Judgment : M. Zothankhuma, J. 1. Heard Mr. A. Hawari, learned counsel appearing for the appellant. Also heard Mr. R.R. Kaushik, learned APP, Assam, appearing for the State. No one appears for the respondent no. 2. However, the order dated 16/12/2025 has specifically mentioned that notice has been served upon the respondent no. 2. 2. This appellant has challenged his conviction under section 6 of the POCSO Act and the consequential sentence imposed upon him vide the impugned judgement dated 07/09/2024 and sentence order dated 17/09/2024, by the Learned Special Judge, Udalguri, Assam, in Special (POCSO) case no. 53/2023, arising out of Orang PS case no. 9/2023. 3. The appellant's counsel submits that the appellant and the victim were known to each other and they had gone to Guwahati together, where they stayed for 3 days. Thereafter, they both went to Golaghat and stayed there for 2 days. On coming back from Golaghat, the appellant was arrested and a police case was registered against him for having sexual intercourse with the victim, who was alleged to be 15 years of age. The appellant's counsel submits that though the appellant and the victim were in love with each other and had taken a holiday trip together, no sexual intercourse had occurred between them. Further, there was no proof that the alleged victim was less than 18 years of age at the time when they had taken a trip together to Guwahati and Golaghat. He accordingly submits that the impugned judgement and order should be set aside and the appellant should be acquitted of the charge under section 376(3) and section 6 of the POCSO Act, 2012. 4. The learned APP on the other hand, submits that though there was no proof that the victim was below 18 years of age when the appellant and the victim girl had taken a trip together to Guwahati and Golaghat, as, the birth certificate of the victim girl had not been exhibited, the victim had herself stated that she was studying in Class-IX and was 15 years of age. 5. The Doctor (P.W-7), in his evidence, had stated that as per the radiological examination conducted on the victim girl, her age was between 15 to 17 years. 5. The Doctor (P.W-7), in his evidence, had stated that as per the radiological examination conducted on the victim girl, her age was between 15 to 17 years. He also submits that the victim girl in her evidence had stated that while she was with the appellant in Guwahati, the appellant had a “physical relationship” with her forcibly. The learned APP thus submits that “physical relationship” would imply that the appellant and the victim girl had a sexual intercourse. He accordingly submits that the impugned judgement should not be interfered with, as having sex with a girl below 18 years was illegal as per the POCSO Act, 2012. 6. We have heard the learned counsels for the parties. 7. The prosecution case is to the effect that the victim’s father (PW-1) had submitted an FIR dated ‘nil’ to the Officer-in-charge of Orang Police Station, stating that on 28/01/2023, the appellant had kidnapped his 15 year old daughter during the night and her whereabouts were not known. Pursuant to the FIR, Orang Police station case no. 9/2023 under section 366 IPC was registered. PW-8 was made the Investigating Officer (IO) of the case. After investigation was complete, PW-8 submitted a charge sheet on finding a prime facie case established under section 366/376(3) IPC read with section 6 of the POCSO Act against the appellant. 8. The learned Trial Court thereafter framed 3 charges against the appellant under sections 366/376(3) IPC read with section 6 of the POCSO Act, to which the appellant pleaded not guilty and claimed to be tried. 9. The learned Trial Court then examined 8 prosecution witnesses and after examining the appellant under section 313 Cr.P.c, convicted the appellant under section 376(3) IPC and section 6 of the POCSO Act. However, in view of section 42 of the POCSO Act, the appellant was sentenced to suffer rigorous imprisonment for 20 years with a fine of Rs. 20,000/-, in default, simple imprisonment for 2 (two) months under section 6 of the POCSO Act. 10. The statement of the victim under Section 164 Cr.P.C. is to the effect that she was studying in Class IX and was in a love relation with the appellant for the last 2 years. The victim also stated that she would marry the appellant after completing her studies. However, she had not reached the age of marriage. 10. The statement of the victim under Section 164 Cr.P.C. is to the effect that she was studying in Class IX and was in a love relation with the appellant for the last 2 years. The victim also stated that she would marry the appellant after completing her studies. However, she had not reached the age of marriage. On the night of 21/07/2023, the appellant had called her and asked her to go with him. Though, she did not want to go with him, the appellant took her and boarded a vehicle. Thereafter, they went to Guwahati and stayed in a rented room for 3 days. The appellant then took the victim to Golaghat, where she stayed in the house of the appellant’s female friend for 2-3 days. Thereafter, her parents brought her back. In her statement under section 164 Cr.P.C., the victim also stated that the appellant had established physical relations with her against her will. However, the appellant did not have any physical relation with her in Golaghat, because she was staying with the appellant’s female friend. 