JUDGMENT : Goutam Bhaduri, J. 1. Heard. 2. This appeal is directed against the judgment of conviction and order of sentence dated 06/03/2020 passed by the Special Judge (Protection of Children from Sexual Offences Act, 2012) Janjgir, District Janjgir-Champa (C.G.) in Special Sessions Trial No. 02/2018, whereby, the appellants have been convicted and sentenced as under :- Conviction Sentence Appellant No.1 Bharat Patel Under Section 363 of I.P.C. R.I. for 3 years and fine amount of Rs.500/-, in default of payment of fine, additional R.I. for 1 month, Under Section 366 of I.P.C. R.I. for 5 years and fine amount of Rs.500/-, in default of payment of fine, additional R.I. for 2 months Under Section 6 of POCSO Act R.I. for 15 years and fine amount of Rs.5000/-, in default of payment of fine, additional R.I. for 6 months Appellant No.2 Bhanu Dewangan Under Section 17 of POCSO Act R.I. for 10 years and fine amount of Rs.3000/-, in default of payment of fine, additional R.I. for 6 months, Appellant No. 3 Ram Niwas Pal Under Section 17 of POCSO R.I. for 10 years and fine amount of Rs.3000/-, in default of payment of fine, additional R.I. for 6 months, 3. Prosecution case, in brief, is that on 22/10/2017 the complainant P.D. lodged a report that on 21/10/2017, the prosecutrix was sitting outside of her house and after some time she was not found. However, till late night when she did not return, the complainant enquired and on presumption that the appellant No.1 Bharat Patel has enticed away the minor girl from the lawful custody, lodged the FIR (Ex.P/3) thereby the case was registered under Sections 363, 366 and 376 of IPC and Section 6 of POCSO Act. Subsequently on 08/11/2017, the prosecutrix was recovered from the possession of appellant No. 1 Bharat Patel and she was subjected to medical examination and after the medical examination appellant No. 1 was arrested and in order to aid and abet the offence, appellant No. 2 Bhanu Dewangan and appellant No.3 Ram Niwas Pal @ Gaderia were also arrested. Statement of the victim was recorded under Section 164 of CrPC and necessary statements were also recorded. The birth report from the Municipality of Champa was seized vide Ex. Statement of the victim was recorded under Section 164 of CrPC and necessary statements were also recorded. The birth report from the Municipality of Champa was seized vide Ex. P/24, apart from dakhil-kharij register of the school Ex.P/18 ‘C’ wherein date of birth of the prosecutrix was shown to be 26/02/2002 and after recording the statement of the relevant witnesses charge-sheet was filed. The appellants abjured their guilt during the course of the trial and claimed to be tried. The prosecution adduced evidence of as many as 11 witnesses and exhibited 24 documents. The learned trial Court after evaluation of the evidence convicted and sentenced the accused as aforesaid, hence this appeal. 4. (i) Learned counsel for the appellants would submit that the medical report Ex.P/6 would show that no attempt of forceful sexual intercourse was ever committed by appellant No.1, which is being proved by Dr. A. S. (PW-4) and there was inconsistency about the date of recovery as 164 of Cr.P.C. the statement of the victim would show that she stated that she was recovered from the possession of the appellant No. 1 on 07/11/2017, whereas the recovery memo Ex.P/8 which is proved by I.O. Romanus Toppo (PW-7) was of 08/11/2017 and the record would show the same I.O. issued notice to accused to appear before Champa on 10/11/2017, therefore, the document of the prosecution itself was contradictory in nature. 4 (ii) He further submits that the prosecution has further failed to prove the age of the prosecutrix beyond the reasonable doubt as on the date of incident according to prosecution, prosecutrix was more than 15 years and despite the suggestion for radiological test, the victim was not subjected to it. He would submits that the dakhil kharij register Ex.18 ‘C’, which has been filed in double in number, one is of the class 9 and another is of class-1, on the basis of that information, date of birth was recorded, which is not proved. He further submits that the birth report is Ex.P/24, on which, the trial Court has placed reliance to hold the date of birth of victim is of 26/02/2002. The original was not produced and where from such custody was produced and the author as well as how it was recorded is not proved. He further submits that the birth report is Ex.P/24, on which, the trial Court has placed reliance to hold the date of birth of victim is of 26/02/2002. The original was not produced and where from such custody was produced and the author as well as how it was recorded is not proved. He further submits that father and mother and father of the victim were examined as P.W.2 P.D. and P.W.3 G.D. and they were also not confronted, who would have been the best evidence to prove the age of the victim. He further submits that the statement of the victim (PW-1) would show that she was in relation with the accused No. 1 and of her own she went to Haridwar, wherein she stayed in custody without making any alarm or report would show that both were consenting party and got married. He further submits that there is no evidence exists in respect of appellants No. 2 and 3 on whom the abetement charges have been claimed. He submits when the prosecution is not able to prove the guilt beyond doubt the benefit should have been given to the accused and they are liable to be acquitted. 5. Per contra, learned counsel for the respondent would submit that the age of the prosecutrix has been proved by the document Ex.P/18 ‘C’ and Ex.P/24 and mother of the prosecutrix has also stated the date of birth of prosecutrix is 26/02/2002, therefore, there has been no ambiguity and the learned trial Court was justified in accepting the same. He would further submit that once it has been established that the victim was a minor, the consent theory of the age developed by the appellants would be of no use and statement of the victim would show that she was subjected to sexual assault, as such the order of the Court below is well merited, which do not call for any interference. 