JUDGMENT : 1. This criminal appeal has been preferred under Section 374(2) of the CrPC against judgment of conviction and order of sentence dated 31.03.2022 passed by Additional Sessions Judge, Fast Track Special Court (POCSO Act), Ramanujganj Distt., Balrampur-Ramanujganj (CG) in Special Sessions Trial (POCSO) Case No.44/2019, whereby the learned Special Judge, after holding the appellant guilty, convicted and sentenced him in the following manner:- S. No. Conviction under Section Jail Sentence Fine Sentence Default stipulation 01. 08 of POCSO Act RI for 03 years Rs.5,000/- RI for 03 months 02. 11/12 POCSO Act RI for 01 year Rs.1,000/- RI for 01 month 03. 354(A)(1)(i) IPC Since the appellant has been sentenced for alike offence under the POCSO Act, therefore, in view of Section 42 of the POCSO Act, he has not been sentenced separately in these sections 04. 354 (D) IPC 2. Case of the prosecution, in brief is that, on 30.7.2019, minor victim lodged FIR (Ex-P/1) against the appellant stating interalia that on 30.7.2019 at about 6.00 am, when she had gone towards agricultural filed to attend nature call, that time. the appellant stopped her and after holding her hands, he dragged her towards the pit (ditch), pulled her leggings and undergarments and got on top of her with ill intention, thereby he molested her. On hearing her screaming, her father and grand-father ran towards her and on seeing them, the appellant ran away from the spot. After lodging of the FIR, the police recorded statement (Ex-P/3) of the victim under Section 164 CrPC before concerned Judicial Magistrate First Class. She was medically examined vide MLC report (Ex-P/13) by Dr. Arun Kumar (PW-12), prepared spot map (Ex-P/5), also got prepared spot map from concerned Patwari (Ex-P/2), recorded statement of the witnesses under Section 161 CrPC, seized marksheet of Class-V of the victim vide seizure Memo Ex-P/6 from father of the victim and also seized admission discharge register (Dalhil Kharij Register) of the victim pertaining to her date of birth vide Ex-P/7 and the appellant was arrested vide Ex-P/11. After completion of investigation, charge sheet for the offence under Sections 354(A)(1)(i), 354 (D) of IPC and Section 7/8 of the POCSO Act, has been filed before the Fast Track Special Court. 3. After completion of investigation, charge sheet for the offence under Sections 354(A)(1)(i), 354 (D) of IPC and Section 7/8 of the POCSO Act, has been filed before the Fast Track Special Court. 3. The learned Fast Track Special Court framed charges under Section 7/8 of POCSO Act, alternatively charges under Section 354(A)(1)(i) IPC and Section 11/12 of POCSO Act, alternatively charge under Section 354 (D) of IPC, against the appellant/accused, who denied the charges and claimed trial. 4. In order to bring home the guilt of the appellant/accused, the prosecution has examined as many as 13 witnesses and exhibited 14 documents. Statement of the appellant under Section 313 CrPC, was recorded, in which, he denied all the circumstances appearing against him in the prosecution evidence, claimed himself to be innocent and prayed for trial. He has not examined any witness in his defence. 5. The learned Special Court after appreciating the evidence adduced by the prosecution, convicted and sentenced the appellant as mentioned in the opening paragraph of this judgment, hence, this appeal. 6. Learned counsel for the appellant submits that, the victim is said to be minor, but no any lawful documentary evidence has been proved by the prosecution in this regard, rather, the learned Special Court has held her minor only on the basis of date of birth of the victim mentioned in the Dakhil Kharij Register (Ex-P/14C) and marksheet of Class-V, whereas it has not been proved that, who got recorded said date of birth of the victim in the school record and on what basis, it was recorded. As per the alleged date of birth 12.01.2004, on the date of incident, age of the victim was 15 years 06 months and 18 days, whereas grand father of the victim has stated that age of the victim on the date of his deposition i.e. 04.12.2019 was 15 years. On the other hand, father of the victim (PW-4), whose statement was also recorded on the same day, has stated that age of the victim is 17 years. The victim herself has not stated her date of birth. Thus, age of the victim is contradictory in the deposition of her father and grand father. Despite that, the learned Special Court only relying on the Dakhil Kharij Register and marksheet of Class V of the victim