11. The evidence of the victim as PW-2 is to the effect that the appellant had taken her to Guwahati without her consent and detained her for 3 days in a room. When her family members came to know that they were in Guwahati, the appellant took her to Golaghat, where they stayed for 2 days. She was then recovered by the police from Golaghat. PW-2 further stated that the appellant committed “physical relationship” with her at Guwahati forcibly. She also stated that she was 15 years at the relevant point of time. In the cross-examination of the victim (PW-2), she stated that she had carried clothes in a black bag and waited for the appellant at Dhansiri Bridge alone. The appellant then came in a vehicle with 4 persons and she was taken towards Guwahati. She did not raise any alarm. Even when she got down from the car at Rowta Chariali, she did not raise any alarm. Then they had gone to Guwahati in another vehicle where there were 2 other persons. Even there she did not raise any alarm. She also met other persons during her journey and she had talked with her father with the mobile of the appellant. They travelled in private transport vehicles and went by train to Golaghat. Then they had gone to Guwahati in another vehicle where there were 2 other persons. Even there she did not raise any alarm. She also met other persons during her journey and she had talked with her father with the mobile of the appellant. They travelled in private transport vehicles and went by train to Golaghat. She never raised any alarm with anybody. PW-2 also stated that she had developed love affair with the appellant 2 years back. The evidence given by the victim (PW-2) in her cross-examination is reproduced herein below, as follows. “Cross examination by defence : I know that accused is the resident of Tangla. I gave my phone number to accused. I was talking with him through phone. My residence is away by 1 km from Dhansirighat. Before introduction through facebook I never met the accused nor I had seen him. Accused visited my residence on the occasion of my birthday. I gave him the address of my residence. I also met the accused at Shiva Mandir of Dhansirighat. Accused met me for 10/12 times at Shiva mandir. He also visited my aunt house. He also took meal whenever he visited the residence of my maternal uncle. On the date of occurrence when I came out from my residence I carried some clothes in a black coloured bag. I met the accused at Dhansiri Bridge. I came there alone. There were four other persons in the vehicle by which I was taken to Guwahati. I did not talk with such four persons. I did not raise alarm at that time. Then I got down from the Car at Rowta Chariali. Even I did not raise alarm at Rowta Chariali. By another vehicle we went to Guwahati. In that vehicle also there were two other persons including driver. I did not raise alarm in the said vehicle. I was vomiting during travelling time to Guwahati. One of the passenger got down at Mangaldoi. We got down from the vehicle at one place. From there I went to another place on foot. Then we reached the rented room. During the time of journey to rented house from the place where we got down I did not meet other persons. During the stay at rented room accused prepared the meal. I took bath and used toilet during that period. There was no attached toilet. From there I went to another place on foot. Then we reached the rented room. During the time of journey to rented house from the place where we got down I did not meet other persons. During the stay at rented room accused prepared the meal. I took bath and used toilet during that period. There was no attached toilet. There were other 20/25 rented rooms near the rented rooms of accused. I did not raise alarm during that time. At that time I also talked with my father with the mobile of accused. My parents did not meet me there. Then by train I was taken to Golaghat. We travelled in a private transport vehicle from rented room to nearby railway station. We travelled at day time. Though I met several persons but I did not raise alarm. Even in the train I did not raise alarm. I was taken to Orang directly from Golaghat. I was interrogated by Police at Orang. At Golaghat I was not interrogated. We took 5/6 hours to reach Orang. During the journey time my parents and another relative were coming with me. I talked with them. I was taken to hospital first and thereafter I was taken to Rose rescue home. I was kept there for 3/4 days. During that time my parents and relatives met me. When we were taken to Court from Rose valley home then at that time my parents accompanied. I had developed love affairs with accused since two years back. It is not the fact that I did not state before Police that accused forcibly took me with him. It is not the fact that accused never committed physical relationship with me. I was reading in Kasturva Gandhi Balika Vidyalaya. It is not the fact that accused did not forcibly take away me. It is not the fact that I was above 18 years at that time.“ 12. The evidence of PW-1, who is the father of the victim girl, is to the effect that the appellant had kidnapped her daughter and had detained her for 3 days in a rented room in Guwahati where they committed physical relationship. PW-1 further stated that a You-Tuber had initially informed the matter to the Police that the appellant was with the victim. 13. PW-1 further stated that a You-Tuber had initially informed the matter to the Police that the appellant was with the victim. 13. The evidence of PW-3 is to the effect that PW-1 was her husband and that she was the mother of the victim girl. As their daughter was missing, they conducted a search for her and the Police recovered her daughter from Golaghat. 14. The evidence of PW-4 and PW-5, both brother-in-laws of the informant (PW-1), is to the effect that they had heard that the victim had gone away with the appellant. 15. The evidence of PW-6 is crucial to the present case, inasmuch as, he has stated in his evidence that the victim had been asking the appellant to take her away from her residence and that they had stayed at Gauripur for 1 (one) night. While PW-6 and the appellant slept on one bed, the victim slept in another bed. There was no complaint made by the victim against the appellant. This evidence of PW-6 gives a lie to the evidence of PW-2 that the appellant had physical relationship with the victim for 3 days forcibly. When PW-6 was with them and had slept with the appellant, there was no question of there being any physical relationship between the appellant and the victim. 