6. We have heard learned counsel for the parties. A perusal of FIR Ex.P/3 would show that report was made by father of the victim Prakash Dewangan (PW-2) wherein all doubts were pointed out towards the appellant No.1 that he has enticed away the minor girl from his lawful custody. 6. We have heard learned counsel for the parties. A perusal of FIR Ex.P/3 would show that report was made by father of the victim Prakash Dewangan (PW-2) wherein all doubts were pointed out towards the appellant No.1 that he has enticed away the minor girl from his lawful custody. On the basis of which, the Police started investigation to search the victim and recovery memo Ex.P/8 would show that the girl was recovered at Haridwar from the custody of appellant No. 1 on 08/11/2017. In the statement of the victim recorded under Section 164 of Cr.P.C., on 17/11/2017 she states that she was brought from Haridwar to Champa on 07/11/2017 and does not say that she was recovered from the accused. Ex.P/11 is a notice given to the appellant No. 1 to appear at Police Station Champa on 08/11/2017 in the background of the fact that the girl was recovered from his custody. The arrest memo Ex.P/19 would show that on 10/11/2017 he was arrested at Champa. 7. After the girl was brought to Champa she was subjected to medical examination and was examined by Dr. Anita Shrivastava (PW-4) according to the doctor, after entire examination of the victim on 10/11/2017 she opined that no attempt of forcible sexual intercourse was found and it was further reported that she gave a report that she was habitual to sexual intercourse. This report, marked as Ex.P/6, when we read along with statement of the victim (PW-1), particularly, in the examination-in-chief, she states that she was enticed away from the lawful custody of the parents, however, when she went for the cross-examination, it would show that she went in the company of the appellant No. 1, which she did not report to anyone nor did report the fact to her family members. In respect of the appellants No. 2 & 3 she states that B.D. is brother, in the relation and another R. is the friend of appellant No. 1. She further states that she stayed with appellant No. 1 at Haridwar at Dudhadhari Hospital and both of them used to go for construction job in the morning and used to come back late. During such stay she has not reported anyone that appellant No. 1 forcefully enticed her away. She further states that she stayed with appellant No. 1 at Haridwar at Dudhadhari Hospital and both of them used to go for construction job in the morning and used to come back late. During such stay she has not reported anyone that appellant No. 1 forcefully enticed her away. She further admits the fact that she along with the appellant and other two accused went to railway station on their motorcycle, thereafter she went to Haridwar by a train, but she did not disclose the fact to anyone. The statement of the victim, therefore, would show that she was a consenting party to the entire incident and the inference can be drawn from her conduct that she did not raise any alarm that she was forcefully being taken nor anything was informed to the family members. Now, the question comes for consideration as to whether the victim was a minor on the date of incident. 8. In order to prove the age of the victim, the prosecution has relied upon Ex.P/18 ‘C’ which is filed in two papers i.e. dakhil-kharij register, which is proved by (PW-8) Anil Sharaf, who is Lecturer in the school, stated that while she was admitted in the class 9 on the basis of entry of the Transfer Certificate, the entry of date of birth was made. Therefore, he is not the author of the document to show on what basis the entry of date of birth was made. Another document, i.e. dakhil-kharij register of class-1 was proved by (PW-11) R.P. and according to him, the date of birth of the victim was recorded as 26/02/2002 and she was admitted in 2008. The witness states that while the admission was being done, she was brought by her father along with the document in respect of date of birth. Father (PW-2) states in his examination-in-chief that he doesn’t remember the date of birth of his daughter/victim. P.W.3 G.D. mother is examined, who states that she went to school for her admission along with birth certificate. The birth certificate was brought at the time of admission, however, there is no reason as to why the prosecution failed to seize the same. P.W.3 G.D. mother is examined, who states that she went to school for her admission along with birth certificate. The birth certificate was brought at the time of admission, however, there is no reason as to why the prosecution failed to seize the same. Furthermore, the prosecution relied on a document (Ex.P/24) i.e. birth report, wherein date of birth of the victim is shown as 26/02/2002, this document is proved by Investigating Officer (PW-7) R T. A perusal of the statement of P.W.7 would show that he himself seized the said birth report from Nagar Palika Aushadhalaya, Champa. The existence of original, is not clear and it was not produced. The seizure was simplicitor by I.O. and on what basis such entries were made, by whom it was made, primary evidence to this effect are missing in this case. 9. The Supreme Court in the matter of P. Yuvaprakah vs. State Rep. By Inspector of Police, AIR 2023 SC 3225 has laid down that when dispute in respect of age of person arises in context of her or him being a victim under POCSO Act, the Courts have to take recourse to steps indicating under Section 94 of the Juvenile Justice Act, 2015 at para No. 13 & 14 of the judgment is reproduced herein below :- “13. It is evident from conjoint reading of the above provisions that wherever the dispute with respect to the age of a person arises in the context of her or him being a victim under the POCSO Act, the courts have to take recourse to the steps indicated in Section 94 of the JJ Act. The three documents in order of which the Juvenile Justice Act requires consideration is that the concerned court has to determine the age by considering the following documents: “(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof; (ii) the birth certificate given by a corporation or a municipal authority or a panchayat; (iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board”. 