JUDGMENT : NARENDRA KUMAR VYAS, J. 1. This criminal appeal preferred by the appellants under Section 374 (2) of Cr.P.C. is directed against the impugned judgment of conviction and order of sentence dated 22.10.2002 passed by First Additional Sessions Judge, Balodabazar, in Sessions Trial No. 255/2002 whereby the appellant stands convicted and sentenced as mentioned below: Conviction Sentence In Default U/s. 376 (1) IPC RI for 10 years with fine Rs. 5,000/- Additional RI for 2 years U/s. 506 IPC RI for 1 year 2. Case of the prosecution, in brief, is that the prosecutrix was residing with her parents at village Ghoghara and she had gone to village Chhapora, where her father was working in the stone mines. They were residing in the house of her grand maternal father namely Sonu Ram. It is alleged that prior to 4 months of lodging of FIR, the parents of the prosecutrix had gone to village Chhapora for earning their livelihood. On the same month, the prosecutrix had gone to the field of her grand maternal for plucking the vegetables then the appellant came there and threatened her to kill with knife, and also gagged her mouth and committed forcefully sexual intercourse with her. Since there was threat to kill she has not informed the incident to anyone and when she returned to village Chhapora with her father then she informed the incident to her mother, who in turn informed to her husband. The father of the prosecutrix due to fear of insult did not disclose the incident to anyone. When her pregnancy was developed then her father informed to her maternal grand father and a meeting was convened in which appellant’s father advised them to accept Rs. 20,000/- and do the abortion. On the basis of report, FIR (Ex.P-1) was registered at police Station Bilaigarh and Crime No. 112 of 2002 was registered and after taking usual permission of the prosecutrix for medical examination, she was medically examined and X-ray was taken for ascertain her age. 3. The prosecution investigated the matter and collected the material, thereafter the appellant was arrested. After completion of investigation, charge-sheet was filed before the trial Court for commission of offence under Section 376(1) and 506 (B) IPC. 4. 3. The prosecution investigated the matter and collected the material, thereafter the appellant was arrested. After completion of investigation, charge-sheet was filed before the trial Court for commission of offence under Section 376(1) and 506 (B) IPC. 4. In order to bring home the guilt of appellant, the prosecution has examined as many as 6 witnesses namely: Prosecutrix (PW-1), Parasram (PW-2), Gokuldas (PW-3), Manaram (PW-4), Dr. N. Bajpai (PW-5), Radheyshyam (PW-6). The prosecution to prove the guilt of the appellant has exhibited the documents FIR (Ex.P-1) dated 8.05.2002, complaint (Ex.P-2), consent letter (Ex.P-3), consent letter (Ex.P-4) property seizure (Ex.P-5), Birth and death report form (Ex.P-6A), letter to Civil Surgeon for medical examination of prosecutrix (PW-7A). Opinion of the Doctor dated 10.05.2002 (Ex.P-7), Medical report of the prosecutrix (Ex.P-8), Permission for medical examination of prosecutrix (Ex.P-9), Property seizure memo (Ex.P-10), letter for medical examination of appellant (Ex.P-11), Opinion of Doctor (Ex.P-11), arrest memo (Ex.P-12), receipt of FSL (Ex.P-13), Map (Ex.P-14). Statements of accused/appellant has been recorded under Section 313 Cr.P.C. in he denied the allegation leveled against him and in question No. 51 he has stated that he has seen prosecutrix having sexual intercourse with two other person namely Prahlad and Ramkumar and he has been falsely implicated to save them. The appellant in his defense has examined three defense witnesses Sonu Ram (DW-1), Sukhram (DW-2) and Bharat Ram (DW-3). 5. The prosecutrix (PW-1) was examined before the Court below, who in her examination-in-chief has deposed that the incident took place in winter, when she had gone to pluck the vegetables on Friday at about 1.00 o’clock the present appellant had suddenly come there and catch hold of her. When she made an attempt to rescue herself he has put handkerchief in her mouth and also threatened her to kill with the knife, if she discloses the incident to anybody, therefore, she could not narrate the incident to anybody. She narrated the incident after 15 days to her mother. The prosecutrix in her cross-examination has stated that she did not meet the appellant before the incident and also not meet him even after the incident. The witness has stated that the field where she had gone to pluck vegetables after one field a road was there and she has not seen anybody was moving on the road. The prosecutrix in her cross-examination has stated that she did not meet the appellant before the incident and also not meet him even after the incident. The witness has stated that the field where she had gone to pluck vegetables after one field a road was there and she has not seen anybody was moving on the road. She has stated that the field where the incident took place was rough where the appellant had thrown her on the filed due to that she suffered injury on her back later on she was cured. She has stated that the accused had kept