JUDGMENT : RAJANI DUBEY, J. 1. This appeal under Section 374(2) of Cr.P.C. has been filed by the appellant against the judgment of conviction and order of sentence dated 30.08.2019 passed by learned Additional Sessions Judge (FTC) & Special Judge (Protection of Children from Sexual Offences Act, 2012), North Bastar Kanker (C.G.) in Special Criminal Case (POCSO Act) No. 09/2019 whereby, the trial Court convicted the appellant for the offence punishable under Sections 363, 366, 506 (Part-II), 376 (3) of IPC and Section 4 of POCSO Act however keeping in view the provision under Section 42 of POCSO Act, he is sentenced as under:- Conviction Sentence U/s 363 of IPC R.I. for 3 years and fine of Rs.1000/- in default of payment of fine amount, to undergo additional R.I. for 3 months U/s 366 of IPC R.I. for 6 years and fine of Rs.1000/- in default of payment of fine amount, to undergo additional R.I. for 6 months U/s 506 (Part-2) of IPC R.I. for 3 years and fine of Rs.1000/- in default of payment of fine amount, to undergo additional R.I. for 3 months U/s 376(3) of IPC R.I. for 20 years and fine of Rs.50,000/- in default of payment of fine amount, to undergo additional R.I. for 1 year 2. Case of the prosecution, in brief, is that on 03.01.2019, the father of the complainant/prosecutrix lodged an oral report at the Police Station- Kanker to the effect that there is a Laadi near his field, where there is a granary and after cutting the paddy crop, they had kept it in the granary and were threshing the paddy there. His wife, daughter/prosecutrix and son were staying with him in the granary Laadi. On 01.01.2019, at about 10-11 am, they had gone to the village with their family from Laadi to deliver paddy by buffalo cart. His daughter/prosecutrix was alone in the Laadi and after delivering the paddy, they had reached between 12:00-2:00 pm and after having dinner in the evening, they went to sleep with the family in the laadi. On the next day i.e. on 02.01.2019, his wife told him that Sirti Dar, a resident of Salehamat, took the prosecutrix to the forest near their laadi and committed forcible rape on her by intimidating her and threatening to kill her. On being asked, the prosecutrix narrated the same to her father. On the next day i.e. on 02.01.2019, his wife told him that Sirti Dar, a resident of Salehamat, took the prosecutrix to the forest near their laadi and committed forcible rape on her by intimidating her and threatening to kill her. On being asked, the prosecutrix narrated the same to her father. On the basis of said report, a case was registered for the offence punishable under Sections 376 and 506 of IPC against the appellant and FIR (Ex.P/5) was registered and as the incident occurred in Amabeda police station area, the case was transferred to Police Station- Amabeda. During investigation, the police prepared the spot map of the incident vide Ex.P/1 and the Patwari prepared the Nazri Map vide Ex.P/31 and Panchnama was prepared as per Ex.P/32 and sent the same to the Tehsildar. Thereafter, Medical examination of the prosecutrix was got done vide Ex.P/7. X-ray of the prosecutrix was done for determination of her age. Before the Judicial Magistrate First Class Bhanupratappur, the statement of the prosecutrix was recorded under Section 164 Cr.P.C. vide Ex.P/2. The seizures were made vide seizure memo (Ex.P/8, P/9. P/16, P/23 and P/25). The accused has been arrested vide arrest memo (Ex.P/26). The statements of the witnesses were recorded. The seized properties in the case were sent to the Regional Forensic Science Laboratory, Jagdalpur for chemical examination and the FSL report was obtained. After completion of usual investigation, charge-sheet was filed before the learned trial Court for the offence punishable under Sections 376, 506, 376(3), 363 and 366 of IPC. The learned trial Court framed the charges under Sections 363, 366, 506 (Part-II), 376(3) of IPC and Section 4 of POCSO Act, 2012, to which appellant abjured his guilt and claimed to be tried. 3. So as to hold the accused/appellant guilty, the prosecution examined as many as 18 witnesses. Statement of the accused/appellant was also recorded under Section 313 of the Cr.P.C. in which he denied all the incriminating circumstances appearing against him in the prosecution case, pleaded innocence and false implication. 