Judgment : (Rajani Dubey, J.) 1. The present appeal under Section 374(2) of Code of Criminal Procedure has been filed against the the judgment of conviction and order of sentence dated 16.05.2019 passed by Special Judge, POCSO ACT, 2012, Fast Track Court, Kabirdham (C.G.) in Special Sessions Case No. 75/2018 whereby, the trial court has convicted the appellant under Sections 363, 366, 376(3) of IPC and Section 6 of POCSO Act, but keeping in view the provision of Section 42 of POCSO Act, appellant has been sentenced as under:- Conviction Sentence U/s 376(3) of IPC R.I. for 20 years with fine of Rs.3000/- and in default of payment of fine, additional R.I. for 3 months U/s 363 of IPC R.I. for 4 years with fine of Rs.500/- and in default of payment of fine, additional R.I. for 1 month U/s 366 of IPC R.I. for 4 years with fine of Rs.500/- and in default of payment of fine, additional R.I. for 1 month 2. Facts of the case, in nut shell, are that on 26.07.2018 at about 11:00 am, the prosecutrix left the house to go to school. She did not return home in the evening. When she was searched around, she could not be found. Complainant- Gendalal Gandharva informed about the prosecutrix being missing. On the basis of which, a case was registered at Police Station- Kawardha for the offence under Section 363 of the Indian Penal Code. Spot map was prepared. The age proof of the prosecutrix was collected. The prosecutrix was recovered from the possession of the accused/appellant. Medical examination of the prosecutrix was done. The accused/appellant was arrested and information about the arrest was given to his family. The statements of the witnesses were recorded. The statement of the prosecutrix recorded under Section 164 Cr.P.C. was registered in the Court. After completion of usual investigation, charge-sheet was filed before the learned trial Court against the accused/appellant for the offence punishable under Sections 363, 366, 376 of IPC and Section 4 of POCSO Act. Learned trial Court framed the charges against the appellant under Sections 363, 366, 376(2)(N) of IPC and Section 6 of POCSO Act to which, he abjured his guilt and prayed for trial. 3. So as to hold the accused/appellant guilty, the prosecution has examined as many as 12 witnesses. Learned trial Court framed the charges against the appellant under Sections 363, 366, 376(2)(N) of IPC and Section 6 of POCSO Act to which, he abjured his guilt and prayed for trial. 3. So as to hold the accused/appellant guilty, the prosecution has examined as many as 12 witnesses. Statement of the accused/appellant was also recorded under Section 313 of the Cr.P.C. in which he denied the incriminating circumstances appearing against him and pleaded innocence and false implication in the case. However, he did not adduce any evidence in his defence. 4. Learned trial Court upon appreciation of oral and documentary evidence available on record, by its judgment dated 16.05.2019, finding evidence adduced by the prosecution trustworthy, convicted the the appellant under Sections 363, 366, 376(3) of IPC and Section 6 of POCSO Act and sentenced him as mentioned in para 1 of this judgment. Hence, this appeal. 5. Learned counsel for the appellant submits that the impugned judgment and the findings contained therein are bad in law and on facts of the case. The learned trial Court has failed to see that the statements adduced by the prosecution witnesses are contradictory and such statements are not reliable and admissible under the law. The learned trial Court has not appreciated this fact that the prosecution has utterly failed to prove the age of the prosecutrix below 16 years. It is clear from statement of P.W.-1, who is friend of prosecutrix that she along with the prosecutrix went with the accused persons to Ghughari Road Atal Awas and they stayed there in the night. In cross examination, she denied to identify the accused persons. Therefore, the conviction of the appellant is illegal and against the law. The learned trial Court also did not appreciate the statement of Dr. Usha Singh (P.W.-12) who did not find any external or internal injuries over the body of the prosecutrix. Therefore, the prosecution has utterly failed to prove its case beyond reasonable doubt against the appellant. It is also clear that conduct and statement of the prosecutrix is not reliable. Therefore, the impugned judgment and conviction are liable to be set aside. To buttress his submission, he has placed reliance on the judgment dated 18.07.2023 passed by Hon’ble Supreme Court in the matter of P. Yuvaprakash Vs. State Rep. It is also clear that conduct and statement of the prosecutrix is not reliable. Therefore, the impugned judgment and conviction are liable to be set aside. To buttress his submission, he has placed reliance on the judgment dated 18.07.2023 passed by Hon’ble Supreme Court in the matter of P. Yuvaprakash Vs. State Rep. by Inspector of Police in Criminal Appeal No. 1898 of 2023 and this Court’s judgment dated 17.08.2023 passed in CRA No. 967 of 2021 in the matter of Ramsharan Singh Vs. State of Chhattisgarh. 6. On the other hand, learned State counsel supports the impugned judgment and submits that the learned trial Court minutely appreciated the oral and documentary evidence and rightly convicted the appellant. Statement of the prosecutrix is reliable and prosecution has proved this fact that the prosecutrix was subjected to sexual assault by the appellant against her will, therefore, the conviction and sentence is well merited, which do not call for any interference by this Court. 