JUDGMENT : N.K. Chandravanshi, J. 1. Since above two criminal appeals arise out of same judgment of conviction and order of sentence relating to same crime number, they are heard together and being disposed of by this common judgment. 2. These criminal appeals under Section 374(2) of Cr.P.C. are directed by the appellants against the impugned judgment of conviction and order of sentence dated 27-5-2022, passed by learned Special Judge (Protection of Children from Sexual Offences Act, 2012), Mahasamund in Special Criminal Case No. H-18/2020, whereby the appellants-accused have been convicted for offence under Section 363, 366, 376D of the Indian Penal Code, (in short, hereinafter referred to as ‘the IPC’) and Section 6 of the Protection of Children from Sexual Offences Act, 2012 (in short, hereinafter referred to as ‘POCSO Act’) and each of them has been sentenced as under :- Offence u/S. Sentence Fine sentence Default stipulation 363, IPC 5 years RI Rs. 1,000/- 1 month RI 366, IPC 7 years RI Rs. 2,000/- 2 months RI 6, POCSO Act 20 years RI Rs. 10,000/- 6 months RI It is pertinent to mention here that appellants have also been convicted for the offence under Section 376D of the IPC, but since punishment under Section 6 of the POCSO Act, is greater in degree, therefore, in view of provisions of Section 42 of the POCSO Act, the appellants have been convicted only for offence under Section 6 of the POCSO Act. All the substantive jail sentence have been directed to run concurrently. 3. Case of the prosecution, in brief, is that the father (P.W. 2) of the prosecutrix (P.W. 1) filed a report in Police Station Sankara that on 04-07-2020 at 2:00 pm his daughter had gone to a shop with Rs.10, but she did not return till evening. On being searched, he could not find prosecutrix. On the said report of the complainant, missing person number 12/2020 was registered in police station Sankra. On investigation, it was found that the minor daughter of the complainant has been lured away by unknown person, on which the FIR No. 98/2020 for offence under Section 363 of IPC was registered in Police Station Sankra. During the investigation, the prosecutrix was recovered on 07-07-2020 vide recovery memo Ex. P-2. On investigation, it was found that the minor daughter of the complainant has been lured away by unknown person, on which the FIR No. 98/2020 for offence under Section 363 of IPC was registered in Police Station Sankra. During the investigation, the prosecutrix was recovered on 07-07-2020 vide recovery memo Ex. P-2. Thereafter, the prosecutrix told during interrogation that the accused persons came on a motor cycle and after showing her the mobile phone, made her drink some water, after which she fainted. On regaining conscious between 2 to 4 hour in the afternoon, she came to know that after taking her to a house, one of the persons made physical relation with her, then both of them took her near a tree and again the same person made physical relation with her and tied her to a tree with a rope and ran away. On the basis of the statement of the prosecutrix, the offense under Section 366, 376, 34 IPC and Section 06 of the POCSO Act was added to the case. After obtaining consent from the prosecutrix and her father, prosecutrix was medically examined by the doctor. Vaginal slide, underwear of the prosecutrix were seized. The accused were arrested, Test Identification Parade (TIP) of appellant Birju Nayak was got done vide Ex. P-5 from prosecutrix and medical examination of accused Puran Nayak was also done. A site map (Ex. P-3) of the place of occurrence was prepared. Seized slides and underwear were sent to Forensic Science Laboratory for testing, statements of witnesses were recorded and after completing the investigation, the charge sheet was filed in the court for trial. 4. Charges were framed against the accused persons under Section 363, 366, 376(D) of the IPC and Section 6 of the POCSO Act. The appellants/accused abjured their guilt and entered into defence. 5. In order to bring home the offence, the prosecution examined as many as 11 witnesses and exhibited 30 documents. The appellants-accused examined none in their defence, however, exhibited Ex. D-1, statement of Anand Ram Sahu in support of their case. Thereafter the statement of accused persons were recorded under Section 313 of the Cr.P.C. in which they pleaded innocence. 6. In order to bring home the offence, the prosecution examined as many as 11 witnesses and exhibited 30 documents. The appellants-accused examined none in their defence, however, exhibited Ex. D-1, statement of Anand Ram Sahu in support of their case. Thereafter the statement of accused persons were recorded under Section 313 of the Cr.P.C. in which they pleaded innocence. 6. The trial Court upon appreciation of oral and documentary evidence available on record, by its judgment dated 27-5-2022, convicted the appellants for offence under Section 363, 366, 376(D) of the IPC and Section 6 of the POCSO Act and sentenced them as aforementioned, against which, these criminal appeals have been filed. 