CHAKRADHARI SHARAN SINGH, J.:–Heard learned counsel appearing on behalf of the appellant and learned Additional Public Prosecutor for the State of Bihar. 2. By the impugned judgment of conviction dated 17.08.2021 and the order of sentence dated 25.08.2021, passed by the learned 1st Additional Sessions Judge-VI cum Special Judge, POCSO Nalanda at Biharsharif in POCSO/GR Case No. 118 of 2019 arising out of Mahila P.S. Case No. 183 of 2019, the appellant has been convicted and sentenced as under: Conviction under Section Imprisonment Sentence Fine (Rs.) In default of fine Under Section 6 of the POCSO Act Rigorous Imprisonment for 25 years 10,000/- SI for 6 months 3. We have heard Mr. Sanjeev Kumar learned counsel for the appellant and Mr. Sujeet Kumar Singh learned Additional Public Prosecutor for the State. 4. The mother of minor victim girl is the informant on whose written statement, the concerned Mahila P.S. Case No. 183/2019 came to be registered on 16.11.2019 for the offences punishable under Section 376 of the Indian Penal Code and Sections 4 and 6 of the POCSO Act for an occurrence said to have taken place on 05.11.2019. The name of the victim is not being disclosed in the present judgment. According to the prosecution’s case, at about 8 PM on 05.11.2019, the victim had gone in a nearby field for easing herself. She returned complaining that the appellant had committed rape upon her in the field. The informant saw her undergarment and the pant soaked with blood. The appellant was arrested on 06.11.2019, as is evident from the records. The police completed the investigation and submitted the charge-sheet on 31.01.2020. It is the prosecution’s case that the victim’s blood soaked pant was seized on 06.11.2019. It is also the prosecutions case that the same was sent for forensic examination on 08.01.2020. We have not been able to notice from the evidence adduced at the trial by the prosecution as to where and in what manner the victim’s pant said to have been seized on 06.11.2019 was sealed, kept and preserved before the same were sent for forensic examination. 5. Be that as it may, the appellant stood charged for the commission of the offence punishable under Section 376 of the IPC and Sections 4 and 6 of the POCSO Act, to which he pleaded not guilty and claimed to be tried. 5. Be that as it may, the appellant stood charged for the commission of the offence punishable under Section 376 of the IPC and Sections 4 and 6 of the POCSO Act, to which he pleaded not guilty and claimed to be tried. At the trial, the informant (PW-1) and the victim (PW-4) did not support the prosecution’s case and denied such occurrence having ever taken place. Further, the prosecution’s witnesses namely Manorama Devi (PW-2), Akhilesh Kumar (PW-3) and the brother of the victim (name not being mentioned) also did not support the prosecution’s case. PW- 2, 3 and 5 came to be declared hostile at the instance of the prosecution. 6. PW-6 is the Doctor who proved the report of the Medical Board constituted to examine the victim. In her deposition she testified that no internal or external injury was found on the person of the victim. PW-7, an Assistant Director, Biology in the office of Forensic Science Laboratory, Patna deposed that under the order issued by the Additional District and Sessions Judge-I, Biharsharif on 08.01.2020, a sealed wooden box was received in the laboratory upon opening of which a panty was found which was marked ‘A’. 7. From deposition of PW7, it transpires that no semen was found on the said sample. It was however sent to the DNA Section of the FSL. The Assistant Director, DNA Section of Forensic Science Laboratory, Patna was examined at the trial as PW-9. He deposed at the trial that on 29.02.2020, FSL No. 46/200 Linked 40/200 Memo No. 15 dated 07.01.2020 and 28.02.2020 were handed over in the laboratory in connection with the case in question. Upon opening the articles he found two wooden boxes one received from the ‘Biology Section’ of the FSL which was sealed and upon opening the seal, a paper packet Marked ‘A’ ‘Biology Section’ was found. In the other wooden box, a plastic container Marked as ‘B’ was there. The deposition of the Assistant Director, DNA Section FSL, Patna (PW-9) as regards the description of articles, observations and conclusions are being reproduced hereinbelow:— “Description of Articles 1. The packet marked ‘A’ said to contain blood stained half pants (blumer) cuttings. In the other wooden box, a plastic container Marked as ‘B’ was there. The deposition of the Assistant Director, DNA Section FSL, Patna (PW-9) as regards the description of articles, observations and conclusions are being reproduced hereinbelow:— “Description of Articles 1. The packet marked ‘A’ said to contain blood stained half pants (blumer) cuttings. Method: Exhibit marked ‘A’ Source-Bllod stained half pants cuttings and exhibit marked ‘B’ Source-Blood Sample of Krishna Mohan Ravi Das were subjected to applied Biosystems prepfiler Express Forensic DNA-Extraction Kit method for DNA isolation using Automate Express. 2. DNA recovered from above mentioned exhibits were subjected to real time multiplex PCR reaction for quantification of human specific DNA target using Quantifiler Duo Kit 3. The DNA extracted were subjected to multiplexing PCR reaction for co-amplification of 15 microsatellite Loci of Autosomal STR and Amelogenin marker using AmpFlstr. Identifiler Plus PCR amplification Kit. The Amplified products along with Allelic Ladder were run for electrophoresis on the automated DNA sequencer. The sizing of the fragments were carried out using Gene mapper ID-X software V with respect to Gene scan 500 Liz size standard. The resultant allelic distributions (genotypes) for the studied Loci in the different exhibits are shown in the table below. Comparative Chart of allele's distribution (genotype) of dirrerent loci of the DNA tested using Identifiler Plus Kit. 1. Solar Str marker ij izn'kZ 3 Ñ".kk eksgu jfonkl ds MhŒ,uŒ,Œ izksQkby ls Ext marked 'A' after cutting ls izkIr MhŒ,uŒ,Œ izksQkby dk feyku djk;k x;kA Observations: 1. Human DNA have been recovered from the source of each of the exhibits marked 'A' & 'B' respectively. 2. The male origin of the DNA recovered from source of exhibits marked 'A' & 'B' were extablished by Amelogenin marker. 3. The human male and female mixed Autosomal STR genetic profile have been generated from the source of exhibit marked 'A' source- Blood stained half pants cuttings. 4. The human male autosomal STR genetic profile have been generated from the source of exhibit marked 'B' source - Blood sample of Krishna Mohan Ravidas. Conclusion: 1. On the basis of observation, it is sufficient to conclude the the source of exhibit marked 'B' source- Blood sample of Krishna Mohan Ravidas, contributes DNA in the source of exhibit marked 'A' source- Blood stained half pants cuttings. 2. Opinion on other points is being furnished separately. Conclusion: 1. On the basis of observation, it is sufficient to conclude the the source of exhibit marked 'B' source- Blood sample of Krishna Mohan Ravidas, contributes DNA in the source of exhibit marked 'A' source- Blood stained half pants cuttings. 2. Opinion on other points is being furnished separately. Exhibit marked 'B' Blood sample Krishna Mohan Ravidas lSEiy ls MhŒ,uŒ,Œ izksQkby tujsV djus ij Exhibit marked A' Blood stain after half pant cutting ls izkIr MhŒ,uŒ,Œ izksQkby Ñ".kk eksgu jfonkl ds MhŒ,uŒ,Œ izksQkby ls feyku gksrk gSA fnukad 22-04-2021 dks esjs dgus ij ';ke lqUnj VkbfiLV fjikWV Vadd fd;k x;kA bl tkap izfrosnu ij esjk gLrk{kj fnukad 22-04-2021 dks fd;k x;kA izfrgLrk{kj fget; dqekj Director Incharge 22-04-2021 fd;k x;kA ftls eSa igpkurk gwaA bls izn'kZ 6 vafdr fd;k tkrk gSA izfr&ijh{k.k 4. Ext. mark 'A' & Ext. mark 'B' dh lhy vkSj iSfdax esjs lkeus ugha dh x;h FkhA 5. Ñ".k eksgu jfonkl ds CyM lSaiy dks tks lhy fd;k x;k Fkk mlds iSdsV ij Lora= xokg dk gLrk{kj FkkA ;g gLrk{kj esjs lkeus ugha fy;k x;k FkkA 6. I am not in a position to say that where the signature of witnesses on the aforesaid Ext. mark 'B' have been taken. 7. tc tkap esa yack le; chr tkrk gS rks CyM dh DokfyVh esa fMVksfj,'ku vk tkrk gSA** 8. He opined that upon generating the DNA profile of the appellant from the exhibit and mark ‘B’ i.e. the blood sample of Krishna Mohan Das matched with the DNA profile of the victim obtained from the exhibit mark ‘A’. PW-9 in his cross-examination deposed that with the lapse of time, the blood quality deteriorates. It is worthwhile mentioning that the statement of the victim was recorded under Section 164 of the Cr.P.C soon after the registration of FIR on 06.11.2019 itself wherein she had supported the accusation of commission of rape as made in the First Information Report. 