7. We have heard learned counsel for the parties and have also minutely perused the entire record. 8. It is clear from the record of the learned trial Court that the learned trial Court framed the charges against the appellant under Sections Sections 363, 366, 376(2)(N) of IPC and Section 6 of POCSO Act against the appellant and after appreciation of oral and documentary evidence, the learned trial Court convicted the appellant under Sections 363, 366, 376(3) of IPC and Section 6 of POCSO Act and convicted him as mentioned in para 1 of this judgment. 9. First of all, the question which arises for consideration is that whether the prosecutrix was below 16 years of age on the date of incident i.e. 26.07.2018. 10. To prove the age of the prosecutrix, prosecution examined Smt. Uttara Sud as P.W.-3 who is principal of Government Primary school, Bhagutola, District- Kabirdham who stated that the original admission register of the school is Ex.P/3 and as per this register, the prosecutrix took admission in 6 th class on 01.04.2016 and her date of birth was recoded in the said register as 09.05.2005. The entry with regard to date of the birth of the prosecutrix, was made by teacher namely Sangeeta Verma. She identified the handwriting of Sangeeta Verma. In her cross-examination, she admitted that the signature of the person who recorded the date of birth, was not in the admission register. The entry with regard to date of the birth of the prosecutrix, was made by teacher namely Sangeeta Verma. She identified the handwriting of Sangeeta Verma. In her cross-examination, she admitted that the signature of the person who recorded the date of birth, was not in the admission register. She further admitted that the date of birth of the prosecutrix was recorded as per her previous school transfer certificate. 11.Prosecutrix (P.W.-8) also stated that her date of birth is 09.05.2005 but in her cross-examination, she admitted that she told her date of birth as written in her mark-sheet and she did not have any birth certificate. 12. Mother of the prosecutrix (P.W.-2) stated that prosecutrix is her daughter who is aged about 14 years. She admitted that she did not have the birth certificate of her daughter (prosecutrix) and she does not remember the actual date of birth of the prosecutrix. 13. Father of the prosecutrix (P.W.-9) stated that her daughter is 13 years old and she was born in 2005. In his cross-examination, he admitted that on the basis of estimation, he told the date of the birth of the prosecutrix and he does not remember the actual date of birth of the prosecutrix. 14. Vide judgment dated 18.07.2023 in the matter of P. Yuvaprakash Vs. State Rep. By Inspector of Police, Hon’ble Apex Court held in paras 18 and 19 which read thus:- “18. Reverting to the facts of this case, the headmaster of M's School, CW-1, was summoned by the court and produced a Transfer Certificate (Ex.C-1). This witness produced a Transfer Certificate Register containing M's name. He deposed that she had studied in the school for one year, i.e., 2009-10 and that the date of birth was based on the basis of the record sheet given by the school where she studied in the 7th standard. DW-2 TMT Poongothoi, Headmaster of Chinnasoalipalayam Panchayat School, answered the summons served by the court and deposed that 'M' had joined her school with effect from 03.04.2002 and that her date of birth was recorded as 11.07 1997 She admitted that though the date of birth was based on the birth certificate, it would normally be recorded on the basis of horoscope. She conceded to no knowledge about the basis on which the document pertaining to the date of birth was recorded. She conceded to no knowledge about the basis on which the document pertaining to the date of birth was recorded. It is stated earlier on the same issue, i.c., the date of birth. Thiru Prakasam, DW-3 stated that the birth register pertaining to the year 1997 was not available in the record room of his office. 19. It is clear from the above narrative that none of the documents produced during the trial answered the description of "the date of birth certificate from the school" or "the matriculation or equivalent certificate" from the concerned examination board or certificate by a corporation, municipal authority or a Panchayat. In these circumstances, it was incumbent for the prosecution to prove through acceptable medical tests/examination that the victim's age was below 18 years as per Section 94(2) (iii) of the JJ Act. PW-9. Dr. Thenmozhi, Chief Civil Doctor and Radiologist at the General Hospital at Vellore, produced the X-ray reports and deposed that in terms of the examination of M, a certificate was issued stating "that the age of the said girl would be more than 18 years and less than 20 years" In the cross-examination, she admitted that M's age could be taken as 19 years. However, the High Court rejected this evidence, saying that "when the precise date of birth is available from out of the school records, the approximate age estimated by the medical expert cannot be the determining factor" This finding is, in this court's considered view, incorrect and erroneous. As held