Judgment : (Arvind Kumar Verma, J.) 1. The appellant has filed the instant appeal under Section 374 (2) of the Code of Criminal Procedure, 1973, (henceforth ‘the Cr.P.C.') questioning the judgment of conviction and order of sentence dated 11.02.2021 (Annexure A-1) passed in Special ST No.28/2019 by which the learned Special Judge, Patthalgaon, (Protection of Children from Sexual Offences Act, 2012) (henceforth ‘the POCSO'), District Jashpur (C.G.) has convicted and sentenced the appellant as under : Conviction Sentence In Default of Payment of Fine Under Section 342 of the IPC RI for 01 year and fine amount of Rs.500/- Additional RI for 06 months Under Section 376(1) of the IPC RI for 10 years and fine amount of Rs.1,000/- Additional RI for 01 year Under Section 04 of the POCSO Act, 2012 RI for 10 years and fine amount of Rs.1,000/- Additional RI for 01 year All the above sections should be served simultaneously and the punishments imposed in case of default in payment of fine should be served separately. 2. Case of the prosecution, in short, is that on 08/10/2019, victim with her mother came in the house of elder father in village Kunkuri. On 10/10/2019 at about 9:00 O'clock the victim was going for taking the water then at the same time, the appellant came out from house and forcefully hold the hand and dragging the victim, the victim crying, but no one heard and appellant took her and entered in his house and closed the house of door and appellant get down the cloth of victim and she denying herself despite of that the appellant committed forcefully sexual intercourse with the victim and also threatening her and said that he will marry with her. Thereafter, the appellant closed the victim in his house. After some time the elder father of victim heard the sound of victim and they came out from the house. The victim disclosed the mater to her elder father and mother. Thereafter, the victim/complainant lodged the report (Ex.P-9) before Police Station Patthalgaon, District Jashpur and police has investigated the matter and registered the Crime No.219/2019 for an offence punishable under Sections 376(1), 342 of IPC and Sections 4, 5 of the POCSO Act against the appellant. 3. The Court of Special Judge (Protection of Children Patthalgaon from Sexual Offences Act, 2012) Jashpur, District Jashpur (C.G.) has framed the charge against the appellant. 4. 3. The Court of Special Judge (Protection of Children Patthalgaon from Sexual Offences Act, 2012) Jashpur, District Jashpur (C.G.) has framed the charge against the appellant. 4. In order to establish the charge against the appellant, the prosecution has examined as many as 15 witnesses. Statement of the appellant was also recorded under Section 313 Cr.P.C., in which he denied the charge levelled against him and stated that he is innocent and has been falsely implicated in the case. After appreciation of evidence available on record, learned trial Court has convicted the appellant and sentenced him as mentioned in paragraph one of this appeal. Hence, this appeal. 5. Learned counsel for the appellant has argued that the prosecution has failed to prove the case against the appellant beyond reasonable doubt. There is no legally admissible evidence with regard to the age of the prosecutrix that on the date of incident she was minor and less than 18 years of age. In absence of examination of author of the School Admission and Discharge Register, the same cannot be taken into consideration to determine the age of the prosecutrix. School Admission and Discharge Register is a weak type of evidence. There is no any Kotwari Register or Ossification report, produced by the prosecution to determine her actual age on the date of incident, that she was below 18 years of age. He further contended that the court below failed to appreciate that the victim has studying up to 5th class in Primary School, Dhavaitoal Dugla, District Korea and as per Dhakhil Kharij Register the age of victim not mentioned in Dhakhil Kharij Register and same has been seized in presence of witnesses. The victim did not know about the date of birth. So the date of birth is not correct as per given statement of victim. He further contended that the Court below failed to appreciate that there is no external or internal injury has been found on the body of the prosecutrix. It is further contended that the court below failed to appreciate that there are major contradictions and omissions in the statement of prosecutrix. Therefore, the alleged offences of the IPC and the POCSO Act are not made out against the appellant, hence, he is entitled for acquittal. 6. It is further contended that the court below failed to appreciate that there are major contradictions and omissions in the statement of prosecutrix. Therefore, the alleged offences of the IPC and the POCSO Act are not made out against the appellant, hence, he is entitled for acquittal. 6. On the other hand, learned counsel for the State opposes the submissions of learned counsel for the appellant and submits that there is no illegality or infirmity in the finding of learned trial Court and the impugned judgment of the Court below needs no interference. 7. I have heard learned counsel for the parties, and perused the record with utmost circumspection. 