14. 14. Section 94 (2)(iii) of the JJ Act clearly indicates that the date of birth certificate from the school or matriculation or equivalent certificate by the concerned examination board has to be firstly preferred in the absence of which the birth certificate issued by the Corporation or Municipal Authority or Panchayat and it is only thereafter in the absence of these such documents the age is to be determined through “an ossification test” or “any other latest medical age determination test” conducted on the orders of the concerned authority, i.e. Committee or Board or Court. In the present case, concededly, only a transfer certificate and not the date of birth certificate or matriculation or equivalent certificate was considered. Ex. C1, i.e., the school transfer certificate showed the date of birth of the victim as 11.07.1997. Significantly, the transfer certificate was produced not by the prosecution but instead by the court summoned witness, i.e., CW-1. The burden is always upon the prosecution to establish what it alleges; therefore, the prosecution could not have been fallen back upon a document which it had never relied upon. Furthermore, DW-3, the concerned Revenue Official (Deputy Tahsildar) had stated on oath that the records for the year 1997 in respect to the births and deaths were missing. Since it did not answer to the description of any class of documents mentioned in Section 94(2)(i) as it was a mere transfer certificate, Ex C-1 could not have been relied upon to hold that M was below 18 years at the time of commission of the offence”. 10. Section 94(2)(iii) of the JJ Act clearly indicates that the date of birth certificate from the school or matriculation or equivalent certificate by the concerned examination board has to be firstly preferred in the absence of which the birth certificate issued by the Corporation or Municipal Authority or Panchayat and it is only thereafter in the absence of these such documents the age is to be determined through “an ossification test” or “any other latest medical age determination test” conducted on the orders of the concerned authority, i.e. Committee or Board or Court. 11. In the present case the prosecution to prove the age primarily relied on the dakhil-kharij register, which is not a requirement as to the statute to prove the age though a document was produced vide Ex. 11. In the present case the prosecution to prove the age primarily relied on the dakhil-kharij register, which is not a requirement as to the statute to prove the age though a document was produced vide Ex. P/24, but it was solely seized by the concerned I.O., who has entered the date of birth or where the document was kept is not clear. The statement of (PW-11) R.P. would show that while victim was admitted in the school, certain documents were brought with respect to the date of birth, but if the original has not been deliberately seized or Ex.P.24 is compared with original is proved by the prosecution, the adverse inference is required to be drawn. The original birth certificate if is in possession and in hold of the school, then in such case, the same is not being produced in evidence, the other evidence can be given as per Section 94 of Juvenile Justice Act alone, which is not the issue in the case. 12. In the matter of Ravinder Singh Gorkhi vs. State of U.P., (2006) 5 SCC 584 , the following was observed at para-26:- “26. In Birad Mal Singhvi v. Anand Purohit {1988 Supp SCC 604} this Court held: (SCC p. 619, para 15) “To render a document admissible under Section 35, three conditions must be satisfied, firstly, 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 date of birth made in the school register is relevant and admissible under Section 35 of the Act but the entry regarding the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded.”(emphasis supplied) 13. Even otherwise, as per the opinion of the doctor's M.L.C. Ex.P/6, it advised for ossification test. Even otherwise, as per the opinion of the doctor's M.L.C. Ex.P/6, it advised for ossification test. Admittedly, there is no ossification test, therefore, the prosecution has failed in its duty to prove the age of the victim to bring it within the force of POCSO Act and the doubts loom large about the date of birth. It is a cardinal principle of the criminal justice system that when two views are possible, then an inference is to be drawn in favour of the accused which favours him. Accordingly, we hold that the prosecution was unable to prove the age of the victim that she was minor at the time of incident. Further reading of the entire evidence would show considering the proximity of the age of the prosecutrix as per the prosecution if the age has not been proved beyond the reasonable doubt to be a minor, conviction in the case above, cannot be sustained. 14. Accordingly, the appeal is allowed and the impugned judgment of conviction and order of sentence is set-aside and they are acquitted of the said charges. The appellants are in jail. They be released forthwith if not required to be detained in any other case on each of them furnishing a personal bond in sum of Rs.10,000/- to the satisfaction of the trial Court. They shall appear before the higher Court as and when directed. The bail bonds furnished by the appellants shall remain in operation for a period of six months in view of the provisions contained under Section 437-A of the Cr.P.C.