JUDGMENT : NARESH KUMAR CHANDRAVANSHI, J. 1. This criminal appeal has been preferred under Section 374(2) of the CrPC against judgment of conviction and order of sentence dated 18.8.2021 passed by Upper Sessions Judge, IV FTC,/Special Court-POCSO Act, 2012, Durg (CG) in Special Session Case (POCSO) No.104/2018, whereby the learned Special Judge, after holding the appellant guilty, convicted and sentenced him in the following manner:- 2. The prosecution story in brief is that on 17.9.2018, at about 7.45 am, complainant/mother of the victim informed in Police Station, Kotwali, Durg, that her minor daughter, aged about 16 years, had gone out of their house at about 1:00 o’clock in the night without informing anyone. Based on which, missing report was lodged and FIR (Ex-P/12) under Section 363 IPC was also registered against unknown person. On the same day, the complainant informed the police vide Ex-P/11 that after lodging the report, upon information given by the victim herself, they recovered the victim from the premises of Collectorate Garden, Durg. Thereafter the victim informed them that the appellant/accused after alluring, took her and also made physical relation with her without her consent. Recovery memo (Ex-P/1) was prepared by the police, spot map was prepared by the concerned Patwari vide Ex-P/4, statement of the victim under Section 164 CrPC was got prepared from concerned JMFC. Statement of the witnesses were recorded under Section 161 CrPC. The Victim was medically examined by Dr. Rimple Bhatia (PW-9), vide MLC report (Ex-P/19), she did not find any external or internal injuries on the person of the victim and opined that hymen was old ruptured, based on which, she opined that no definite opinion could be given regarding commission of sexual intercourse with the victim. She preserved two vaginal slides and handed over the same to the concerned constable for chemical examination. Underwear of the victim was also seized from her vide seizure memo Ex-P/7. Birth certificate of the victim, her progress reports of Class-I and Class-VIII, in which her date of birth was mentioned as 21.7.2002 were seized vide Ex-P/8. Dakhil Kharij Register of the victim was also seized from Shivam Public School vide seizure memo Ex-P/22. Vaginal slides of the victim were seized vide seizure memo Ex-P/27 from concerned Constable, underwear of the appellant was seized vide Ex-P/29. The appellant was also medically examined. The appellant was arrested on 19.9.2018 vide arrest memo Ex-P/33. 3. Dakhil Kharij Register of the victim was also seized from Shivam Public School vide seizure memo Ex-P/22. Vaginal slides of the victim were seized vide seizure memo Ex-P/27 from concerned Constable, underwear of the appellant was seized vide Ex-P/29. The appellant was also medically examined. The appellant was arrested on 19.9.2018 vide arrest memo Ex-P/33. 3. After completion of investigation, charge sheet under Section 173 CrPC was filed before Fifth Upper Sessions Judge/FTC, Durg for the offences under Sections 363, 366 and 376 IPC and Sections 3 & 4 of the POCSO Act. The learned Special Court framed charges for the offence under Sections 363, 366 & 376 IPC and Section 3/4 of the POCSO Act and explained to the appellant, who denied the charges and pleaded innocence seeking trial. 4. In order to bring home the guilt of the appellant, the prosecution has examined as many as 12 witnesses and exhibited 36 documents. Statement of the appellant under Section 313 CrPC was recorded, in which he denied the incriminating circumstances appearing against him and pleaded innocence. No witnesses have been examined by the appellant. 5. The learned Special Court, after appreciation of oral and documentary evidence available on record, vide its judgment dated 18.8.2021, finding the evidence adduced by the prosecution trustworthy, convicted and sentenced the appellant/accused as mentioned in the opening paragraph of this judgment, against which, this appeal has been filed. 6. Learned counsel for the appellant submits that vide impugned judgment, learned Special Court has held that victim was minor i.e.( 16 years 01 month and 17 days) on the date of incident, i.e. 17.9.2018, but that has been held by the learned Special Court on the basis of Dakhil Kharij Register of the victim, in which her date of birth has been mentioned as 31.7.2002, whereas, it has not been proved by the victim or her parents that who entered aforesaid date of birth while admitting the victim in the school. Therefore, date of birth mentioned in the Dakhil Kharij Register cannot be relied upon. He further submits that the learned Special Court has also considered date of birth of the victim, but the same is photo copy and that photo copy has not been proved by the prosecution by producing original date of birth certificate of the victim. Therefore, date of birth mentioned in the Dakhil Kharij Register cannot be relied upon. He further submits that the learned Special Court has also considered date of birth of the victim, but the same is photo copy and that photo copy has not been proved by the prosecution by producing original date of birth certificate of the victim. Since that date of birth certificate of the victim is photocopy, therefore, relying on that photo copy on the basis of provisions of Section 35 of the Indian Evidence Act, is completely perverse, because aforesaid provision only provides that entry made in the Government record only provides provisions with regard to relevancy of entry made in the public record or electronic record during the performance of duty, but on the basis of that provision, photo copy of the birth certificate cannot be held reliable. Therefore, finding recorded by learned Special Court holding the victim minor on the date of incident is perverse and illegal, hence, it deserves to be set aside. Learned counsel further submits that it is a case of love affair, and the victim herself has admitted this fact in her deposition. No external or internal injuries have been found in the MLC report (Ex-P/19) of the victim. Allegation of offence of rape is not supported by the parents of the victim. He further submits that the victim herself joined the company of the appellant in the night with her own free will and consent. Therefore, holding the appellant guilty for the offence of rape by the Special Court is also against the provisions of evidence available on the record. Hence, it is prayed that the appeal may be allowed and the appellant may be acquitted of the charges by setting aside impugned judgment. 