JUDGMENT : 1. The appellant has filed the present appeal under Section 374(2) of Criminal Procedure Code, 1973 against the judgment and order of conviction and sentence dated 10.03.2017 passed by the learned Special Judge (POCSO) and 2nd Additional Sessions Judge, Panchmahal at Godhra (hereinafter be referred to as “the Trial Court”) in Special (POCSO) Case No.27 of 2015, whereby the Trial Court has held the appellant – accused guilty for the offence punishable under Section 363 of the Indian Penal Code (for short “the IPC”) and sentenced him to undergo rigorous imprisonment of three years and to pay fine of Rs.1,000/- and in default to undergo further simple imprisonment of two months, for the offence punishable under Section 366 of the IPC and sentenced him to undergo rigorous imprisonment of five years and to pay fine of Rs.1,000/- and in default to undergo further simple imprisonment of two months, for the offence punishable under Section 376(2)(h) of the IPC and sentenced him to undergo rigorous imprisonment of ten years and to pay fine of Rs.5,000/- and in default to undergo further simple imprisonment of six months and for the offence punishable under Section 4 of the Protection of Children from Sexual Offences Act, 2012 (for short “the POCSO Act”) and sentenced him to undergo rigorous imprisonment of ten years and to pay fine of Rs.5,000/- and in default, to undergo further simple imprisonment of six months. At the time of pronouncement of the impugned judgment and order, the appellant has not deposited the fine, but subsequently he has deposited the same before the concerned Trial Court. 2. Brief facts of the prosecution case is that on 26.12.2014, the complainant Revabhai Bhojabhai Mohaniya resident of Village: Ambaliyavav, Taluka – City – District Panchmahal has registered an First Information Report against accused alleging inter alia that his daughter (victim) aged about 15 years 3 months and 14 days on the date of incident whose birth date is 28.08.1999 and studied upto 10th Standard. That on 11.12.2014 was suddenly disappeared from Village: Kakanpur where she resided with her sister-in-law and studying in M. V. Shah Girls High School and, thereafter, a phone call received by the complainant from his daughter-in-law that the victim went for study and, thereafter, she did not come back till 6.00 p.m. It is alleged that the complainant and his relative have started searching the victim and on the next day, he had inquired at the school where the victim was studying, but till the date of registration of the FIR, the victim was not traceable and, therefore also, they have tried to search the accused persons at their residence, but they have not found there. It is alleged that accordingly complaint being C.R.No.140/2014 came to be filed before Godhra City “A” Division Police Station for the offences punishable under Sections 363, 366 and 376 etc of the Indian Penal Code and under Sections 4, 6 and 17 of the POCSO Act. 3. Pursuant to the aforesaid FIR, the police started investigation and prepared panchnama of the scene of offence as well as recorded the statements of various witnesses and also got medical report of the accused as well as the victim and arrested the accused and seized muddamal articles and after completion of investigation, as the sufficient evidence was found, the police has filed the charge-sheet against the accused before the Judicial Magistrate, First Class. As the offence was triable by the Court of Sessions, the Judicial Magistrate, First Class has committed the case under Section 209 of the Criminal Procedure Code to the Court of Sessions at Panchmahal at Godhra wherein it has been registered as Special (POCSO) Case No.27 of 2015. 4. The charge against the accused came to be framed by the learned Special Judge on 04.01.2016 vide Exhibit 6 for the aforesaid offences against the accused. On being explained it to him, the accused has denied having committed any offence. The accused pleaded not guilty to the charge and pleaded for trial and hence, the case was tried by the learned Special Judge, Panchmahal at Godhra. 5. It appears from the records that to prove the case, the prosecution has examined the following witnesses. Sr.No. Particulars Exhibit 1 Victim 12 2 Revabhai Bhojabhai Mohaniya, complainant 15 3 Mohd. The accused pleaded not guilty to the charge and pleaded for trial and hence, the case was tried by the learned Special Judge, Panchmahal at Godhra. 5. It appears from the records that to prove the case, the prosecution has examined the following witnesses. Sr.No. Particulars Exhibit 1 Victim 12 2 Revabhai Bhojabhai Mohaniya, complainant 15 3 Mohd. Salim Abdul Hakim Jarada, panch witness 18 4 Dineshbhai Bhikhabhai Ravat, panch witness 28 5 Chaturiben Revabhai Mohaniya, witness 32 6 Hansraj Revabhai Mohaniya, witness 33 7 Sharmisthaben Babubhai Pasaya, witness 34 8 Dr. Nirav Pravinbhai Mahirani, Medical Officer 35 9 Dr. Deepaben Dashrathbhai Pitre, Medical Officer 42 10 Parakramsinh Ranjitsinh Rathod 53 6. Salim Abdul Hakim Jarada, panch witness 18 4 Dineshbhai Bhikhabhai Ravat, panch witness 28 5 Chaturiben Revabhai Mohaniya, witness 32 6 Hansraj Revabhai Mohaniya, witness 33 7 Sharmisthaben Babubhai Pasaya, witness 34 8 Dr. Nirav Pravinbhai Mahirani, Medical Officer 35 9 Dr. Deepaben Dashrathbhai Pitre, Medical Officer 42 10 Parakramsinh Ranjitsinh Rathod 53 6. In addition to this, the prosecution has also produced the following documentary evidence: Sr.No. Particulars Exhibit 1 Complaint 16 2 Birth Certificate of victim 17 3 Recovery panchnama of the clothes worn by the victim at the time of incident 19 4 Recovery panchnama of the clothes worn by the accused at the time of incident 20 5 Recovery panchnama of the mobile phone of the accused 21 6 Panchnama of the scene of offence 29 7 Medical certificate of the victim 36 8 Medical certificate of the accused 37 9 Radiologist report of the accused with regard to the age 38 10 X-Ray report of the accused 39 11 Case papers prepared by S.S.G. Hospital, Vadodara for medical of the victim 43 12 Report of medical test of the victim prepared by S.S.G. Hospital, Vadodara for 44 13 Test report of the victim prepared by the Hariom Laboratory 45 14 Catalogue (suchipatra) 54 15 Report written for taking sample for DNA test of the victim 55 16 Report written for D.N.A. text of the accused 56 17 Report written for adding Section 57 with Sections 363, 366 in the FIR 57 18 Letter written by the FSL Vadodara for analysis of the muddamal 58 19 Forwarding note of muddamal and certificate of the authority 59 20 Receipt issued by FSL Vadodara about receiving muddamal 60 21 Letter written to FSL Surat for analysis of the muddamal 61 22 Forwarding note of muddamal and certificate of the authority 62 23 Receipt issued by FSL Surat about receiving muddamal 63 24 Letter written to FSL Vadodara for analysis of the muddamal 64 25 Forwarding note of muddamal and certificate of the authority 65 26 Letter written to the Medical Officer, Civil Hospital Godhra for taking blood sample of DNA Test 66 27 Identification Form DNA Profiling of birth child 67 28 Letter written to FSL Surat for analysis of the muddamal 68 29 Forwarding note of muddamal and certificate of the authority 69 30 Receipt issued by FSL Surat about receiving muddamal 70 31 Letter for taking analysis report prepared by FSL Vadodara 71 32 Testing report of FSL Vadodara 72 33 Serology text report 73 7. After closure of the evidence, the statements of the accused under section 313 of the Criminal Procedure Code, 1973 has been recorded wherein he denied of having committed any offence and has stated that he is innocent. 8. After hearing both sides and considering the evidence on records, the learned Special Judge by impugned judgment and order has convicted the accused for the aforesaid offences. 9. Being aggrieved by and dissatisfied with the aforesaid judgment and order of conviction and sentence the appellant – accused has preferred this criminal appeal. 10. Heard Mr.Pratik Barot, learned advocate appearing for the appellant and Mr.H. K. Patel, learned Additional Public Prosecutor for the respondent – State of Gujarat. 11. Mr.Barot, learned advocate appearing for the appellant has submitted the same facts which are narrated in the memo of appeal. He has submitted that the prosecution has failed to prove the birth date of the victim and also failed to establish the case against the appellant beyond reasonable doubt. He has submitted that the prosecution has failed to establish the ingredients of Sections 4, 16 and 17 of the POCSO Act beyond reasonable doubt. He has submitted that the witnesses who have been deposed before the Trial Court are not trustworthy and reliable. He has submitted that the Trial Court has failed to appreciate the fact that though the case of the prosecution is that the victim is aged about 15 years 3 months and 14 days as on the date of incident as counted from the date of her actual birth i.e. 28.08.1999, however, there is no official witness examined barring the parents of the victim could depose as to source of information regarding the birth date of the victim. He has submitted that the factum of age of the victim below 16 years at the time of incident is not proved beyond reasonable doubt. He has submitted that the victim had given different story altogether in her statement recorded under Section 164 of the Criminal Procedure Code which is inconsonance with police statement as regard her point of abduction. He has submitted that the factum of age of the victim below 16 years at the time of incident is not proved beyond reasonable doubt. He has submitted that the victim had given different story altogether in her statement recorded under Section 164 of the Criminal Procedure Code which is inconsonance with police statement as regard her point of abduction. He has also submitted that the evidence of the victim clearly reflects consent to accompany the appellant at the relevant time and if the evidence of the parents of the victim is taken into consideration, it appears that the birth of the victim took place at Mission Hospital at Jobat and the registration of which was done by his brother-in-law in official record i.e. Narsinh Sursinh Bariya, who was not examined before the Court below and who had gone to register the birth date of the victim in the official record at the same time. While referring to the evidence of medical officers