held her to be minor on the date of incident. The victim herself has not stated her date of birth. Thus, age of the victim is contradictory in the deposition of her father and grand father. Despite that, the learned Special Court only relying on the Dakhil Kharij Register and marksheet of Class V of the victim held her to be minor on the date of incident. She further submits that, mother of the appellant and father of the victim are real brother and sister. The appellant’s mother has constructed house on the land of her father. Father of the victim does not want to give share to his sister (mother of the appellant), therefore, dispute is going on between them and only to oust the mother of the appellant from getting share from the parental property, the appellant has been flasely implicated in the instant case. It is further submitted that if the appellant had molested the victim by dragging her forcefully and slammed on the ground and tried to disrobe her by pulling, she would have sustained injuries. But the doctor, who examined her on the same day vide MLC report (Ex-P/13) reported that no visible injury was found on the body of the victim. She further submits that the learned Special Court without considering aforesaid facts and without analyzing the evidence adduced by the prosecution, has superficially considered the evidence and convicted the appellant for the alleged offence, which suffers from gross perversity and illegality, therefore, impugned judgment deserves to be set aside and the appellant may be acquitted of the charges levelled against him. 7. Per contra, learned counsel for the State would submit that impugned judgment is based on well appreciation of the evidence, hence, the appeal is liable to be rejected. 8. I have heard learned counsel for the parties and perused the material available on record including the record of special Court. 9. As per the case of the prosecution, the victim was minor at the time of the incident. But victim (PW-1) herself has not stated her date of birth in her deposition. PW-2 is mother of the victim, PW-4 is father of the victim and PW-5 is grand father of the victim, but none of them have stated the date of birth of the victim in their deposition. PW-6 is uncle (chacha) of the victim. His deposition also does not contain aforesaid fact. PW-2 is mother of the victim, PW-4 is father of the victim and PW-5 is grand father of the victim, but none of them have stated the date of birth of the victim in their deposition. PW-6 is uncle (chacha) of the victim. His deposition also does not contain aforesaid fact. Father of the victim (PW- 4) has stated in his deposition (dated 04.12.2019) that date of the birth of the victim on that date was 17 years, whereas, grand-father of the victim (PW-5) has stated in his deposition (dated 04.12.2019), that age of the victim on that date was 15 years. Thus, the age of the victim stated on the date of recording of their deposition is highly contradictory. Father of the victim (PW- 4) has admitted in cross-examination para 8 that when children attain the age of 7-8 years, they are admitted to Class-I. He has also stated in his cross- examination para 8 that while admitting the victim in the Anganbaadi, her date of birth was told there, based on that, her date of birth has been mentioned in the school. Thus, the victim was first admitted in the Anganbaadi, where her date of birth was recorded for the first time, but Dakhil Kharij Register or any other document of that Anganbaadi has not been seized or proved by the investigation officer. 10. Ex-P/14C is Dakhil Kharij Register of the victim of Shri Sai Baba Sanskar Public School, Navadih (Chando) Block Kusmi, Distt. Balrampur. This document was seized from Nitesh Gupta (PW-13), Headmaster of aforesaid school, but from aforesaid document as well as from the deposition of Nitesh Gupta (PW-13), it does not seem that aforesaid school is a Govt. school, rather it appears that it is a private school. Balrampur. This document was seized from Nitesh Gupta (PW-13), Headmaster of aforesaid school, but from aforesaid document as well as from the deposition of Nitesh Gupta (PW-13), it does not seem that aforesaid school is a Govt. school, rather it appears that it is a private school. Perusal of Dakhil Kharij Register (Ex-P/14C) shows that as per aforesaid document, date of birth of the victim is 12.01.2004, which is also mentioned in the Class-V marksheet of the victim which has been seized from her father vide Seizure memo Ex-P/6, but Ex-P/14C shows that earlier in column shown as “class in which admitted” Class IV was noted subsequently after encircling it Class V has been noted, meaning thereby the victim was admitted in aforesaid private school first time in Class IV or Class V. Thus, earlier she had studied from Class-1 to Class IV in some other school, but Dakhil Kharij Register of the first school of the victim was not seized or proved by the prosecution. Father of the victim (PW- 4) has also stated that the victim was admitted in the Anganbaadi for the first time, where her date of birth was recorded for the first time. But record of that school was not filed or proved by the prosecution. 