7. Mr. Amiyakant Tiwari, learned counsel appearing for the appellant Pooran Nayak argued that as per the case of the prosecution and statement Ex. D-1 recorded under Section 161 of the Cr.P.C. of father of the victim, on the date of incident, age of victim was 17 years and 1 month, whereas, as per Dakhil Kharij register, her date of birth was 7-6-2004 and according to this date of birth, her age on the date of incident i.e. on 4-7- 2020 was 16 years and 27 days, whereas victim herself has not stated her age or her date of birth in her deposition, but her father has deposed in his Court statement that her age was 16 years. Being illiterate, he could not have stated date of birth of victim. Thus, there is no concrete evidence with regard to age of victim and her date of birth has been recorded in school record/Dakhil-Kharij register without any proper document like date of birth, Kotwari record, etc., hence, it cannot be held beyond reasonable doubt that victim was below the age of 18 years/ minor on the date of incident. Thus, the finding recorded by learned trial Court in this regard is perverse and against the settled preposition of law laid down by the Supreme Court. 7(1) Learned counsel for the appellant Puran Nayak further argued that it is the case of prosecution itself that the persons who abducted the victim had covered their face, but no test identification parade of appellant Puran Nayak has been conducted. He would further submit that Dhaneshwari, who is friend of victim, had allegedly called the appellants and victim, but she has not been examined before the trial Court. He would further submit that Dhaneshwari, who is friend of victim, had allegedly called the appellants and victim, but she has not been examined before the trial Court. It is further submitted that father (P.W. 2) of the prosecutrix has deposed that Raju, who is said to be brother of victim’s father, had seen the victim and appellant Puran Nayak, who informed about them to the father of the victim, thereafter they recovered the victim on the way to Balodabajar from village Bansula, but that Raju has not been examined by the prosecution. 7(2) It is further submitted that the victim is deaf and dumb girl, and there is no evidence that she has taken any education from such type of special school of deaf and dumb. Therefore, recording of deposition of victim through interpreter Vijay Jangde, Superintendent, Shashkiya Bahuviklang Vishesh Vidyalaya, Mahasamund, cannot be held fruitful because if the deaf and dumb person has not got any education from such school, he/she cannot recognize sign language which is taught in such special school. Whereas as per deposition of victim, she knows reading and writing, which she has admitted in her crossexamination, therefore, in view of law laid down by Hon’ble Apex Court in the case of State of Rajasthan Vs. Darshan Singh alias Darshan Lal [ (2012) 5 SCC 789 ], her statement should have been recorded in question-answer form, which has not been done by the trial Court. It is lastly submitted by learned counsel for the appellant that if the appellants would have tied the victim’s hands with a rope to a tree for 2 days, then in passage of such long period, there would have been injuries in her hand, the victim was examined on 7-7-2020, i.e. on the date of her recovery itself, but no such injury has been found by Dr. Vinita Patel (P.W. 5), while preparing MLC report Ex. P-11. Thus, there is no concrete evidence adduced by the prosecution, but learned trial Court without appreciating evidence in its true perspective, has held the appellant guilty, which is perverse and against the law, therefore, it deserves to be set aside / quashed. 8. Mr. Vinita Patel (P.W. 5), while preparing MLC report Ex. P-11. Thus, there is no concrete evidence adduced by the prosecution, but learned trial Court without appreciating evidence in its true perspective, has held the appellant guilty, which is perverse and against the law, therefore, it deserves to be set aside / quashed. 8. Mr. Shikhar Sharma, learned counsel appearing for appellant Birju Nayak, while extending his support to the submission made by learned counsel for the appellant Puran Nayak, would further argue that main accused is Puran Nayak and allegation against accused Birju Nayak is that he had only helped him for abduction of victim. The victim herself has not stated against him that he also made physical relation with her. It is further submitted that in test identification parade vide Ex. P- 5, appellant Birju Nayak is said to be identified by the prosecutrix, but Ex. P-5 is a concocted document, as Dayalal (P.W. 11) who is said to be witness of Ex. P-5, has clearly denied about happening of such test identification parade in his presence, rather he has clearly stated that when he had gone to Tehsil office for his work, then on being asked by Tehsildar, he has put his signature on Ex. P-5. Further, the Tehsildar Tikaram Dewangan (P.W. 11) himself has admitted in his crossexamination that, during Test Identification parade, police were also present there, hence it cannot be accepted that it was conducted in accordance with law. It is further submitted that the evidence adduced by the prosecution is not trustworthy, despite that, learned trial Court wrongly appreciating the same, has convicted the appellant, hence, the impugned judgment is liable to be set aside. 