8. In order to consider the age of the prosecutrix, I have to examine the evidence available on record produced by the prosecution. The prosecution has mainly relied upon the school admission and discharge register (Ex.P/5-C) where the date of birth of the prosecutrix is mentioned as 01.07.2002. 9. Savina (PW-2), Headmistress of Gyan Deep Primary School, Dhavaitola has stated in her cross-examination (Para-5) that the age of the prosecutrix has not been entered by her in the Dakhal Kharij Register of Ex.P/5C. She further stated that she cannot tell on what basis the date of birth was entered on Ex.P/5C. 10. Prosecutrix (PW-4) has stated in her cross-examination (Para-23) that she is two brothers and two sisters. She further stated that she cannot tell who took her to school for the first time for admission. Her mother can tell correctly about her date of birth. 11. Mother of the prosecutrix (PW-5) has stated that she is not aware about date of birth of the prosecutrix. 12. Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015 provides for presumption and determination of age. The same reads as under : “94. Presumption and determination of age .— (1) Where, it is obvious to the Committee or the Board, based on the appearance of the person 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 determined 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 person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person. 13. In case of Alamelu and Another Vs. State, represented by Inspector of Police, 2011(2) SCC-385 , the Hon'ble Supreme Court has held that the transfer certificate which is issued by Government School and is duly signed by the 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 any material on the basis of which the age was recorded. The Hon'ble Supreme court 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. In paragraphs 40,42,43,44 and 48 of its judgment in Alamelu (Supra) , the Supreme Court has observed as under : “40.Undoubtedly, the transfer certificate, Ex.P16 indicates that the girl's date of birth was 15th June, 1977. Therefore, even according to the aforesaid certificate, she would be above 16 years of age (16 years 1 month and 16 days) on the date of the alleged incident, i.e., 31st July, 1993. Therefore, even according to the aforesaid certificate, she would be above 16 years of age (16 years 1 month and 16 days) on the date of the alleged incident, i.e., 31st July, 1993. The transfer certificate has been issued by a Government School and has been duly signed by the Headmaster. Therefore, it would be admissible in evidence under Section 35 of the Indian Evidence Act. However, the admissibility of such a document would be of not much evidentiary value to prove the age of the girl in the absence of the material on the basis of which the age was recorded. The date of birth mentioned in the transfer certificate would have no evidentiary value unless the person,who made the entry or who gave the date of birth is examined.- 42. Considering the manner in which the facts recorded in a document may be proved, this Court in the case of Birad Mal Singhvi Vs. Anand Purohit1, observed as follows:- "The date of birth mentioned in the scholars' register has no evidentiary value unless the person who made the entry or who gave the date of birth is examined....Merely because the documents Exs. 8, 9, 10, 11, and 12 were proved, it does not mean that the contents of documents were also proved. Mere proof of the documents Exs. 8, 9, 10, 11 and 12 would not tantamount to proof of all the contents or the correctness of date of birth stated in the documents. Since the truth of the fact, namely, the date of birth of Hukmi Chand and Suraj Prakash Joshi was in issue, mere proof of the documents as produced by the aforesaid two witnesses does not furnish evidence of the truth of the facts or contents of the documents. The truth or otherwise of the facts in issue, namely, the date of birth of the two candidates as mentioned in the documents could be proved by admissible evidence i.e. by the evidence of those persons who could vouchsafe for the truth of the facts in issue. No evidence of any such kind was produced by the respondent to prove the truth of the facts, namely, the date of birth of Hukmi Chand and of Suraj Prakash Joshi. No evidence of any such kind was produced by the respondent to prove the truth of the facts, namely, the date of birth of Hukmi Chand and of Suraj Prakash Joshi. In the circumstances the dates of birth as mentioned in the aforesaid documents 1988 (Supp) SCC 604 have no probative value and the dates of birth as mentioned therein could not be accepted." 43. The same proposition of law is reiterated by this Court in the case of Narbada Devi Gupta Vs. Birendra Kumar Jaiswal, where this Court observed as follows:- "The legal position is not in dispute that mere production and marking of a document as exhibit by the court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence, that is, by the "evidence of those persons who can vouchsafe for the truth of the facts in issue"." 