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 30.08.2019 finding evidence adduced by the prosecution trustworthy, convicted and sentenced the appellant as mentioned in para 1 of this judgment. Hence, this appeal. 5. 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 30.08.2019 finding evidence adduced by the prosecution trustworthy, convicted and sentenced the appellant as mentioned in para 1 of this judgment. Hence, this appeal. 5. Learned counsel for the appellant submits that the impugned judgment is perverse, erroneous, contrary to law, facts and circumstances of the case, therefore it is liable to be set-aside. The learned trial Court has failed to appreciate the deposition sheet of prosecutrix (P.W.-1), who has specifically stated that the appellant took her towards forest side, where he filled the leaves in her mouth and thereafter he ran away. This witness has further specifically stated that the appellant has not committed any rape on her. The learned trial Court has failed to appreciate the deposition sheet of Meturam Mandavi (P.W.-2) the father of prosecutrix, who has specifically deposed that he has never lodged any FIR regarding commission of rape. The learned trial Court has further failed to appreciate the deposition of Dr. Sarita Kumeti (P.W.-8), who has specifically stated that upon examination of the prosecutrix, she has not found any sign of struggle or forceful sexual intercourse done with the prosecutrix. The learned trial Court has failed to appreciate that the prosecution has utterly failed to prove its case beyond reasonable doubt against the appellant and there is no evidence to show that as to on what basis the date of birth of prosecutrix was recorded in her school record. The learned trial Court has failed to appreciate that there are material contradictions and omissions in the statements of prosecutrix, her mother and father, which cannot be relied upon. The learned trial Court also did not appreciate this fact that FSL report also does not support the prosecution case. The findings recorded by the learned trial Court are baseless, perverse, erroneous and contrary to the material evidence available on record, therefore liable to be set-aside/quashed. 6. On the other hand, learned State counsel supports the impugned judgment and submits that the learned trial Court rightly appreciated appreciated oral and documentary evidence and convicted the appellant accordingly. Hence, the impugned judgment is well merited and does not call for any interference by this Court. 7. 6. On the other hand, learned State counsel supports the impugned judgment and submits that the learned trial Court rightly appreciated appreciated oral and documentary evidence and convicted the appellant accordingly. Hence, the impugned judgment is well merited and does not call for any interference by this Court. 7. Heard learned counsel for the parties and perused the material placed on record including the impugned judgment. 8. It is clear from record of learned trial Court that the learned trial Court framed the charges under Sections 363, 366, 506(part-II) and 376(3) of IPC and Section 4 of POCSO Act, 2012. 9. As per prosecution, prosecutrix is aged about 14 years at the time of incident. 10. Prosecutrix (P.W.-1) stated that her date of birth is 03.11.2004. 11. Father of the prosecutrix (P.W.-2) stated that the age of his daughter is 14 years and he does not remember the date of birth of his daughter and mother of the prosecutrix (P.W.-16) also stated that she does not remember the date of the birth of the prosecutrix. 12. Sugdu Potai (P.W.-5), Principal Primary School, Mankot, District- South Bastar Kanker (C.G.) stated that the police seized admission discharge register vide Ex.P/15 and according to which, the name of the prosecutrix was mentioned at serial No. 88 and her date of birth is 03.11.2004. In his cross-examination, he admitted that he did not know as to on what basis the date of birth of the prosecutrix was written as 03.11.2004 in Ex.P/15C. He further admitted that he does not know as to who told him that the date of birth of the prosecutrix is 03.11.2004. 13. Dr. K.K. Shori ( P.W.-18) conducted radiological test of the prosecutrix and as per X- ray report, he opined that the age of the victim to be between 14 and 16 years and gave his report vide Ex.P/34 in this regard. In his cross-examination, he admitted that there is possibility of there being variation of 2 years on either side of age of the prosecutrix. 