JUDGMENT : Goutam Bhaduri, J. 1. The instant appeal under Section 374(2) of the Code of Criminal Procedure, 1973 (for short ‘Cr.P.C.’) is preferred against the judgment of conviction and order of sentence dated 13.12.2019 passed by the Special Judge (Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, Korba, Chhattisgarh in Special Criminal Case No.39 of 2017, wherein the appellant has been convicted under Sections 363, 366 of the Indian Penal Code, 1860 (for short ‘IPC’) and under Section 4 of the Protection of Children from Sexual Offences Act, 2012 (for short ‘POCSO Act’) and sentenced as under :- Conviction Sentence Under Section 363 of the IPC Rigorous imprisonment for 3 years and fine of Rs.500/-, in default of payment of fine, additional rigorous imprisonment for 1 month. Under Section 366 of the IPC Rigorous imprisonment for 5 years and fine of Rs.500/-, in default of payment of fine, additional rigorous imprisonment for 4 months. Under Section 4 of the POCSO Act Rigorous imprisonment for 14 years and fine of Rs.5,000/-, in default of payment of fine, additional rigorous imprisonment for 2 years. All the sentences were directed to run concurrently. 2. The case of the prosecution was that, a complaint was made by Shaniro Bai (PW-8), mother of the victim that the accused/ appellant took her daughter to forest and committed sexual intercourse with her daughter. On the primary investigation, prosecutrix was found to be a minor. After investigation, it was found that appellant has committed sexual intercourse with the victim, therefore, the offence was registered under Sections 363, 366 of IPC and Section 4 of the POCSO Act and the charge-sheet was filed. 3. During the course of trial, the appellant abjured his guilt and claimed to be tried. The prosecution on its behalf examined as many as 18 witnesses and exhibited 24 documents. After evaluating the evidence and statements, the appellant was convicted for the offences as mentioned aforesaid. Being aggrieved by such order, the accused/appellant filed this appeal. 4. Learned counsel for the appellant/accused would submit that his submission would be two fold. The first would be that the evidence would lead to show that the prosecutrix was above 18 years, therefore, the provisions of POCSO Act would not be attracted. Being aggrieved by such order, the accused/appellant filed this appeal. 4. Learned counsel for the appellant/accused would submit that his submission would be two fold. The first would be that the evidence would lead to show that the prosecutrix was above 18 years, therefore, the provisions of POCSO Act would not be attracted. He would further submit that the accused/appellant was falsely implicated, which would be evident from the inconsistent statements of prosecution witnesses, therefore, offences were not proved beyond the reasonable doubt, for which the benefit of doubt should have been given to the accused. He would submit that statement of T.C. Tatiya (PW-18) Investigating Officer and (PW-8), mother of prosecutrix would show that on the date of incident i.e. 07.08.2017, as per Aadhaar Card, which was seized by the Investigating Officer and given by mother, date of birth of prosecutrix was 01.01.1999, therefore, reading it with the radiologist report shows that the age of the prosecutrix was more than 18 years. He placed his reliance in Rajak Mohammad v. State of Himachal Pradesh reported in (2018) 9 SCC 248 . 5. Further, in order to demolish the identity and involvement of the appellant/accused, learned counsel would submit that only on hearsay evidence, the appellant was inculpated. Reading the statements of Pratap Singh (PW-1), Dhayad Singh (PW-5), Kaushlya Rathiya (PW-6), Prosecutrix (PW-7) and Shaniro Bai (PW-8) would submit that nobody has seen the accused, taking away the victim with him for the alleged sexual assault. He would further submit that alleged slides though were recovered, but they were not sent for DNA test and with respect to the FSL, the evidence would suggest that it was seized on 08.08.2017, but till one month, it was not sent for FSL and whereabouts of the same during such time as to where and in whose custody it was kept was not proved by the prosecution. Therefore, that also creates a serious lacuna to inculpate the accused/appellant. It has been contended that accused/ appellant convicted only on the statement under Section 161 of Cr.P.C. and 164 of Cr.P.C. of victim and her mother, which was not supported in the Court though the conviction has been affected, therefore, the same requires to be interfered. 6. Therefore, that also creates a serious lacuna to inculpate the accused/appellant. It has been contended that accused/ appellant convicted only on the statement under Section 161 of Cr.P.C. and 164 of Cr.P.C. of victim and her mother, which was not supported in the Court though the conviction has been affected, therefore, the same requires to be interfered. 