JUDGMENT : Chandra Shekhar Jha, J. The present appeal preferred by appellant/convict Dipak Thakur @ Dipu Thakur against judgment of conviction dated 18.11.2019 and order of sentence dated 22.11.2019 passed by the learned Additional District & Sessions Judge 1st-cum-Special Judge, Siwan in POCSO Tr. No. 100/2019, CIS Registration No. 19/2018 arising out of Siwan Mahila P.S. Case No. 10/2018 whereby and whereunder the appellant/convict has been convicted and sentenced to undergo R.I. for ten years and fine of Rs. 1,00,000/- (Rupees one lacs only) for the offences under Section 376 of the Indian Penal Code, 1860 and Section 6 of the POCSO Act and in default of payment of fine, he shall further undergo one year of R.I. 2. The crux of prosecution, as it appears from the written information of the informant/PW-2, namely, Guddu Sharma that on 09.03.2018 at about 11.30 AM, while his wife with her children was at her parental home, his cousin brother-in-law Dipu Thakur (appellant), after taking his child inside, while she was playing with another childrens, committed rape upon her. His child came to home having tears in her eyes and shown to her mother stating that look what Dipu Mama had done. His wife along with his child went to the house of Dipu Thakur to show that what he has done to her child. The two sister-in-laws (bhabhi) of the accused were started crying to know the same but the mother did not believe the same. She only believed when her daughter-in-law told about the occurrence. 3. With aforesaid written information of PW-2/informant, Mahila P.S. Case No. 10/2018 was lodged for the offences under Section 376 of Indian Penal Code, 1860 and under Section 6 of the Protection of Children from Sexual Offences Act, 2012. 4. After investigation, police submitted charge sheet, and thereafter, cognizance was taken by learned Special Court/concerned court. 5. To established its case before the learned trial court, the prosecution altogether examined total of seven witnesses, namely, PW-1 Victim, PW-2 Guddu Sharma (Informant), PW-3 Gudia Devi (mother of the victim), PW-4 Meena Devi (independent witness), PW- 5 Manju Singh (I.O. of this case), PW-6 Dr. Sarika and PW-7 Smt. Anupama (J.M.). 6. The prosecution also exhibited following documents during the trial to substantiate its case which are as:- Exhibit-1 Signature of the informant Guddu Sharma on written application. Exhibit-2 Registration of FIR. Exhibit-3 Formal F.I.R. Exhibit-4 Final form. Sarika and PW-7 Smt. Anupama (J.M.). 6. The prosecution also exhibited following documents during the trial to substantiate its case which are as:- Exhibit-1 Signature of the informant Guddu Sharma on written application. Exhibit-2 Registration of FIR. Exhibit-3 Formal F.I.R. Exhibit-4 Final form. Exhibit-5 Medical Report. Exhibit-6 The statement of the victim under Section 164 of Cr.P.C. 7. On the basis of evidences, as surfaced during the trial, the appellant/convict was examined under Section 313 of the Cr.P.C., where he denied all the evidences as surfaced against him during trial and claimed his complete innocence and false implication. 8. No defence witnesses/documents were examined on behalf of accused/appellant during the trial. 9. On the basis of aforesaid evidences, learned trial court convicted the appellant and passed order of sentence, as aforesaid, being aggrieved with, appellant/convict preferred the present appeal. 10. Hence the present appeal. 11. Mr. Neeraj Sanidh, learned counsel appearing on behalf of the appellant/convict challenged the impugned judgment of conviction on several counts but primarily, it was argued that the informant, who is none but the father of the victim turns hostile during trial. It is also submitted that the doctor, who examined victim did not find any injuries in and around private part of victim and for that matter on any other part of her body, negating allegation of penetrative sexual assault as raised initially through FIR. It is submitted that the victim was not examined in view of Section 118 of the Evidence Act, as she was three and half years old on date of her deposition. In support of his submission, learned counsel relied upon the legal report of Pradeep Vs. State of Haryana reported in 2023 SCC OnLine SC 777. It is also submitted that even from the perusal of testimony of victim, “ no penetrative sexual assault” appears to be proved during the trial, and, therefore, in absence of “Penetration to any extent” which is an essential legal ingredients, as to constitute offence under Sections 3 and 5 of the POCSO Act not appears proved. It is submitted that the evidence as available on record failed to prove the foundational aspects of crime in question, and, therefore, the provisions of presumption as available under Sections 29 and 30 of the POCSO Act was imported wrongly by the learned trial court while recording the judgment of conviction. It is submitted that the evidence as available on record failed to prove the foundational aspects of crime in question, and, therefore, the provisions of presumption as available under Sections 29 and 30 of the POCSO Act was imported wrongly by the learned trial court while recording the judgment of conviction. It is also submitted that the victim stated different story qua occurrence during trial what she narrated in her statement recorded under Section 164 of the Cr.P.C. and, therefore, she also not appears to qualify the test of “Sterling Witness”. In support of his submission, learned counsel relied upon the legal report of Hon’ble Supreme Court as available through Rai Sandeep v. State (NCT of Delhi) reported in (2012) 8 SCC 21 . While concluding the argument, it is submitted that the balance of appeal is in favour of appellant, and, therefore, the conviction as recorded by the learned trial court may be quashed/set aside. 