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 as well as the impugned judgment. 9. As per the case of the prosecution, the victim was minor on the date of incident and the learned Special Court calculated the age of the victim on the date of incident as 16 years 01 month and 17 days. 9. As per the case of the prosecution, the victim was minor on the date of incident and the learned Special Court calculated the age of the victim on the date of incident as 16 years 01 month and 17 days. The first and foremost question to be considered by this Court is whether the aforesaid finding recorded by the trial Court is based on valid evidence or not. 10. The victim (PW-1) herself has stated in her deposition that her date of birth is 31.7.2002. PW-2 is aunt (chachi) of the victim, PW-3 is mother of the victim, PW-4 is uncle (chacha) of the victim and PW-5 is father of the victim. Except the victim, none of the aforesaid relatives of the victim has stated in their deposition as to what is the date of birth of the victim. 11. Mother of the victim (PW-3) admitted in her cross-examination that she did not remember the date of birth of the victim. Vide seizure memo Ex-P/8, birth certificate of the victim, her progress report of Class-I & Class- VIII issued by Shivam Public School, Baijnathpara, Durg were seized from mother of the victim. Thereafter those documents were handed over to the her on supurdnama vide Ex-P/9. But she has shown her ignorance as to whether aforesaid documents were seized from her nor not. Thus, those documents have not been proved by the prosecution by calling it from the mother of the victim while recording her deposition. Hence, seizure of the aforesaid documents mentioned in Ex-P/8 cannot be held to be proved. 12. Ex.P/24C is photocopy of Dakhil Kharij Register of Shivam Public School, Baijnathpara, Durg pertains to the victim, which shows that in the Dakhil Kharij Register, date of birth of the victim is mentioned as 31.7.2002 and she was admitted in Class I in aforesaid school. That document was seized from Ram Narayan (PW-10), who was the Headmaster of aforesaid school, but in the cross-examination, this witness has shown his ignorance as to who had got admitted the victim in that school. Though he has stated that date of birth of the victim was mentioned in the Dakhil Kharij Register as per her birth certificate, but he admitted that he does not know who had prepared that birth certificate. That birth certificate has neither been proved by this witness nor by the parents of the victim. 13. Though he has stated that date of birth of the victim was mentioned in the Dakhil Kharij Register as per her birth certificate, but he admitted that he does not know who had prepared that birth certificate. That birth certificate has neither been proved by this witness nor by the parents of the victim. 13. Mother of the victim (PW-3) has admitted in her cross-examination para 5 that, she was married 22-23 years prior to the date of deposition i.e. 09.3.2020. She has further stated that after one year of her marriage, her son Ishwar was born and after one year of his birth, the victim was born. Father of the victim (PW-5) has also admitted that the age gap between their children, i.e. Ishwar and the victim is 1-2 years. If this fact is accepted then, it become clear that they got married in the year 1998-99 and their first child Ishwar was born in the year 1999-2000 and the second child, i.e. the victim was born in the year 2000-2001. Incident of the present case occurred on 17.9.2018, therefore, on this basis, it cannot be held beyond reasonable doubt that the victim was minor on the date of incident. Since the correct date of birth of the victim has not been proved by the prosecution or even from the deposition of the parents of the victim and no valid evidence as provided under Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015, has been adduced to prove aforesaid fact and only Dakhil Kharij Register has been proved by the prosecution, but who got recorded the alleged date of birth i.e. 31.7.2002 has not been proved by the prosecution, therefore, on the basis of such documentary evidence, the finding recorded by learned trial Court relying only on Dakhil Kharij Register that the victim was minor on the date of incident, is not found to be sustainable. Hence, the same deserves to be set aside. 14. So far as the allegation of sexual exploitation and kidnapping of the victim is concerned, the victim (PW-1) has stated in her deposition that prior to the incident, she had friendship with the appellant, therefore, on being called by him in the night at about 1:00 o’clock, she went with the appellant to the garden of Collectorate Office at Durg. So far as the allegation of sexual exploitation and kidnapping of the victim is concerned, the victim (PW-1) has stated in her deposition that prior to the incident, she had friendship with the appellant, therefore, on being called by him in the night at about 1:00 o’clock, she went with the appellant to the garden of Collectorate Office at Durg. She has further stated that there the appellant made forceful physical relation with her. She has further stated that at about 5:00 am the appellant left the Collectorate garden leaving her alone, thereafter she told her father with regard to her, thereafter at about 8:00 am the police came there along with her family members and recovered her. In the cross-examination she has also stated that the appellant had made forceful physical relation with her. It is evident from her deposition that the lights remained on in the Collectorate Garden throughout the night and security guards were also deployed there at night. If there would have been any forceful relation with the victim by the appellant, she could have raised alarm, but she did not do so. 15. Mother of the victim (PW-3) has admitted in her deposition that in the night of the incident at about 1:00 o’clock, the victim had gone somewhere without informing them, therefore, she lodged FIR. This fact also got support from PW-4, who is the uncle (chacha) of the victim. Thus, from the aforesaid evidence of the victim, her mother and uncle, it stands proved that on the date of incident at about 1:00 o’clock in the night, the victim had gone out of her house without informing her family members. 