6. Per contra, learned Penal Lawyer for the respondent/State would submit the statement of D.S. (PW-5) would show that the victim was taken away on his motorcycle on the date of incident and thereafter, he committed sexual assault. He would further submit that victim was mentally retarded and taking advantage of it, the offence was committed. He would further submit that there was no reason as to why the statement of (PW-8), mother of prosecutrix should be disbelieved and statement under Section 164 of Cr.P.C. categorically postulates the fact that accused/appellant was involved in commission of offence. It has been lastly contended that judgment of conviction and order of sentence passed by the learned Court below is well merited, which do not call for any interference. 7. We have heard learned counsel appearing for the parties at length and perused the statements and the evidence adduced by the prosecution. 8. The background of the facts would be that the date of incident was of 07.08.2017 and First Information Report (for short ‘FIR’) was lodged by (PW-8), mother of prosecutrix. The FIR is Ex.P/9 and numbered FIR is Ex.P/17. According to the prosecution, accused/appellant enticed away the victim from lawful custody of their parents and committed sexual intercourse knowing fully well that she was a minor. The evidence would show that the statement of the victim was recorded by T.C. Tatiya (PW-18), Investigating Officer and as per paragraph-19, at such time of recording evidence, Aadhaar Card of victim was seized, wherein he admitted that the date of birth of victim was shown as 01.01.1999. The Investigating Officer admitted the fact that on the basis of Aadhaar Card, the victim was major on the date of incident. The date of incident is of 07.08.2017 and by simple calculation, it would evident that the victim would be more than 18 years. 9. Dr. Dilish Singh (PW-3) is the Radiologist, who examined the victim to ascertain the age. The X-Ray plate was filed as Article A-1 and A-2 and X-Ray report was Ex.P/6. The date of incident is of 07.08.2017 and by simple calculation, it would evident that the victim would be more than 18 years. 9. Dr. Dilish Singh (PW-3) is the Radiologist, who examined the victim to ascertain the age. The X-Ray plate was filed as Article A-1 and A-2 and X-Ray report was Ex.P/6. The opinion of X-Ray report shows that age of the victim was found to be more than 16 years but below 20 years. When both the evidence is read together, it would show that on the date of incident, the victim had attained the age of majority. The reliance placed by learned counsel for the appellant in case of Rajak Mohammad (supra) and the principle laid down therein would show that when there is some discrepancy and question looms large about the age, the benefit should have been extended to the accused. When the Aadhaar Card was seized by prosecution, which shows the date of birth of victim was 01.01.1999, why it was not produced before the Court, is not clear. Consequently, reading the same by taking an adverse inference withhold the best evidence, which was available with the prosecution, we are constrained to draw an adverse inference read it with Radiologist report Ex.P/6 proved by Dr. Dilish Singh (PW-3), Radiologist, to hold that on date of incident, the victim had become a major. Consequently, the provisions of POCSO Act would not be applicable to hold the victim to be a children below 18 years. 10. Now, with respect to identity of the accused/appellant, which was vehemently urged by the learned counsel for the appellant that he has been falsely implicated and attention of Court was invited to the accused statement under Section 313 of Cr.P.C. Reading of it would show that when accused was asked as to why he was inculpated, it was stated in order to save one Bhogilal, false case was registered against him. 11. Reverting back to the evidence of Pratap (PW-1), who appears to be a hearsay witness, his cross-examination would show that after the incident, he came to know that accused was of another village name Sonpuri, whereas the incident had happened in village Gangdai and Pratap Singh (PW-1) was resident of village Kesla, which was 3 kms. away. 11. Reverting back to the evidence of Pratap (PW-1), who appears to be a hearsay witness, his cross-examination would show that after the incident, he came to know that accused was of another village name Sonpuri, whereas the incident had happened in village Gangdai and Pratap Singh (PW-1) was resident of village Kesla, which was 3 kms. away. Paragraph-5 of the evidence of this witness would show that earlier another report was lodged by father and mother of the victim, wherein after investigation, the Police of Rajgamar Police Station found it to be false and did not register a case. Thereafter, father of the victim was enraged by such act and stated that since the Police has exonerated the accused/appellant and requested for support, he admitted the fact that the victim was mentally retarded and the date of incident was date of festival of Rakshabandhan of 2017. The suggestion which was given to him on the like nature report, compensation is given by the State but same was denied. He affirms the fact that he has not witnessed the incident of taking away the victim on a motorcycle by the accused. 