JUDGMENT : Goutam Bhaduri, J . 1. The present appeal is against the judgment of conviction and order of sentence dated 25-9-2021 passed by the Additional Sessions Judge (FTC)/Special Court (POCSO Act), Bastar at Jagdalpur, in Spl.Cr. (POCSO) Case No.26/2019 whereby the trial Court sentenced the accused to undergo RI for 20 years and fine of ? 2,000/- for the offence under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (for short ‘the POCSO Act’). The trial Court also imposed default sentence in case of failure to pay the fine. 2. Filtering the unnecessary details, the prosecution case is that on 5-5-2019 the mother (not examined, as she died during pendency of trial) of the victim made a report at Police Station Bodhghat that her daughter/victim namely; L (PW-9) has left the house and she received an information from the Jagdalpur Child Home that her daughter is at Jagdalpur. When she went to Jagdalpur, then the victim disclosed that she met with the accused at Jagdalpur Railway Station wherefrom she was taken to his house and after keeping her in captivity, forceful sexual intercourse was done. Statement of the prosecutrix was recorded under Sections 161 & 164 of the Cr.P.C. and in order to determine the age of the prosecutrix, she was subjected to ossification test by X-Ray wherein she was stated to be 14-17 years of age. Thereafter, the map of the area was prepared and the other statements were recorded. After completion of investigation, the charge sheet was filed. 3. During the course of trial the appellant/accused abjured his guilt and claimed to be tried. The prosecution examined as many as 10 witnesses and exhibited as many as 28 documents. Upon appreciation of evidence, the trial Court came to a finding that the appellant has committed the offence and convicted & sentenced him as mentioned above. Thus, this appeal. 4. Learned counsel appearing for the appellant would submit that there is inconsistency in the statement of the victim L (PW-9). As per her statement, she disclosed the entire facts of sexual assault to Geeta Baghel (PW-3). Statement of Geeta Baghel (PW-3) would show that such incident was not disclosed to her by the victim L (PW-9). Thus, this appeal. 4. Learned counsel appearing for the appellant would submit that there is inconsistency in the statement of the victim L (PW-9). As per her statement, she disclosed the entire facts of sexual assault to Geeta Baghel (PW-3). Statement of Geeta Baghel (PW-3) would show that such incident was not disclosed to her by the victim L (PW-9). He would further submit that the statement of Smt. Rajni Chouhan (PW-4) though at one hand she stated that the victim has disclosed that she was subjected to rape by the accused, but in the crossexamination she stated that the victim was speaking in Odia language, therefore, no clarity of happening of sexual assault was proved. He would also submit that the statement of Dr. Govind Singh (PW-5) and the X-Ray report (Ex.P/4) would show that the victim has crossed the age of 18 years, which is admitted by the Doctor and in the MLC no definite opinion of rape was suggested. In support of his contention, learned counsel would place reliance upon the decision rendered by the Supreme Court in the matter of Santosh Prasad alias Santosh Kumar v State of Bihar, (2020) 3 SCC 443 , to submit that since there is inconsistency in the statement of the victim in such case the conviction cannot be sustained. It is, therefore, submitted that the learned trial Court has misdirected himself to evaluate the evidence and convicted the accused for the offence under Section 6 of the POCSO Act, which is required to be set aside. 5. Learned counsel appearing for the State, per contra, would submit that the judgment of the learned trial Court is well reasoned and merited. He went through the statement of victim L (PW-9) to submit that she in categorical terms deposed that she was subjected to rape by the appellant and which continued for quite a period of time. Therefore, after the report, the victim was lodged in the Jagdalpur Child Home. He would lastly submit that under the circumstances the appeal has no merit and the same deserves to be dismissed. 6. We have heard learned counsel for the parties and perused the record. 7. Primarily the learned trial Court has convicted the accused under the provisions of Section 6 of the POCSO Act taking the age of the prosecutrix to be below 18 years holding her to be a child. 6. We have heard learned counsel for the parties and perused the record. 7. Primarily the learned trial Court has convicted the accused under the provisions of Section 6 of the POCSO Act taking the age of the prosecutrix to be below 18 years holding her to be a child. Admittedly, there is no date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board and even there is no document to show that the birth certificate given by a Corporation or a Municipal authority or a Panchayat and in absence of the said certificate, age shall be determined by an ossification test. Sub-section (2) of Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (for short ‘the Act, 2015’) prescribes the mode of age determination. Section 94 of the Act, 2015 is quoted below for ready reference : 94. Presumption and determination of age.--(1) Where, it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under section 14 or section 36, as the case may be, without waiting for further confirmation of the age. (2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining— (i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof; (ii) the birth certificate given by a corporation or a municipal authority or a panchayat; (iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board : Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order. (3) The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person. 