JUDGMENT : Sanjay Kumar Jaiswal, J. 1. This criminal appeal filed by the appellants under Section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as “Cr.P.C.”) is directed against the impugned judgment of conviction and order of sentence dated 10.08.2017 passed by the Special Judge, POCSO (F.T.C.), Dhamtari, Chhattisgarh in Special Sessions Trial No.136 of 2016, whereby the appellants have been convicted and sentenced as under :- Conviction Sentence U/s 341/34 of IPC : Simple imprisonment for 1 month to each appellant. U/s 363/34 of IPC : Rigorous imprisonment for 3 years and fine of Rs.1,000/- to each appellant, in default of payment of fine, additional simple imprisonment for 3 months to each appellant. U/s 376(D) of IPC : Rigorous imprisonment for 20 years and fine of Rs.5,000/- to each appellant, in default of payment of fine, additional simple imprisonment for 6 months to each appellant. U/s 6 of POCSO Act, 2012 Rigorous imprisonment for 20 years and fine of Rs.5,000/- to each appellant, in default of payment of fine, additional simple imprisonment for 6 months to each appellant. All the sentences were directed to run concurrently. 2. The fact of the case is that on 25.11.2016, in between 1:15 PM to 5:30 PM, appellants forcibly took the prosecutrix (PW-1), who was below 18 years of age, to Muktidham waiting room at village Kareli Badi on a motorcycle without her consent and committed gang rape one after the other. 3. Briefly stated facts of the case are that on 25.11.2016, at about 2:00 PM, the prosecutrix (PW-1), who was below 16 years of age, was going to Baheredi Khar on a bicycle to the field where her mother was working, on the way, the appellants stopped her. Accused Gitu Sahu @ Jeetu forcibly took the prosecutrix on a motorcycle, which was being driven by accused Arwind Pal. She was taken to Muktidham waiting room situated near nursery on the banks of Nava Talab and forcibly she was raped first by Arwind Pal, then by Gitu Sahu @ Jeetu, Hirendra Sahu and Rajendra Kumar Sahu. While searching, prosecutrix’s brother and brother's friend reached to Muktidham and upon seeing them, appellants ran away from the spot, then, her brother and brother's friend caught Hirendra Sahu and Arwind Pal. While searching, prosecutrix’s brother and brother's friend reached to Muktidham and upon seeing them, appellants ran away from the spot, then, her brother and brother's friend caught Hirendra Sahu and Arwind Pal. Subsequently, on the same day, a written report was lodged by the prosecutrix (PW-1) vide Ex.P/1 at Police Chowki Kareli Badi, Police Station Magarload, District Dhamtari (C.G.), on the basis of which, First Information Report was registered vide Ex.P/2. After consent, medical examination of prosecutrix (PW-1) was conducted by Dr. Pushpa Janbandhu (PW-17) on 26.11.2016 at about 1:00 PM. She opined that it was not possible to give opinion regarding immediate sexual intercourse and advised to do X-ray to check age of prosecutrix, but ossification test was not conducted. The prepared slides and seized clothes were sent for its chemical examination to Forensic Science Laboratory and as per FSL report (Ex.P/41), semen stains and human sperm were found on the vaginal slides of prosecutrix as well as on the underwears of appellants Rajendra Kumar Sahu and Gitu Sahu @ Jeetu. 4. After the completion of investigation, the appellants were charge-sheeted for the offence punishable under Sections 341/34, 363/34 and 376(D) of the Indian Penal Code, 1860 (hereinafter referred to as “IPC”) as well as Section 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as “POCSO Act”) before the concerned jurisdictional Criminal Court and thereafter, the case was committed to the Court of Special Sessions Judge under POCSO (F.T.C.), Dhamtari (C.G.) for hearing and trial in accordance with law, in which the appellants abjured their guilt, took the plea of false implication and entered into trial. 5. During the course of trial, in order to bring home the offence, the prosecution has examined as many as 18 witnesses and exhibited 41 documents. In defence, appellants have examined 2 witnesses. Statements of the appellants were recorded under Section 313 of Cr.P.C., in which, they denied the circumstances appearing against them in the evidence brought on record by the prosecution, pleaded innocence and false implication. 6. In defence, appellants have examined 2 witnesses. Statements of the appellants were recorded under Section 313 of Cr.P.C., in which, they denied the circumstances appearing against them in the evidence brought on record by the prosecution, pleaded innocence and false implication. 6. After the conclusion of trial, the trial Court, by impugned judgment of conviction and order of sentence dated 10.08.2017, on appreciation of oral and documentary evidence available on record, has convicted and sentenced the appellants as mentioned herein-above, against which, the present appeal has been filed by the appellants calling in question the legality, validity and correctness of the impugned judgment of conviction and order of sentence. 