at Exhibit 35 and Exhibit 42, he has submitted that the victim narrated the history at the time of her medical examination in which she has stated about her being a consenting party and was in relationship with the appellant. He has referred to the medical certificates issued by the medical officers and submitted that there is a clear cut consent emerging out on the part of the victim as also her age is not proved less than 16 years at the time of incident. He has submitted that the Trial Court has failed to appreciate the fact that the evidence of victim, parents and medical officers, there is finding as regard presence of sperm upon the underwear of the victim which is read as corroborative piece of evidence to link it with the victim’s evidence. He has submitted that in response to such finding, it is noted that the appellant himself is pressing into service the case of consent with the victim and having stayed with the victim for a period of two months so the finding of sperm on the underwear of the victim is not much significance because there is no case of forceful intercourse put up by the prosecution but the case of inducement is pressed into service. It is urged by the learned advocate for the appellant that the present appeal may be allowed and the appellant may be acquitted from the charges levelled against him. 11.1 Mr.Barot, learned advocate appearing for the appellant has placed reliance upon the following decisions. (1) Madan Mohan Singh Vs. Rajni Kant reported in (2010) 9 SCC 209 ; (2) Alamelu Vs. State represented by Inspector of Police reported in (2011) 2 SCC 385 ; (3) Dola alias Dolagobinda Pradhan and another Vs. State of Odisha reported in (2018) 18 SCC 695; (4) Kalpana Mehta and others Vs. Union of India and other reported in AIR 2018 SC 2493 ; (5) Narendra Gulabpari Goswami Vs. State of Gujarat reported in 2019 (3) GLR 2397 (6) Ajitkumar Kumarsinh Bhagora Vs. State of Gujarat reported in 2020 (1) GLR 27 ; (7) Santosh Prasad @ Santosh Kumar Vs. State of Bihar reported in (2020) 3 SCC 443 ; (8) Mohd. Abdullah Azam Khan Vs. Nawab Kazim Ali Khan reported in 2022 JT (11) 214; 12. Mr. Patel, learned Additional Public Prosecutor appearing for the respondent – State of Gujarat has assailed the impugned judgment and order of the Trial Court and has submitted that the Trial Court has rightly passed the impugned judgment and order of conviction and sentence against the present appellant as the age of the victim is established beyond reasonable doubt and the age of the victim is below 18 years. He has submitted that though if the case is of consent then the same is not valid in the eyes of law and, therefore, the appellant be convicted for the said offences and the impugned judgment and order of conviction and sentence be confirmed. He has submitted that while dealing with the evidence on record, the Trial Court has considered every aspect threadbare and committed no serious error of facts and law in convicting the present accused. While referring the evidence of the victim, father and mother of the victim, brother-in-law, doctors and Investigating Officer, he has submitted that the prosecution has proved its case beyond reasonable doubt against the appellant and the age of the victim below 18 years is also proved on the basis of the document at Exhibit 17. While referring the evidence of the victim, father and mother of the victim, brother-in-law, doctors and Investigating Officer, he has submitted that the prosecution has proved its case beyond reasonable doubt against the appellant and the age of the victim below 18 years is also proved on the basis of the document at Exhibit 17. He has submitted that the impugned judgment and order of the Trial Court is sustainable in the eyes of law and it does not warrant any interference by this Court. He has prayed to dismiss the present appeal and confirmed the order passed by the Trial Court. 13. It is well settled by catena of decisions that an Appellate Court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded. However, Appellate Court must bear in mind that in case of acquittal there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent Court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court. 14. Further, if two reasonable conclusions are possible on the basis of the evidence on record, the Appellate Court should not disturb the finding of acquittal recorded by the trial Court. Further, while exercising the powers in appeal against the order of acquittal, the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. 15. Merely because two views are possible, the Court of appeal would not take the view which would upset the judgment delivered by the Court below. However, the Appellate Court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the Court has committed a manifest error of law and ignored the material evidence on record. However, the Appellate Court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the Court has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the Appellate Court, in such circumstances, to re-appreciate the evidence to arrive to a just decision on the basis of material placed on record to find out whether the accused is connected with the commission of the crime with which he is charged. 16. Considering the legal aspects of the record as well as the factual aspect of the present case, it appears that the complainant has filed the complaint against the accused for the offences as mentioned herein above on the basis that the present accused has taken away the victim and abducted her and committed rape on her. 17. It appears from the record that after perusal of the entire evidence and after having heard learned advocates for both the sides, the learned Special Judge has convicted the accused and imposed sentence as stated above. 18. On perusal of evidence of P.W. 1 – victim at Exhibit 12, it appears that her date of birth was 30.06.1999. In her chief-examination, she has deposed that she studied upto 10th Standard and when she was studying at that time she was living at Godhra and was going for study at N. G. Shah Girls High School at Kankanpur. She has also deposed that her father had a Tata Magic van, which was being driven by Dashrath – accused for the last five years and she knew Dashrath because her brother had married in a village near his village. She has deposed that Dashrath used to drive the van and was commuting from his house and Dashrath used to drop her at the school for sometimes. She has further deposed that she was staying in a hostel and, therefore, being a driver, the accused used to come to Kankanpur to drop her. On the day of the incident, she came to Godhra Bus Stand from her residence and when she went to buy a pen at the stationary shop, one person whose face was covered came to her and told her by showing knife to get in the bus and at that time, Dashrath came there. On the day of the incident, she came to Godhra Bus Stand from her residence and when she went to buy a pen at the stationary shop, one person whose face was covered came to her and told her by showing knife to get in the bus and at that time, Dashrath came there. She has deposed that meanwhile, Mathurbhai Bhabhor came and got her with Dashrath in the bus going to Dakor and he also came till Dakor with Dashrath. She has deposed that from Dakor, after sitting her and Dashrath in the bus going to Rajkot, Mathurbhai Bhabhor had gone and they went to Shapar Veraval Village from Rajkot in a chhakdo rickshaw. She has deposed that Dashrath used to go to accompany and she was staying at home with Kokila, the wife of Dashrath and Dashrath committed rape on her. She has deposed that when she was at Shapar Veraval, her parents, brother-in-law, uncle, other village persons and police came to take her with them and after taking her to the police station, she sent for medical examination and her clothes were kept at the police station after her medical examination. The victim has deposed that the police inquired from her in connection with the incident and, therefore, she has stated that her brother-in-law contested against Laxmanbhai in the election of Sarpanch in Dashrath’s village Kaliyavav and in this connection, Dashrath was used to take revenge against her father. She has stated that they sent Dashrath to her house at that time she was sick and at that time, Dashrath committed rape on her in the house. She has stated that on account of the rape, she got impregnate and delivered baby boy and he was eight months old. She has deposed that she gave her statement to police and her statement was recorded in the Court also. She has stated that Kokila, the wife of Dashrath had knowledge about all these matters and she played a main role. During the cross-examination, she has stated that it is true that after examination, the doctor informed her that she was carried four months pregnancy and she did not tell the fact about her pregnancy to her mother. It is not true that when she got impregnate, Dashrath was not coming for driving. It is true that her sister-in-law had knowledge about her pregnancy. It is not true that when she got impregnate, Dashrath was not coming for driving. It is true that her sister-in-law had knowledge about her pregnancy. She has deposed that it is true that she did not tell any passenger or conductor in the bus about taking her by threat. She has deposed that they went to Shapar village from Rajkot and stayed at Shapar for two months with Dashrath and his wife. It is true that, there were rooms of other persons, who were working in the company near the room in which she was staying. She has further deposed that her father had a mobile phone. She has deposed that it is true that she was taken to the Government hospital for treatment and she did not know that she was carried eight months pregnant when she was given treatment and her delivery was conducted at Lara Hospital, Godhra. She has further deposed that upon being asked about the father of her son, she gave the name of Dashrath as her husband. It is true that she had physical relationship with Dashrath before her father lodged the complaint and she had not informed about this fact to her parents. It is not true that on account of fetus was growing day by day, the victim left the house of her parents. She has deposed that it is not true that when she went to Rajkot, she was with her sister-in-law in Godhra and she requested for two hundred rupees from her brother for a bus fare. It is not true that Dashrath did not take her at Godhra forcefully and he did not have forceful physical relationship with her. She has stated that it is true that she stated her date of birth on the basis of the birth certificate and she did not have any personal knowledge as to where and when she was born. She has stated that what she wanted to state was that her son was of Dashrath and she has not got any test done regarding her son is of Dashrath. She has deposed that it is not true that she has given the name of Dashrath without any test and she did not have any physical relationship with Dashrath. She has stated that what she wanted to state was that her son was of Dashrath and she has not got any test done regarding her son is of Dashrath. She has deposed that it is not true that she has given the name of Dashrath without any test and she did not have any physical relationship with Dashrath. She has stated that it is not true that she went to Gopi Hospital with her uncle and she was impregnated by her uncle Veersinghbhai Bhabhor. It is not true that she stated falsely that she went to Gopi Hospital for examination with her sister-in-law. She has deposed that the police recorded her statement on 12.02.2015 and the same was not read over to her, but her signature was obtained and the statement which was being shown to her was not the same which she dictated. It is not true that she deposed falsely at the behest of her father on account of political reasons. 