JUDGMENT : Heard learned counsel for the appellant and the learned counsel for the State. 2. The appellant has filed this appeal against the judgment of conviction dated 21.4.2018 and the order of sentence dated 24.04.2018 passed by the learned Additional Sessions Judge1-cum-Spl. Judge (POCSO), Dhanbad in Special (POCSO) Case No. 88 of 2016, arising out of Katras PS Case No. 178 of 2016, corresponding to GR No. 2843 of 2016 whereby the appellant was convicted under sections 366(A) and 376 Indian Penal Code and section 4 of Protection of Children from Sexual Offences Act. The appellant was sentenced for his conviction under section 366(A) of IPC and Section 4 of Protection of Children from Sexual Offences Act to undergo RI for 10 years each with fine of Rs. 50,000/- each for both the offences with default stipulation of RI for 6 months. No separate sentence was passed under section 376 of IPC and both the aforesaid sentences were ordered to run concurrently. 3. The prosecution case as per the written report of the informant PW-2 is that on 16.07.2016 at about 09:30 A.M. his minor daughter (PW-1 victim girl) aged about 15 years went to her school, Balika Madhya Vidyalaya, Katrasgarh, from where she used to go to take her tuition and, in the evening, she used to come to the house, but, on that day, informant’s daughter did not return to the house. Then informant searched for her but he could not find his daughter. Thereafter, informant on 18.7.2016, informed at the police station about missing of his daughter. On 19.7.2016 the informant came to know that Babloo Turi (appellant) had kidnapped his minor daughter with bad intention. 4. On the basis of the written report of the informant, Katras PS Case No.178 of 2016, dated 19.07.2016 was registered against the appellant under sections 363/366A of IPC. After investigation, charge-sheet was submitted, cognizance of the offence was taken and the case was committed to the Court of Sessions. Charge was framed against the appellant under sections 366 A and 376 of IPC and under section 4 of the POCSO Act and trial was held. At the conclusion of trial, appellant was convicted and sentenced as aforesaid, hence, this appeal. 5. Charge was framed against the appellant under sections 366 A and 376 of IPC and under section 4 of the POCSO Act and trial was held. At the conclusion of trial, appellant was convicted and sentenced as aforesaid, hence, this appeal. 5. Prosecution had examined altogether 8 witnesses out of whom PW-1 is the victim herself; PW-2 is the father of the victim and informant and PW-3 is the mother of the victim; PW-4 is Setti Kumar Yadav; PW-5 is Dr. Sashi Lal; PW-6 is Cyril Marandi, who is the investigating officer of the case; PW-7 is Ganesh Turi and he is hostile witness and PW-8 is Bishwanath Oraon, who is judicial Magistrate 1st class, Dhanbad. 6. Victim PW-1 has stated in her evidence that on 16.7.2016 at 09:20 A.M, she was going to her school Rajendra Balika Ucch Vidyalaya, Katrashgarh, then, accused Babloo Turi told her that he will drop her at school by motorcycle, but, he threatened her that he will kill her father and took her to Dhanbad. Accused kept her for 20 days and established physical relation with her and when her father lodged the case, then accused brought her to the court. PW-1 further stated that her statement was recorded by the learned Magistrate under section 164 Cr.P.C. but at that time, out of fear, she had stated before the Magistrate whatever she was told by the accused. PW-1 further deposed that the accused had established physical relation with her and due to which she became pregnant and her medical test was also done. PW-1 has proved her signature on her statement under section 164 Cr.P.C. which was marked as Ext.-1. In her cross-examination, PW-1 has stated that accused lived in front of her house so she knew the accused. Accused used to come to her house and used to establish relation with her but she did not complain anywhere. PW-1 further stated that the child in her womb had died. 7. PW-2 is the informant of the case and father of the victim. Accused used to come to her house and used to establish relation with her but she did not complain anywhere. PW-1 further stated that the child in her womb had died. 7. PW-2 is the informant of the case and father of the victim. PW-2 has stated in his evidence that occurrence is of 16.7.2016 at 9:30 A.M. when his daughter had gone to her school at Rajendra Madhya Vidyalaya, Katrashgarh, but she did not return till 05:00 P.M. Then they started to search for her and on 17.7.2016, he did not find his daughter then on 18.7.2016, he informed at the police station about missing of his daughter. Informant further stated that on 19.7.2016 at 09:00 P.M., the accused phoned him and told that his daughter is with him and threatened that if he will inform the police then he will kill him and his daughter, thereafter, informant gave written report against the accused. Informant has identified his signature on the written report which was marked as Ext.