1. Heard Mr. D. K. Chakraverty, learned counsel for the appellant and Mrs. Nehala Sharmin, learned counsel for the State.

2. The present appeal is directed against the Judgment of conviction dated 18.12.2018 and order of sentence dated 20.12.2018, passed by the learned Special Judge POCSO Court, Khunti, in POCSO Case No.16 of 2017, whereby the appellant has been convicted for the offence under Section 4 of the Protection of Children from Sexual Offences Act, 2012 (in short POCSO, Act) and has been sentenced to undergo rigorous imprisonment for seven years with fine of Rs.25,000/- (Twenty-five thousand) and in default of fine, further sentenced to undergo simple imprisonment for one year.

3. The prosecution story, in short, is based on the written application of the informant-cum-victim, aged about 16 years, stating therein that on 07.11.2017 at about 5:00 PM at evening, she had left her house to proceed for Torpa Church and when she reached near the bus stand at State Bank of India, Torpa Road, then his neighbour Babloo Mabto, aged about 30 years, came before her riding blue coloured motorcycle and proposed her to eat gram (chana). Thereafter, he offered her to drop at her destination by his motorcycle. Then the victim had tried to flee away, but he followed her till Sant Mikhails School and had further allured her to provide her a Samosha and when the informant refused to ride over his motorcycle, the accused had threatened her to kill. Then under fear, she had ridden on such motorcycle and as soon as she ride on such motorcycle, accused had suddenly picked up his motorcycle with very high speed and had taken away her to Jurdag forest and there he had compelled her to open her entire dress and on protest of victim, accused had also assaulted her. Thereafter, keeping her under control, he had committed forcibly sexual relationship with her and after that he had threatened her to kill if she will disclose the matter to anyone. Then the accused dropped her back at Karra road near pond, from there she had gone to her home. At her home, she had narrated the entire occurrence to her family members. Informant has further stated that the time of occurrence was in between 6:30 PM to 8:00 PM.

                  On the basis of above information of the informant, Torpa P.S Case No.181 of 2017 dated 07.11.2017 has been registered under Sections 376 IPC and Sections 3/ 8 of the POCSO Act, against the accused-appellant and the police, after completing the investigation, has submitted the charge-sheet and the trial court has framed the charge on 08.02.2018 under Sections 376 IPC and Sections 4/ 8 of the POCSO Act against the present appellant. Thereafter, the case has been committed to the court of Sessions to which the appellant has pleaded innocence and claimed to be tried and accordingly, the trial has commenced.

4. To substantiate the charges, the prosecution has examined altogether 06 witnesses and their depositions, in short, are as follows:-

5. P.W.-1, Sita Devi, is the mother of the victim and she has supported the prosecution story. She is not an eye witness to the incident. Her daughter has narrated the entire story to her.

                  In her cross-examination, she has deposed that the area is densely populated having too many shops. There is nearby police station also.

6. P.W.-2, xxxxxx, is the victim -cum- informant herself. She has supported the case.

                  In para-16 of her cross-examination, she has admitted that scratch mark upon her was due to bushes in the forest area. In para-18, she has stated that injury on her body, back and on her waist area have been caused due to the incident. There was also stain mark on her clothes due to the sexual assault, which she had shown to the Officer-in- Charge of the police station.

7. P.W.-3, Dr. J.P.S Tigga, is the doctor and has examined the victim and has found no external injuries on the person of the victim as well as on her private part. He has opined no recent sign of sexual intercourse.

                  In cross-examination, he has admitted that no injury was found on the waist of the victim. He has also not found any scratches mark on the person of the victim. He has admitted that the victim has not shown any clothes to him

8. P.W.-4, Deoki Devi, has been declared hostile.

9. P.W.-5, Prabha Devi has also been declared hostile.

10. P.W.-6, Ignatius Topp, is the Investigating Officer of the case. He has proved the Exts.-1/1, 3/1 & 4.

                  In cross-examination, he had deposed that the statement of the father of the victim girl was not taken. The undergarments of the victim and the accused were not seized, hence not sent for DNA test. He has also deposed that no struggling mark was found at the place of occurrence. No biting mark on the lips of the accused was found. No scratch marks was reported by the victim. No injuries mark and stain on the clothes of the victim was reported to him.