11. Thus, the date of birth of the victim has neither been stated by the victim nor by her aforesaid relatives nor her birth certificate or Dakhil Kharij Register of first school where she was first admitted has been filed or proved. Even on 04.12.2019 what was the date of birth of the victim, is also contradictory from the deposition of the father and grand-father of the victim. Therefore, only on the basis of date of birth mentioned in the Dakhil Kharij Register of private school, that too a subsequent school, and the date of birth mentioned in the marksheet of Class V of the victim, it cannot be held that 12.01.04 is her actual date of birth. 12. In the matter of Babloo Pasi v. State of Jharkhand and another , (2008) 13 SCC 133 , Hon’ble Supreme Court has held in para 28 & 29 as under:- “28. 12. In the matter of Babloo Pasi v. State of Jharkhand and another , (2008) 13 SCC 133 , Hon’ble Supreme Court has held in para 28 & 29 as under:- “28. It is trite that to render a document admissible under Section 35, three conditions have to be satisfied, namely: (i) entry that is relied on must be one in a public or other official book, register or record; (ii) it must be an entry stating a fact in issue or a relevant fact, and (iii) it must be made by a public servant in discharge of his official duties, or in performance of his duty especially enjoined by law. An entry relating to date14 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. (See: Birad Mal Singhvi Vs. Anand Purohit [ (1997) 4 SCC 24 ]”. “29 . ……………………………...in the absence of evidence to show on what material the entry in the voters' list in the name of the accused was made, a mere production of a copy of the voters' list, though a public document, in terms of Section 35, was not sufficient to prove the age of the accused…………………………...” 13. Further in the matter of Madan Mohan Singh and Others Vs. Rajni Kant and Another , (2010) 9 SCC 209 , it was observed that the entries made in the official record by an official or person aurthorised in performance of official duties may be admissible under Section 35 of the Evidence Act but the Court has a right to examine their probative value. The authenticity of the entries would depend on whose information such entries stood recorded and what was his source of information. The entries in school register/ school leaving certificate require to be proved in accordance with law and the standard of proof required in such cases remained the same as in any other civil or criminal cases. 14. In the instant case, as has been discussed in the preceding paragraphs that neither the victim nor her relative witnesses have stated her date of birth nor any valid document has been filed or proved in this regard. 14. In the instant case, as has been discussed in the preceding paragraphs that neither the victim nor her relative witnesses have stated her date of birth nor any valid document has been filed or proved in this regard. Dakhil Kharij Register of the private school as well as the marksheet of Class V of the victim have also not been proved in accordance with law, as has been enunciated by the Apex Court in the aforesaid judgments. Therefore, it is found that the learned Fast Track Special Court has held the victim minor on the date of incident without any lawful evidence as the prosecution has utterly failed to prove aforesaid facts. Hence, finding recorded by the learned Special Court that the victim was minor on the date of incident is found to be perverse and illegal, hence, the same is not sustainable. 