44. In our opinion, the aforesaid burden of proof has not been discharged by the prosecution. The father says nothing about the transfer certificate in his evidence. The Headmaster has not been examined at all. Therefore, the entry in the transfer certificate can not be relied upon to definitely fix the age of the girl. 48. We may further notice that even with reference to Section 35 of the Indian Evidence Act, a public document has to be tested by applying the same standard in civil as well as criminal proceedings. In this context, it would be appropriate to notice the observations made by this Court in the case of Ravinder Singh Gorkhi Vs. State of U.P.4 held as follows:- "The age of a person as recorded in the school register or otherwise may be used for various purposes, namely, for obtaining admission; for obtaining an appointment; for contesting election; registration of marriage; obtaining a separate unit under the ceiling laws; and even for the purpose of litigating before a civil forum e.g. necessity of being represented in a court of law by a guardian or where a suit is filed on the ground that the plaintiff being a minor he was not appropriately represented therein or any transaction made on his behalf was void as he was a minor. A court of law for the purpose of determining the age of a (2006) 5 SCC 584 party to the lis, having regard to the provisions of Section 35 of the Evidence Act will have to apply the same standard. No different standard can be applied in case of an accused as in a case of abduction or rape, or similar offence where the victim or the prosecutrix although might have consented with the accused, if on the basis of the entries made in the register maintained by the school, a judgment of conviction is recorded, the accused would be deprived of his constitutional right under Article 21 of the Constitution, as in that case the accused may unjustly be convicted.” 15. In case of Rishipal Singh Solanki Vs. State of Uttar Pradesh & Others, 2022 (8) SCC 602 , while considering various judgments, the Hon’ble Supreme Court has observed in para 33 as under : “33. What emerges on a cumulative consideration of the aforesaid catena of judgments is as follows: 33.2.2. If an application is filed before the Court claiming juvenility, the provision of sub-section (2) of section 94 of the JJ Act, 2015 would have to be applied or read along with sub-section (2) of section 9 so as to seek evidence for the purpose of recording a finding stating the age of the person as nearly as may be. XXXX XXXX XXXX 33.3. That when a claim for juvenility is raised, the burden is on the person raising the claim to satisfy the Court to discharge the initial burden. However, the documents mentioned in Rule 12(3) (a)(i), (ii), and (iii) of the JJ Rules 2007 made under the JJ Act, 2000 or sub-section (2) of section 94 of JJ Act, 2015, shall be sufficient for prima facie satisfaction of the Court. On the basis of the aforesaid documents a presumption of juvenility may be raised. 33.4. The said presumption is however not conclusive proof of the age of juvenility and the same may be rebutted by contra evidence let in by the opposite side. 33.5. That the procedure of an inquiry by a Court is not the same thing as declaring the age of the person as a juvenile sought before the JJ Board when the case is pending for trial before the concerned criminal court. 33.5. That the procedure of an inquiry by a Court is not the same thing as declaring the age of the person as a juvenile sought before the JJ Board when the case is pending for trial before the concerned criminal court. In case of an inquiry, the Court records a prima facie conclusion but when there is a determination of age as per sub- section (2) of section 94 of 2015 Act, a declaration is made on the basis of evidence. Also the age recorded by the JJ Board shall be deemed to be the true age of the person brought before it. Thus, the standard of proof in an inquiry is different from that required in a proceeding where the determination and declaration of the age of a person has to be made on the basis of evidence scrutinized and accepted only if worthy of such acceptance. 33.6. That it is neither feasible nor desirable to lay down an abstract formula to determine the age of a person. It has to be on the basis of the material on record and on appreciation of evidence adduced by the parties in each case. 33.7 This Court has observed that a hypertechnical approach should not be adopted when evidence is adduced on behalf of the accused in support of the plea that he was a juvenile. 33.8. If two views are possible on the same evidence, the courtshould lean in favour of holding the accused to be a juvenile in borderline cases. This is in order to ensure that the benefit of the JJ Act, 2015 is made applicable to the juvenile in conflict with law. At the same time, the Court should ensure that the JJ Act, 2015 is not misused by persons to escape punishment after having committed serious offences. 33.9. That when the determination of age is on the basis of evidence such as school records, it is necessary that the same would have to be considered as per Section 35 of the Indian Evidence Act, inasmuch as any public or official document maintained in the discharge of official duty would have greater credibility than private documents. 33.10. 33.9. That when the determination of age is on the basis of evidence such as school records, it is necessary that the same would have to be considered as per Section 35 of the Indian Evidence Act, inasmuch as any public or official document maintained in the discharge of official duty would have greater credibility than private documents. 