16. Vikas Sen (PW-11A) has stated in his deposition that he had informed the family members of the victim that he had seen the victim with some boy roaming at Katchari, but he has not stated that, the saied boy was the appellant. It has also not been proved by the mother, father, uncle and aunt of the victim that the appellant had taken the victim with him and sexually exploited her. They had denied the suggestion taken by learned Public Prosecutor with regard to aforesaid material facts, rather they have completely turned hostile about aforesaid fact. 17. Dr. It has also not been proved by the mother, father, uncle and aunt of the victim that the appellant had taken the victim with him and sexually exploited her. They had denied the suggestion taken by learned Public Prosecutor with regard to aforesaid material facts, rather they have completely turned hostile about aforesaid fact. 17. Dr. Rimple Bhatia (PW-9) had examined the victim on the same day of the date of incident, but as per her deposition, she did not find any external or internal injuries upon her body, therefore, she could not conclusively opine about having physical relations with the victim. Though in the FSL report, sperm and human spermatozoa were found present in the vaginal slides (Article B), undergarments of the victim (Article A) and undergarments of the appellant (Article C), but except deposition of the victim, there is no other evidence to prove the deposition of the victim that the appellant had taken her with him and made physical relation with her. This fact also fails to inspire confidence of the Court, as the parents and other relatives of the victim have also not proved that the victim had told them that the appellant had physical relation with her. It has also not been stated by any other witnesses, even Vikas Sen (PW-11A) that the victim was seen or recovered from the possession of the appellant. Rather, as per recovery memo (Ex-P/1), she was recovered from the premises of Collectorate Garden, Durg. Though Section 29 of the POCSO Act provides presumption for commission of any offence under Section 3, 5, 7 & 9 of the POCSO Act, 2012, unless contrary is proved, but to raise this presumption, the prosecution ought to have adduced credible evidence atleast from the deposition of the victim, but if the deposition of the victim itself is found contradictory not only and does not inspire confidence of the Court, then only on the basis of her baseless, vague and unreliable evidence, the accused cannot be held guilty. 18. In the case of Ganesan Vs. State Represented by its Inspector of Police , (2020) 10 SCC 573 , Hon'ble Supreme Court while considering various judgments rendered by it has held that in the cases involving sexual offences, only on the basis of testimony of the prosecutrix, if found to be worthy of credence and reliable, the court may convict the accused without corroboration. State Represented by its Inspector of Police , (2020) 10 SCC 573 , Hon'ble Supreme Court while considering various judgments rendered by it has held that in the cases involving sexual offences, only on the basis of testimony of the prosecutrix, if found to be worthy of credence and reliable, the court may convict the accused without corroboration. 19 . In the matter of Nirmal Prem Kumar & Another Vs. State Represented by Police , 2024 INSC 193 , their Lordships of the Supreme Court while reiterating aforesaid dictum has held in paragraph 15 as under :- “15. What flows from the aforesaid decision is that in cases where witnesses are neither wholly reliable nor unreliable, the Court should strive to find out the true genesis of the incident. The Court can rely on the victim as a “sterling witness” without further corroboration, but the quality and credibility must be exceptionally high. The statement of the prosecutrix ought to be consistent from the beginning to the end (minor inconsistencies excepted), from the initial statement to the oral testimony, without creating any doubt qua the prosecution’s case. While the victim’s testimony is usually enough for sexual offence cases, an unreliable and insufficient account from the prosecutrix, marked by identified flaws and gaps, could make it difficult for a conviction to be recorded.” 20. In the instant case, though the victim has stated in her deposition that on being called by the appellant, she had gone with him to the garden at Collectorate premises, Durg, where the appellant sexually exploited her, but this fact does not inspire confidence of this Court and the facts situation, as has been discussed in the preceding paragraphs, as the parents of the victim and other witnesses of the prosecution, do not support aforesaid fact and it also does not get support from medical evidence, despite that the learned trial Court only relying on the vague and baseless deposition of the victim alone, has convicted the appellant for her kidnapping and sexual exploitation, which is found to be perverse and illegal, hence, the same is not sustainable. 21. In view of the above discussion, the appeal filed by the appellant is allowed. 21. In view of the above discussion, the appeal filed by the appellant is allowed. Impugned judgment of conviction and order of sentence passed against the appellant for the offences punishable under Sections 363, 366 and 376 IPC and Section 3/4 of the POCSO Act are set aside and the appellant is acquitted of the said charges. The appellant is on bail. He need not surrender. 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. 22. Let a certified copy of this judgment along with record of the concerned Court below be transmitted forthwith for compliance and needful, if any.