knife in the right hand and in the left hand he was having handkerchief. She has again stated that the appellant has committed the offence by keeping knife in one hand and the cloths on the other hand. 6. The prosecutrix was examined by Dr. N. Bajpai (PW-5) who has done the medical examination of the victim. He has stated that as per the radiology report the age of the victim was 15 years in which two years margin can be given. The doctor has given opinion that prosecutrix was carrying 16 weeks pregnancy and in the cross-examination, he has stated that victim is having sexual intercourse one time or more than one time. He has stated that at the time of examination the prosecutrix was carrying 4 months pregnancy, therefore, her physical relationship should have been established prior to it. He has also admitted that no exact period of physical relationship can be assessed. He has also stated that at the time of examination no injury was found on her body. 7. The prosecution in order to prove the age of the prosecutrix has examined Gokul Das (PW-3) who was the husband of Kotwar. The witness has admitted in the cross-examination, that his wife has not informed that the prosecutrix has different name also. He has admitted that he cannot say after how many days the registration of birth has been recorded in the Kotwar book. 8. The appellant in his defence while recording under Section 313 Cr.P.C. in reply to question No. 51 has categorically stated that he has seen prosecutrix committing sexual intercourse with one Prahlad and Rajkumar, therefore, he has been falsely implicated in the case. 8. The appellant in his defence while recording under Section 313 Cr.P.C. in reply to question No. 51 has categorically stated that he has seen prosecutrix committing sexual intercourse with one Prahlad and Rajkumar, therefore, he has been falsely implicated in the case. The appellant has examined Sonu Ram (DW-1) who has stated that father of the prosecutrix namely Parasram has not informed when the incident took place with the prosecutrix. Kotwar Sukhram (DW-2) has stated that Prahlad and Rajkumar were visiting to the house of Sonu Ram and they were sitting there every time. Other defense witness Bharat Ram (DW-3) has stated that he has seen Rajkumar, Prahlad and one boy of village Beltikra, meeting with prosecutrix. 9. Learned trial Court, after appreciating the evidence and material available on record, vide its judgment dated 22.10.2022 has convicted the appellant under section 376(1) and 506 (B) IPC. Learned trial Court while recording its finding for conviction has recorded its finding that the appellant must have thrown the handkerchief and knife anywhere, therefore, even it is not produced by the prosecution then also the case of the prosecution does not vitiate as there is direct evidence of the commission of offence available on record which is the statement of the prosecutrix. Being aggrieved and dissatisfied with the aforesaid judgment of conviction and order of sentence, instant criminal appeal has been preferred by the appellant. 10. Learned counsel for the appellant would submit that present appellant was juvenile at the time of commission of offence, therefore, he is entitled to get protection under the Juvenile Justice Care and Protection Act 2000. This Court has vide its order dated 05.05.2015 directed the concerned trial Court to hold an enquiry to collect documentary evidence and submit a finding before this Court with regard to age and juvenility of the appellant. In pursuance of direction passed by this Court, District and Sessions Judge Balodabazar has submitted report dated 29.07.2015 according to which on the date of commission of offence by the appellant was 18 year and 8 months, as such he was major, therefore, the appellant is not entitled to get any protection under the Juvenile Justice and Care and Protection Act 2000. Accordingly, the submission of learned counsel for the appellant for grant of protection under the Act, 2000 is rejected. 11. Accordingly, the submission of learned counsel for the appellant for grant of protection under the Act, 2000 is rejected. 11. Learned counsel for the appellant would submit that the prosecution has failed to prove the identity of appellant and commission of offence for want of medical corroboration with respect to the date on which the prosecutrix conceived. He would further submit that there is delay in lodging the FIR (Ex.P-1) and no satisfactory explanation for delay has been brought on record. He would further submit that the prosecutrix in her evidence has stated that she has informed about the incident to her mother within 15 days but FIR has been lodged on 08.05.2002 which also creates doubt over the correctness of the allegation. He would further submit that there is material, contradiction and omission in the statement of the prosecutrix which does not inspire confidence to prove the guilt of the appellant, therefore, he would pray for setting aside the judgment of conviction and pray for acquittal of the appellant. 