JUDGMENT : PARTH PRATEEM SAHU, J. 1. This criminal appeal is directed against impugned judgment of conviction and order of sentence dated 29.01.2024 passed by learned Additional Sessions Judge, Fast Track Special Court, Surajpur, District-Surajpur in Special Sessions Case No. 30 of 2020 whereby appellant/accused has been convicted and sentenced as under: Conviction Sentence u/S 376 of IPC RI for 10 years and fine of Rs.500/-, in default of payment of fine, additional RI for 4 months u/S 365 of IPC RI for 5 years and fine of Rs.500/-, in default of payment of fine, additional RI for 4 months u/S 3/4 of POCSO Act RI for 10 years and fine of Rs.500/-, in default of payment of fine, additional RI for 4 months 2. Case of the prosecution, in brief, is that father of victim lodged a written report in the concerned police station alleging that in the morning of 11.03.2020, he found her daughter missing in his house. It is stated that in the night at about 3:00 a.m., she woke up and went out of the house. When he searched of her in nearby places, he was informed by one Sahnawaj son of Khurshid, that she was in talking terms with appellant. After getting the said information, he doubted that she might be in the company of appellant and thereafter he along with Ajim, Rayaj, Usman, Sarpanch of village and others went to house of appellant, inquired with him, upon which, he intimated that victim is in his house and brought her in front of them. It is also alleged in the complaint that victim informed him and others persons present that appellant committed sexual intercourse with her. Based on written report (Ex.P-1), FIR (Ex.P-2) was registered, statement of victim was recorded and appellant was arrested in connection with the crime bearing No.16/2020 registered by Police Station -Premnagar, District- Surajpur for alleged commission of offence under Section 376 of Indian Penal Code (for short "IPC") and Sections 3 & 4 of Protection of Children from Sexual Offences Act, 2012 (for short "Act of 2012").After completion of investigation, police submitted final report for alleged commission of offence under Sections 365, 506, 376 of IPC and Sections 3 & 4 of the Act of 2012. Learned trial Court upon appreciating the material available in charge sheet has framed charges under Sections 376, 365, 506 of IPC and Sections 3 & 4 of the Act of 2012. During course of trial, prosecution examined PW1 father of victim, PW2 victim, PW3 Dr. Nandini Kanwar who examined the prosecutrix, PW4 Jagatpal Pento Assistant Teacher, PW5 Dr. Neeraj Kumar Paikra who examined the appellant, PW6 Assistant Sub Inspector Anju Singh and PW7 O.P. Kujur, Inspector (Investigating Officer) and exhibited as many as 24 documents. Statement of accused/appellant was recorded under Section 313 of Cr.P.C. Upon appreciating documentary and oral evidence brought on record by prosecution and statement of accused recorded under Section 313 of Cr.P.C. held appellant guilty for commission of offence under Sections 376, 365 of IPC and Sections 3/4 of Act of 2012 and sentenced him for the period as mentioned in para-1 of this judgment. 3. Learned counsel for appellant would submit that learned trial Court fell into error in convicting appellant for aforementioned sections of IPC and Act of 2012. He contended that for convicting a person/appellant under Section 3/4 of the Act of 2012, prosecution has to prove the fact that on the date of incident, victim was below 18 years of age. Proof of age should be beyond reasonable doubt in which prosecution utterly failed. He next contended that from the documentary and oral evidence as available in record, it is apparent that victim was a consenting party as she left her home in night at about 3:00 am and joined company of appellant. On the date of incident, along with victim, her mother, father, elder brother and his wife were also residing in the same house but she did not inform any of other family member. There was love affair between two. However, only because of pressure of family member, false and baseless allegations have been levelled against the appellant. He also pointed out that though there was an allegation of commission of forceful sexual intercourse with victim but no external or internal injuries were found by Dr. Nandini Kanwar (PW4) who examined the victim. 4. There was love affair between two. However, only because of pressure of family member, false and baseless allegations have been levelled against the appellant. He also pointed out that though there was an allegation of commission of forceful sexual intercourse with victim but no external or internal injuries were found by Dr. Nandini Kanwar (PW4) who examined the victim. 