19. On perusal of the evidence of Revabhai Bhojabhai Mohaniya, P.W.2 at Exhibit 15, it appears that he is the father of the victim and lodged the complaint. He has deposed that during the time of the incident, his daughter (victim) was studying in Class 10 and she was born at Jobat, Taluka: Alirajpur, Madhya Pradesh and he remembered the date of birth of the victim which is 30.06.1999. He has deposed that his daughter was born at Mission Hospital at Jobat and her birth registration was done by his brother-in-law Narsinh Soorsinh Bariya. He has deposed that the victim was studying in M. V. Shah Girls High School at Kankanpur village and she was doing up and down by bus and his daughter-in-law Sharmishtha informed him on phone that the victim had not returned home from the school till six o’clock in the evening and, therefore, he inquired along with his relatives by phone however, the victim was not found. He has deposed that he inquired about the victim at the school where she was studying and the school informed that she was not there. He has deposed that he inquired with his relatives also, but no trace of her could be found and he also inquired with Dashrath from Kaliyavav, who was working as a driver of his Tata Magic van, but he did not give any satisfactory reply to him. He has deposed that he inquired with his relatives also, but no trace of her could be found and he also inquired with Dashrath from Kaliyavav, who was working as a driver of his Tata Magic van, but he did not give any satisfactory reply to him. He has deposed that he had engaged Dashrath as a driver of his Tata Magic van and he was using it for dropping the school students and even the driver i.e. Dashrath had been absent for about ten days before the incident. He has deposed that when he contacted Dashrath on his mobile number, he was not picking up his call and he contacted him by the mobiles of other persons and he told him that he was at different locations and, therefore, he became sure that he had taken away the victim. He has further deposed that the Sarpanch of the village told him to do whatever he wanted and hence, he filed a complaint at Godhra City “A” Division Police Station. He has also deposed that he went to Shapar village, Taluka: Kotda Sangani Near Rajkot along with the police where they inquired at the factory area in Shapar village and on the basis of the information received by them, they reached at the room of Dashrath in Shapar village and the police caught him. During the cross-examination, this witness has deposed that his daughter-in-law Sharmishtha did not give any information to him that she had gone with the victim for examination as to whether the victim was pregnant or not. He has deposed that it is true that the victim did not tell him about her pregnancy during the time of the incident and his wife Chaturi also did not inform him about the victim being pregnant. He has also deposed that it is true that his two sons and three daughters also did not tell him anything about victim being pregnant. It is true that, Dashrath had left the job of driver before ten days prior to the incident. It is true that he took victim to the government hospital for delivery and government hospital referred her to the Lara Hospital for delivery. It is true that the name of Dashrathbhai was suggested as a father of child after delivery at Lara Hospital. It is true that he took victim to the government hospital for delivery and government hospital referred her to the Lara Hospital for delivery. It is true that the name of Dashrathbhai was suggested as a father of child after delivery at Lara Hospital. It is true that the victim had delivered a child after two months of stay at his home. It is true that the victim was five months pregnant when he gave complaint and the victim stayed at Rajkot during two months of pregnancy. It is true that the victim became pregnant through Dashrath and therefore, she went to Rajkot. It is true that the child delivered by the victim is alive. It is true that the accused Dashrath has a wife namely Kokila and accused Dashrath had also kept the victim as wife. It is not true that Dashrath can keep victim as wife as per the customs of the community. He has deposed that even if the victim is adult, the tradition can be regularized with the unanimous consent only. It is not true that he has filed false complaint against the accused with intention of revenge. It is not true that Kaliyavav tried for settlement but he did not agree. He has deposed that he did not know that the accused did not take away victim. It is not true that the victim used to talk with Sharmishtha and his wife on mobile frequently. It is not true that he filed false complaint against the accused as the settlement did not arrive at in panch. 20. On perusal of the evidence of P.W.5 Chaturiben Revabhai Mohaniya at Exhibit 32, it appears that she is the mother of the victim. In the chief-examination, she has deposed that the victim studied upto 10th Standard and she did not remember the birth date of the victim and the victim was born at Jobat, Taluka: Alirajpur (MP) at her maternal house. She has deposed that the birth of the victim was registered at government office at Jobat. She has deposed that the victim used to go to Kakanpur for study and she went to study on that day, but, she did not return back in the evening after study. She has also deposed that they searched in their relatives about the victim, but she was not found. She has deposed that the victim used to go to Kakanpur for study and she went to study on that day, but, she did not return back in the evening after study. She has also deposed that they searched in their relatives about the victim, but she was not found. She has deposed that her husband lodged the complaint in police as victim was not found and her statement was recorded for the same. She has further deposed that accused Dashrath was contacted when victim was not found and Dashrath stated that he was in different village. She has deposed that Dashrath used to work as driver. During her cross-examination, she has deposed that she knew that accused Dashrath was married. It is true that victim was born at Jobat and she had not given any information in her police statement as to who, when, which date and which year her birth was registered. She has deposed that she came to know from his husband’s mobile that Dashrath was staying at different villages. It is not true that the victim was pregnant and therefore, she left the home without informing them. It is not true that though she knew that the victim was pregnant, she did not state the said fact to the police. 21. On perusal of the evidence of P.W.8 Dr.Nirav Pravinbhai Mahirani at Exhibit 35, it appears that this witness has examined the victim. He has deposed that when he was on duty as a medical officer on 12.02.2015 at that time, Woman Police Constable Dipikaben Ratilal Parmar brought the victim at Civil Hospital, Godhra with yadi of PSI, Godhara “A” Division for examination of rape and treatment. He has deposed that the victim stated history in Gujarati language that she had physical relationship with a person namely Dashrath for two years and she had willingly and with consent entered into sexual intercourse and last intercourse was done about ten days ago and thereafter, the victim took bath and changed the clothes. He has deposed that the victim was unmarried and she had pregnancy of eight months and she was completely conscious. He has deposed that the victim was unmarried and she had pregnancy of eight months and she was completely conscious. He has deposed that upon examining abdomen of the victim, about thirty four weeks old fetus was found and her Laboratory Urine Pregnancy Test at Civil Hospital, Godhara was positive, Blood group was ‘O’ positive, VDRL was non-reactive, HBSAG was negative and no live or dead sperm cells were found during analysis of swab collected from vagina. It is deposed that the samples of Blood, Semen, Finger Nails, Saliva and pubic hair etc of the victim were collected. He has deposed that upon examining the accused at laboratory at General Hospital, Godhara, it appears that his blood group was ‘B’ positive, VDRL was non-reactive, HBSAG was negative and upon examining semen, live and dead sperm cells were found and after sealing the blood sample of the said person separately, the same was sent for forensic analysis. He has deposed that he had made report to the Radiology Department of SSG Hospital to verify the age of accused Dashrath and shown him report at Mark-4/10, which contains his signature as medical officer. He has deposed that on the basis of report received to him at Exhibit-38, he stated that the age of the accused would be more than 20 years. He has not been cross-examined. 