7. Mr. Uttam Pandey, learned counsel for the appellants would submit that the prosecution has not been able to prove that on the date of incident, prosecutrix (PW-1) was less than 18 years of age. The parents of prosecutrix have been unable to state the date of birth of prosecutrix. He would further submit that no source of information has been given on what basis the date of birth of prosecutrix has been mentioned as 03.01.2000 in school admission register. It is contended that the mother of prosecutrix (PW-13) has stated that she had got registered the date of birth of prosecutrix in Kotwari register, but Kotwari register has not been produced. It is further contended that Dr. Pushpa Janbandhu (PW-17) advised to conduct ossification test to verify the age of prosecutrix, but Inspector Rajkumar Sori (PW-9) has not stated anything about ossification test, upon which, no explanation has come from the side of prosecution. At the time of medical examination, Dr. Pushpa Janbandhu (PW-17) found that prosecutrix have 29 teeth and as per Modi's Jurisprudence, if there were more than 28 teeth, age of prosecutrix could be between 17-20 years. Thus, prosecution has not been able to prove that date of birth of prosecutrix was less than 18 years. In this regard, he has placed reliance in the matters of Sunil v. State of Haryana, (2010) 1 SCC 742 and Alamelu and another Vs. State represented by Inspector of Police, (2011) 2 SCC 385 . He argued that at what time the incident took place, there are contradictions in the Court statement, police statement under Section 161 of the Cr.P.C., statement before Magistrate under Section 164 of the Cr.P.C. as well as written report (Ex.P/1) of the prosecutrix. State represented by Inspector of Police, (2011) 2 SCC 385 . He argued that at what time the incident took place, there are contradictions in the Court statement, police statement under Section 161 of the Cr.P.C., statement before Magistrate under Section 164 of the Cr.P.C. as well as written report (Ex.P/1) of the prosecutrix. He further argued that no injuries were found in her medical report and doctor did not give any definite opinion about forcible sexual intercourse. It is argued that the articles were sent to the Forensic Science Laboratory after about 20 days and during these 20 days, neither any explanation has been given by investigator regarding whereabouts of vaginal slides and underwear, nor any Malkhana register has been presented by the Police. It is further argued that Dr. Pushpa Janabandhu (PW-17) has admitted that underwear brought before her for testing is in open condition. The prosecutrix is consenting party with accused Arwind Pal and in this regard, Bharat Bharti @ Sonu Bharti (PW-10) has been examined as an independent witness, who deposed in his evidence that prosecutrix and appellant Arwind Pal were coming together, at that time, prosecutrix was in normal condition and it did not appear that such a serious incident had happened to her. It is also argued that prosecutrix (PW-1) has admitted that she lodged the written report as per instruction of her brother. Hence, it is neither proved that prosecutrix is below 18 years of age on the date of incident nor forcible sexual intercourse has been committed with her. Therefore, conviction and sentence of the appellants are not justified and valid in the light of law and in that view of the matter, appellants are entitled for acquittal on the basis of benefit of doubt and the appeal deserves to be allowed. 8. Per contra, Mr. H.A.P.S. Bhatia, learned State counsel supported the impugned judgment of conviction and order of sentence and would submit that the prosecution has proved the offence beyond reasonable doubt by leading evidence of clinching nature, in which, there is no reason to have any kind of doubt. He would further submit that finding of the trial Court is based on fair and sufficient evidence available on record, which does not require any interference and, therefore, the appeal is liable to be dismissed. 9. He would further submit that finding of the trial Court is based on fair and sufficient evidence available on record, which does not require any interference and, therefore, the appeal is liable to be dismissed. 9. We have heard learned counsel for the parties, considered their rival submissions made herein-above and also gone through the records with utmost circumspection. 10. First, we shall deal with the age determination of prosecutrix. 11. Prosecutrix (PW-1) herself has deposed in her Court statement that her date of birth is 03.01.2000. Father of prosecutrix (PW-14) and mother of prosecutrix (PW- 13) were unable to state the date of birth or the year of birth of prosecutrix before the trial Court. Learned trial Court on the basis of Sl. No.62 of school admission register of Government New Primary School, Aspatalpara, Kareli Bada produced by Assistant Teacher Bhaiyalal Sahu (PW-4), in which, date of birth of prosecutrix is mentioned as 03.01.2000, has concluded that on the date of incident i.e. on 25.11.2016, age of prosecutrix was about 17 years. 