-2. In his cross- examination, informant stated that on the date when he had filed the case in the police station, he had not given any document relating to age of her daughter. 8. PW-3 is the mother of the victim. PW-3 has stated in her evidence that age of her daughter is 15 years and she studies at Katrasgarh in Balika School. On the day of occurrence, her daughter went to school at 09:00 A.M., but, she did not return till 05:00 p.m., then her husband started to search for her but her daughter was not traced out and thereafter, information was given at the police station about the missing of her daughter. After three days of occurrence, accused Babloo Turi phoned her husband and informed that her daughter is with him, then, her husband lodged the case. 9. PW-4 is Setti Kumar Yadav, who is uncle of the victim. PW-4 has stated in his evidence that occurrence is of 16.7.2016. On 18.7. 2016 complaint was made in the police station but on 19.7.2016 the accused Babloo Turi had phoned his brother that victim is in his possession. After 15-20 days, the victim girl was recovered in Dhanbad with accused. 10. PW-5 is Dr. PW-4 has stated in his evidence that occurrence is of 16.7.2016. On 18.7. 2016 complaint was made in the police station but on 19.7.2016 the accused Babloo Turi had phoned his brother that victim is in his possession. After 15-20 days, the victim girl was recovered in Dhanbad with accused. 10. PW-5 is Dr. Shashi Lal, who had examined the victim on 5.8.2016 and found following injuries on the person of the victim- “(a) On examination general condition was fair, per abdomen examination-Uterus 22-24 weeks size, FHS not heard with stethoscope and dopplar. (b) On Local Examination- Hyman was torn, old in nature. HVS-Taken and sent to Pathologist, no external and internal injury was found, no any foreign hair was found, Victim adviced, X-ray for age determination, for pregnancy test and ultra sonography- for confirmation of pregnancy and gestational age, Report received on 14.9.2016-According to report- No spermatozoa seen in HVS, pregnancy test was position. (c) X-ray report- Film no. 3858 dated 5.8.2016 there was two plates, According to X-ray report- radiological age of victim is more than 18 years. (d) In UGS report- Live Foetus of about 24 weeks + 4 days (+-15 days) is visualized in the gravid uterus with breech presentation, fundo posterios placenta of Grade- 1 maturity and normal liquor.” Doctor had proved the medical examination report of the victim which was marked as Ext.-3. 11. PW-6 is Cyril Marandi, who is the investigating officer of the case. Investigating officer has stated in his evidence that victim was recovered from Dhanbad Railway Station and then she was sent to the PMCH for medical test. The statement of the victim was recorded under section 164 Cr.P.C. Investigating officer further stated that he received the photocopy of school leaving certificate of the victim from her father in which the date of birth is mentioned as 5.3.2002 which is marked as “X” for identification. Investigating officer has proved the computerized formal FIR which is marked as Ext.-4 and endorsement on written report of information which is marked as Ext.-2/1. In cross-examination, investigating officer stated that he did not record the statement of the victim. Arguments on behalf of the appellant 12. Investigating officer has proved the computerized formal FIR which is marked as Ext.-4 and endorsement on written report of information which is marked as Ext.-2/1. In cross-examination, investigating officer stated that he did not record the statement of the victim. Arguments on behalf of the appellant 12. The learned counsel for the appellant has submitted that the learned court below viewed the case only from the prosecution version, which would be apparent at para-19 of the judgment that two judicial officers have assessed the age of victim and held that she is minor, but not shown the reason or basis of assessment of age. Thus, until and unless the age of the alleged victim girl is established by a proper agency for determination of age, it cannot be said that victim girl is minor and the appellant cannot be convicted in the light of statement under section 164 Cr.P.C. vide Ext.-5. Thus, the impugned judgment of conviction and order of sentence are illegal and liable to be set-aside. PW-5 is Medical Officer, posted at PMCH, Saraidhela, Dhanbad and this witness has stated that on 5.8.2016 she had medically examined the victim, who assessed the age of alleged victim more than 18 years. 