12. Learned counsel for the State would submit that prosecution has proved their case beyond reasonable doubt. In the offence of rape the statement of prosecutrix is sufficient to prove the guilt of the accused, therefore, no further corroboration is required. He would further submit that the prosecution has also proved the age of the prosecutrix, thus the conviction is legal and justified which does not warrant any interference by this Court. 13. I have heard learned counsel for the parties and perused the material available on record. 14. From the evidence of the prosecutrix it is quite vivid, that the prosecutrix (PW-1) in her statement has stated that the appellant has threatened her to kill by the knife therefore, she has not informed the incident to anyone and in the cross-examination, she has stated that appellant was having knife in one hand and in other hand he was having handkerchief which was pressed into the mouth of the prosecutrix. The statement of the prosecutrix does not inspire confidence as it is not possible that if both the hands are used having knife and one hand was having handkerchief in the mouth then the prosecutrix having opportunity to free from the clutches of the appellant but she did not do this though the place of incident was open and rough place and near by there was road and incident took place on 1.00 PM in the noon where the villagers often wonder from here and there coupled with the fact that she has narrated the incident after 15 days to her mother and the FIR was lodged on 08.05.2002 i.e. about delay of about 4 months. 15. Dr. N. Bajpai (PW-5) in the cross-examination, has clearly stated that the victim was carrying 4 months of pregnancy and she was subjected to sexual intercourse one or more than one time and the fixed period of physical relationship cannot be stated which creates doubt over the case of the prosecution. The prosecution has not seized the knife and handkerchief which were alleged to have been used for commission of offence of rape that also creates doubt on the prosecution story. No recovery of weapon was used for commission of offence of rape, this come up for consideration before the Hon’ble Supreme Court in the case of State of Madhya Pradesh vs. Munna @ Shambhu Nath 2015 SAR Criminal 1111 has held as under: 6. The High Court while setting aside the Trial Court judgment rightly appraised the evidence on record and held that the sexual intercourse was consensual. In her statement the prosecutrix (PW-5) states that she was sleeping between her mother and brother and the accused had reached her after hopping over them and he dragged her into another room on the point of a knife. However, sneaking in with such ease is highly doubtful. Even if the accused made it through to the prosecutrix, it seems unnatural that the prosecutrix was not alarmed by the knife upon being awaken from her sleep. It is also to be noted that the prosecution never recovered any knife. 16. However, sneaking in with such ease is highly doubtful. Even if the accused made it through to the prosecutrix, it seems unnatural that the prosecutrix was not alarmed by the knife upon being awaken from her sleep. It is also to be noted that the prosecution never recovered any knife. 16. FIR (Ex.P-1) has been lodged after 4-5 months of the incident when pregnancy became apparent and the evidence brought on record would demonstrate that the incident took place in the open place near the road and the prosecutrix (PW-1) has stated that the appellant was having knife in one hand and handkerchief in other hand which was pressed into the mouth of the victim and both the hands of the appellant were used in the work, as such there was ample opportunity of the victim to escape from the appellant and make noise for her rescue therefore, it will not be safe to convict the appellant solely on the basis of the testimony of the prosecutrix as held by the Hon’ble Supreme Court in the case of Prakash Chand vs. State of H.P. 2019 (5) SCC 628 has held as under: 23. If we do not place confidence in the deposition of PW-4 and PW-5 then the case would depend upon the credibility of PW-2, the prosecutrix. The incident is alleged to have taken place near a path which has been admitted by the prosecutrix and her aunt PW-3 as common path. If indeed the prosecutrix has raised hue and cry as in the case Kaini Rajan vs. State of Kerala, it is very unlikely that the labourers who are supposed to haunt the common path could not hear it. There is a case of the appellant that the evidence would make out a case of consensual sex. It is true that in the High Court, it is recorded that there is no case of consensual sexual intercourse as such argued but we have to decide the case on the basis of evidence. 24. We would think in the circumstances of this case that the appellant cannot be convicted for the offence under Section 376. It would indeed be unsafe to convict him based on the testimony of the prosecutrix. He would certainly be entitled to the benefit of doubt which is created by the very circumstances which we have referred. 17. 24. We would think in the circumstances of this case that the appellant cannot be convicted for the offence under Section 376. It would indeed be unsafe to convict him based on the testimony of the prosecutrix. He would certainly be entitled to the benefit of doubt which is created by the very circumstances which we have referred. 