9. Per contra, Mr. Vaseem Miyan, learned Panel Lawyer appearing for the State supports the impugned judgment and submits that the learned trial court has passed the impugned judgment based on the evidence available on record and no interference in the same is called for, therefore, these criminal appeals may be dismissed. 10. We have heard learned counsel appearing for the parties, perused the impugned judgment and original record of the trial Court. 11. The first question for consideration before this Court is whether on the date of incident, the prosecutrix was below the age of 18 years? 12. 10. We have heard learned counsel appearing for the parties, perused the impugned judgment and original record of the trial Court. 11. The first question for consideration before this Court is whether on the date of incident, the prosecutrix was below the age of 18 years? 12. As per case of the prosecution, on the date of incident, the victim was minor, but with regard to her age on the date of incident, there is contradictory evidence. Father of victim P.W. 2 has stated in his statement recorded under Section 161 of the Cr.P.C. Ex. D-1, that on the date of incident, age of victim was 17 years and 1 month, whereas in his deposition recorded in the Court, he has stated her age as 16 years. He is illiterate person, hence he could not have stated date of birth of victim. He has stated in his cross-examination in para 28 that he got prepared/registered birth certificate of victim from the Kotwar, but no such Kotwari record or birth certificate has been filed and proved by the prosecution. 13. Neither the victim herself has stated her date of birth or age nor the Court has noted her apparent age in the deposition sheet. As per Dakhil-Kharij register, Ex. P-15(C), which was recovered from Arun Kar (P.W. 6), Head Master of Government Primary School, Kanchanpur, who has proved aforesaid fact also, date of birth of victim is 7-6-2004. On this count, on the date of incident i.e. on 4-7-2020, age of the victim was 16 years 27 days. 14. How dakhil-kharij register is treated to be relevant came up for consideration before the Hon’ble Supreme Court in Babloo Pasi v. State of Jharkhand and another [ (2008) 13 SCC 133 ] wherein it has been held as under:- “22. It is well settled that it is neither feasible nor desirable to lay down an abstract formula to determine the age of a person. The date of birth is to be determined on the basis of material on record and on appreciation of evidence adduced by the parties. The medical evidence as to the age of a person, though a very useful guiding factor, is not conclusive and has to be considered along with other cogent evidence. 28. The date of birth is to be determined on the basis of material on record and on appreciation of evidence adduced by the parties. The medical evidence as to the age of a person, though a very useful guiding factor, is not conclusive and has to be considered along with other cogent evidence. 28. It is trite that to render a document admissible under Section 35, three conditions have to be satisfied, namely: (i) entry that is relied on must be one in a public or other official book, register or record; (ii) it must be an entry stating a fact in issue or a relevant fact, and (iii) it must be made by a public servant in discharge of his official duties, or in performance of his duty especially enjoined by law. An entry relating to date of birth made in the school register is relevant and admissible under Section 35 of the Act but the entry regarding the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded. (See: Birad Mal Singhvi Vs. Anand Purohit[ (1997) 4 SCC 24 ]”. 15. The Supreme Court in the matter of Sunil v. State of Haryana [ (2010) 1 SCC 742 ] has held as under:- “26. Bishan, PW 8, the father of the prosecutrix has also not been able to give correct date of birth of the prosecutrix. In his statement he clearly stated that he is giving an approximate date without any basis or record. In a criminal case, the conviction of the appellant cannot be based on an approximate date which is not supported by any record. It would be quite unsafe to base conviction on an approximate date. 34. On consideration of the totality of the facts and circumstances of this case, it would be unsafe to convict the appellant when there are so many infirmities, holes and lacunas in the prosecution version. The appellant is clearly