33.10. Any document which is in consonance with public documents, such as matriculation certificate, could be accepted by the Court or the JJ Board provided such public document is credible and authentic as per the provisions of the Indian Evidence Act viz., section 35 and other provisions. 33.11. Ossification Test cannot be the sole criterion for age determination and a mechanical view regarding the age of a person cannot be adopted solely on the basis of medical opinion by radiological examination. Such evidence is not conclusive evidence but only a very useful guiding factor to be considered in the absence of documents mentioned in Section 94(2) of the JJ Act, 2015.” 16. Recently, in case of P. Yuvaprakash Vs. State represented by Inspector of Police, 2023 (SCC Online) SC 846 , Hon’ble Supreme Court has held in para 14 to 17 as under : “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. 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. 17. In a recent decision, in Rishipal Singh Solanki vs. State of Uttar Pradesh & Ors. this court outlined the procedure to be followed in cases where age determination is required. The court was dealing with Rule 12 of the erstwhile Juvenile Justice Rules (which is in pari materia) with Section 94 of the JJ Act, and held as follows: “20. Rule 12 of the JJ Rules, 2007 deals with the procedure to be followed in determination of age. The juvenility of a person in conflict with law had to be decided prima facie on the basis of physical appearance, or documents, if available. But an inquiry into the determination of age by the Court or the JJ Board was by seeking evidence by obtaining: (i) the matriculation or equivalent certificates, if available and in the absence whereof; (ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof; (iii) the birth certificate given by a corporation or a municipal authority or a panchayat. Only in the absence of either (i), (ii) and (iii) above, the medical opinion could be sought from a duly constituted Medical Board to declare the age of the juvenile or child. It was also provided that while determination was being made, benefit could be given to the child or juvenile by considering the age on lower side within the margin of one year.” 16. It was also provided that while determination was being made, benefit could be given to the child or juvenile by considering the age on lower side within the margin of one year.” 16. Speaking about provisions of the Juvenile Justice Act, especially the various options in Section 94 (2) of the JJ Act, this court held in Sanjeev Kumar Gupta vs. The State of Uttar Pradesh & Ors that: “Clause (i) of Section 94 (2) places the date of birth certificate from the school and the matriculation or equivalent certificate from the 2021 (12) SCR 502 [2019] 9 SCR 735 concerned examination board in the same category (namely (i) above). In the absence thereof category (ii) provides for obtaining the birth certificate of the corporation, municipal authority or panchayat. It is only in the absence of (i) and (ii) that age determination by means of medical analysis is provided. Section 94(2) (a)(i) indicates a significant change over the provisions which were contained in Rule 12(3)(a) of the Rules of 2007 made under the Act of 2000. Under Rule 12(3)(a) (i) the matriculation or equivalent certificate was given precedence and it was only in the event of the certificate not being available that the date of birth certificate from the school first attended, could be obtained. In Section 94(2)(i) both the date of birth certificate from the school as well as the matriculation or equivalent certificate are placed in the same category. 17. In Abuzar Hossain @ Gulam Hossain Vs. State of West Bengal, this court, through a three-judge bench, held that the burden of proving that someone is a juvenile (or below the prescribed age) is upon the person claiming it. Further, in that decision, the court indicated the hierarchy of documents that would be accepted in order of preference.” 18. In order to consider the medical report of the prosecutrix, I have to examine the evidence available on record produced by the prosecution. 19. Dr. Anita Minz (PW-1) had conducted the physical examination of the prosecutrix. On examining the body of the prosecutrix, she found that prosecutrix’s secondary sexual characteristics fully developed. No signs of any kind of injury were found on her body. Her vaginal membrane was torn. She did not find any signs of injury on her genitals. Two slides of vaginal discharge were made. On examining the body of the prosecutrix, she found that prosecutrix’s secondary sexual characteristics fully developed. No signs of any kind of injury were found on her body. Her vaginal membrane was torn. She did not find any signs of injury on her genitals. Two slides of vaginal discharge were made. She opined that on sexual examination of the prosecutrix, no signs of immediate sexual intercourse were found in her. The prosecutrix was used to sexual intercourse. She did an X-ray for age determination. Gave advice and referred to Radiologist. Her report is Ex.P-1. 20. The appellant was also medically examined by Dr. Prafull Lakda (PW-3) has medically examined the appellant vide Ex.P-07 and he opined that the appellant was capable of performing sexual intercourse. 