9. Primarily, based on the evidence of the victim recorded under Section 164 of the Cr.P.C and the report of the Forensic Science Laboratory, taking aid of Section 29 of POCSO Act learned trial court has convicted the appellant and has imposed the sentence as noted above. 10. 9. Primarily, based on the evidence of the victim recorded under Section 164 of the Cr.P.C and the report of the Forensic Science Laboratory, taking aid of Section 29 of POCSO Act learned trial court has convicted the appellant and has imposed the sentence as noted above. 10. It has been argued by learned counsel appearing on behalf of the appellant that statement under Section 164 of the Cr.P.C is not a substantive piece of evidence, moreso when the same was not duly proved at the trial. In support of his submission he has relied on a Supreme Court’s decision in the case of Ram Kishan Singh vs Harmeet Kaur reported in (1972) 3 SCC 280 . He has further argued that it is not the case of prosecution that any sign of semen was present on the pants of the victim. The victim’s pant, according to the prosecution was seized on 06.11.2019. There is no evidence as to in whose presence the same was sealed for being sent to forensic examination. The blood of the appellant, according to the Investigating Officer (PW-8) was collected on 28.02.2020, after submission of the charge-sheet on 31.01.2020. There is no evidence adduced at the trial which would suggest any reason for presence of the appellant’s blood on the victim’s pant. He accordingly submits that the conclusion arrived at by the Forensic Science Laboratory as regards matching of DNA profiles at A and B becomes meaningless. He has further placed reliance on Supreme Court’s decision in case of Rahul vs State of Delhi ( AIR 2022 SC 5661 ) with particular reference to paragraph nos. 31 and 32 thereof. He contends that in the said case, the Supreme Court doubted the prosecution’s case on the ground of delay in sending the samples to the Forensic Science Laboratory. In that case there was delay of 13-14 days, whereas in the present case, the sample was sent more than two and half months after the seizure. 11. Mr. Sujit Kumar Singh learned Additional Public Prosecutor appearing on behalf of the State, however, has submitted that it appears to be a case where the witnesses have been gained over. In that case there was delay of 13-14 days, whereas in the present case, the sample was sent more than two and half months after the seizure. 11. Mr. Sujit Kumar Singh learned Additional Public Prosecutor appearing on behalf of the State, however, has submitted that it appears to be a case where the witnesses have been gained over. He, however, submits that the trial court has rightly recorded the finding of conviction based on the result of examination conducted by Forensic Science Laboratory, which has been duly proved and does suggest that the DNA profile available on the undergarments of the victim matched with the DNA profile of the blood sample of the appellant. He has, accordingly submitted that the trial Court has rightly convicted the appellant and sentenced him thereafter applying Section 29 of the POCSO Act. 12. We have perused the impugned judgment of conviction and order of sentence of the trial court as well as lower court records including the evidence of the prosecution’s witnesses and we have given our thoughtful consideration to the rival submissions made on behalf of the parties. 13. After having perused the evidence of the prosecution’s witnesses, it can be easily discerned that all the prosecution’s witnesses including the victim herself have denied any occurrence as was alleged in the FIR, to have ever taken place. As has been noted above, the finding of conviction recorded by the trial Court is primarily based on the result of the Forensic Science Laboratory. 