22. On perusal of the evidence of P.W.9 Dr.Deepaben Sharadbhai Pitre at Exhibit 42, it appears that on 13.02.2015, she was serving as Gynecologist at SSG Hospital and when this witness was in her labour room, a victim was brought for gynecology examination. She has deposed that upon asking the victim, she stated that she was in relation with the accused since last three years and she had sexual intercourse with the accused frequently since last one year and once the victim was ill, she was taken to the private hospital for treatment and at that time, it was found that she had five months of pregnancy. The victim eloped with the accused from Godhara to Rajkot before two months and stayed at guest house with the accused at Rajkot. This witness has also deposed that meanwhile, parents of the victim lodged the complaint at Godhara Police Station and thereafter, the police arrested the accused as well as victim on 11.02.2015. The victim eloped with the accused from Godhara to Rajkot before two months and stayed at guest house with the accused at Rajkot. This witness has also deposed that meanwhile, parents of the victim lodged the complaint at Godhara Police Station and thereafter, the police arrested the accused as well as victim on 11.02.2015. It is deposed that in menstruation history, the victim’s last menstruation date was 25.05.2014 and she was not menstruated since last eight months and she was conscious during her physical examination. This witness has deposed that there was nine month fetus in the womb and per speculum examination was normal and the opening of uterus was closed. She has also deposed that considering her pregnancy, the victim was admitted and other examination was conducted and she was advised to administer blood bottles, but she denied for administration of blood bottles by getting admitted in Sayaji Hospital. She has further deposed that upon radiology and sonography, there was 32 months fetus in the womb of the victim and everything was normal as per the report given by the radiologist. She has deposed that as the patient refused to get admitted in the hospital, she (victim) was given treatment usually which was given during the pregnancy and necessary advise was given to her and as per the examination of the victim conducted by her, it cannot be denied that no sexual intercourse was done with her. During the cross-examination, this witness has deposed that it is not true that victim had not stated the name of the accused before her. It is true that this witness has not mentioned the name of the accused in the certificate issued by her. It is not true that the victim refused to carry out blood test. 23. Considering the submissions canvassed by learned advocates appearing on both the sides and considering the decisions cited at the Bar, the questions raised in the present appeal are that whether the prosecution has proved the age of the victim girl or not and as per the provisions of Section 35 r/w. Section 74 of the Indian Evidence Act, whether the document at Exhibit 17 is proved in the eyes of law or not. The prosecution mainly relied upon the document at Exhibit 17 and some of the prosecution witnesses have tried to struck out the said document and have stated on oath before the Trial Court that as per the birth certificate, the date of the victim is 30.06.1999 and on the date of incident i.e. 11.08.2014, the victim was below the age of 18 years. Considering the provisions of Section 35 r/w. Section 74 of the Indian Evidence Act and the ratio laid down by the Hon’ble Apex Court in various decisions, it prima facie appears that the duty is cast upon the prosecution to prove the age of the victim. In the present case, the prosecution has not examined the person i.e. Narsinh Sursinh Bariya (brother-in-law of the complainant) who has registered the birth date in the office of the Village Panchayat and as per Section 35 r/w. Section 74 of the Indian Evidence Act, it is primary duty of the person to prove the age of the victim who adduced the evidence in the nature of the birth certificate and then it is duty of the person who has rebut this presumption. It is a well-established dictum of the Indian Evidence Act that misplacing the burden of proof vitiates the judgment. At the same time, the rule relating to the burden of proof is based upon certain practical considerations of convenience and reasonableness and also of policy, but where there is a rebuttable presumption of law in favour of one party, the burden of rebutting it lies upon the later. 24. In the case of Madan Mohan Singh (supra), the Hon’ble Supreme Court has held and observed in paragraphs no.13 to 17 as under:- “13. In State of Bihar & Ors. V/s. Radha Krishna Singh & Ors. AIR 1983 SC 684 , this Court dealt with a similar contention and held as under:- "Admissibility of a document is one thing and its probative value quite another - these two aspects cannot be combined. A document may be admissible and yet may not carry any conviction and weight of its probative value may be nil.. . . . . A document may be admissible and yet may not carry any conviction and weight of its probative value may be nil.. . . . . Where a report is given by a responsible officer, which is based on evidence of witnesses and documents and has "a statutory flavour in that it is given not merely by an administrative officer but under the authority of a Statute, its probative value would indeed be very high so as to be entitled to great weight. The probative value of documents which, however ancient they may be, do not disclose sources of their information or have not achieved sufficient notoriety is precious little." 14. Therefore, a document may be admissible, but as to whether the entry contained therein has any probative value may still be required to be examined in the facts and circumstances of a particular case. The aforesaid legal proposition stands fortified by the judgments of this Court in Ram Prasad Sharma V/s. State of Bihar AIR 1970 SC 326 ; Ram Murti V/s. State of Haryana AIR 1970 SC 1029 ; Dayaram & Ors. V/s. Dawalatshah & Anr. AIR 1971 SC 681 ; Harpal Singh & Anr. V/s. State of Himachal Pradesh AIR 1981 SC 361 ; Ravinder Singh Gorkhi V/s. State of U.P. (2006) 5 SCC 584 ; Babloo Pasi V/s. State of Jharkhand & Anr. (2008) 13 SCC 133 ; Desh Raj V/s. Bodh Raj AIR 2008 SC 632 ; and Ram Suresh Singh V/s. Prabhat Singh @Chhotu Singh & Anr. (2009) 6 SCC 681 . In these cases, it has been held that even if the entry was made in an official record by the concerned official in the discharge of his official duty, it may have weight but still may require corroboration by the person on whose information the entry has been made and as to whether the entry so made has been exhibited and proved. The standard of proof required herein is the same as in other civil and criminal cases. 15. Such entries may be in any public document, i.e. school register, voter list or family register prepared under the Rules and Regulations etc. in force, and may be admissible under Section 35 of the Evidence Act as held in Mohd. Ikram Hussain V/s. The State of U.P. & Ors. 15. Such entries may be in any public document, i.e. school register, voter list or family register prepared under the Rules and Regulations etc. in force, and may be admissible under Section 35 of the Evidence Act as held in Mohd. Ikram Hussain V/s. The State of U.P. & Ors. AIR 1964 SC 1625 ; and Santenu Mitra V/s. State of West Bengal AIR 1999 SC 1587 . 16. So far as the entries made in the official record by an official or person authorised in performance of official duties are concerned, they may be admissible under Section 35 of the Evidence Act but the court has a right to examine their probative value. The authenticity of the entries would depend on whose information such entries stood recorded and what was his source of information. The entry in School Register/School Leaving Certificate require to be proved in accordance with law and the standard of proof required in such cases remained the same as in any other civil or criminal cases. 17. For determining the age of a person, the best evidence is of his/her parents, if it is supported by un-impeccable documents. In case the date of birth depicted in the school register/certificate stands belied by the un-impeccable evidence of reliable persons and contemporaneous documents like the date of birth register of the Municipal Corporation, Government Hospital/Nursing Home etc, the entry in the school register is to be discarded. (Vide: Brij Mohan Singh V/s. Priya Brat Narain Sinha & Ors. AIR 1965 SC 282 ; Birad Mal Singhvi V/s. Anand Purohit AIR 1988 SC 1796 ; Vishnu V/s. State of Maharashtra (2006) 1 SCC 283 ; and Satpal Singh V/s. State of Haryana JT 2010 (7) SC 500). 25. In the case of Alamelu (supra), the Hon’ble Supreme Court has held and observed in paragraphs no.38 and 40 as under:- “38. We will first take up the issue with regard to the age of the girl. The High Court has based its conclusion on the transfer certificate, Ex.P16 and the certificate issued by PW8 Dr. Gunasekaran, Radiologist, Ex.P4 and Ex.P5. Undoubtedly, the transfer certificate, Ex.P16 indicates that the girl's date of birth was 15th June, 1977. Therefore, even according to the aforesaid certificate, she would be above 16 years of age (16 years 1 month and 16 days) on the date of the alleged incident, i.e., 31st July, 1993. Gunasekaran, Radiologist, Ex.P4 and Ex.P5. Undoubtedly, the transfer certificate, Ex.P16 indicates that the girl's date of birth was 15th June, 1977. Therefore, even according to the aforesaid certificate, she would be above 16 years of age (16 years 1 month and 16 days) on the date of the alleged incident, i.e., 31st July, 1993. The transfer certificate has been issued by a Government School and has been duly signed by the Headmaster. Therefore, it would be admissible in evidence under Section 35 of the Indian Evidence Act. However, the admissibility of such a document would be of not much evidentiary value to prove the age of the girl in the absence of the material on the basis of which the age was recorded. The date of birth mentioned in the transfer certificate would have no evidentiary value unless the person, who made the entry or who gave the date of birth is examined. We may notice here that PW1 was examined in the Court on 9th August, 1999. In his evidence, he made no reference to the transfer certificate (Ex.P16). He did not mention her age or date of birth. PW2 was also examined on 9th August, 1999. She had also made no reference either to her age or to the transfer certificate. It appears from the record that a petition was filed by the complainant under Section 311 Cr.P.C. seeking permission to produce the transfer certificate and to recall PW2. This petition was allowed. She was actually recalled and her examination was continued on 26th April, 2000. The transfer certificate was marked as Ex.P16 at that stage, i.e., 26th April, 2000. The judgment was delivered on 28th April, 2000. In her cross-examination, she had merely stated that she had signed on the transfer certificate, Ex.P16 issued by the School and accordingly her date of birth noticed as 15th June, 1977. She also stated that the certificate has been signed by the father as well as the Headmaster. But the Headmaster has not been examined. Therefore, in our opinion, there was no reliable evidence to vouchsafe for the truth of the facts stated in the transfer certificate. 