14. Looking to the statements of father of the prosecutrix (P.W.-2), mother of the prosecutrix (P.W.-16), Sugdu Potai (P.W.-5) and Dr. K.K. Shori (P.W.-18), it is evident that the prosecution has failed to prove that the prosecutrix was below 18 years of age at the time of incident. 15. The Hon'ble Apex Court in the matter of Alamelu and Another Vs. Looking to the statements of father of the prosecutrix (P.W.-2), mother of the prosecutrix (P.W.-16), Sugdu Potai (P.W.-5) and Dr. K.K. Shori (P.W.-18), it is evident that the prosecution has failed to prove that the prosecutrix was below 18 years of age at the time of incident. 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. 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 aforesaid decision of the Hon'ble Supreme Court, in the present case also, it is evident that mother and father of the prosecutrix admitted that the they do not remember the date of birth of their daughter (Prosecutrix). Sugdu Potai (Principal) stated that he did not know as to on what basis the date of birth of the prosecutrix was written as 03.11.2004 in Ex.P/15C and Dr. K.K. Shori (P.W.-18) also did not give definite opinion about the age of the prosecutrix. Thus, we find that in the present case, there is no such clinching and legally admissible evidence brought on record by the prosecution to prove the fact that the prosecutrix was minor on the date of incident, yet the learned trial Court has recorded in the impugned judgment that she was minor. Hence, we set aside the finding so recorded by the learned trial Court and hold that the prosecution has not been able to prove successfully that on the date of incident prosecutrix was minor. 17. Now we have to consider that as to whether the accused/appellant committed forcible sexual intercourse with the prosecutrix or not? 18. In her examination-in-chief, prosecutrix (P.W.-1) stated that on the date of incident, she was cooking rice in her field. Her father and mother had gone home to deliver paddy in a cart, at that time, the accused came there, caught hold of her hand and took her to forest by holding her hand and he took off her clothes and also took off his underwear. When she started screaming, the accused threatened to kill her. The accused stuffed the leaf in her mouth and thereafter, he ran away from there. When she started screaming, the accused threatened to kill her. The accused stuffed the leaf in her mouth and thereafter, he ran away from there. When she returned home and narrated the whole incident to her mother. Thereafter, the matter was reported to the concerned police station. Spot map was prepared vide Ex.P/1. Her statement was recorded before the Judicial Magistrate vide Ex.P/2. Identification panchnama was prepared vide Ex.P/3 and she admitted her signature on it from A to A part. 19. Prosecution declared her hostile and cross-examined her then she admitted this suggestion that the accused had committed rape on her and in test identification parade, she identified the accused. Further, she admitted this suggestion of defence that the accused took her to forest and after stuffing her mouth with leaves, he ran away from there and apart from this, the accused did not do anything with her. She also admitted that after the incident, her father called a meeting on next day. 20. In his examination-in-chief, father of the prosecutrix (P.W.-2) stated that in the evening, her daughter came home and told her mother about the incident and then his wife told him. Thereafter, he informed the sarpanch about the incident. Later on, FIR (Ex.P/5) was lodged against the accused. He admitted his signature from A to A part of consent memo (Ex.P/7), seizure memo (Ex.P/8 and Ex.P/9) and Guardian certificate (Ex.P/10). Prosecution declared him hostile and cross-examined him then he admitted this suggestion that the accused had committed sexual intercourse with his daughter (prosecutrix). Again, he admitted all suggestions of defence that he held a meeting in the village on the same day and went to file report the next day. He admitted that he did not ask anything from her daughter (prosecutrix). He further admitted that he is an illiterate person, therefore Patel Banshilal and Sarpanch Ramesh Mandavi, who are educated people of the village, got the report written on his behalf. 