14. In our considered view, learned counsel for the appellant has rightly placed reliance on the Supreme Court’s decision in the case of Rahul (supra), relevant paragraph no. 32 of which reads as under:— “32.The recovery of a strand of hair found from the body of the deceased by ASI Balwan Singh as per the seizure memo (Ext. 34/A) is also highly doubtful, inasmuch as the same was allegedly found from the body of the deceased which was lying in the open field for about three days and three nights. PW 8 father of the deceased and PW 3 and PW 7 neighbours of the deceased who had identified the dead body of the victim had not stated anything about the articles lying near the dead body. PW 8 father of the deceased and PW 3 and PW 7 neighbours of the deceased who had identified the dead body of the victim had not stated anything about the articles lying near the dead body. The learned advocates for the appellants had also drawn the attention of the Court with regard to number of inconsistencies and contradictions appearing in the evidence of Haryana Police, Delhi Police and also in the testimonies of the formal witnesses, which render the entire evidence with regard to the discovery and recovery as also seizure of the incriminating articles, very unreliable. The seizure of the articles like burnt ash, underwear of the deceased, etc. on 14-2-2012 at the instance of the accused were also not duly proved by the prosecution. The said articles were sent to the CFSL for examination however, no conclusive opinion was given by the CFSL to establish their link with the accused.” 15. We have noticed hereinabove, the fact that the appellant was arrested on 06.11.2019 itself in relation to the occurrence said to have taken place on 05.11.2019. The victim’s undergarment was seized by the investigating officer on 06.11.2019. 16. For the reasons unknown, the victim’s undergarment was sent to the FSL more than two months after the alleged seizure of the same. Further the appellant’s blood sample was obtained on 28.02.2020. There is no evidence adduced at the trial to justify the presence of the appellant’s blood on the victim’s undergarment. This has never been the prosecution’s case. No semen was found on the victim’s undergarment as is clear from the evidence of PW-7, the Assistant Director, FSL, Patna, Biology. 17. Further the appellant’s blood sample was obtained on 28.02.2020. There is no evidence adduced at the trial to justify the presence of the appellant’s blood on the victim’s undergarment. This has never been the prosecution’s case. No semen was found on the victim’s undergarment as is clear from the evidence of PW-7, the Assistant Director, FSL, Patna, Biology. 17. We also find substance in submission made on behalf of the appellant that there has been no proper compliance of the requirement under Section 313 of the Cr.P.C. For a quick reference, we deem it proper to reproduce the questions put by the learned trial Court and the appellant’s answers thereto under Section 313 of the Cr.P.C. ^^Á'u& D;k vkius xokgksa dh xokgh lquk gS\ mRrj& th gkaA Á'u& vkids fo:} vfHk;kstu dk lk{; gS fd fnukad 5-11-2019 dks laè;k djhc 8 cts ihfM+rk 'kkSp djus ds fy, xkao ls ckgj iqjc iqjUnjiqj xbZ Fkh rks vki ihfM+rk dks [ksr esa iVddj cykRdkj dj fn,\ ftlls ihfM+rk ds iSaVh ij [kwu yx x;k vkSj ihfM+rk dks xyk nckdj ekjus dh dksf'k'k dj jgs Fks] D;k dguk gS\ mRrj& th ughaA Á'u& lQkbZ esa D;k dguk gS\ mRrj& funksZ"k gwaA** 18. One of the questions, which was put to the appellant by the court under Section 313 of the Cr.P.C was that during the course of commission of rape the victim’s undergarment had become blood stained. There is no basis for the trial court to have put this question to the appellant at the trial as there was no such circumstance emerging from the evidence of prosecution’s witnesses. Further, the trial court did not put any question to the appellant on the point of result of the FSL. In such circumstance it was impermissible for the trial court to base its decision on the FSL report. 19. There are umpteen number of cases laying down the guidelines by the Supreme Court for due compliance of the requirement envisaged under Section 313 of the Cr.P.C. In the case of Sharad Birdichand Sharda Vs. State of Maharashtra reported in (1984) 4 SCC 116 , the Supreme Court has clearly laid down that the circumstances which have not been put to the accused in his examination under Section 313 of the Cr.P.C, have to be completely excluded from the consideration. State of Maharashtra reported in (1984) 4 SCC 116 , the Supreme Court has clearly laid down that the circumstances which have not been put to the accused in his examination under Section 313 of the Cr.P.C, have to be completely excluded from the consideration. The said decision has been recently referred to and relied on in the case of Kalicharan Vs the State of U.P. reported in (2023) 2 SCC 583 . 