13. Learned counsel further submitted that PW-8 Bishwanath Oraon, is the learned Judicial Magistrate and he had stated that on 6.8.2016, he recorded the statement of victim under section 164 Cr.P.C. and he has stated that age of victim was 16 years. PW-8 had proved the statement under section 164 Cr.P.C. which is marked as Ext.5. The learned counsel has further argued that victim's statement of being 19 years and the doctor assessing her age above 18 years, would raise the issue of consent and, as per facts and circumstances of the case she had then gone voluntary. 14. Learned counsel for the appellant further submitted that PW-1victim in her statement under section 164 Cr.P.C. has said that she was in love with the accused. PW-1 had also stated that the accused used to come to the house of the victim. Counsel further said that as per victim's cross-examination, the accused used to come to her house and usually did wrong with her and used to establish physical relation but previously she did not complain anywhere. PW-1 had also stated that the accused used to come to the house of the victim. Counsel further said that as per victim's cross-examination, the accused used to come to her house and usually did wrong with her and used to establish physical relation but previously she did not complain anywhere. Appellant's counsel then submitted that the accused and victim are neighbours in same locality and both are in love and also good friends and she went with the accused. The appellant and victim were in love and the victim had made physical relation many times with the accused prior to this incident. The accused frequently used to come to the victim's house and her mother and father also knew about her relation but they did not make objection to this. The learned counsel also pointed out that in her deposition victim has stated that appellant took her away on motorbike to Dhanbad and submitted that the distance is considerable, but, the victim did not raise alarm. Finally, learned counsel submitted that the doctor has also said there was no external and internal injury. Arguments on behalf of the State 15. Mr. Anup Pawan Topno, the learned counsel for the State has opposed the appeal and also filed his written notes of argument. He has argued that the appellant has been convicted under sections 366(A) and 376 of Indian Penal Code and section 4 of the Protection of Children from Sexual Offences Act. He further submitted that as per deposition of the Investigating officer, the age of the victim girl as per her school leaving certificate is 05.03.2002, and on the date of occurrence she was 14 years old and clearly a minor. Hence, there is no question of consent of the victim being considered and even the JM 1st Class PW-8 had deposed inspite of the victim stating her age to be 19 years, he had assessed her age to be 16 years. 16. The learned counsel for the State has also argued that as per the evidence of the victim she deposed that the appellant took the victim along with him on the pretext of dropping her in the school, but he threatened her and took her to Dhanbad and in cross-examination she deposed that both stayed at the house of appellant's friend. The learned counsel for the State has also argued that as per the evidence of the victim she deposed that the appellant took the victim along with him on the pretext of dropping her in the school, but he threatened her and took her to Dhanbad and in cross-examination she deposed that both stayed at the house of appellant's friend. Further victim deposed that the appellant kept the victim at Dhanbad for 20 days and established physical relation with her. In her statement under section 164 Cr.P.C., she stated that she was in love with appellant and she married him and became pregnant. Victim in her evidence had stated that the child in her womb had died on its own and the appellant used to visit the house of the victim frequently and established physical relations with her, but she never made any written complaint about this. Victim's father or PW-2, has stated that his daughter was missing from 16.7.2016 and when he did not find his daughter, then he informed the police on 18.7.2016. On 19.7.2016, he received a call from the appellant in which the appellant threatened that if the informant makes any complaint before police, he will kill the informant and his daughter and thereafter, he filed a written complaint. Finally, the learned APP submitted that the doctor or PW-5 had stated that victim was pregnant by 24 weeks. The learned counsel has therefore argued that based on the aforesaid, conviction and sentence both need to be sustained and upheld by this court. CONCLUSION 17. We have heard learned counsel for the appellant and learned counsel for the state and also gone through the facts and evidences of the case. Appellant is convicted under section 366(A) and section 376 of IPC and Section 4 of Protection of Children from Sexual Offences Act. Since, appellant has been convicted under section 366(A) of IPC and under Section 4 of Protection of Children from Sexual Offences Act, it would be desirable to see whether prosecution has established that victim girl was under 18 years of age. A photostat copy of school leaving certificate of the victim girl is on record in which date of birth is mentioned as 05.03.2002 which is marked as ‘’X’. 