JUDGMENT 1. This appeal is directed against judgment dated 22-02-1991 passed by First Additional Sessions Judge, Durg in Sessions Trial No.110/90. By the impugned judgment, accused/appellant Ramesh Sharma @ Vinod Tiwari has been convicted and sentenced in the following manner with a direction to run the sentences concurrently: Conviction Sentence Under Section 376 IPC R.I. for 3 years Under Section 354 IPC R.I. for 3 months 2. The case of the prosecution, in brief, is as under: On the date of incident, i.e., 06-05-1987, prosecutrix (PW-2) was aged about 9 years. On that date, prosecutrix (PW-2) was sitting near a culvert (puliya) and watching catching of fishes by some persons in the Nala. At that time, the appellant came there and asked from her about Quarter No.115. On being asked by the appellant, she went along with the appellant to show Quarter No.115. The appellant took her Ruabandha Sector where houses were constructed. The appellant dragged her to the platform constructed over upstairs of a quarter, removed her clothes, also removed his clothes and penetrated his penis to vagina of prosecutrix (PW-2). Blood oozed out from vagina of prosecutrix (PW-2). Thereafter, the appellant left her and went away from the place of occurrence. Prosecutrix (PW-2) returned home and narrated the incident to her father D.D. Singh (PW-3) and mother. On Sunday, the appellant was sitting on the culvert. Prosecutrix (PW-2) told her father D.D. Singh (PW-3) that the appellant was sitting on the culvert. D.D. Singh (PW-3) caught the appellant and took him to Police Station Newai, where prosecutrix (PW-2) lodged First Information Report (Ex.-P/3). Thereafter, regular FIR No.207/87 (Ex.-P/3A) was registered in Police Station Bhilainagar for offence under Section 354 IPC. Prosecutrix (PW-2) was sent to District Hospital Durg for medical examination vide Ex.-P/7. Doctor Smt. Jaya Phuljhele (PW-9) examined prosecutrix (PW-2) and gave her report (Ex.-P/12), in which she found that tenderness was present in vagina, blood was slightly oozing out of the vagina and prosecutrix (PW-2) was feeling pain on her private part. She opined that the age of prosecutrix (PW-2) was 8 to 10 years. She prepared two slides of vaginal swab of prosecutrix (PW-2) and handed over the slides to Constable for chemical examination. The appellant was also sent to District Hospital, Durg for medical examination vide Ex.-P/8. She opined that the age of prosecutrix (PW-2) was 8 to 10 years. She prepared two slides of vaginal swab of prosecutrix (PW-2) and handed over the slides to Constable for chemical examination. The appellant was also sent to District Hospital, Durg for medical examination vide Ex.-P/8. Doctor D.K. Agrawal (PW-1) examined him and gave his report (Ex.-P/1), in which he opined that the appellant was capable for doing sexual intercourse. In further investigation, spot map was prepared vide Ex.-P/4. Two vaginal slides were seized in sealed condition vide Ex.-P/5. The seized articles were seized to Forensic Science Laboratory, Sagar for chemical examination vide Ex.P/9 and report (Ex.-P/II) was received therefrom. After completion of the investigation, charge sheet was filed against the appellant in the Court of Chief Judicial Magistrate, Durg, who in turn, committed the case to the Court of Session, Durg. from where it was received on transfer by the First Additional Sessions Judge, Durg, who conducted the trial and convicted and sentenced the appellant as mentioned above. 3. Shri R.K.Jain, learned counsel for the appellant argued that the FIR (Ex.P-3) was lodged belatedly. In the FIR (Ex.-P/3), no allegation has been made regarding rape. Hymen was not ruptured. The trial Court did not appreciate the evidence available on record in right perspective and unduly attached too much importance to the statement of prosecutrix (PW-2). Learned counsel for the appellant further argued that the appellant was juvenile on the date of incident, i.e., 06-05-1987. Therefore, he urged that the matter may be remitted to the Juvenile Justice Board for necessary action in accordance with the provisions of Juvenile Justice (Care and Protection of Children) Act, 2000. 4. Shri Anand Verma, learned Panel Lawyer for the state/respondent, supporting the impugned judgment, submitted that the conviction and sentence awarded to the appellant do not call for any interference by this Court. 5. Prosecutrix (PW-2) deposed that on the date of incident, she was sitting near a culvert (puliya) and watching catching of fishes by some persons in the Nala. At that time, the appellant came there and asked from her about Quarter No. 115. On being asked by the appellant, she went along with the appellant to show Quarter No. 115. The appellant took her Ruabandha Sector where houses were constructed. At that time, the appellant came there and asked from her about Quarter No. 115. On being asked by the appellant, she went along with the appellant to show Quarter No. 115. The appellant took her Ruabandha Sector where houses were constructed. The appellant dragged her to the platform constructed over upstairs of a quarter removed her clothes, also removed his clothes and penetrated his penis to vagina of prosecutrix (PW-2). Blood oozed out from vagina of prosecutrix (PW-2). Thereafter, the appellant left her and went away from the place of occurrence. Prosecutrix (PW-2) returned home and narrated the incident to her father D.D. Singh (PW-3) and mother. On Sunday, the appellant was sitting on the culvert. Prosecutrix (PW-2) told her father D.D. Singh (PW-3) that the appellant was sitting on the culvert. D.D. Singh (PW-3) caught the appellant and took him to Police Station Newai, where prosecutrix (PW-2) lodged First Information Report (Ex.