12. The father of the victim was examined as PW-2, who stated that her daughter is mentally retarded and is not able to speak properly because of her ailment. He admitted the fact that whenever some vehicle comes in the village, she runs after it and on the date of incident, lot of people came to the village as it was a festival day. He further deposed that the incident was disclosed to his wife by one Urmila. and on that basis, the report was made. He further stated that when they went to lodge a report in the Police station, at that time, the accused/appellant was in the house of one Samar Singh and Police thereafter caught hold of him from the house of Samar Singh and after inquiry, he was released. 13. The statement of R.R. (PW-2) is contradictory to the statement of T. K. (PW-14) wherein he stated that they caught hold of the accused/appellant and left him in the custody of the father of the victim. According to this witness, the incident was disclosed by U who was related witness. 14. The prosecution has not examined Urmila who would have been a major chain to prove the evidence to disclose the incident to all. According to this witness, the incident was disclosed by U who was related witness. 14. The prosecution has not examined Urmila who would have been a major chain to prove the evidence to disclose the incident to all. Statement of D.S. (PW-5) would show that on the date of incident, one Bhogilal had taken his motorcycle and went to his in-laws place at village Gangdai, the place of incident and subsequently, after three days, he came to know that his motorcycle was seized by the Police. The person who has been named by D.S. (PW-5) i.e. Bhogilal is same person to whom the accused has named under Section 313 of Cr.P.C., and alleged that in order to save Bhogilal, name of the appellant has been falsely implanted. He further stated that when he inquired from Bhogilal about the motorcycle, he stated that his motorcycle was taken by Dilharan Yadav the accused herein whereas on the subsequent date, he stated that in the village Gangdai, the place of incident, he came to know that the Police personnel has taken the Bhogilal with the motorcycle for inquiry. 15. In the cross-examination of this witness, specific question was asked that whether Police came with Bhogilal and motorcycle, the answer was in affirmative and stated that the accused/ appellant at that time had given the key of motorcycle. Further specific question was asked as to Bhogilal and their in-laws has managed to get him free from the Police, he expressed his inability to answer the same but accepted the fact that after Bhogilal was in Police custody and his father-in-law came to the Police Station. The inference can be drawn that Bhogilal was taken into custody by Police, who got released subsequently. 16. K.R. (PW-6), sister of the victim was declared hostile. She deposed that at the time of incident, the accused was caught hold of by the villagers Tiharu, Gangaram, Darshan and Tribhuwan. Except Tribhuwan, other witnesses were not examined by the prosecution. Cross-examination of this witness would show that son-in-law of S.S. (Damad) came to the village and S.B. (PW-8), mother of the victim has admitted such relation that Bhogilal is son-in-law of S.S. Therefore, the fact that one Bhogilal was also in the inquiry net by the Police is established by the evidence of prosecution. Cross-examination of this witness would show that son-in-law of S.S. (Damad) came to the village and S.B. (PW-8), mother of the victim has admitted such relation that Bhogilal is son-in-law of S.S. Therefore, the fact that one Bhogilal was also in the inquiry net by the Police is established by the evidence of prosecution. She further stated that she do not remember as to whether son-in-law of S.S. was also kept in custody by the villagers, she affirms the fact that she had not seen the victim was taken by accused on the motorcycle. She further stated that her sister was not able to speak and even when the report was made, she had not made any statement. This witness further stated that while she saw her sister (victim) she was coming back from the forest then again volunteered that she was standing there. She further admitted that she has not seen the happening of the incident. 17. PW-7 is the victim. She was examined with the aid of the expert. During her examination in the Court when identity of the accused was tried to be explored she did not answer and identified and instead the Court records that she was scared. When specific query was made by the Court that whether the accused has taken her on a motorcycle she did not answer. On a repeated questions she also did not answer. In the cross-examination, when again specific question was asked as to who had taken her to forest, in reply name of one Manse was said. When specific question was further made that whether that person is present in the Court, the victim saw around and did not recognise the accused and did not answer any question. When she was asked that whether any statement was made before the Magistrate she did not answer. In the statement under Section 164 Cr.P.C., specific query when was made that statement was made before the Magistrate, she did not answer. 18. PW-8 SB, mother of the victim, would depose that victim has stated that the accused has taken her to the forest and thereafter after removing the clothes, committed rape, which has not been stated by the victim (PW-7). 