12. Hon’ble the Supreme Court in the matter of Sunil (supra), has held that the prosecution also failed to produce any Admission Form of the school which would have been primary evidence regarding the age of the prosecutrix. The School Leaving Certificate produced by the prosecution was also procured on 12.9.1996, six days after the incident and three days after the arrest of the appellant. As per that certificate also, she joined the school in the middle of the session and left the school in the middle of the session. The attendance in the school of 100 days is also not reliable. The prosecutrix was admitted in the school by Ashok Kumar, her brother. The said Ashok Kumar was not examined. The alleged School Leaving Certificate on the basis of which the age was entered in the school was not produced. 13. Further, in the matter of Alamelu (supra), Hon’ble the Supreme Court has held that the transfer certificate which is issued by a government school and is duly signed by Headmaster would be admissible in evidence under Section 35 of the Evidence Act, 1872. However, the admissibility of such a document would be of not much evidentiary value to prove the age of the prosecutrix in the absence of the material on the basis of which the age was recorded. However, the admissibility of such a document would be of not much evidentiary value to prove the age of the prosecutrix in the absence of the material on the basis of which the age was recorded. The Supreme Court further held that 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. 14. Reverting to the facts of the present case in the light of aforementioned judgments passed by Hon’ble the Supreme Court, it is quite vivid that the parents can state the date of birth of child in a better way than the child himself. In the case at hand, the mother of prosecutrix (PW-13) and the father of prosecutrix (PW-14) have been unable to state the date of birth of prosecutrix. The mother of the prosecutrix (PW-13) has deposed in her cross-examination that she had got registered the date of birth of prosecutrix in the Kotwari register and put her thumb impression, but said Kotwari register has not been produced. The father of the prosecutrix (PW-14) has deposed in his crossexamination that he had entered the date of birth of prosecutrix at the time of admission in school as per instruction given by people of Ramayana group. Thus, it is clear that father of prosecutrix himself did not know the date of birth of prosecutrix. Assistant Teacher Bhaiyalal Sahu (PW-4), who produced the school admission register, has deposed that in school admission register (Ex.P/10), it is mentioned that after passing 5th Class by prosecutrix, she was given a transfer certificate, but the same was not certified. He has admitted that there is no entry in the register as to on what basis date of birth of prosecutrix was mentioned in the school admission register (Ex.P/10). Despite opinion of the doctor, ossification test of prosecutrix has not been conducted. Dr. Pushpa Janbandhu (PW-17) has admitted in her evidence that at the time of medical examination of prosecutrix, she had 29 teeth and as per Modi's Jurisprudence, if there were 29 teeth then the person could be between 17-20 years of age. 15. Despite opinion of the doctor, ossification test of prosecutrix has not been conducted. Dr. Pushpa Janbandhu (PW-17) has admitted in her evidence that at the time of medical examination of prosecutrix, she had 29 teeth and as per Modi's Jurisprudence, if there were 29 teeth then the person could be between 17-20 years of age. 15. In the aforementioned facts and circumstances of the case, we are of the considered opinion that the prosecution has failed to prove beyond reasonable doubt that prosecutrix (PW-1) was below 18 years of age at the time of incident. 16. Now, it has to be seen whether the statement of the prosecutrix in this case is reliable and beyond doubt. 17. In the matter of Dola and ors. V. State of Odisha, (2018) 18 SCC 695, the Hon’ble Supreme Court has held as under:- “(i) the Trial Court as well as the High Court had convicted the appellants without considering the aforementioned factors in their proper perspective. The testimony of the victim is full of inconsistencies and does not find support from any other evidence whatsoever. Moreover, the evidence of the informant/victim is inconsistent and self-destructive at different places. It is noticeable that the medical record and the Doctor’s evidence do not specify whether there were any signs of forcible sexual intercourse. It seems that the First Information Report was lodged with false allegations to extract revenge from the appellants, who had uncovered the theft of forest produce by the informant and her husband. The High Court had brushed aside the various inconsistencies pointed out by us only on the ground that the victim could not have deposed falsely before the Court. The High Court had proceeded on the basis of assumptions, conjectures and surmises, inasmuch as such assumptions are not corroborated by any reliable evidence. The medical evidence does not support the case of the prosecution relating to the offence of rape. Having regard to the totality of the material on record and on facts and circumstances of this case, it was not possible for this Court to agree with the concurrent conclusions reached by the courts below.” 