15. So far as the allegation of sexual assault and sexual harassment/ molestation of the victim by the appellant is concerned, as per the deposition of the victim (PW-1), she had gone towards the agricultural field to attend the nature call, that time, the appellant called her, when she did not stop, the appellant hold her hands, dragged her towards pit, slammed her to the ground, then got on top of her. She has further stated that the appellant tried to pull her leggings and underwear with ill intention and when she screamed, then her father and grand father came there and on seeing them, the appellant ran away from the spot. Aforesaid fact also gets support from the deposition of her father (PW-4) and grand-father (PW-5). As per their statement, they were working in the field and on hearing the screaming of the victim, they ran towards the victim and on seeing them, the appellant ran away from the spot. They have also supported the statement of the victim that the appellant was trying to molest her in the manner as has been stated above. PW-2 is mother of the victim, to whom the victim told about the incident. PW-6 is uncle of the victim, to whom the victim told about the incident later on. Thus, they are hearsay witnesses. 16. PW-2 is mother of the victim, to whom the victim told about the incident. PW-6 is uncle of the victim, to whom the victim told about the incident later on. Thus, they are hearsay witnesses. 16. Sujan Ram (PW-7) has projected himself as eye witness of the incident, but neither the victim, nor her father nor grand-father have stated in their deposition that he (PW-7) was also present on the spot. Thus, it is found that he is also a hearsay witness. 17. Perusal of the deposition of the victim shows that the appellant after holding her hand, dragged her towards pit, tried to pull her leggings and underwear and after slamming her to the ground, he got on top of her. Thus, appellant had used force/power upon her. If she was dragged with such force, then the victim would have sustained various visible injuries like rashes, redness, contusion and abrasion etc. But she was medically examined by Dr. Arun Kumar (PW-12) on the same day, but he has reported vide MLC report (Ex-P/13) that except complaint of pain below the waist, he did not find any visible injury on her person. Having considered the manner and the circumstances of the commission of alleged crime upon the victim by the appellant, i.e. holding her hand, dragging her, slamming on the ground and trying to pull her leggings and undergarments, create doubt towards trurthfulness of aforesaid deposition of the victim and her relatives. Father of the victim (PW-4) has stated in his deposition that they saw the incident from a distance about 150-200 feet, but in Patwari naksha (Ex-P/2) it has been shown that father of the victim and her grand-father were present about 140 meters away from the alleged place of incident. This fact also raises doubts about PW-4 and PW-5 being eyewitnesses to the incident. It is very well proved from the admission of the victim (PW-1), her mother (PW-2), her father (PW-4), her grand-father (PW-5) and her uncle (PW-6) that mother of the appellant/ accused and father of the victim are brother and sister and there was property dispute between them. Revenue case is also pending between them in this regard as parents of the appellant had constructed house on the land of her grand-father. Thus, there is property dispute between the family members of both the parties. Revenue case is also pending between them in this regard as parents of the appellant had constructed house on the land of her grand-father. Thus, there is property dispute between the family members of both the parties. Therefore, in view of the discussion of evidence made in the preceding paragraphs, allegation of sexual assault or harassment or molestation upon the victim by the appellant/accused is not found to be proved beyond reasonable doubt, but the learned trial Court, without any reliable or lawful evidence has held the appellant guilty of said offence, which is found to be perverse and illegal, hence, the same deserves to be set aside. 18. In view of the above discussion, the appeal filed by the appellant is allowed. Impugned judgment of conviction under Sections 8 and 11/12 of the POCSO Act and Sections 354(A)(1)(i) and 354(D) of the IPC and order of sentence passed against the appellant are set aside and he is acquitted of the said charges, granting him the benefit of doubt. The appellant is on bail. The bail bonds furnished by the appellant shall remain in operation for a period of 06 months from today in view of the provisions contained under Section 481 of the Bhartiya Nagrik Suraksha Sanhita, 2023. 19. Let a certified copy of this judgment along with record of the concerned Court below be transmitted forthwith for compliance and needful, if any.