20. In the case of Jaidev Vs. State of Punjab ( AIR 1963 SC 612 ) Supreme Court had laid down that the ultimate test in determining whether or not the accused has been fairly examined under Section 342 of the Cr.P.C 1898 (New section 313 of the Cr.P.C, 1973), would be to enquire, having regard to all the questions put to him, he was given an opportunity to say what he wanted to say in the prosecution’s case against him or not. 21. In the case of Kalicharan (supra) the Supreme Court has reiterated the significance of compliance of Section 313 of the Cr.P.C, in paragraph no. 28 in the following words:— “28. In para 21 of the decision of this Court in Jai Dev Vs. State of Punjab[Jai Dev Vs. State of Punjab, (1963) 3 SCR 489 : AIR 1963 SC 612 ], it was held thus : (SCC pp. 620-21, para 21) “21. In support of his contention that the failure to put the relevant point against the appellant Hari Singh would affect the final conclusion of the High Court, Mr Anthony has relied on a decision of this Court in Hate Singh Vs. State of Madhya Bharat [Hate Singh Vs. State of Madhya Bharat, 1951 SCC 1060 : AIR 1953 SC 468 ]. In that case, this Court has no doubt referred to the fact that it was important to put to the accused each material fact which is intended to be used against him and to afford him a chance of explaining it if he can. But these observations must be read in the light of the other conclusions reached by this Court in that case. But these observations must be read in the light of the other conclusions reached by this Court in that case. It would, we think, be incorrect to suggest that these observations are intended to lay down a general and inexorable rule that wherever it is found that one of the points used against the accused person has not been put to him, either the trial is vitiated or his conviction is rendered bad. The examination of the accused person under Section 342 is undoubtedly intended to give him an opportunity to explain any circumstances appearing in the evidence against him. In exercising its powers under Section 342, the court must take care to put all relevant circumstances appearing in the evidence to the accused person. It would not be enough to put a few general and broad questions to the accused, for by adopting such a course the accused may not get opportunity of explaining all the relevant circumstances. On the other hand, it would not be fair or right that the court should put to the accused person detailed questions which may amount to his cross-examination. The ultimate test in determining whether or not the accused has been fairly examined under Section 342 would be to enquire whether, having regard to all the questions put to him, he did get an opportunity to say what he wanted to say in respect of prosecution case against him. If it appears that the examination of the accused person was defective and thereby a prejudice has been caused to him, that would no doubt be a serious infirmity. It is obvious that no general rule can be laid down in regard to the manner in which the accused person should be examined under Section 342. Broadly stated, however, the true position appears to be that passion for brevity which may be content with asking a few omnibus general questions is as much inconsistent with the requirements of Section 342 as anxiety for thoroughness which may dictate an unduly detailed and large number of questions which may amount to the cross-examination of the accused person. Besides, in the present case, as we have already shown, failure to put the specific point of distance is really not very material.” 22. Besides, in the present case, as we have already shown, failure to put the specific point of distance is really not very material.” 22. In the present case, we find that the trial Court did not put any question to the appellant as regards the result of the FSL in the examination under Section 313 of the Cr.P.C and based its judgment primarily on the said finding. Apart from the reasons discussed hereinabove, for non compliance of the requirement under Section 313 of the Cr.P.C also the appellant deserves to be acquitted giving him benefit of doubt. 23. Accordingly, the impugned judgment of conviction dated 17.08.2021 is hereby set aside. Consequently, the order of sentence dated 25.08.2021 is also set aside. 24. This appeal is allowed. 25. Since the appellant is in custody, let him be released from jail forthwith, if not required in any other case.