18. In the matter of Krishan Kumar Malik V. State of Haryana, 2011 (7) SCC 130 in respect of the offence of gang rape under Section 376(2) (g), IPC, it has been held as under:- “31. In the matter of Krishan Kumar Malik V. State of Haryana, 2011 (7) SCC 130 in respect of the offence of gang rape under Section 376(2) (g), IPC, it has been held as under:- “31. No doubt, it is true that to hold an accused guilty for commission of an offence of rape, the solitary evidence of prosecutrix is sufficient provided the same inspires confidence and appears to be absolutely trustworthy, unblemished and should be of sterling quality. But, in the case in hand, the evidence of the prosecutrix, showing several lacunae, which have already been projected hereinabove, would go to show that her evidence does not fall in that category and cannot be relied upon to hold the Appellant guilty of the said offences.” 19. In the case of State of Punjab Vs. Gurmit Singh, (1996) 2 SCC 384 it has been held as under :- “If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the Court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated I the background of the entire case and the trial Court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations.” 20. Similarly, in the matter of Sadashiv Ramrao Hadbe Vs. State of Maharashtra and another, (2006) 10 SCC 92 the Supreme Court held as under:- “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.” 21. Similarly, in the case of Ramdas and others Vs. 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.” 21. Similarly, in the case of Ramdas and others Vs. State of Maharashtra, (2007) 2 SCC 170 it has been held as under:- “Conviction in a case of rape can be based solely on the testimony of the prosecutrix, but that can be done in a case where the Court is convinced about the truthfulness of the prosecutrix and there exist no circumstances which cast a shadow of doubt over her veracity.” 22. The prosecutrix (PW-1) has deposed in her evidence that she was raped by the appellants one after the other, but there is serious contradiction in her statement regarding time of incident. She further deposed that incident took place at about 4:00 PM, but in the written report (Ex.P/1), it is mentioned that incident took place at about 2:00 PM. In her police statement recorded under Section 161 of the Cr.P.C. (Ex.D/1), it is mentioned that incident took place at about 2:15 PM and in the statement recorded before the Magistrate under Section 164 of the Cr.P.C., she stated that incident took place at about 8:00 AM. Thus, there is significant contradiction in her statement regarding time of incident, which makes her statement doubtful. It is noteworthy that medical evidence of prosecutrix (PW-1) does not corroborate her statement. Dr. Pushpa Janbandhu (PW-17) has deposed that prosecutrix did not have any internal or external injury and it was not possible to give an opinion that there was immediate sexual intercourse with her. In view of the above statement of prosecutrix (PW-1) is not corroborated by the medical evidence. 23. In the matter of Santa Singh v. State of Punjab, AIR 1956 SC 526 , the Supreme Court has held that if there exists a suspicious delay in sending the sealed parcel to the expert, the result is vitiated. 24. Similarly, in the matter of Amarjit Singh alias Babbu v. State of Punjab, 1995 Supp (c) SCC 217, the Supreme Court has held that non-sealing of the revolver at the spot was a serious infirmity as the possibility of tampering could not be ruled out and observed in paragraph 7 as under: - “7. 24. Similarly, in the matter of Amarjit Singh alias Babbu v. State of Punjab, 1995 Supp (c) SCC 217, the Supreme Court has held that non-sealing of the revolver at the spot was a serious infirmity as the possibility of tampering could not be ruled out and observed in paragraph 7 as under: - “7. The entire prosecution case, thus, is clouded with number of infirmities which compel this Court not to accept such an unworthy evidence. These infirmities have been brushed aside by the Designated Court by observing that since the model number of the revolver was noted down, the non-sealing of the revolver or the handing over of the same to some other police official or a private person, who has not been examined are of no consequence. We are unable to agree and subscribe to this view in a case of this nature. The non-sealing of the revolver at the spot is a serious infirmity because the possibility of tampering with the weapon cannot be ruled out. The report of PW 4 that the weapon is capable of being fired is insignificant since it cannot be said with certainty as to what was the condition of the weapon at the time of the recovery, apart from the evidence of PW 4 that he did not test-fire the revolver.” 25. A Division Bench of the M.P. High Court in the matter of Vijay Singh v. State of M.P., (2004) 4 MPLJ 543 held that there is no explanation regarding the period of ten days during which articles were available with the prosecution and due to lack of evidence regarding sealing of the articles in a proper manner and its identification, the seizure of material and consequential report regarding the said article / material cannot be believed. 