entitled to benefit of doubt and consequently the appeal filed by the appellant deserves to be allowed. The appellant is directed to be released forthwith, if not required in any case.” 16. The appellant is clearly entitled to benefit of doubt and consequently the appeal filed by the appellant deserves to be allowed. The appellant is directed to be released forthwith, if not required in any case.” 16. The Supreme Court in the matter of State of Madhya Pradesh v. Munna @ Shambhoo Nath[Cr.A. No. 658 of 2011 decided on 18-9-2015] has held as under:- “9…….Further, the mother of the prosecutrix also was not able to give the exact age of the prosecutrix. No question was also asked to the prosecutrix by the prosecution about her age. Taking into account all these facts, the High Court correctly came to the conclusion that the prosecution has totally failed to prove beyond reasonable doubt that the girl was less than 16 years of age at the time of the incident. Therefore, the High Court presumed that the girl was more than 16 years of age and was competent to give her consent. 11. In view of the evidence on record and the rationale in the aforementioned cases, we are of a considered view that the prosecution has totally failed to prove beyond reasonable doubt that the girl was less than 16 years of age at the time of the incident. Therefore, it can be held that the girl was more than 16 years of age and she was competent to give her consent as held by the High Court. Hence, in the present case, the question of rape does not arise as consensual intercourse has been proved.” 17. Applying the principle of law laid down by the Supreme Court in the above-cited cases, if we consider the facts of the present case, then it is apparent that father (P.W. 2) of prosecutrix is illiterate person. He has stated different age in different time as he has stated age of victim in his deposition as 16 years, whereas in his police statement Ex. D-1, he has stated her age 17 years 1 month, being illiterate person, he could not know exact date of birth of victim, whereas as per school record, age of victim was 16 years 27 days on the date of incident. Victim herself has not stated her age or date of birth in deposition. D-1, he has stated her age 17 years 1 month, being illiterate person, he could not know exact date of birth of victim, whereas as per school record, age of victim was 16 years 27 days on the date of incident. Victim herself has not stated her age or date of birth in deposition. Hence, considering the aforesaid contradictory facts with regard to date of birth of victim and particularly considering the fact that there is no concrete evidence to prove her exact date of birth, therefore, in view of law laid down by the Apex Court, it cannot be held beyond reasonable doubt that on the date of incident, the victim was minor i.e. below age of 18 years. Hence, we set aside the finding recorded by learned trial Court that on the date of incident, the victim was minor i.e. below the age of 18 years. 18. Now we shall consider whether the appellants have committed the offences for which they have been convicted. 19. The prosecutrix (P.W. 1) has deposed that, at the time of incident, when she was going on foot, then the appellants administered some liquid, therefore, she fainted. Thereafter appellants took her on motorcycle. She has also stated that the appellant Puran Nayak has sexually exploited her. She has not stated that appellant Birju Nayak has also sexually exploited her. 20. As per the case of the prosecution, victim was recovered on 7-7-2022. On being produced by her father (P.W. 2) in police station, on same day she was examined by Dr. Vinita Patel (P.W. 5) and she prepared MLC report Ex. P-11. She has stated that on medical examination, she did not find any external injury over body of victim, but her hymen was torn, there were abrasions, lacerations and swelling in her vagina, but she has not stated anything that she had found any injury on the hands of the victim, whereas as per case of the prosecution, after kidnapping the victim, she was kept in Jungle by tying her hand to a tree. If things would have been so, then there would have been injuries in her hands, but not getting any injury on her hand in medical examination creates doubt over the truthfulness of the deposition of the victim that she was abducted forcefully and sexually exploited without her consent. 21. If things would have been so, then there would have been injuries in her hands, but not getting any injury on her hand in medical examination creates doubt over the truthfulness of the deposition of the victim that she was abducted forcefully and sexually exploited without her consent. 