earlier, the documents produced, ie, a transfer certificate and extracts of the admission register, are not what Section 94 (2) (1) mandates: nor are they in accord with Section 94 (2) (ii) because DW-1 clearly deposed that there were no records relating to the birth of the victim, M. In these circumstances, the only piece of evidence, accorded with Section 94 of the JJ Act was the medical ossification test, based on several X-Rays of the victim, and on the basis of which PW-9 made her statement. She explained the details regarding examination of the victim's bones, stage of their development and opined that she was between 18-20 years; in cross-examination she said that the age might be 19 years. She explained the details regarding examination of the victim's bones, stage of their development and opined that she was between 18-20 years; in cross-examination she said that the age might be 19 years. Given all these circumstances, this court is of the opinion that the result of the ossification or bone test was the most authentic evidence, corroborated by the examining doctor, PW-9.” 15. The Hon'ble Apex Court in the matter of Alamelu and another Vs. State, represented by Inspector of Police, (2011) 2 SCC 385 observed in paras 40 & 48 of its judgment 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. 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. 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 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." 16. In light of above, in the present case, it is clear that mother, father and prosecutrix did not remember the actual date of birth. Principal- Smt. Uttara Sud (P.W.-3) is not the author of entry made in the school Dakhil Kharij Register and she admitted that the said entry was made by another teacher namely Sangeeta Verma but prosecution did not examine the said teacher before the learned trial Court. Thus, it is clear that prosecution has failed to prove this fact that prosecutrix was below 16 years of age on the date of incident. 17. Prosecutrix (P.W.-8) stated that on the date of incident, she went to her friend’s house and in the evening they went to the bus stand to go back home by bus, at that time, the accused and Mohit came there and told them that they will drop them at their house but they took them to Atal Awas and committed sexual intercourse with the prosecutrix. In the morning, parents of the prosecutrix came to Atal Awas with the police and, thereafter, they went to the police station. The recovery panchnama is Ex.P/4 where she admits her signature from C to C part. 18. It has been held by Hon’ble the Apex Court in the matter of Rai Sandeep Alias Deepu Vs. State (NCT OF DELHI) and other connected matter reported in (2012) 8 SCC 21 in para 22 as under:- “ 22 . In our considered opinion, the ‘sterling witness’ should be of a very high quality and caliber whose version should, therefore, be unassailable. State (NCT OF DELHI) and other connected matter reported in (2012) 8 SCC 21 in para 22 as under:- “ 22 . In our considered opinion, the ‘sterling witness’ should be of a very high quality and caliber 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 everyone 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 similar such tests to be applied, it can 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 similar such tests to be applied, it can 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.” 19. Applying the above principle to the present case, it is evident that the statement of the prosecutrix is not reliable as well as her conduct is also highly suspicious. The other witnesses did not support the case of the prosecution and medical evidence also does not support the version of the prosecution. Looking to the facts and circumstances of the case; manner in which the incident is said to have taken place; the version of the prosecutrix cannot be taken as a gospel truth at the face value and it appears to be suspicious. Hence, there is no scope to sustain the conviction and sentence imposed on the appellant. He deserves to be acquitted of the said charge by giving him benefit of doubt. 20. For the foregoing reasons, the conviction and sentence of the appellant under Sections 363, 366, 376(3) of IPC and Section 6 of POCSO Act cannot be legally sustained. The appeal is accordingly allowed. The impugned judgment dated 16.05.2019 is set aside. Consequently, the appellant is acquitted of the alleged offences. He is reported to be in jail. He be set free forthwith, if not required to be detained in any other case. 21. The appeal is accordingly allowed. The impugned judgment dated 16.05.2019 is set aside. Consequently, the appellant is acquitted of the alleged offences. He is reported to be in jail. He be set free forthwith, if not required to be detained in any other case. 21. Keeping in view the provisions of Section 481 of BNSS 2023, the appellant is directed to furnish a personal bond for a sum of Rs.25,000/- with two reliable sureties in the like amount before the Court concerned forthwith, which shall be effective for a period of six months alongwith an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, for aforesaid appellant on receipt of notice thereof, shall appear before the Hon’ble Supreme Court. 22. The record of the trial Court along with copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action.