40. In our opinion, the aforesaid burden of proof has not been discharged by the prosecution. The father says nothing about the transfer certificate in his evidence. The Headmaster has not been examined at all. Therefore, in our opinion, there was no reliable evidence to vouchsafe for the truth of the facts stated in the transfer certificate. 40. In our opinion, the aforesaid burden of proof has not been discharged by the prosecution. The father says nothing about the transfer certificate in his evidence. The Headmaster has not been examined at all. Therefore, the entry in the transfer certificate can not be relied upon to definitely fix the age of the girl. 26. In the case of Dola alias Dolagobinda Pradhan and another (supra), the Hon’ble Supreme Court has held and observed in paragraphs no.6 to 9 as under:- “6. It is well settled law that if the version of the prosecutrix is believed, basic truth in her evidence is ascertainable and if it is found to be credible and consistent, the same would form the basis of conviction. Corroboration is not a sine qua non for a conviction in a rape case. The evidence of a victim of sexual assault stands at par with the evidence of an injured witness and is entitled to great weight, absence of corroboration notwithstanding. If the evidence of the victim does not suffer from any basic infirmity and the "probabilities factor" does not render it unworthy of credence, as a general rule, there is no reason to insist on corroboration, except from medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming. When a grown up and married woman gives evidence on oath in Court that she was raped, it is not the proper judicial approach to disbelieve her outright. 7. In this regard it would be useful to quote certain observations of this Court in the case of Bharwada Bhoginbhai Hirjibhai vs. State of Gujarat, [ (1983) 3 SCC 217 ] wherein it is observed that: "10. By and large these factors are not relevant to India, and the Indian conditions. Without the fear of making too wide a statement, or of overstating the case, it can be said that rarely will a girl or a woman in India make false allegations of sexual assault on account of any such factor as has been just enlisted. The statement is generally true in the context of the urban as also rural Society. Without the fear of making too wide a statement, or of overstating the case, it can be said that rarely will a girl or a woman in India make false allegations of sexual assault on account of any such factor as has been just enlisted. The statement is generally true in the context of the urban as also rural Society. It is also by and large true in the context of the sophisticated, not so sophisticated, and unsophisticated society. Only very rarely can one conceivably come across an exception or two and that too possibly from amongst the urban elites. Because: (1) A girl or a woman in the tradition bound non-permissive Society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred. (2) She would be conscious of the danger of being ostracised by the Society or being looked down by the Society including by her own family members, relatives, friends and neighbours. (3) She would have to brave the whole world. (4) She would face the risk of losing the love and respect of her own husband and near relatives, and of her matrimonial home and happiness being shattered. (5) If she is unmarried, she would apprehend that it would be difficult to secure an alliance with a suitable match from a respectable or an acceptable family. (6) It would almost inevitably and almost invariably result in mental torture and suffering to herself. (7) The fear of being taunted by others will always haunt her. (8) She would feel extremely embarrassed in relating the incident to others being over powered by a feeling of shame on account of the upbringing in a tradition bound society where by and large sex is taboo. (9) The natural inclination would be to avoid giving publicity to the incident lest the family name and family honour is brought into controversy. (10) The parents of an unmarried girl as also the husband and members of the husband's family of a married woman would also more often than not, want to avoid publicity on account of the fear of social stigma on the family name and family honour. (11) The fear of the victim herself being considered to be promiscuous or in some way responsible for the incident regardless of her innocence. (11) The fear of the victim herself being considered to be promiscuous or in some way responsible for the incident regardless of her innocence. (12) The reluctance to face interrogation by the investigating agency, to face the court, to face the cross examination by Counsel for the culprit, and the risk of being disbelieved, acts as a deterrent. 11. In view of these factors the victims and their relatives are not too keen to bring the culprit to books. And when in the face of these factors the crime is brought to light there is a built-in assurance that the charge is genuine rather than fabricated. On principle the evidence of a victim of sexual assault stands on par with evidence of an injured witness. Just as a witness who has sustained an injury (which is not shown or believed to be self inflicted) is the best witness in the sense that he is least likely to exculpate the real offender, the evidence of a victim of a sex-offence is entitled to great weight, absence of corroboration notwithstanding. And while corroboration in the form of eye witness account of an independent witness may often be forthcoming in physical assault cases, such evidence cannot be expected in sex offences, having regard to the very nature of the offence. It would therefore be adding insult to injury to insist on corroboration drawing inspiration from the rules devised by the courts in the Western World (Obeisance to which has perhaps become a habit presumably on account of the colonial hangover). We are therefore of the opinion that if the evidence of the victim does not suffer from any basic infirmity, and the "probabilities factors" does not render it unworthy of credence, as a general rule, there is no reason to insist on corroboration except from the medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming, subject to the following qualification: Corroboration may be insisted upon when a woman having attained majority is found in a compromising position and there is a likelihood of her having levelled such an accusation on account of the instinct of self-preservation. Or when the 'probabilities factor' is found to be out of tune". (emphasis supplied) 8. Or when the 'probabilities factor' is found to be out of tune". (emphasis supplied) 8. In Sadashiv Ramrao Hadbe v. State of Maharashtra, [ (2006) 10 SCC 92 ], this Court reiterated that the sole testimony of the prosecutrix could be relied upon if it inspires the confidence of the Court: (SCC p. 95, para 9) "9. It is true that in a rape case the accused could be convicted on the sole testimony of the prosecutrix, if it is capable of inspiring confidence in the mind of the court. If the version given by the prosecutrix is unsupported by any medical evidence or the whole surrounding circumstances are highly improbable and belie the case set up by the prosecutrix, the court shall not act on the solitary evidence of the prosecutrix. The courts shall be extremely careful in accepting the sole testimony of the prosecutrix when the entire case is improbable and unlikely to happen." 9. However, as is also evident from the observations above, such reliance may be placed only if the testimony of the prosecutrix appears to be worthy of credence. In this regard, it is also relevant to note the following observations of this Court in the case of Raju v. State of Madhya Pradesh, [ (2008) 15 SCC 133 ], which read thus: (SCC p. 141, paras 10-11) "10. The aforesaid judgments lay down the basic principle that ordinarily the evidence of a prosecutrix should not be suspected and should be believed, more so as her statement has to be evaluated on a par with that of an injured witness and if the evidence is reliable, no corroboration is necessary. Undoubtedly, the aforesaid observations must carry the greatest weight and we respectfully agree with them, but at the same time they cannot be universally and mechanically applied to the facts of every case of sexual assault which comes before the court. 11. It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication, particularly where a large number of accused are involved. It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication, particularly where a large number of accused are involved. It must, further, be borne in mind that the broad principle is that an injured witness was present at the time when the incident happened and that ordinarily such a witness would not tell a lie as to the actual assailants, but there is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration." Having due regard in our mind to the above-mentioned settled position in law, we have assessed the entire material on record meticulously. 27. In the case of Kalpana (supra), the Hon’ble Supreme Court has held and observed in paragraphs no. 285 and 286 as under:- “285. One more provision of Evidence Act which needs to be noted is Section 74 which deals with the public documents. Section 74 of the Evidence Act is as follows: 74. Public documents. - The following documents are public documents :- (1) Documents forming the acts, or records of the acts- (i) of the sovereign authority, (ii) of official bodies and tribunals, and (iii) of public officers, legislative, judicial and executive, of any part of India or of the Commonwealth, or of a foreign country; of any part of India or of the Commonwealth, or of a foreign country; (2) Public records kept in any State of private documents. 