18. PW-8 SB, mother of the victim, would depose that victim has stated that the accused has taken her to the forest and thereafter after removing the clothes, committed rape, which has not been stated by the victim (PW-7). In the statement under Section 161 Cr.P.C., which is marked as Ex.D/1, this witness stated that her neighbour Urmila told that some person had taken the victim on a vehicle towards the forest. Thereafter, when the victim came back she stated she was raped. Her statement under Section 164 Cr.P.C. is marked as Ex.P/13. She stated that the neighbour Urmila had told her that some boy has taken the victim to forest. Thereafter, on enquiry she came to know that the accused Dilharan, who had come to the village, has committed the offence. Urmila was not examined by the prosecution, who disclosed the incident to SB (PW-8). 19. The statement of Investigating Officer R.S. Mandavi, Inspector (PW- 16) would show that on 9-8-2017 when the Police of Rajgamar has brought the accused, they did not brought the case diary and Rajgamar Police have already arrested the accused. T.C. Tatiya, Dy. Superintendent of Police (PW-18) deposed that on 11-8-2017, according to the statement made by the victim, her statement was recorded under Section 161 Cr.P.C. and nothing was added or deleted. He further stated that on 8-8-2017 when the case diary was received, it did not contain the statement of victim. According to the Investigating Officer, the victim had shown the place of incident thereby the map was prepared vide Ex.P/12 and a specific suggestion was given to him that the victim was mentally retarded, it was denied. As per this witness, DNA slides were prepared vide Ex.P/11 and it was handed over to the Constable and the Doctor had advised for DNA, but the witness did not send it for DNA instead sent it for FSL. On a specific query about non sending the samples to the DNA test as it would disclose true events and facts of accusation on the accused, this witness denied the same. 20. Over all assessment of the statement, therefore, would show that the identity of the accused itself was not established. On a specific query about non sending the samples to the DNA test as it would disclose true events and facts of accusation on the accused, this witness denied the same. 20. Over all assessment of the statement, therefore, would show that the identity of the accused itself was not established. At one point of time, the Investigating Officer stated that the victim was not mentally retarded and her statement was recorded, but the victim PW-7 has not deposed to inculpate the accused who was present in the Court and this exercise to identify the accused was repeated again and again, but eventually the identity of the accused was not established. The Police who was investigating could have established the chain of involvement of the accused by the DNA test by preparation of vaginal slides, but it was not done. The accused in the statement under Section 313 Cr.P.C. had named one Bhogilal and the evidence of PW- 6, sister of the victim, would show that on the date of incident Bhogilal was also present in the village and the statement of PW-1 Pratap Singh would show that earlier to the incident, similar report was made by the parents of the victim against the accused, but after investigation the police found that the accused was not involved. PW-5 DS has stated that on the date of incident Bhogilal had borrowed his motorcycle and after three days, he came to know that the motorcycle was seized by the police in the instant crime. Therefore, if the motorcycle was used to commit crime, which was taken by Bhogilal from PW-5 DS and Bhogilal was suspected in the police enquiry, how the accusation shifted to the accused Dilharan Yadav has not been established except on the ground that Bhogilal informed to PW-5 DS that he had given the key of motorcycle to the accused/appellant. Apart from it, age of the victim was appears to be major and the identity of the accused was not established that he was involved in the crime. 21. In view of the foregoing analysis of the evidence, we are of the view that the guilt of the accused/appellant has not been proved by the prosecution beyond reasonable doubt. Therefore, the trial Court has committed serious illegality by convicting the appellant herein. 22. 21. In view of the foregoing analysis of the evidence, we are of the view that the guilt of the accused/appellant has not been proved by the prosecution beyond reasonable doubt. Therefore, the trial Court has committed serious illegality by convicting the appellant herein. 22. Accordingly, the conviction and sentence imposed upon the appellant under Sections 363 & 366 of the IPC and Section 4 of the POCSO Act are hereby set aside and he is acquitted of the said charges leveled against him. The appellant is in jail. He be released forthwith if not required in any other case, on furnishing a personal bond for a sum of Rs.25,000/- with one surety in the like sum to the satisfaction of the trial Court. The bail bond shall remain in operation for a period of six months as required under the provisions of Section 437-A of the Cr.P.C. The appellant shall appear before the higher Court as and when directed. 23. In the result, the instant criminal appeal is allowed.