8. In the instant case, there is no birth certificate of the victim from the school or matriculation or equivalent certificate from the concerned examination Board, as the victim was not studying in any school. In absence of any such certificate either of the school or the Municipality, the age of the victim was required to be determined by ossification test. The record would show that she was subjected to ossification test and the Doctor who conducted such test is PW-5 Dr. Govind Singh. 9. Dr. Govind Singh (PW-5) who was working as a Radiologist in the Maharani Hospital, Jagdalpur, examined the victim L (PW-9) and by Ex.P/4 gave the opinion. Dr. Govind Singh (PW-5) when was examined before the Court gave the following opinion : (1) Epiphysis of head of radius which is fused at 14 years was already fused. (2) Epiphysis of olecranon process of ulna which is fused in 15 years was already fused. (3) Epiphysis of head of humerus which is fused in 14 to 16 years was already fused. (4) Epiphysis of the acromium process, which takes place at the age of 13 to 16 years, had also joined. (5) The epiphysis of distal end of ulna which is joined at the age of 17 years was already joined. (6) The epiphysis of distal end of radius, which is fused at the age of 16 to 18 years, was already fused. (7) Epiphysis of iliac crest pelvic bone which is visible in 14 years and fusion takes place in 17 to 19 years, was visible but fusion was half-incomplete fusion. 10. In the cross-examination, Dr. Govind Singh (PW-5) suggests that as per Ex.P/4, the actual age of the victim cannot be stated. When the statement of Dr. Govind Singh (PW-5) is examined, he at S.No.6 suggests that the epiphysis of distal of radius of the victim was fused, which is normally at the age of 18 years and that fusion has already taken place. At S.No.7 he further suggests that epiphysis of iliac crest pelvic bone is visible at the age of 14 years and the fusion takes place in between 17-19 years. At S.No.7 he further suggests that epiphysis of iliac crest pelvic bone is visible at the age of 14 years and the fusion takes place in between 17-19 years. However, the fusion was not complete. Therefore, the necessary inference would be that the victim might have completed the age of 18 years, but not crossed 19 years. As per definition of sub-section (12) of Section 2 of the Act, 2015 inference would be the “child” means a person who has not completed eighteen years of age. 11. Now coming back to the statement of the victim, who is examined as PW-9. She stated that she was residing at Koraput (Odisha) and having asked about the happening with her she told that her both the breasts were pressed and scratched by the appellant. She also deposed that when she went to Jagdalpur Railway Station, the accused met her and took her to his house and where he committed wrong act with her. The incident was stated to be two years back and had stated those facts to PW-3 Geeta Baghel & PW-4 Smt. Rajni Chouhan. 12. Statements of PW-3 Geeta Baghel & PW-4 Smt. Rajni Chouhan would show that PW-3 Geeta Baghel has not stated that the victim L (PW-9) has disclosed about the happening of rape whereas PW-4 Smt. Rajni Chouhan has stated that the victim has disclosed about commission of rape with her. However, PW-4 Smt. Rajni Chouhan in the cross-examination has stated that she was not able to understand, as the victim was speaking in Odia language. 13. Dr. Sushma Rakhunde (PW-1), who conducted the MLC of the Victim, gave the report vide Ex.P/1 that no definite opinion of rape was stated. The documents would show that the victim was examined on 5-5-2019. The other witnesses namely; Geeta Baghel (PW-3) and Smt. Rajni Chouhan (PW-4) have stated that the victim appears to be not of the sound mind, but this observation has not been made by the Court while the victim was examined before the Court. Therefore, over all reading of the statements of the witnesses cumulatively, it would show that there has been inconsistency in the statement of victim L (PW-9). 14. It is the settled proposition that while the Court considering the version of such witness should be in a position to accept it on its face value without any hesitation. Therefore, over all reading of the statements of the witnesses cumulatively, it would show that there has been inconsistency in the statement of victim L (PW-9). 14. It is the settled proposition that while the Court considering the version of such witness should be in a position to accept it on its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. 15. Here in the instant case, the statement of the victim that for two and half years back the incident of sexual intercourse happened from the date of report Ex.P/5 on 5-5-2019 would raise a question of doubt about the correctness of the statement when the medical report is not supported and there is a contradictory statements of PW-3 Geeta Baghel and PW-4 Smt. Rajni Chouhan to whom the victim is said to have disclosed the fact of rape. Therefore, the statement of victim leads to uncertainty to base the conviction specially when the victim was said to have crossed the age of 18 years as per Dr. Govind Singh (PW-5). 16. In view of the above, we are of the view that the guilt of the appellant has not been proved by the prosecution beyond reasonable doubt. Therefore, the trial Court has committed serious illegality while convicting the appellant herein. 17. Accordingly, conviction and sentence imposed on the appellant under Section 6 of the POCSO Act are hereby set aside and he is acquitted of the said charge. The appellant is in jail. Since the appellant filed the appeal through the Legal Aid, copy of this judgment be sent to the concerned Secretary, Legal Aid forthwith so that the appellant can be released from jail, if not required in any other case. 18. As a sequel, the instant criminal appeal is allowed. The intimation of order be sent forthwith.