286. According to Section 74 documents forming the acts, or records of the acts of Legislature of any part of India is a public document. We have noticed above that Parliament has already adopted report of privilege committee that for those documents which are public documents within the meaning of Indian Evidence Act, there is no requirement of any permission of Speaker of Lok Sabha for producing such documents as evidence in Court . We may, however, hasten to add that mere fact that a document is admissible in evidence whether a public or private document does not lead to draw any presumption that the contents of the documents also are true and correct.” 28. We may, however, hasten to add that mere fact that a document is admissible in evidence whether a public or private document does not lead to draw any presumption that the contents of the documents also are true and correct.” 28. In the case of Narendra Gulabpari Goswami (supra), the Division Bench of this Court has held and observed in paragraphs no.7.05 and 7.06 as under:- “7.05 It is settled legal position that if the entry in the school register regarding the date of birth is made on the basis of information given by the parents, the entry would have evidentiary value but if it is given by a stranger or by someone else who had no special means of knowledge of the date of birth, such an entry will have no evidentiary value. Merely because the school leaving certificate was exhibited, it does not mean that the contents of the school leaving certificate were also proved. Mere proof of the school leaving certificate would not tantamount to proof of all the contents or the correctness of date of birth stated in the school leaving certificate. The person who issued the School Leaving Certificate has not been examined. It has not come on record as to on what basis the date of birth was recorded in the school leaving certificate. It has also not come on record that at whose instance the date of birth was recorded in the school registers. Mere production of the school leaving certificate without examining the concerned witnesses and mere exhibiting the school leaving certificate without proving the contents of the school leaving certificate, it cannot be said that the age mentioned in the school leaving certificate has been established in accordance with law. Even otherwise, the school leaving certificate to prove the age of the victim is not of much evidentiary value. The prosecution has failed to place on record the Birth Certificate of the victim on record. As per settled legal position, the date of birth mentioned in the school register of secondary school certificate has no probative value within Section 35 of the Indian Evidence Act, unless either the parents are examined or the person on whose information the entry may have been made, is examined. In the present case, neither the parents of the victim nor the person on whose information the entry may have been made, is examined. In the present case, neither the parents of the victim nor the person on whose information the entry may have been made, is examined. The legal position is not in dispute that mere production and marking of a document as exhibit by the court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence, that is, by the "evidence of those persons who can vouchsafe for the truth of the facts in issue. In our opinion, the aforesaid burden of proof has not been discharged by the prosecution. Therefore, the entry in the school leaving certificate cannot be relied upon to definitely fix the age of the victim. 7.06 To render a document admissible under Section 35, three conditions must be satisfied firstly, the entry that is relied on must be one in a public or other official book, register or record, secondly, it must be an entry stating a fact in issue or relevant fact, and thirdly, it must be made by a public servant in discharge of his official duty, or any other person in performance of a duty specially enjoined by law. An entry relating to the 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 material on which the age was recorded. In Raja Janaki Nath Roy versus Jyotish Chandra Acharya Chowdhury, AIR 1941 Cal 41, a Division Bench of the Calcutta High Court discarded the entry in the school register about the age of a party to the suit on the ground that there was no evidence to show on what material the entry in the register about the age of the plaintiff was made. The principle so laid down has been accepted by almost all the High Courts in the country in the case of Jagan Nath Versus Moti Ram, AIR 1951 Punjab 377, Sakhi Ram Versus Presiding Officer, Labour Court, North Bihar, Muzzafarpur, AIR 1966 Patna 459, Ghanchi Vora Samsuddin Isabhai Versus State of Gujarat, AIR 1970 Gujarat 178 and Radha Kishan Tickoo Versus Bhushan lal Tickoo, AIR 1971 J & K 62. In addition to these decisions the High Courts of Allahabad, Bombay, Madras have considered the question of probative value of an entry regarding the date of birth made in the scholar's register on in school certificate in election cases. The Courts have consistently held that the date of birth mentioned in the scholar's register of secondary school certificate has no probative value unless either the parents are examined or the person on whose information the entry may have been made, is examined, Reference can be made in the case of Jagdamba Prasad v. Sri Jagannath Prasad, (1969) 42 ELR 465 (All), K. Paramalali v. L. M. Alangaram, (1967) 31 ELR 401 (Mad ), Krishna Rao Maharu Patil v. Onkar Narayan Wagh, (1958) 14 ELR 386 (Bom). 29. In the case of Ajitkumar (supra), the Division Bench of this Court has held and observed in paragraph no.22 as under:- “22. In the cases of rape, the law does not require corroboration and, therefore, if the evidence of the prosecutrix is believed, there is no bar to convict the accused on her testimony alone. To put it in other words, there is no such law which requires corroboration before the statement of the prosecutrix is acted upon. Indisputably, a prosecutrix is a competent witness (vide section 118 of the Evidence Act). She is not an accomplice within the domain of section 133 of the Evidence Act. Thus, her statement, as such, does not require a corroboration within the meaning of section 114-B (114-A) of the Evidence Act which provides that an accomplice is unworthy of credit unless she is corroborated in material particulars. The prosecutrix is a victim like any other victim of any other offence. Hence, the same weight is to be attached to her statement which requires to be attached to the statement of an injured person. Therefore, if the statement of the prosecutrix is quite clear and unequivocal on the point as to who has ravished her, there is no reason, whatsoever, as to why the said statement, without any corroboration from any quarter, whatsoever, cannot form the basis of conviction. Thus, her statement is to be scrutinized like the statement of any other witness and if there is a ring of truth about it and if it inspires confidence, the Courts would be under an obligation to rely thereupon. Thus, her statement is to be scrutinized like the statement of any other witness and if there is a ring of truth about it and if it inspires confidence, the Courts would be under an obligation to rely thereupon. However, the principal question we need to answer is to what extent we should accept the case of the prosecutrix having regard to the evidence on record. If the statement of the prosecutrix suffers from serious infirmities, inconsistencies and the overall case put up by the prosecution does not inspire any confidence, then it would be very hazardous to base the conviction solely on the evidence of the prosecutrix.” 30. In the case of Santosh Prasad @ Santosh Kumar (supra), the Hon’ble Supreme Court has held and observed in paragraph no.5 as under:- “5. We have heard the learned counsel for the respective parties at length. 5.1 We have considered in detail the impugned judgments and orders passed by the High Court as well as that of the learned trial Court convicting the accused. We have also considered in detail the evidence on record, both oral as well as documentary. 5.2 From the impugned judgments and orders passed by both the courts below, it appears that the appellant has been convicted solely relying upon the deposition of the prosecutrix (PW5). Neither any independent witness nor even the medical evidence supports the case of the prosecution. From the deposition of PW1, it has come on record that there was a land dispute going on between both the parties. Even in the cross-examination even the PW5 - prosecutrix had admitted that she had an enmity with Santosh (accused). The prosecutrix was called for medical examination by Dr. Renu Singh - Medical Officer and PW7 - Dr. Renu Singh submitted injury report. In the injury report, no sperm as well as RBC and WBC were found. Dr. Renu Singh, PW7 - Medical Officer in her deposition has specifically opined and stated that she did not find any violence marks on the body of the victim. She has also categorically stated that there is no physical or pathological evidence of rape. It is true that thereafter she has stated that possibility of rape cannot be ruled out (so stated in the examination-in-chief). However, in the crossexamination, she has stated that there was no physical or pathological evidence of rape. She has also categorically stated that there is no physical or pathological evidence of rape. It is true that thereafter she has stated that possibility of rape cannot be ruled out (so stated in the examination-in-chief). However, in the crossexamination, she has stated that there was no physical or pathological evidence of rape. 5.3 As per the FSL report, the blood group on the petticoat and the semen on the petticoat are stated to be inconclusive. Therefore, the only evidence available on record would be the deposition of the prosecutrix. It cannot be disputed that there can be a conviction solely based on the evidence of the prosecutrix. However, the evidence must be reliable and trustworthy. Therefore, now let us examine the evidence of the prosecutrix and consider whether in the facts and circumstances of the case is it safe to convict the accused solely based on the deposition of the prosecutrix, more particularly when neither the medical report/evidence supports nor other witnesses support and it has come on record that there was an enmity between both the parties. 