21. Victim (P.W. 1) has stated that appellants were called by Dhaneshwari, but she has not been examined by the prosecution. As per deposition of father (P.W. 2) of prosecutrix, his brother Raju informed him on mobile phone that when he was going towards Balodabajar from village Bansula, then on the way, he had seen appellants standing on the road along with victim. He has also stated that Raju had talked with them and appellants told him their name and address. On being informed by his brother Raju, when they went there, but till then, appellants had fled from there and only victim was present. To prove the truthfulness of the aforesaid statement, prosecution ought to have examined that Raju, but he has not been examined by the prosecution, hence aforesaid statement of father and victim do not inspire confidence of the Court. 22. As per deposition of the victim, appellants are residents of her adjacent village and she had already seen them in the village, but she has neither stated these facts in her police statement nor her statement recorded under Section 164 of the Cr.P.C. even in her aforesaid statement, she has not named any of the appellants. In her Court statement, she has stated that when she was kidnapped, she was going on foot, but in her statement under Section 164 of the Cr.P.C, she had stated that at that time, she was studying near her house. Test identification parade has been conducted only of appellant Birju Nayak. If appellants were not known to the victim, then TIP also ought to have been conducted of appellant Puran Nayak, which has not been done. The test identification parade report Ex. P-5 with regard to accused Birju Nayak has not been supported by independent witness Dayalal (P.W. 11). It has been admitted by the Tehsildar Tikaram Dewangan (P.W. 3) that TIP of Birju was conducted in presence of police, hence aforesaid TIP is also not found to be reliable one. Hon’ble Supreme Court in the case of Chuthuram VS. P-5 with regard to accused Birju Nayak has not been supported by independent witness Dayalal (P.W. 11). It has been admitted by the Tehsildar Tikaram Dewangan (P.W. 3) that TIP of Birju was conducted in presence of police, hence aforesaid TIP is also not found to be reliable one. Hon’ble Supreme Court in the case of Chuthuram VS. State of Chhattisgarh [ (2020) 10 SCC 733 ] has observed in para 11 as under :- “11. The infirmities in the conduct of the test identification parade would next bear scrutiny. The major flaw in the exercise here was the presence of the police during the exercise. When the identifications are held in police presence, the resultant communications tantamount to statements made by the identifiers to a police officer in course of investigation and they fall within the ban of Section 162 of the Code. (See Ramkishan Mithanlal Sharma v. State of Bombay, (1955) 1 SCR 903 : AIR 1955 SC 104 : 1955 Cri LJ 196]” 23. In the instant case, victim is deaf and dumb and her deposition has been recorded through interpreter Vijay Jangde, Superintendent, Shashkiya Bahuviklang Vishesh Vidyalaya, Mahasamund, but it has not been proved that the victim has got any education or training from such school where deaf and dumb children are educated, on the basis of sign language. Thus, the victim was a rustic village girl who is not found to be studied such sign language taught in those special schools. Therefore, it cannot be said that whatever gesture or sign was shown by the victim during recording of her statement in the Court, aforesaid interpreter Vijay Jangde, Superintendent, Shashkiya Bahuviklang Vishesh Vidyalaya, Mahasamund could have understood those signs and gestures of victim and rightly/truly had explained it to the Court. 24. Issue with regard to importance of deaf and dumb witnesses and manner of recording of their statement has been considered by the Apex Court in the case of Darshan Singh alias Darshan Lal (supra), para 25 to 29 of which reads thus :- “25. In M.P. Sharma v. Satish Chandra [ AIR 1954 SC 300 : 1954 Cri LJ 865], this Court held that : (AIR p. 304, para 10) “10. In M.P. Sharma v. Satish Chandra [ AIR 1954 SC 300 : 1954 Cri LJ 865], this Court held that : (AIR p. 304, para 10) “10. … A person can ‘be a witness’ not merely by giving oral evidence but also by producing documents or making intelligible gestures as in the case of a dumb witness (see Section 119 of the Evidence Act) or the like.” 26. …...When a deaf and dumb person is examined in the court, the court has to exercise due caution and take care to ascertain before he is examined that he possesses the requisite amount of intelligence and that he understands the nature of an oath. On being satisfied on this, the witness may be administered oath by appropriate means and that also with the assistance of an interpreter. However, in case a person can read and write, it is most desirable to adopt that method being more satisfactory than any sign language. The law requires that there must be a record of signs and not the interpretation of signs. 