18. A photostat copy of school leaving certificate of the victim girl is on record in which date of birth is mentioned as 05.03.2002 which is marked as ‘’X’. 18. Before proceeding forward, it would be fruitful to see a recent judgment de-livered by the Hon’ble Apex Court in case of P. Yuvaprakash Versus State Rep. by Inspector of Police reported in 2023 SCC OnLine SC 846, wherein Hon’ble Apex Court has dealt the issue of determination of age of victim while hearing a case of an appellant who was convicted under section 6 of the Protection of Children from Sexual Offences Act. In P. Yuvaprakash(supra) almost similar issue came up before the Hon’Apex Court wherein appellant was convicted under section 6 of the Protection of Children from Sexual Offences Act, 2012 and school transfer certificate of victim girl was filed in regard to age of the victim. Hon’ble Apex Court dealt with Section 34(1) of the POCSO Act and Section 94 of the JJ Act, 2015 and at paragraph 13 of its judgment noted that whenever the dispute with respect to the age of person arises in 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. For ready reference paragraphs 11, 12 and 13 P. Yuvaprakash(supra) are quoted herein below:- “11. Before discussing the merits of the contentions and evidence in this case, it is necessary to extract Section 34 of the POCSO Act which reads as follows: “34. Procedure in case of commission of offence by child and determination of age by Special Court. - (1) Where any offence under this Act is committed by a child, such child shall be dealt with under the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016). (2) If any question arises in any proceeding before the Special Court whether a person is a child or not, such question shall be determined by the Special Court after satisfying itself about the age of such person and it shall record in writing its reasons for such determination. (2) If any question arises in any proceeding before the Special Court whether a person is a child or not, such question shall be determined by the Special Court after satisfying itself about the age of such person and it shall record in writing its reasons for such determination. (3) No order made by the Special Court shall be deemed to be invalid merely by any subsequent proof that the age of a person as determined by it under sub-section (2) was not the correct age of that person.” 12. In view of Section 34(1) of the POCSO Act, Section 94 of the JJ Act, 2015 becomes relevant, and applicable. That provision is extracted be-low: “94. Presumption and determination of age. - (1) Where, it is obvious to the Committee or the Board, based on the appearance of the per-son brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under section 14 or section 36, as the case may be, without waiting for further confirmation of the age. (2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining - (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 deter-mined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board: Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order. (3) The age recorded by the Committee or the Board to be the age of per-son so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person.” 13. It is evident from conjoint reading of the above provisions that wher-ever 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”.’’ 19. Thereafter, in paragraph -14 the Hon’ble Apex Court finally concluded that:- “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. ---" 20. Coming to the case in hand, Ext.-X is victim’s school leaving certificate, which was issued on 11-11-2014 and it bears the name of as Balika Ucch Vidyalaya, Mudedih, Sejua, Dhanbad, and at its serial no. 7 it is mentioned that victim was admitted in the school in class 7 on 04-04-2013 and date of birth as mentioned in the school leaving certificate at serial no. 6 is noted as 05.03.2002. 7 it is mentioned that victim was admitted in the school in class 7 on 04-04-2013 and date of birth as mentioned in the school leaving certificate at serial no. 6 is noted as 05.03.2002. Hence, from the school leaving certificate of the victim, it appears that victim was admitted in the said school in class seven on 04-04-2013 and her date of birth is 05.03.2002, but, on the basis of which document, date of birth of the victim is noted in the school leaving certificate as 05.03.2002, is not known. Here, it is perti-nent to note that victim PW-1 in her deposition has deposed that she was studying in Rajendra Balika Ucch Vidyalaya, Katrashgarh, when she was abducted by the appellant. But, school leaving certificate or Ext.