17. The appellant in his statement recorded under Section 313 Cr.P.C. has stated about the involvement of two other persons and in support he has examined defense witnesses Kashram (DW-2) and Bharatram (DW-3) have stated about relationship with the prosecutrix. But the learned trial Court while convicting the appellant has disbelieved the evidence on the count that the witnesses have not stated anything in the Panchayat. It is pertinent to mention here that, the prosecution witnesses have nowhere stated that these persons were also present in the meeting of Panchayat. The learned trial Court has ignored the well settled position in the matter of Jai Prakash Tiwari vs. State of Madhya Pradesh, 2022 Live Law (SC) 658 where the Hon’ble Supreme Court has held as under: 19. In the case at hand, the alternate version put forth by the appellant/accused could not be ignored. Section 313 Cr.P.C. confers a valuable right upon an accused to establish his innocence and can well be considered beyond a statutory right, as a constitutional right to a fair trial under Article 21 of the Constitution. [See: Reena Hazarika vs. State of Assam, (2019) 13 SCC 289 ]. 20. This Court in the case of Satbir Singh vs. State of Haryana, (2021) 6 SCC 1 , while emphasising upon the significance of Section 313 Cr.P.C. has delineated the duty of the trial Court and held thus: “22. It is a matter of grave concern that, often, trial courts record the statement of an accused under Section 313 Cr.P.C. in a very casual and cursory manner, without specifically questioning the accused as to his defence. It ought to be noted that the examination of an accused under Section 313 Cr.P.C. cannot be treated as a mere procedural formality, as it is based on the fundamental principle of fairness. This provision incorporates the valuable principle of natural justice “audi alteram partem” as it enables the accused to offer an explanation for the incriminatory material appearing against him. This provision incorporates the valuable principle of natural justice “audi alteram partem” as it enables the accused to offer an explanation for the incriminatory material appearing against him. Therefore, it imposes an obligation on the part of the court to question the accused fairly, with care and caution. The court must put incriminating circumstances before the accused and seek his response. A duty is also cast on the counsel of the accused to prepare his defence, since the inception of the trial, with due caution.....” (Emphasis supplied) 18. The prosecution to prove the age of the prosecutrix has exhibited document (Ex.P-6A) birth and death report form but has not examined the person who has entered the said information in the register, therefore, there is non-compliance of Section 35 of the Evidence Act, it was essential for the prosecution to prove the date of birth recorded by the author of the document that he must be examined as held by the Hon’ble Supreme Court in the catena of judgments in the case of Birad Mal Singhvi vs. Anand Purohit, (1988) Supp. SCC 604 and Sunil vs. State of Haryana, (2010) 1 SCC 742 . 19. From analysis of the evidence, material placed on record by the prosecution it is quite vivid that the finding recorded by the trial Court suffers from perversity, contrary to the evidence on record and merely on the statement of the prosecutrix which is full of contradictions and omissions, no seizure of weapon used in the alleged offence clearly established that the prosecution has failed to prove their case beyond reasonable doubt and the appellant is entitled to get benefit of doubt as held by the Hon’ble Supreme Court in the case of Narendra Kumar vs. State (NCT) of Delhi, 2012 (7) SCC 171 in paragraph 32 as under: 32. The instant case is required to be decided in the light of the aforesaid settled legal propositions. We have appreciated the evidence on record and reached the conclusions mentioned hereinabove. Even by any stretch of imagination it cannot be held that the prosecutrix was not knowing the appellant prior to the incident. The instant case is required to be decided in the light of the aforesaid settled legal propositions. We have appreciated the evidence on record and reached the conclusions mentioned hereinabove. Even by any stretch of imagination it cannot be held that the prosecutrix was not knowing the appellant prior to the incident. The given facts and circumstances, make it crystal clear that if the evidence of the prosecutrix is read and considered in totality of the circumstances alongwith the other evidence on record, in which the offence is alleged to have been committed, we are of the view that her deposition does not inspire confidence. The prosecution has not disclosed the true genesis of the crime. In such a fact-situation, the appellant becomes entitled to the benefit of doubt. 20. In view of above, the appeal succeeds and is allowed. The judgment and order dated 22.10.2002 passed in Sessions Trial No. 255 of 2002 is hereby set aside. The appellant is reported to be on bail. His bail bond shall continue for a further period of six months from today in view of Section 437-A of Cr.P.C.