5.4 Before considering the evidence of the prosecutrix, the decisions of this Court in the cases of Raju (supra) and Rai Sandeep @ Deepu, relied upon by he learned Advocate appearing on behalf of the appellant-accused, are required to be referred to and considered. 5.4.1 In the case of Raju (supra), it is observed and held by this Court in paragraphs 11 and 12 as under: "11. It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication, particularly where a large number of accused are involved. It must, further, be borne in mind that the broad principle is that an injured witness was present at the time when the incident happened and that ordinarily such a witness would not tell a lie as to the actual assailants, but there is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration. 12. 12. Reference has been made in Gurmit Singh case [ (1996) 2 SCC 384 : 1996 SCC (Cri) 316] to the amendments in 1983 to Sections 375 and 376 of the Penal Code making the penal provisions relating to rape more stringent, and also to Section 114-A of the Evidence Act with respect to a presumption to be raised with regard to allegations of consensual sex in a case of alleged rape. It is however significant that Sections 113-A and 113-B too were inserted in the Evidence Act by the same amendment by which certain presumptions in cases of abetment of suicide and dowry death have been raised against the accused. These two sections, thus, raise a clear presumption in favour of the prosecution but no similar presumption with respect to rape is visualised as the presumption under Section 114-A is extremely restricted in its applicability. This clearly shows that insofar as allegations of rape are concerned, the evidence of a prosecutrix must be examined as that of an injured witness whose presence at the spot is probable but it can never be presumed that her statement should, without exception, be taken as the gospel truth. Additionally, her statement can, at best, be adjudged on the principle that ordinarily no injured witness would tell a lie or implicate a person falsely. We believe that it is under these principles that this case, and others such as this one, need to be examined." 5.4.2 In the case of Rai Sandeep alias Deepu (supra), this Court had an occasion to consider who can be said to be a "sterling witness". In paragraph 22, it is observed and held as under: "22 In our considered opinion, the "sterling witness" should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for 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. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co-relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a "sterling witness" whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged." 5.4.3 In the case of Krishna Kumar Malik v. State of Haryana (2011) 7 SCC 130 , it is observed and held by this Court that no doubt, it is true that to hold an accused guilty for commission of an offence of rape, the solitary evidence of the prosecutrix is sufficient provided the same inspires confidence and appears to be absolutely trustworthy, unblemished and should be of sterling quality. 5.5 With the aforesaid decisions in mind, it is required to be considered, whether is it safe to convict the accused solely on the solitary evidence of the prosecutrix- Whether the evidence of the prosecutrix inspires confidence and appears to be absolutely trustworthy, unblemished and is of sterling quality? 31. In the case of Mohd. Abdullah Azam Khan (supra), the Hon’ble Supreme Court has held and observed in paragraphs no.17, 18 and 19 as under:- “17. The purpose of the Evidence Act, 1872 is to prove and disprove the existence of facts in issue and to find out the truth of the facts which are asserted by the parties as the decision of the case lies upon/depends upon the truthfulness of those facts. The Act essentially does the balancing of interest between the parties to the proceedings and such balancing has to be done by establishing the truth of the facts asserted. Ultimately, the Indian Evidence Act, 1872 is about the quest towards truthfulness. "Procedure is the handmade of justice and not its mistress" i.e. procedure is not to control justice but procedure is the helping hand of justice and it helps to facilitate justice. 18. It is a well-established dictum of the Evidence Act that misplacing the burden of proof vitiates the judgment. At the same time, the rule relating to the burden of proof is based upon certain practical considerations of convenience and reasonableness and also of policy, but where there is a rebuttable presumption of law in favour of one party, the burden of rebutting it lies upon the later. 19. At the same time, when any fact is especially within the knowledge of a party, the burden of proving it lies upon that party. The term "especially" means facts which are pre- eminently or exceptionally within the knowledge of a person. It is true that it cannot apply when the fact is such as to be capable of being known also by persons other than the party. This rule is an exception to the rule of burden of proof. Thus, when a person acts with some intention other than that which the character and circumstances of the act suggest, the burden of proving the intention is upon him. This rule is an exception to the rule of burden of proof. Thus, when a person acts with some intention other than that which the character and circumstances of the act suggest, the burden of proving the intention is upon him. The bottom line of the purpose of the Indian Evidence Act is to adopt a procedure that helps to facilitate justice and ultimately what is required is to unearth the truth, to prevail.” 32. In the present case, surprisingly, the prosecution has not produced the school leaving certificate since the victim studied upto 10th standard either registered in the school or in the secondary examination board. Except the birth certificate issued by the Village Panchayat of the victim, no documentary evidence worth the name was produced on record and nobody was examined the concerned officer to prove even the birth certificate issued by the Village Panchayat. The said documentary evidence cannot be proved beyond reasonable doubt under Section 35 r/w. Section 74 of the Indian Evidence Act. It is also required to note that at the first instance in the FIR, the father of the victim has stated the date of birth of victim is 28.08.1999, whereas, while recording the deposition of the father before the Trial Court, he has stated the date of birth of the victim is 30.06.1999, so, there is serious doubt with regard to the veracity of the age of the victim. Considering the observations made by the Hon’ble Apex Court as well as this Court in various decisions, it is well settled that unless and until the age of the victim is not proved by the prosecution, the case under Section 376 of the IPC read with the provisions of the POCSO Act cannot be proved. Basis on scrutiny of the evidence adduced by the prosecution before the Trial Court, I am of the opinion that the prosecution has not proved the said aspects and failed to prove the age of the victim and/or when such doubt is created, the benefit of doubt is to be given to the accused. In the present case, though the statement of the victim under Section 164 of the Criminal Procedure Code is recorded, but on perusal of the said statement, it appears that the fact with regard to the birth date recorded by the concerned authority is not proved. In the present case, though the statement of the victim under Section 164 of the Criminal Procedure Code is recorded, but on perusal of the said statement, it appears that the fact with regard to the birth date recorded by the concerned authority is not proved. While passing the impugned judgment and order in such a serious case of rape and under the provisions of the POCSO Act, consideration of the evidence put-forth by the prosecution is impeachable and, therefore, the Trial Court has committed an error while passing the impugned judgment and order of conviction and sentence as no proof of the age of the victim is produced by the prosecution. 33. It is worthwhile to refer to Section 35 r/w. Section 74 of the Evidence, which read as under:- “35. Relevancy of entry in public [record or an electronic record] made in performance of duty. – An entry in any public or other official book, entry in register, or [record or an electronic record], stating a fact in issue or relevant fact and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register, or [record or an electronic record] is kept, is itself a relevant fact” 74. Public documents. – The following documents are public documents:- (1) Documents forming the acts, or records of the acts – (i) of the sovereign authority, (ii) of official bodies and tribunals, and (iii) of public officers, legislative, judicial and executive, [of any part of India or of the Commonwealth], or of a foreign country; (2) Public records kept [in any State] of private documents.” 34. Considering the evidence of the prosecutrix, it clearly reveals that the victim was having physical relationship with the accused before two years of the incident and at the time of registration of the FIR, the victim carried four months pregnancy and, thereafter, after due date she delivered a baby boy and at present the baby boy is with the victim and parents of the victim. Though the defence has tried to raise suspicion with regard to animosity and the fact with regard to inter relationship between the accused and victim, but there was no material produced by the prosecution which lead to come to the conclusion that there is any reason with regard to animosity or any other reason and, therefore, the Trial Court has not considered those aspects while appreciating the evidence at the time of deciding the case against the accused. Apparently, no exercise was carried out by the prosecution to establish that the victim was minor on the date of occurrence by following the procedure prescribed under the law and in light of reasoning put-forth. There are various decisions of the Hon’ble Apex Court and this Court with regard to prove the age of the victim and well established law. That evidence of approximate age of the victim would not be sufficient to come to the conclusion about the exact age of the victim. 