4. On the other hand, learned counsel for the State opposed the submissions of learned counsel for the appellant and submitted that from evidence available in record, it is apparent that victim has made specific allegation against appellant that he threatened her on many occasions and under the fear of life threat, she went out of her house where appellant committed sexual intercourse against her will. Prosecution to prove age of victim below 18 years has produced school register and got it proved through PW4 Teacher of school and the school register is marked as Ex.P-9 B wherein date of birth of victim is mentioned as 20.05.2003. Upon considering the date of incident to be of 11.03.2020 it is apparent that victim was less than 17 years of age on the date of incident i.e. below 18 years. Hence, appellant has committed offence for which he was convicted and sentenced by learned trial Court. Judgment of conviction is upon proper appreciation of evidence and facts available in record, hence, it does not call for any interference. 5. I have heard learned counsel for the parties and also perused record of trial Court. 6. In the facts of case where appellant is also convicted for offence under Section 3/4 of Act of 2012, I find it appropriate to first consider whether learned trial Court justified in recording a finding that prosecution has proved beyond reasonable doubt the age of prosecutrix/victim below 18 years on the date of incident. In written report which is lodged by her father, there is mention that his daughter was minor. Considering contents of complaint Ex.P-1, police while registering FIR Ex.P-2, along with offence under Section 376 of IPC, has also added offence under Sections 3 & 4 of the Act of 2012. Section 3 of the Act of 2012 talks of "penetrative sexual assault". Section 4 provides for punishment for penetrative sexual assault. To prove age of prosecutrix, prosecution collected school register Ex.P-9 B and examined Jagatpal, Assistant Teacher (PW4). Section 3 of the Act of 2012 talks of "penetrative sexual assault". Section 4 provides for punishment for penetrative sexual assault. To prove age of prosecutrix, prosecution collected school register Ex.P-9 B and examined Jagatpal, Assistant Teacher (PW4). Close scrutiny of school register Ex.P-9 B would show that it bears name of student, father/guardian name with address, caste, occupation of father, date of birth of child, date of admission, Class in which student/child was admitted, date of leaving the school and class in which student left the school. In school register, date of birth of victim is mentioned as 20.05.2003. Date of admission as 19.06.2009. School register did not bear information as to who informed date of birth of student who got admitted in school on the date as mentioned therein. 7. Father of victim is examined as PW1. In his statement he stated that he is having three children, victim is the youngest one. He has performed marriage of two elder children than victim together about two years ago. He admitted that age of his elder son was about 25-26 years. There is difference of age between each of child as 2-3 years. He could not able to narrate age of his married daughter. He also admitted that he is not in a position to inform date of birth of his children. In para-5 of his cross-examination this witness though stated that victim was taken to school for admission as she completed 6 years, in same paragraph he categorically admitted that at the time of admission he did not inform about date of birth of his child (victim). 8. Jagatpal Pento (PW4) is Assistant Teacher who in his evidence stated that on demand of Investigating Officer he gave copy of school register in front of two witnesses Mukhtar and Sahnawaj. Her date of birth is mentioned as 20.05.2003 at Sr.No.361. In para-3 of his cross-examination he admitted that he did not got the victim admitted in school and there is no birth certificate available in school record of victim. 9. From above evidence available in record except oral testimony of victim and her father that on the date of incident, victim was below 18 years of age, there is no documentary proof to prove age of victim on the date of incident to be below 18 years of age. 9. From above evidence available in record except oral testimony of victim and her father that on the date of incident, victim was below 18 years of age, there is no documentary proof to prove age of victim on the date of incident to be below 18 years of age. True it is that where age of minor is to be proved, recourse could have been taken under Section 94 (2) of Juvenile Justice (Care and Protection of Children) Act, 2015 (for short "Act of 2015") to prove age of juvenile, which reads as under: “94. Presumption and determination of age: (1) x x x (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.” 