27. In Meesala Ramakrishan v. State of A.P. [ (1994) 4 SCC 182 : 1994 SCC (Cri) 838], this Court has considered the evidentiary value of a dying declaration recorded by means of signs and nods of a person who is not in a position to speak for any reason and held that the same amounts to a verbal statement and, thus, is relevant and admissible. The Court further clarified that “verbal” statement does not amount to “oral” statement. In view of the provisions of Section 119 of the Evidence Act, the only requirement is that the witness may give his evidence in any manner in which he can make it intelligible, as by writing or by signs and such evidence can be deemed to be oral evidence within the meaning of Section 3 of the Evidence Act. Signs and gestures made by nods or head are admissible and such nods and gestures are not only admissible but possess evidentiary value. 28. Language is much more than words. Like all other languages, communication by way of signs has some inherent limitations, since it may be difficult to comprehend what the user is attempting to convey. But a dumb person need not be prevented from being a credible and reliable witness merely due to his/her physical disability. 28. Language is much more than words. Like all other languages, communication by way of signs has some inherent limitations, since it may be difficult to comprehend what the user is attempting to convey. But a dumb person need not be prevented from being a credible and reliable witness merely due to his/her physical disability. Such a person though unable to speak may convey himself through writing, if literate or through signs and gestures, if he is unable to read and write. A case in point is the silent movies which were understood widely because they were able to communicate ideas to people through novel signs and gestures. Emphasised body language and facial expression enabled the audience to comprehend the intended message. 29. To sum up, a deaf and dumb person is a competent witness. If in the opinion of the court, oath can be administered to him/her, it should be so done. Such a witness, if able to read and write, it is desirable to record his statement giving him questions in writing and seeking answers in writing. In case the witness is not able to read and write, his statement can be recorded in sign language with the aid of interpreter, if found necessary. In case the interpreter is provided, he should be a person of the same surrounding but should not have any interest in the case and he should be administered oath.” 25. In the instant case, as has been stated above that victim is rustic village girl, who has not got education in such special institution, to educate deaf and dumb, despite that, her statement has been recorded, through said interpreter Vijay Jangde, Superintendent, Shashkiya Bahuviklang Vishesh Vidyalaya, Mahasamund, therefore, it could not have been supposed that he had truly understood the sign/gesture shown by the victim during recording of her deposition. Whereas since the victim knew reading and writing, as she has admitted in para 14 of cross-examination, therefore, her deposition ought to have been recorded in question and answer form, as has been held by Hon’ble Supreme Court in Darshan Singh’s case (supra). 26. Thus, in view of aforesaid discussion, we find that prosecution has failed to prove the fact beyond reasonable doubt that the victim was minor on the date of incident, material witnesses namely Dhaneshwari and Raju (brother of father of victim) have not been examined. 26. Thus, in view of aforesaid discussion, we find that prosecution has failed to prove the fact beyond reasonable doubt that the victim was minor on the date of incident, material witnesses namely Dhaneshwari and Raju (brother of father of victim) have not been examined. Medical report also does not support material statement of prosecutrix, there are material discrepancies with regard to various facts in the deposition and statement recorded under Section 164 of the prosecutrix, further it is also not found to be trustworthy that deposition of victim has been recorded truly as she was not known to the sign language, taught to such deaf and dumb in such special schools and deposition of victim has neither been recorded in question and answer form, nor it has been recorded through a person (interpreter) of the same surrounding, as has been laid down by Hon’ble Apex Court in the case of Dharshan Singh (supra). 27. In view of above discussion, we find that prosecution has utterly failed to prove its case beyond reasonable doubt. 28. Accordingly, the appeal is allowed. The impugned judgment of conviction and order of sentence is set aside. The appellants are acquitted of all the charges. They are in jail. They be set at liberty forthwith, if not required in any other case. 29. Each of appellants is directed to file personal bond and two sureties in the like amount to the satisfaction of the Court concerned in compliance with Section 437-A of the Cr.P.C. 30. Let a copy of this judgment and original record be transmitted to the trial Court concerned forthwith for necessary information and compliance.