11. The defence, in his support, has also produced five defence witnesses namely, D.W.-1 Rajendra Mahto, D.W.-2, Davanand Kumar, D.W.-3 Gopal Singh, D.W.-4, Shyam Manohar Ganjhu & D.W.-5, Ganesh Ram Kashyap. They have deposed regarding the previous enmity between the family of the victim and the accused due to an agreement to purchase of the land and they have also deposed that the victim is a major girl.

                  The accused-appellant has taken the defence that due to the agreement of purchase of a land, the present false case has been lodged as a pressure tactics and for that purpose, the agreement has been exhibited, which has been marked as Ext.-A.

12. On consideration of above materials on record, the trial Court has found the appellant guilty for the offence under Section 4 of the POCSO Act and sentenced him, as stated above.

13. Being aggrieved by the aforesaid judgment of conviction, the appellant has preferred the present appeal.

14. Learned counsel for the appellant has submitted that there is no eye witness to the incident and only available evidence is the statement of the victim girl.

                  Referring to the above materials available on record, it has been submitted by the learned counsel for the appellant that :-

                  (i) the victim has stated about the injury, but that has neither been corroborated by the doctor nor by the Investigating Officer.

                  (ii) the victim has disclosed the place of occurrence, but no sign of struggle or anything else has been found by the Investigating Officer at the place of occurrence.

                  (iii) the victim girl has clearly stated that there was stain mark in her cloth, but there is no forensic report or any forensic material available on record to that effect.

                  (iv) the victim girl has stated that she had given a bite on the lips of the accused, but no such sign has been found by the investigating officer upon the accused. Although the accused has been medically examined, but that medical report has not been brought on record.

                  (v) the appellant-accused has been convicted for the offence under Section 4 of the POCSO Act on the strength of minority of the victim girl. Save and except in the F.I.R, nowhere the age of the victim has been disclosed by any of the witnesses, including her parents or the victim herself.

                  (vi) even in the medical report, the age of the victim is missing. There is no medical opinion regarding the age of the victim.

                  (vii) contrary to above, the statements of defence witnesses are also there that the victim is aged about 20 years. The age of the victim has been disclosed as 16 years in the F.I.R and it has been used as a pressure tactics, as there was an agreement to purchase a piece of particular land by the accused-appellant.

                  Thus, on the above basis, it has been submitted by the learned counsel for the appellant that although for conviction under the POCSO Act, the age is the main factor, but in the present case, no evidence has been brought on record whatsoever regarding the age of the victim by the prosecution. On the contrary, the defence witnesses have brought the oral testimony, suggesting the age of the victim girl as around 20 years, at the time of occurrence. Thus, the conviction of the appellant under Section 4 of the POCSO Act is not justified at all.

                  So far as the incident regarding having established sexual relationship with the victim is concerned, her statement also gets falsified by the doctor and the investigating officer. Further, the reason for false implication of the appellant is the land dispute i.e. the agreement to purchase a piece of land.

                  On the above basis, learned counsel for the appellant has prayed that the judgment of conviction and order of sentence be quashed and set aside and the appellant be acquitted.

15. On the other hand, learned counsel for the State has supported the judgment of conviction and order of sentence and it has been submitted that the victim girl has clearly stated regarding the sexual intercourse against her will, but the learned A.P.P could not point out any material whatsoever regarding the age of the victim girl, which is sine qua non for conviction under the POCSO Act.

16. Having heard learned counsel for the parties and from perusal of record, this Court finds that :-

                  (a) the age of the victim girl has been presumed to be a minor without any evidence on record whatsoever. On the other hand, the defence witnesses have brought oral evidence on record suggesting that the victim girl is major.

                  (b) although the victim girl has been sent for medical examination for assessment of her age, but even that material has not been brought on record, disclosing the age of the victim.

                  (c) neither the parents of the victim nor the victim herself have disclosed her age, in their testimonies.

                  (d) the narration of the incident gets contradicted in the depositions of the doctor and the investigating officer so far as the injury and the place of occurrence is concerned.

17. Thus, this Court finds that the conviction of the appellant under Section 4 of the POCSO Act, is wholly without any essential materials on record.

18. In that view of the matter, the Judgment of conviction dated 18.12.2018 and order of sentence dated 20.12.2018, passed by the learned Special Judge POCSO Court, Khunti, in POCSO Case No.16 of 2017 is, hereby, quashed and set aside.

19. In the result, the appeal stands allowed and accordingly disposed of.

20. The appellant is on bail, hence, he is discharged from the liability of bail bond.

21. Let the Trial Court Records be sent back to the Court concerned forthwith, along with the copy of this Judgment.