10. Under the Act of 2015, documents according to their preference to prove age of juvenile is provided which clearly indicates that birth certificate mentioning date of birth issued from the school or matriculation or equivalent certificate from concerned examination Board has to be firstly preferred. In absence of above document, certificate mentioning date of birth issued by Corporation or a Municipal Authority or Panchayat is to be given consideration and only thereafter in absence of above mentioned documents age of victim/child below 18 years of age to be determined through ossification test. 11. In the case at hand, victim was not sent for ossification test. The only evidence brought on record by prosecution to prove age of victim to be below 18 years is, school register obtained from school and produced by prosecution. 12. 11. In the case at hand, victim was not sent for ossification test. The only evidence brought on record by prosecution to prove age of victim to be below 18 years is, school register obtained from school and produced by prosecution. 12. Parent/guardian could be the best person to inform about date of birth of victim/juvenile. According to evidence available in record, PW1 father of victim, Ex.P-9 B school register, it is not appearing that date of birth mentioned in school register is informed by parents of victim/student who was admitted in school according to entry made in school register Ex.P-9B. PW1 father of victim stated that he took the victim to school for admission, however, he also stated in clear terms that he did not inform about age of victim. PW4 Assistant Teacher who proved the copy of school register Ex.P-9 B and entry made therein stated that he had not admitted the victim in school but by some other Teacher/Head Master/Head Mistress. 13. From above evidence available on record it is apparent that father of victim was not aware of exact date of birth of his daughter (victim). He at the time of admission of his child (victim) has not given any information about date of birth of his daughter. In above facts of case though school register is having evidentiary value under Section 35 of the Evidence Act but basis on which date of birth is mentioned in school register Ex.P-9B is not proved. 14. Hon'ble Supreme Court in case of Ravinder Singh Gorkhi Vs. State of U.P. (2006) 5 SCC 584 , taking into consideration its earlier decision in case of Birad Mal Singhvi Vs. Anand Purohit , 1988 Supp. SCC 604 , held as under : “26. In Birad Mal Singhvi v. Anand Purohit, 1988 Supp SCC 604 this Court held: (SCC p. 619, para 15) “To render a document admissible under Section 35, three conditions must be satisfied, firstly, entry that is relied on must be one in a public or other official book, register or record; secondly, it must be an entry stating a fact in issue or relevant fact; and thirdly, it must be made by a public servant in discharge of his official duty, or any other person in performance of a duty specially enjoined by law. An entry relating to date of birth made in the school register is relevant and admissible under Section 35 of the Act but the entry regarding the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded.” (Emphasis supplied) 15. In case of Alamelu and Anr. Vs. State Represented by Inspector of Police , (2011) 2 SCC 385 , Hon'ble Supreme Court considered transfer certificate issued by the government school under signature of Headmaster to be admissible in evidence under Section 35 of Evidence Act, 1872, evidentiary value of such document is not much to prove age of prosecutrix in absence of any material on basis of which the age was recorded. 16. In case of P. Yuvaprakash Vs. State Represented by Inspector of Police , 2023 SCC Online SC 846 held 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. 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. 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. 15. In a recent decision, in Rishipal Singh Solanki v. State of Uttar Pradesh, 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 v. The State of Uttar Pradesh that: “Clause (i) of Section 94(2) places the date of birth certificate from the school and the matriculation or equivalent certificate from the 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 v. 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.” 17. For determining victim to be minor, burden to prove that juvenile was below 18 years of age was upon prosecution as prosecution setup a case that on the date of incident victim was below 18 years of age and has prosecuted the appellant for offence under Section 3 & 4 of the Act of 2012 also. 18. In case of Abuzar Hossain @ Gulam Hossain Vs. State of West Bengal , (2012) 9 SCR 224, Hon'ble Supreme Court held that burden to prove that someone is a juvenile (below the prescribed age) is upon the person claiming it. 18. In case of Abuzar Hossain @ Gulam Hossain Vs. State of West Bengal , (2012) 9 SCR 224, Hon'ble Supreme Court held that burden to prove that someone is a juvenile (below the prescribed age) is upon the person claiming it. Appellant stood convicted and sentenced as mentioned in preceding paragraph and therefore to convict appellant, the nature of proof required is beyond reasonable doubt and therefore age of victim on the date of incident to be, below 18 years of age is to be proved by prosecution beyond reasonable doubt. Prosecution, except producing school register mentioning date of birth, failed to prove as to on what basis date of birth is recorded. Father of victim had made statement that he has not informed date of birth of his daughter at the time of admitting his daughter. In above facts of case, in opinion of this Court, prosecution failed to prove age of victim to be below 18 years of age by admissible pieces of evidence. 