16. The evidence of PW-7, the doctor who medically examined the victim is to the effect that as per radiological examination, the age of the victim was 15 to 17 years. Further, no spermatozoa was seen and the pregnancy test was found to be negative. PW-7 did not say anything whether the hymen of the victim was intact or not or whether she had recent signs of sexual intercourse. Thus, the medical evidence of PW-7 does  not prove that there was any sexual intercourse that had occurred between the appellant and the victim. 17. The evidence of PW-8, who was the Investigating Officer, is to the effect that he had seized the Birth Certificate of the victim girl. However, the said Birth Certificate has not been exhibited. Further, in his cross examination, PW-8 has stated that there was a love affair between the victim and the appellant. He also stated that the victim (PW-2) did not tell him that the appellant had forcibly taken her to Guwahati. 18. However, the said Birth Certificate has not been exhibited. Further, in his cross examination, PW-8 has stated that there was a love affair between the victim and the appellant. He also stated that the victim (PW-2) did not tell him that the appellant had forcibly taken her to Guwahati. 18. On considering the fact that the Birth Certificate of the victim girl has not been exhibited, it cannot be said that the age of the victim has been proved by the prosecution, though the radiological examination showed that she was between the age of 15 and 17 years. In this regard we cannot lose sight of the judgements of the Supreme Court which allows for giving the benefit of ± 1 or 2 years to the age of an accused, determined on the basis of an Ossification test. 19. To a query raised by this Court to the learned APP as to whether the use of the word “physical relationship” can also apply to 2 adults kissing and touching each other, without there being any sexual intercourse, the learned APP has answered the same in the positive. A reading of section 3 of the POCSO Act, 2012 requires penetration and/or conditions provided under the said provision for an act of an accused to be defined as penetrative sexual assault. In the present case, the use of the word “physical relationship” by the victim in her testimony before the learned trial Court, could mean that she had sexual intercourse with the appellant. It could also mean that she had a physical experience with the appellant like kissing, touching, etc., without sexual intercourse. When there is no clear, unambiguous description given by any of the prosecution witnesses, showing that penetration of the private parts, as provided in Section 3 of the POCSO Act, had taken place, the Courts cannot put words that were not spoken by the witnesses. Further, speculation cannot take the place of proof. 20. It is the settled law that when two views are possible with regard to a certain fact, the view favoring the accused would have to be accepted by the Court. Accordingly, we hold that the use of the word “physical relationship” by the victim against the appellant does not prove that there was any penetrative sexual assault between the appellant and the victim, as defined under Section 3 of the POCSO Act. 21. Accordingly, we hold that the use of the word “physical relationship” by the victim against the appellant does not prove that there was any penetrative sexual assault between the appellant and the victim, as defined under Section 3 of the POCSO Act. 21. Another aspect of the matter is that the evidence of the victim does not appear to be truthful, inasmuch as, she has stated that the appellant had forcibly taken her to Guwahati. However, the victim did not raise any alarm with anybody during her journey and stay in Guwahati or at the Railway Station or on the train or at Golaghat. Further, her evidence shows that she had carried her clothes in a black bag and waited alone at Dhansiri bridge for the appellant. Thereafter, they had gone to Guwahati with 4 other persons in the vehicle. She also did not tell the 4 other persons or raise any alarm, if she had been forcibly taken to Guwahati. 22. Examination of the appellant under section 313 Cr.P.C shows that the appellant has stated that he was innocent and that the victim was giving false evidence against him. They were in fact having a love affair and the victim had voluntarily gone with him to Guwahati. 23. On considering all the above facts, we are unable to agree with the learned Trial Court that a case of penetrative sexual assault by the appellant on the victim girl had been proved beyond all reasonable doubt, that would attract section 5 (m) of the POCSO Act or section 376 (3) of the IPC. Further, the very fact that there was no kidnapping of the victim has been borne out by the learned Trial Court's decision in not convicting the appellant under section 366 IPC. 24. For all the reasons stated above, we hold that the prosecution has not been able to prove that a case under Section 376(3) and Section 6 of the POCSO Act has beyond all reasonable doubt. The conviction and sentence imposed upon the appellant vide the impugned judgment and order dated 07.09.2024 and 17.09.2024 passed by the learned Special Judge, Udalguri, Assam in Special POCSO Case No. 53/2023 is hereby set aside. 25. The appellant is accordingly acquitted of the charges framed against him under Section 376(3) and Section 6 of the POCSO Act by giving him the benefit of doubt. 25. The appellant is accordingly acquitted of the charges framed against him under Section 376(3) and Section 6 of the POCSO Act by giving him the benefit of doubt. The appellant is accordingly discharged from the bail bond furnished by him. 26. Send back the TCR.