples of the appellant were also seized. Maternal uncle Deepak of victim, produced age proof of victim. It is at Exhibit 38. Thereafter, Investigating Officer handed over investigation to Police Sub-Inspector Suresh Haware (PW 13). 7. Police Sub-Inspector Suresh Haware (PW 13), received case diary of the crime on 18.11.2016. He recorded supplementary statement of victim (PW 1) and, thereafter, filed charge sheet in the Court of law. 8. Learned Additional Sessions Judge, Bhandara, framed charges against the appellant for offences punishable under Sections 363, 366-A, and 376(2)(i) of the Indian Penal Code and under Section 4 of the POCSO Act. The appellant denied charges and claimed for his Trial. The prosecution examined in all 13 witnesses and also relied upon various documents duly proved during course of Trial. After a full fledged trial, learned Judge of Court below convicted the appellant, as observed in opening paragraph of this judgment. Hence, this appeal. 9. Heard learned counsel Shri. S.G. Joshi for the appellant and learned Additional Public Prosecutor Shri. N.B. Jawade for the respondent/State. With their able assistance, I have also gone through entire record and proceedings of the case. 10. Scientific evidence is available on record. It is at Exhibit 54. The scientific evidence does not show finger of guilt towards the appellant. Medical evidence of victim (PW 1) is at Exhibit 46. On examination of victim, Dr. Karuna Khobragade (PW 11) did not express any opinion and, therefore, she was referred to Dr. Anamu Bagade (PW 10) for expert opinion. Dr. Anamu Bagade on 15.9.2016 examined victim. She conducted local examination of genital part of victim and collected medical samples. Medical evidence of victim (PW 1) is at Exhibit 46. On examination of victim, Dr. Karuna Khobragade (PW 11) did not express any opinion and, therefore, she was referred to Dr. Anamu Bagade (PW 10) for expert opinion. Dr. Anamu Bagade on 15.9.2016 examined victim. She conducted local examination of genital part of victim and collected medical samples. She did not notice any fresh injury. Hymen of victim was having old torn. 11. The appellant was charged that he committed sexual assault on a minor girl. In order to prove the said charge that the victim was a child within the meaning of the POCSO Act, the prosecution filed birth certificate (Exhibit 38) of victim and it is proved by Rupeshkumar Chetan Meshram (PW 7), Secretary of Gram Panchayat, Sukadi. The said birth certificate shows date of birth of victim as 11.1.2001. Before this Court, learned counsel for the appellant submitted that the appellant is not challenging age of victim. 12. Submission of the appellant before this Court is that he is falsely implicated. 13. Incident took place on 9.9.2016. Looking to documentary evidence (Exhibit 38) which is birth certificate of victim (PW 1) issued by Gram Panchayat, Sukadi, it is clear that victim was child within the meaning of the POCSO Act. 14. According to learned counsel for the appellant, scientific evidence as well as medical evidence are not supportive to the prosecution case. He, therefore, submitted that it supports his submission that the appellant is falsely implicated in crime. 15. The law is well settled that merely because medical evidence or scientific evidence does not show point of guilt towards accused, that by itself is not sufficient to record a finding that he has not committed offence for which he is charged. Even, in absence of medical evidence or scientific evidence, if evidence of victim/prosecutrix is found to be trustworthy and inspires confidence, that itself is sufficient to record a finding of guilt. If evidence of victim/prosecutrix is not found to be trustworthy, Court may search for corroborative piece of evidence in the nature of medical or scientific evidence. 16. In the light of the aforesaid settled principle of law, the Court will have to scrutinize as to whether evidence of victim (PW 1) is, trustworthy or not. 17. If evidence of victim/prosecutrix is not found to be trustworthy, Court may search for corroborative piece of evidence in the nature of medical or scientific evidence. 16. In the light of the aforesaid settled principle of law, the Court will have to scrutinize as to whether evidence of victim (PW 1) is, trustworthy or not. 17. As per oral report (Exhibit 20), lodged, by Rupali (PW 3), who is aunt of victim (PW 1), informed to Investigating Officer that on 9.9.2016 in evening at 5:30, victim, from an unknown cellphone, made a phone call and informed that she is going to house of her friend Megha and she will not return to house. 18. In evidence of victim (PW 1), she deposed on oath that when she was returning from photo-studio, near Railway Station Road the appellant met her and he asked her to accompany him for roaming. She refused, however she was taken forcibly to Dewhadi Railway Station and from there she was taken to Gondia by a train at around 12:30 p.m. and after reaching at Gondia, the appellant snatched away her mobile phone and asked her to make phone call to her aunt Rupali (PW 3). 