19. Now I will consider whether victim was subjected to forceful sexual intercourse against her will. Written report lodged by father of victim Ex.P-1 would show that according to information given by third person Sahnawaj, son of Khurshid, victim and appellant was having talking terms for longtime. They were also having the talk on mobile phone. In view of aforementioned facts mentioned in written report Ex.P-1 that there was talking terms between victim and appellant given by Sahnawaj, not a family member of any of two, would show that appellant and victim were known to each other. PW2 victim in her evidence has clearly stated that appellant gave a call on mobile phone of her father. It is not a case of prosecution that victim was using mobile phone but according to evidence available on record, it is apparent that mobile phone was of father of victim and the appellant in night at about 3:00 a.m. gave call on mobile phone to which she took, upon which appellant has asked her to come out from her house and gave threat of life upon her refusal. Prosecution has not proved the fact that appellant in night gave call on mobile phone of father of victim. 20. Admittedly, as per case of prosecution victim was sleeping in house of her father along with her father, mother, brother and his wife. Prosecution has not proved the fact that appellant in night gave call on mobile phone of father of victim. 20. Admittedly, as per case of prosecution victim was sleeping in house of her father along with her father, mother, brother and his wife. She herself opened door of her house and without intimating any one of her family member came out of house in night at about 3:00 am and went along with appellant. Had it been a case of act of threat given by appellant to victim that too on mobile phone of her father, in normal course, she would have intimated to her family members. There is no such evidence available in record. From her house she went along with appellant about 1 k.m. away to house of appellant and there she resided till 11-12 a.m. in morning day time. 21. Dr. Nandini Kanwar who examined victim is examined as PW3 who proved MLC of victim as ExP-13. In MLC report she opined that there was no sign of struggle present. From above evidence, it is appearing that evidence of victim PW2 that she resisted, act of appellant of committing sexual intercourse by scratching him with her nails and also kicking him, does not inspire confidence upon evidence of victim. Doctor in her Court statement has given opinion that she did not find any sign of forceful sexual intercourse upon victim/prosecutrix. 22. In above evidence available on record of doctor and MLC Ex.P-13 as also FSL report Ex.P-24 though presence of semen is found positive on vaginal slide of victim and panty of victim, however, it is not appearing that , appellant committed forceful sexual intercourse upon victim. 23. It is not in dispute that in case of offence of rape, conviction can be maintained even on the basis of sole testimony of victim, however, there is a rider that testimony of victim must inspire confidence. Even though testimony of prosecutrix is not required to be corroborated but then, if her statement is not believable, accused cannot be convicted. It is for prosecution to prove charges levelled against the appellant/accused beyond all reasonable doubt in which prosecution failed. 24. Even though testimony of prosecutrix is not required to be corroborated but then, if her statement is not believable, accused cannot be convicted. It is for prosecution to prove charges levelled against the appellant/accused beyond all reasonable doubt in which prosecution failed. 24. For the foregoing discussions, in opinion of this Court, prosecution failed to prove age of victim to be less than 18 years of age on the date of incident and appellant committed forceful sexual intercourse with victim, beyond reasonable doubt and, therefore, impugned judgment of conviction passed by learned trial Court is not sustainable in eyes of law and is liable to be set aside. 25. Accordingly, appeal is allowed, impugned judgment of conviction is set aside. Appellant is acquitted from the charges leveled against him under Sections 365, 376 of IPC and Sections 3/4 of the Act of 2012. He is reported to be in jail. He be released forthwith if not required in any other criminal case. 26. Record of trial Court along with copy of this judgment be sent back immediately to concerned trial Court for compliance and necessary action.