-X was issued from Balika Ucch Vidyalaya, Mudedih, Sejua, Dhanbad. Further, investigating officer PW-6 at para-graph-12 of his cross-examination has stated that he had not gone to the school for verification and he did not see the original document. Hence, fact remains that investigating officer had neither gone for verification of age related document of victim to the Balika Ucch Vidyalaya, Mudedih, Sejua, Dhanbad, from where school leaving certificate Ext.-X was issued nor gone to the Rajendra Balika Ucch Vidyalaya, Katrashgarh, where victim was studying on the date of her alleged abduction. 21. Be that as it may, in P. Yuvaprakash(supra), Hon’ble Apex Court at para-graph-14 has held that 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 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 case in hand school leaving certificate Ext.-X was filed by the prosecution and not the date of birth certificate from school or the matriculation or equivalent certificate from the concerned examination Board as per section 94 (2)(i) of JJ Act and in absence thereof, the birth certificate given by a corporation or a municipal authority or a panchayat as per section 94 (2)(ii) J.J. Act. Hence, in the case in hand, school leaving certificate Ext.-X of the victim filed by the prosecution cannot be relied upon. 22. Now, it will be fruitful to see the age of victim as stated in section 164 Cr.P.C. statement of the victim and the opinion of the doctor as to age of the victim and also noting of the learned trial court in the impugned judgment as to age of the victim. In her statement under section 164 Cr.P.C, under the ‘Form of Heading and Deposition’, victim has stated her age as 19 years. Further, PW-5 Dr. Sashi Lal, who had examined the victim had deposed that according to the X- ray report Radiological Age of the victim to be more than 18 years. Hence, in absence of date of birth certificate from the school or matriculation or equivalent certificate from the concerned Board or the birth certificate given by a corporation or a municipal authority or a panchayat as per provisions of section 94 (2)(i) and section 94 (2)(ii) J. J. Act, the provision of section 94 (2)(iii) J. J. Act has to be followed, according to which age shall be determined by ossification test. But, in the case in hand provision of section 94 (2) (iii) J. J. Act has not been followed. Further, ongoing through the impugned judgment, we find learned trial court has not followed the provision of section 94(2) of the J.J Act to assess the age of the victim girl. At paragraph-19 of the impugned judgment, learned trial court has relied on age assessed by two judicial officers, one at the time of recording of statement under section 164 Cr.P.C., which is 16 years and other at the time of recording of evidence of the victim as PW-1, which is 15 years. These ages of the victim girl are noted by the aforesaid two judicial officers under the ‘Form of Heading and Deposition’, but, the basis of assessment of age of the victim girl by these two judicial officers are not known and hence, reliance by the learned trial court judge on the age assessed by the aforesaid two judicial officers, as to age of the victim was not proper. Hence, in the facts and circumstances of the case, relying on the X-ray report and evidence of the doctor PW-5, who has stated that victim girl was more than 18 years of age, it can be safely presumed that victim girl was not a minor at the time of occurrence. 23. Further, it appears that victim has stated true facts in her statement under section 164 of Cr.P.C, wherein victim had stated that on 16.07.2016, she had fled with the appellant from bazar. Both the victim and appellant stayed at Dhanbad for one month in a room on rent. Victim girl also stated that appellant loved her, she had married with the appellant, she was also pregnant and she was willing to go to her matrimonial home. Here, it is also pertinent to note that investigating officer of the case, in his cross-examination has deposed that he had not taken the statement of the victim girl. 24. Hence, from the forgoing discussions, it is concluded that prosecution has not been able to prove the charges against the appellant under section 366(A) and Section 376 of IPC and section 4 of the Protection of Children from Sexual Offences Act. 25. Accordingly, impugned judgment of conviction dated 21.4.2018 and the order of sentence dated 24.04.2018 passed by the learned Additional Sessions Judge1-cum-Spl. Judge (POCSO), Dhanbad in Special (POCSO) Case No. 88 of 2016, arising out of Katras PS Case No. 178 of 2016, corresponding to GR No. 2843 of 2016, cannot be sustained and are hereby set aside. 26. Accordingly, the appellant, namely, Babloo Turi should be released forthwith, if not wanted in custody, in connection with any other case 27. Pending Interlocutory Application(s), if any, stands disposed of. 28. Accordingly, the appeal is allowed.