35. From the record, it appears that the prosecution has tried to establish the age of the victim by producing birth certificate through the deposition of the father wherein he has deposed that his brother-in-law has registered the birth of the victim, but the prosecution has not examined such person from the authority and, therefore, without examining the said person, the prosecution cannot establish the age of the victim beyond reasonable doubt. The prosecution side has neither collected the school leaving certificate from the school nor from the Secondary Board Examination and has not produced record from the school to establish the birth certificate of the victim to establish the age of the victim before the Trial Court. On the contrary, P.W.2 in his first version before the police has stated that the birth date of the victim is 28.08.1999 and in his deposition before the Trial Court, he has stated the date of birth of the victim is 30.06.1999. So, the P.W.2 is not sure with regard to the date of birth of the victim and by merely producing the birth certificate, the date of the victim cannot be said to be proved by the prosecution by leading any cogent and material evidence. So, the P.W.2 is not sure with regard to the date of birth of the victim and by merely producing the birth certificate, the date of the victim cannot be said to be proved by the prosecution by leading any cogent and material evidence. On perusal of the statement recorded under Section 164 of the victim, it is crystal clear that the testimony adduced before the Trial Court is inconsistent with the statement recorded under Section 164 which fact is not supported the story of the prosecution in any manner. So far as quality of the evidence is concerned, when such cogent and convincing evidence is available with the Investigating Authority, however, the same was not collected and even produced before the Trial Court. Therefore, the benefit of doubt is required to be given to the accused. 36. From perusal of the evidence of P.W.1, P.W.2, P.W.5 and P.W.6, it appears that they have not supported the case of the prosecution to prove the age of the victim. Even from bare reading of the evidence of the said witnesses, it appears that the allegation qua abduction and inducement is not proved. In fact, said witnesses are aware that the victim is in the company of the accused and that fact is within the knowledge of all the family members. Of course, the incident took place on 11.12.2014 and the FIR came to be registered on 26.12.2014 i.e. after a delay of 15 days. So considering all these aspects and considering the evidence on record and settled legal principles, I am of the opinion that the prosecution has miserably failed to establish important aspect with regard to the age of the victim and the same is required to be established beyond reasonable doubt. From perusal of the evidence of the victim, it is clear that no ingredient of Section 376 of the IPC is established or satisfied at all. Therefore, the conviction and sentence recorded by the Trial Court under Section 376 of the PIC is not proved and hence, the impugned judgment and order deserves to be quashed and set aside. From perusal of the evidence of the victim, it is clear that no ingredient of Section 376 of the IPC is established or satisfied at all. Therefore, the conviction and sentence recorded by the Trial Court under Section 376 of the PIC is not proved and hence, the impugned judgment and order deserves to be quashed and set aside. The contention with regard to Section 29 of the POCSO Act is quite rightly pressed into service by the learned advocate for the appellant that in light of the fact that there was completely violation on the part of the prosecution to establish the fundamental fact to attract the provisions of the POCSO Act. On all these counts and from the analysis of the evidence adduced, I am of the opinion that it is crystal clear that the offences under Section 363, 366 and 376 and Section 4 of the POCSO Act are not being proved by the prosecution and the benefit of doubt is given to the present appellant. 37. It is worthwhile to refer to Sections 363, 366 and 376 of the IPC and Section 4 of the POCSO Act, which read as under:- “363. Punishment for kidnapping.—Whoever kidnaps any person from [India] or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. 366. Kidnapping, abducting or inducing woman to compel her marriage, etc.—Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; [and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable as aforesaid]. 376. 376. Punishment for rape.—(1) Whoever, except in the cases provided for in sub-section (2), commits rape, shall be punished with rigorous imprisonment of either description for a term which [shall not be less than ten years, but which may extend to imprisonment for life, and shall also be liable to fine]. (2) Whoever,— (a) being a police officer, commits rape— (i) within the limits of the police station to which such police officer is appointed; or (ii) in the premises of any station house; or (iii) on a woman in such police officer's custody or in the custody of a police officer subordinate to such police officer; or (b) being a public servant, commits rape on a woman in such public servant's custody or in the custody of a public servant subordinate to such public servant; or (c) being a member of the armed forces deployed in area by the Central or a State Government commits rape in such area; or (d) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a women's or children's institution, commits rape on any inmate of such jail, remand home, place or institution; or (e) being on the management or on the staff of a hospital, commits rape on a woman in that hospital; or (f) being a relative, guardian or teacher of, or a person in a position of trust or authority towards the woman, commits rape on such woman; or (g) commits rape during communal or sectarian violence; or (h) commits rape on a woman knowing her to be pregnant; or [***] (j) commits rape, on a woman incapable of giving consent; or (k) being in a position of control or dominance over a woman, commits rape on such woman; or (l) commits rape on a woman suffering from mental or physical disability; or (m) while committing rape causes grievous bodily harm or maims or disfigures or endangers the life of a woman;or (n) commits rape repeatedly on the same woman, shall be punished with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine. Explanation.—For the purposes of this sub-section,— (a) “armed forces” means the naval, military and air forces and includes any member of the Armed Forces constituted under any law for the time being in force, including the paramilitary forces and any auxiliary forces that are under the control of the Central Government or the State Government; (b) “hospital” means the precincts of the hospital and includes the precincts of any institution for the reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation; (c) “police officer” shall have the same meaning as assigned to the expression “police” under the Police Act, 1861 (5 of 1861); (d) “women's or children's institution” means an institution, whether called an orphanage or a home for neglected women or children or a widow's home or an institution called by any other name, which is established and maintained for the reception and care of women or children. [(3) Whoever, commits rape on a woman under sixteen years of age shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, and shall also be liable to fine: Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim: Provided further that any fine imposed under this subsection shall be paid to the victim.] 4. Punishment for penetrative sexual assault.-- [(1)] Whoever commits penetrative sexual assault shall be punished with imprisonment of either description for a term which shall not be less than [ten years] but which may extend to imprisonment for life, and shall also be liable to fine. [(2) Whoever commits penetrative sexual assault on a child below sixteen years of age shall be punished with imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of natural life of that person and shall also be liable to fine. (3) The fine imposed under sub-section (1) shall be just and reasonable and paid to the victim to meet the medical expenses and rehabilitation of such victim.] 38. Even this view is further strengthened by the High Court of Patna in the case of Deepak Kumar Vs. (3) The fine imposed under sub-section (1) shall be just and reasonable and paid to the victim to meet the medical expenses and rehabilitation of such victim.] 38. Even this view is further strengthened by the High Court of Patna in the case of Deepak Kumar Vs. The State of Bihar rendered in Criminal Appeal (SJ) No.1011 of 2022 dated 29.03.2023. The High Court of Patna in similar facts and circumstances of the said facts has quashed and set aside the conviction and sentenced imposed by the Trial Court while allowing the appeal. 39. On re-appreciation of the evidence on record and having gone through the impugned judgment and order, it clearly transpires that the Trial Court has committed serious error of facts and law in convicting the accused for the alleged offences and the same deserves interference. 40. For the foregoing reasons, the following order is passed:- The present appeal is allowed. The impugned judgment and order dated 10.03.2017 passed by the learned Special Judge (POCSO) and 2nd Additional Sessions Judge, Panchmahal at Godhra in Special (POCSO) Case No. 27 of 2015 is hereby quashed and set aside. The appellant – original accused is acquitted from the charges levelled against him for the offence under Sections 363, 366, 376(2)(h) etc of the Indian Penal Code and Section 4 of the Protection of Children from Sexual Offences Act, 2012. The appellant is ordered to be set at liberty forthwith if not required in connection with any other case. Fine, if any, paid by the appellant – accused to be refunded to him. Bail bond, if any, stands cancelled. Record and Proceedings to be sent back to the Trial Court forthwith.