12. Learned APP Mrs. Anita Kumari Singh while opposing the appeal submitted that the victim was examined before recording her statement under Section 164 of the Cr.P.C. in terms of Section 118 of the Evidence Act, as to understand her ability to answer the question but she fairly conceded that no such care was taken by the learned trial court while recording her testimony as PW-1. It is submitted that PW-7, is a judicial Officer, who recorded the statement of victim under Section 164 of Cr.P.C. proved her statement during the trial, and, therefore, it cannot be said that her statement was considered by the learned trial court without taking care of provisions of law as available under Section 118 of the Indian Evidence Act. It is further submitted by Mrs. Singh that the victim was minor about three and half years of age at the time of occurrence and it appears that matter appears compromised and, therefore, the informant and other witnesses turns hostile. It is submitted that offence under POCSO Act is non-compoundable in nature, and therefore, the learned trial court rightly took shelter of Hon’ble Apex Court Judgment, as available through Hemudan Nanbha Gadhvi Vs. State of Gujarat (PLJR 2018 (4) Page No.-300). 13. I have perused the trial court records carefully and gone through the evidences available on record and also considered the rival submissions as canvassed by the learned counsel appearing on behalf of the parties. 14. State of Gujarat (PLJR 2018 (4) Page No.-300). 13. I have perused the trial court records carefully and gone through the evidences available on record and also considered the rival submissions as canvassed by the learned counsel appearing on behalf of the parties. 14. As to re-appreciate the evidence, while disposing the present appeal, it is apposite to discuss the evidences available on record, which are as under:- 15. It appears from the perusal of record and the submission as advanced by learned counsel appearing for the parties that the most important witness of crime in question is victim herself, who examined during the trial as PW-1. It appears from her deposition that she was not tested by the learned trial court in view of Section 118 of Evidence Act, as to understand that whether she was able to understand the nature of questions or not, as she was only three and half years old on the date of her deposition. It was deposed by her that the present occurrence took place, while she was in her maternal uncle home and just before the occurrence, she was playing at the courtyard, and by that time, the appellant/convict was also present at her maternal uncle home, came to her and did some wrong/indecent work. It was deposed by her that occurrence took place in evening, where appellant after taking her inside the room committed wrong/indecent work. 15.1 Upon cross-examination, it was stated that dust and soil was cleaned by the appellant who was also playing with her. She was threatened by showing blade. From her entire deposition, nothing available as to suggest that she was sexually assault. She is completely silent that any “ penetrative sexual assault” was committed upon her. This witness was not in position to sign and therefore, her testimony was signed by her mother, who examined during the trial as PW-3 and turns hostile. 16. It appears from the statement of victim as recorded under Section 164 of the Cr.P.C. that she stated against appellant, as to commit wrong work upon her, whereafter, she developed and felt pain in her private part. 17. PW-2 Guddu Sharma, who is the father of the victim and also the informant of this case, turns hostile during trial, who upon cross-examination by defence stated that he was told nothing about the occurrence by his daughter/victim. 17. PW-2 Guddu Sharma, who is the father of the victim and also the informant of this case, turns hostile during trial, who upon cross-examination by defence stated that he was told nothing about the occurrence by his daughter/victim. He categorically stated that no complaint was raised by her daughter against appellant. 17.1 Upon cross-examination by State, nothing appears substantive as to contradict or corroborate the statement of the prosecution witnesses, who supported the crime in question, rather it appears that she denied her statement as recorded under Section 161 of the Cr.P.C. during the course of investigation, and, therefore, same not appears relevant to decide present issue. Same is the position of PW-3 , who is none but the mother of the victim, who also turns hostile during the trial and upon cross-examination by defence stated that she was nothing told about the occurrence by her daughter/PW-1. 