19. In this backdrop, evidence of Rupali (PW 3) is very important. Her evidence shows that victim (PW 1) was not having any cellphone with her. If that be so, there is a serious doubt in respect of the version of victim that her cellphone was snatched away by the appellant Rupali further stated that she received a call from victim from an unknown cellphone number. 20. Evidence of Dr. Karuna Khobragade (PW 11), shows that when victim (PW 1) was brought to her for medical examination, she narrated that the appellant gave chocolate to her on 9.9.2016 and, thereafter, she felt giddiness and, thereafter, she was taken to Gondia and from there to Dongargarh. In substantive evidence, victim is conspicuously silent about this aspect. On the contrary, in her evidence, she stated that the appellant asked her for roaming and when she refused, he took her forcibly to Dewhadi Railway Station. Thus, at Dewhadi incident victim is giving two different versions. In my view, this casts a serious doubt about truthfulness of her version. 21. In cross-examination, victim (PW 1) accepted that at Dewhadi many persons were known to her. Thus, at Dewhadi incident victim is giving two different versions. In my view, this casts a serious doubt about truthfulness of her version. 21. In cross-examination, victim (PW 1) accepted that at Dewhadi many persons were known to her. Her evidence does not show that the appellant was carrying any dangerous weapon with him. Her evidence is also silent that on the point of any weapon she was asked to keep mum. 22. As per evidence of victim (PW 1), from Gondia she was taken to Dongargarh by a train where, as per the prosecution, the appellant hired a room of Rajesh Mendhe (PW 6) and they stayed in the said room. In the night, according to version of victim, the appellant committed rape forcibly on two occasions. From the evidence of victim, it is clear that one Shailesh Patil and Ashwini Balpande were also accompanying with the appellant and victim at Dongargarh. It would be useful to reproduce evidence of victim in that behalf: "I know Shailesh Patil. I also know Ashwini Balpande. It is true to say that on that day Shailesh and Ashwini were with us. It is true to say that both Shailesh and Ashwini had come with us at Dongargarh. At Dongargarh, we went to temple of Durga Devi with above persons, returned to room and stayed there with them and next day returned back to our village with them." Presence of Shailesh and Ashwini is also corroborated by Rajesh Mendhe (PW 6). His evidence reads as under: "In the year 2016, four persons came to me and requested for a room to stay. There were two women and two men. I rented one room to all four persons. They came to me in the evening around 6:00 to 7:00 p.m. They went away next day morning a t 7:00 a.m. They went away for Darshan with articles of worship." 23. From the aforesaid, it is clear that in the room hired by the appellant, the appellant and victim were not only inhabitants but also they were accompanied by Shailesh and Ashwini. These two persons, for reasons best known to the prosecution, are not examined by the prosecution during the course of Trial. Their evidence would have been the utmost importance as to anything has happened since they were also sleeping in the room in which the appellant and victim were sleeping. These two persons, for reasons best known to the prosecution, are not examined by the prosecution during the course of Trial. Their evidence would have been the utmost importance as to anything has happened since they were also sleeping in the room in which the appellant and victim were sleeping. Further, it is clear from the prosecution case that accusation of rape is made only in supplementary statement of victim which was recorded by Police Sub-Inspector Suresh Haware (PW 13). The supplementary statement was recorded on 6.12.2016. Suresh Haware did only that part of investigation and there is nothing on record as to what made Haware necessitated to record the supplementary statement. 24. In my view, the evidence as brought on record does not show that the prosecution was successful to prove the foundational facts to draw the statutory presumption under Section 29 of the POCSO Act. The accused is under obligation to rebut the presumption only when the foundational facts are proved. 25. In totality of the aforesaid, I am of view that victim's version alone does not inspire confidence to record a finding of guilt against the appellant. Further, when corroborative piece of evidence is searched to corroborate her version, it is also not available there. In this view of the matter, in my view, the appellant on such a piece of evidence cannot be sent to jail even for a period of 10 years. Consequently, I pass following order: ORDER (1) The criminal appeal is allowed. (2) Judgment and order of conviction dated 15.5.2019 passed by learned Special Judge, Bhandara in Special Criminal (Child) Case No. 39/2016 is hereby quashed and set aside. (3) The appellant is acquitted of offences punishable under Sections 363 and 376(2)(i) of the Indian Penal Code and under Section 4 of the Protection of Children from Sexual Offences Act, 2012. (4) The appellant who is in jail shall be released forthwith, if not required in any other case.