21. Now, considering to the facts of the present case and after considering the evidence collected by the prosecution and in the light of the aforesaid judgments of Hon’ble Supreme Court, I find that no clinching and legally admissible evidence has been brought by the prosecution to prove the fact that the victim was minor and less than 18 years of age on the date of incident, despite the fact that the trial Court in the impugned judgment has held the prosecutrix minor. Accordingly, I set aside the findings given by the trial Court that on the date of incident, the victim was minor as the same has not been proved by the prosecution by leading cogent and clinching evidence. 22. The prosecutrix (PW-4) has stated in her cross-examination (Para-7) that on the date of the incident, when the accused's mother came, she was hiding under the bed. The witness herself said that the accused had asked her to hide. When the witness was asked why she did not shout when the accused's mother came, the witness replied that the accused had scared her, so she did not shout. 23. In Para-8, on being asked “why did you not run away from the house when I was not at home the witness answered that the accused was standing near the door and scared me that is why I did not run away. When my family members came searching for me, they saw the accused outside the house. 23. In Para-8, on being asked “why did you not run away from the house when I was not at home the witness answered that the accused was standing near the door and scared me that is why I did not run away. When my family members came searching for me, they saw the accused outside the house. On being asked why did you not leave the house when the accused was not at home the witness answered that I was scared that is why I did not leave. On being asked that there are two doors to go towards the road from the house of the accused then why did you not leave from the other door the witness answered that I knew the door towards the boring and did not know any other door.” 24. In Para-9, the prosecutrix herself stated that her sister had called her elder father and said that if Rs. 8 lakhs are given then the compromise will be done otherwise she will report. 25. In Para-18, on being asked the witness that if there is any sound from the spot in the house situated near the spot map of Ex.P.-11, the people in the nearby houses can hear it. To this, the witness replied that they can hear, but on the date of incident there was no one in the nearby houses. It is correct to say that in the houses situated near the spot map of Ex.P.-11, the spot map of Ex.P.-11, 5 to 7 persons live in each house.” 26. In Para-19, when asked whether 5 to 7 people used to live in the house of the accused? To this, the witness replied that “I do not know that 5 to 7 people used to live but I know that his mother and sister used to live there. There was a festival in the village on the date of the incident. On the day when the incident happened with me, the accused took me to the room and that day the mother of the accused had also come. On the date of the incident also Mukti Kujur had come to the room in the house of the incident spot. I did not have any conversation with the mother of the accused. I had a conversation with Mukti Kujur.” 27. On the date of the incident also Mukti Kujur had come to the room in the house of the incident spot. I did not have any conversation with the mother of the accused. I had a conversation with Mukti Kujur.” 27. In Para-21, the prosecutrix admitted that Mukti Kujur left after asking about her and the accused's well-being. 28. Close scrutiny of the evidence led by the prosecution would make it clear that the prosecutrix has nowhere disclosed that at any point of time, the appellant has committed any forceful sexual intercourse with her. Even Dr. Anita Minz (PW-1) in her deposition has stated that she did not found any external or internal injury on the body of the prosecutrix. Further, she did not find any sign of injury on her genitals. 29. Thus, considering the entire facts and circumstances of the case particularly, the evidence with regard to the age and conduct of the prosecutrix, it is crystal clear that prosecutrix was a consenting party. I am of the opinion that the age of the prosecutrix is not proved. Therefore, in the above facts and circumstances of the case, offence as stated in Para-1 of this judgment would not be made out against the appellant. 30. The appeal is allowed accordingly. The judgment of conviction and order of sentence dated 11.02.2021 is hereby set aside. Appellant stands acquitted of all the charges levelled against him. The appellant is reported to be in jail. He be released forthwith, if not required in any other case. 31. Keeping in view the provisions of Section 437-A CrPC, the appellant is directed to furnish a personal bond in terms of Form No.45 prescribed in the Code of Criminal Procedure of sum of Rs.10,000/- with one reliable surety in the like amount before the Court concerned which shall be effective for a period of six months along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the aforesaid appellant on receipt of notice thereof shall appear before the Hon’ble Supreme Court. 32. The trial Court record (TCR) along with a copy of this judgment be sent back immediately to the trial court concerned for compliance and necessary action.