18. PW-4 Meena Devi @ Meena Kunwar is the independent witness, who also turns hostile and from her cross-examination, nothing appears relevant, which may use for the purpose of corroboration or contradiction for other evidences available on record, which appears prima facie to support crime in question. 19. PW-5 Manju Singh, who is Investigating Officer of this case, was posted as a SHO, Siwan Mahila Police Station on 14.03.2018 who lodged present case. She identified her signature on formal FIR, which upon her identification was exhibited as Exhibit-3. She visited the place of occurrence and also recorded the statement of victim and other witnesses. She obtained medical report of victim and arrested the appellant on 24.06.2018. After completion of investigation, she submitted charge-sheet under Section 376 of the Indian Penal Code and 6 of the POCSO Act, through charge-sheet no. 50/2018 dated 31.08.2018. 20. PW-6 Dr. Sarika, who was posted as Medical Officer on 14.03.2018 at Sadar Hospital and examined the victim at 4:10 PM, and found following injuries on her person:- Height: 34 c.m. Teeth 10/10 Mark of Identification: A black mole on back side of abdomen. Per Abdomen: No Abnormality detected (NAD) No injury over the body Secondary per characters: Not developed Per Vagina (P/V): No injury or foreign hair present over the private parts of inside vagina. No Tear or laceration over the private parts. Investigation: (i) vaginal swab for microscopic examination of spermatozoa Report: No Spermatozoa seen. Per Abdomen: No Abnormality detected (NAD) No injury over the body Secondary per characters: Not developed Per Vagina (P/V): No injury or foreign hair present over the private parts of inside vagina. No Tear or laceration over the private parts. Investigation: (i) vaginal swab for microscopic examination of spermatozoa Report: No Spermatozoa seen. (ii) X-ray both wrist joint A/P and lateral view and x-ray pelvis A/P viewed for age-determinetion. Report from I.G.E. Medical System, Sadar Hospital, Siwan shows dated 14-3-2018 symbol 305,triradiate cartilage not fused and two Metacarpals seen. Opinion No (i): On the basis of radiological examination, the age of Saloni is 4-5 years. (ii) There is no evidence of sexual assault. (2) This report is in my pen and it bears my signature on identification, the report is marked as Exhibit-5. XXXX on behalf of defence. She mentioned the age of the victim on the basis of radiological examination report. 21. PW-7, namely , Anupama, who is the Judicial Officer, recorded the statement of victim under Section 164 of the Cr.P.C. She identified the statement of victim during the trial and upon her identification same was exhibited as Exhibit-6. 22. It would be apposite to reproduce para nos. 7, 8, 9 and 10 of the Pradeep’s case (supra) which reads as under:- “7. We have carefully considered the submissions. The fate of the case depends on the testimony of the minor witness Ajay (PW-1). Under Section 118 of the Evidence Act, 1872 (for short, “the Evidence Act”), a child witness is competent to depose unless the Court considers that he is prevented from understanding the questions put to him, or from giving rational answers by the reason of his tender age. As regards the administration of oath to a child witness, Section 4 of the Oaths Act, 1969 (for short “Oaths Act”) is relevant. Section 4 reads thus: “4. As regards the administration of oath to a child witness, Section 4 of the Oaths Act, 1969 (for short “Oaths Act”) is relevant. Section 4 reads thus: “4. Oaths or affirmations to be made by witnesses, interpreters and jurors .—(1) Oaths or affirmations shall be made by the following persons, namely:— (a) all witnesses, that is to say, all persons who may lawfully be examined, or give, or be required to give, evidence by or before any court or person having by law or consent of parties authority to examine such persons or to receive evidence; (b) interpreters of questions put to, and evidence given by, witnesses; and (c) jurors: Provided that where the witness is a child under twelve years of age, and the court or person having authority to examine such witness is of opinion that, though the witness understands the duty of speaking the truth, he does not understand the nature of an oath or affirmation, the foregoing provisions of this section and the provisions of Section 5 shall not apply to such witness; but in any such case the absence of an oath or affirmation shall not render inadmissible any evidence given by such witness nor affect the obligation of the witness to state the truth. (2) .. .. .. .. .. .. .. .. .. .. .. .. ..” 