26. Insofar as the FSL report of State Forensic Science Laboratory (Ex.P/41) is concerned, finding of semen stains or human sperm in a man's underwear may be a normal thing and he cannot be said to be involved in the crime of rape merely because of said situation. As far as question of semen stains and human sperm being found in the vaginal slides of prosecutrix is concerned, in this regard, FSL report (Ex.P/41) becomes doubtful because Dr. Pushpa Janabandhu (PW-17) has deposed in her evidence that underwear of prosecutrix was brought to her in an open condition. As far as question of semen stains and human sperm being found in the vaginal slides of prosecutrix is concerned, in this regard, FSL report (Ex.P/41) becomes doubtful because Dr. Pushpa Janabandhu (PW-17) has deposed in her evidence that underwear of prosecutrix was brought to her in an open condition. According to FSL report (Ex.P/41), articles were deposited in the laboratory on 15.12.2016 i.e. about 20 days after the incident. There is no information given in the record as to where the articles were kept for 20 days as well as no Malkhana register of Police Station was produced. In such a situation, FSL report (Ex.P/41) becomes doubtful. 27. Learned counsel for the appellants has argued that prosecutrix (PW-1) and appellant Arwind Pal were consenting party. In this regard, it is noteworthy that Bharat Bharti @ Sonu Bharti (PW-10) has deposed that she had seen the prosecutrix coming back towards village from Muktidham with appellants Arwind Pal and Hirendra, at that time, prosecutrix was walking in a normal condition. Statement of this independent witness becomes important because in the medical evidence, no internal or external injury has been found on the body of prosecutrix. Bharat Bharti @ Sonu Bharti (PW-10) has deposed that prosecutrix was in a normal condition immediately after the alleged incident. The prosecutrix (PW-1) has deposed in her Court statement that when appellant Arwind Pal had taken her towards Muktidham on a motorcycle, her hands, legs and mouth were open and she could have screamed for help, but she did not scream. She has admitted that if she wanted, she could have run away from the spot and could have called for help, but she did not run away from the spot. In such a situation, it does not appear that prosecutrix, who was not proved to be below 18 years of age, was subjected to forceful sexual intercourse. 28. The prosecutrix (PW-1) has stated that she gave the written report (Ex.P/1) to police, as per advise of her brother. She has also stated that she herself never went to Police Chowki Kareli Badi, rather her brother took her to Police Chowki Kareli Badi. 28. The prosecutrix (PW-1) has stated that she gave the written report (Ex.P/1) to police, as per advise of her brother. She has also stated that she herself never went to Police Chowki Kareli Badi, rather her brother took her to Police Chowki Kareli Badi. In the said situation, when villagers and nearby people had seen the prosecutrix along with appellant Arwind Pal coming from the open place Muktidham and the said fact has also come in the prosecution case as well as written report that when on the spot, brother of prosecutrix and friend of prosecutrix's brother had arrived, then in such a situation, possibility of including Arwind Pal and other persons after consideration cannot be ruled out. 29. For the foregoing reasons and discussion, we are of the considered opinion that statement of prosecutrix (PW-1) is not corroborated by the medical evidence; satisfactory explanation could not be given for delay in sending the property or articles to Forensic Science Laboratory; FSL report is doubtful; written report (Ex.P/1) was lodged as per instruction of brother of prosecutrix and it has not been proved that prosecutrix was below the age of 18 years. 30. In that view of the matter, the finding so recorded by the trial Court is incorrect finding and is not based on the evidence available on record. 31. Under these circumstances, the prosecution has failed to establish its case beyond all reasonable doubts and therefore, the appellants are entitled for acquittal from the offence punishable under Sections 341/34, 363/34 and 376(D) of the IPC as well as Section 6 of the POCSO Act on the basis of benefit of doubt. 32. Accordingly, the impugned judgment of conviction and order of sentence dated 10.08.2017 is set aside. The appellants are acquitted of the charges under Sections 341/34, 363/34 and 376(D) of the IPC as well as Section 6 of the POCSO Act. They are stated to be in jail since 26.11.2016. They be set at liberty forthwith, if not required in any other offence. 33. Resultantly, the criminal appeal is allowed. 34. Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned for necessary information and action, if any. A certified copy of the judgment may also be sent to the concerned Jail Superintendent forthwith wherein the appellants are suffering the jail sentence.