21. In her examination-in-chief, mother of the prosecutrix (P.W.-16) stated that her daughter told her that the accused caught hold of her and took her to the forest and committed rape on her. Prosecution declared her hostile and cross-examined her then she denied this suggestion that she had told the police that the accused had put a leaf on her daughter’s mouth and extended threat to kill her. Prosecution declared her hostile and cross-examined her then she denied this suggestion that she had told the police that the accused had put a leaf on her daughter’s mouth and extended threat to kill her. She denied this suggestion that her daughter did not tell her anything about the incident. She further denied that she did not know the accused beforehand. She voluntarily stated that she knew the accused beforehand. She admitted that she had not gone to the police station before the incident. She had gone to the police station along with other people of village. 22. Banshilal Salam (P.W.-3), Rajendra Komra (P.W.-4), Mahesh Kumar Korram (P.W.-6), Somnath (P.W.-7) and Sukhdev Komra (P.W.-15) supported the statements of the prosecutrix (P.W.-1) and her father (P.W.-2) that village meeting was called and before village meeting held, mother of the prosecutrix (P.W.-16) stated that the accused took her daughter (P.W.-1) to forest and committed rape on her. 23. Dr. Sarita Kumeti (P.W.-8) examined the prosecutrix and found bleeding and redness in the private part of the prosecutrix. She opined that the sexual intercourse has been done with the prosecutrix and gave her report vide Ex.P/7 in this regard. However, in FSL report, sperm was not found on the vaginal slide of the prosecutrix. 24. Close scrutiny of statements of prosecutrix, her parents and other independent witnesses makes it clear that the prosecutrix stated about the forcible sexual intercourse committed by the accused. However, in her examination-in-chief, she has not clearly stated against the accused but when prosecution declared her hostile and cross- examined her then she admitted that the accused had committed sexual intercourse with her. Again she admitted the suggestion of defence that the accused only stuffed leaves in her mouth but in her statement recorded before the Judicial Magistrate, prosecutrix clearly stated against the accused. 25. Dr. Sarita Kumeti (P.W.-8) also opined that forcible sexual intercourse has been done with the prosecutrix. Satrupa Sahu (P.W.-13), Executive Magistrate conducted Test Identification Parade and prepared identification panchnama vide Ex.P/3 and in the said Test Identification Parade, prosecutrix (P.W.-1) also identified the accused. Medical report also support the prosecution case. Thus, the prosecution has clearly proved that the appellant has committed forcible intercourse with the prosecutrix. Satrupa Sahu (P.W.-13), Executive Magistrate conducted Test Identification Parade and prepared identification panchnama vide Ex.P/3 and in the said Test Identification Parade, prosecutrix (P.W.-1) also identified the accused. Medical report also support the prosecution case. Thus, the prosecution has clearly proved that the appellant has committed forcible intercourse with the prosecutrix. Since, this Court has already held that the prosecution has failed to prove that the prosecutrix was below 18 years of age at the time of incident, therefore, the conviction of the accused/appellant under Section 376(3) of IPC read with Section 4 of POCSO Act is altered to Section 376(1) of IPC. However, the conviction under Sections 363, 366 and 506 (Part-2) of IPC and sentence awarded thereunder by the learned trial Court shall remain intact. 26. So far as the sentence under Section 376(1) of IPC is concerned, the appellant is directed to undergo RI for 10 years with fine amount. The fine amount imposed by the learned trial Court shall remain intact. 27. In the result, the appeal is partly allowed to the extent indicated hereinabove. 28. The appellant is reported to be in jail since 10.01.2019, as such he has been behind the bars for about 7 years, therefore, he is entitled for set off of the detention period under Section 468 of Bharatiya Nagarik Suraksha Sanhita, 2023. 29. Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned and to the Superintendent of Jail where he is lodged and suffering jail sentence, forthwith for information and necessary action if, any.