8. Under the proviso to sub-Section (1) of Section 4, it is laid down that in case of a child witness under 12 years of age, unless satisfaction as required by the said proviso is recorded, an oath cannot be administered to the child witness. In this case, in the deposition of PW-1 Ajay, it is mentioned that his age was 12 years at the time of the recording of evidence. Therefore, the proviso to Section 4 of the Oaths Act will not apply in this case. However, in view of the requirement of Section 118 of the Evidence Act, the learned Trial Judge was under a duty to record his opinion that the child is able to understand the questions put to him and that he is able to give rational answers to the questions put to him. The Trial Judge must also record his opinion that the child witness understands the duty of speaking the truth and state why he is of the opinion that the child understands the duty of speaking the truth. The Trial Judge must also record his opinion that the child witness understands the duty of speaking the truth and state why he is of the opinion that the child understands the duty of speaking the truth. 9. It is a well-settled principle that corroboration of the testimony of a child witness is not a rule but a measure of caution and prudence. A child witness of tender age is easily susceptible to tutoring. However, that by itself is no ground to reject the evidence of a child witness. The Court must make careful scrutiny of the evidence of a child witness. The Court must apply its mind to the question whether there is a possibility of the child witness being tutored. Therefore, scrutiny of the evidence of a child witness is required to be made by the Court with care and caution. 10. Before recording evidence of a minor, it is the duty of a Judicial Officer to ask preliminary questions to him with a view to ascertain whether the minor can understand the questions put to him and is in a position to give rational answers. The Judge must be satisfied that the minor is able to understand the questions and respond to them and understands the importance of speaking the truth. Therefore, the role of the Judge who records the evidence is very crucial. He has to make a proper preliminary examination of the minor by putting appropriate questions to ascertain whether the minor is capable of understanding the questions put to him and is able to give rational answers. It is advisable to record the preliminary questions and answers so that the Appellate Court can go into the correctness of the opinion of the Trial Court.” 23. It would be apposite to reproduce para no. 22 of the Rai Sandeep ’s case (supra) , which reads as under:- “ 22 [Ed.: Para 22 corrected vide Official Corrigendum No. F.3/Ed.B.J./48/2012 dated 18-8-2012.] . 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. 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. 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. 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. 24. It appears from the available evidences that though victim stated in her statement under Section 164 of the Cr.P.C. that she developed and felt pain in her private part but she was completely silent about any wrong/indecent work committed upon her by appellant while deposing during the trial as PW-1. “Penetration to any extent” is an essential ingredients, as to established a case under Sections 3 and 5 of the POCSO Act. Informant/PW-2, who is none but the father of the victim and PW-3, who is none but the mother of victim turns hostile and categorically, stated during the trial that no complaint was raised against appellant by PW- 1/victim, as to commit any wrong/indecent work upon her. It also appears from the deposition of the victim that the occurrence took place in evening whereas, as per FIR Exhibit-3, Exhibit-1 and Exhibit-2, it appears that occurrence took place on 09.03.2018 at about 11.30 AM, which also creates a doubt regarding occurrence. Moreover, the FIR in issue was lodged admittedly after five days of the occurrence, for which a cause excuse was given as Panchayati was under progress. 25. It further appears to this Court that the doctor/PW-6 did not find anything incriminating upon medical examination of victim, which may suggest that penetrative sexual assault was committed upon her to any extent in terms of allegation. 26. In view of above, it can be safely said that the prosecution has miserably failed to bring out the situation, where the presumption under Sections 29 and 30 of the POCSO Act, 2012 would be invoked. The appellant is thus given the benefit of doubt. 27. 26. In view of above, it can be safely said that the prosecution has miserably failed to bring out the situation, where the presumption under Sections 29 and 30 of the POCSO Act, 2012 would be invoked. The appellant is thus given the benefit of doubt. 27. Hence, appeal stands allowed. 28. Accordingly, the impugned judgment dated 18.11.2019 and order of sentence dated 22.11.2019 passed by learned Additional District & Sessions Judge 1st-cum-Special Judge, Siwan in POCSO Tr. No. 100/2019, CIS Registration No. 19/2018 arising out of Siwan Mahila P.S. Case No. 10/2018 is hereby set aside/quashed. 29. Appellant namely, Dipak Thakur @ Dipu Thakur is in custody in connection with this case, he is directed to be released forthwith, if not required in any other case. 30. Fine, if any, paid be returned to the appellant immediately. 31. Office is directed to send back the trial court records along with a copy of this judgment to the trial court, forthwith.