-P/3). 6. D.D. Singh (PW-3) deposed that on the date of incident, at about 5.00 pm, he returned home from duty. His wife and prosecutrix (PW-2) narrated him the incident. On 10-05-1987, the appellant was sitting on the culvert. Prosecutrix (PW-2) told him that the appellant was sitting on the culvert. He further deposed that he caught the appellant and took him to Police Station Newai, where prosecutrix (PW-2) lodged First Information Report (Ex.-P/3). Ramkumar Shukla (PW-6) also corroborated the evidence of D.D. Singh (PW-3). 7. D.D. Singh (PW-3) deposed that on the date of incident, prosecutrix (PW-2) was studying in 4th standard and her date of birth is 20-04-1978. There was no cross-examination regarding the date of birth of prosecutrix (PW-2). He specifically deposed that on the date of incident, the age of prosecutrix (PW-2) was 9 years. Prosecutrix (PW-2) and D.D. Singh (PW-3) deposed that prosecutrix (PW-2) was sent for medical examination. Doctor Smt. Jaya Phuljhele (PW-9), deposed that she examined prosecutrix (PW-2) and gave her report (Ex.-P/12), in which, she found that tenderness was present in the vagina and blood was slightly oozing out of the vagina and prosecutrix (PW-2) was feeling pain on her private part. She further deposed that age of prosecutrix (PW-2) was 8 to 10 years on the date of her examination. She further deposed that she prepared two slides of vaginal swab of prosecutrix (PW-2). 8. She further deposed that age of prosecutrix (PW-2) was 8 to 10 years on the date of her examination. She further deposed that she prepared two slides of vaginal swab of prosecutrix (PW-2). 8. Learned counsel for the appellant submitted that in the FIR (Ex.P/3), no allegation has been made regarding rape. Therefore, the appellant cannot be convicted under Section 376 IPC. 9. The above submission of the learned counsel for the appellant is not acceptable. Prosecutrix (PW-2) specifically deposed that the appellant penetrated his penis into her vagina and blood was oozing out. Doctor Smt. Jaya Phuljhele (PW-9) specifically deposed that tenderness was present and bruise mark was also present on the private part of prosecutrix (PW-2) and blood was slightly oozing out of the vagina. 10. For offence under Section 376 IPC, sine qua non for the offence of rape is penetration and not ejaculation. Ejaculation without penetration constitutes an attempt to commit rape. Definition of rape, as contained in Section 375 IPC, refers to "sexual intercourse" and the explanation appended thereto provides that penetration is sufficient to constitute sexual intercourse necessary for the offence of rape. Intercourse means sexual connection. 11. Prosecutrix (PW-2) specifically deposed that the appellant penetrated his penis into her private part. Mere vulval penetration without any vaginal penetration is sufficient to constitute offence of rape. There is no matter whether there was any injury or not on private parts of prosecutrix or her hymen was found intact. Thus, even an attempt of penetration is quite sufficient to constitute "penetration" for invoking Section 376 IPC. 12. In the instant case, from the evidence of prosecutrix (PW-2), it is evident that the appellant took prosecutrix (PW-2) on his bicycle to Ruabandha Sector, where houses were constructed, caused her to fall down and penetrated his male organ into the private part of prosecutrix (PW-2). Therefore, the offence under Section 376 IPC is clearly made out against the appellant. The appellant was convicted for the offence under Section 376 IPC, therefore, his further conviction under Section 354 IPC is not required. 13. Learned counsel for the appellant argued that the appellant was a juvenile on the date of incident. Therefore, the offence under Section 376 IPC is clearly made out against the appellant. The appellant was convicted for the offence under Section 376 IPC, therefore, his further conviction under Section 354 IPC is not required. 13. Learned counsel for the appellant argued that the appellant was a juvenile on the date of incident. This Court, after hearing both the parties, directed the concerned Additional Sessions Judge, Durg to conduct an enquiry in terms of Section 7(A) of the Juvenile Justice (Care & Protection of Children) Act, 2000 to determine the age of the appellant on the date of incident. The learned First Additional Sessions Judge, Durg has conducted an enquiry and has submitted a report dated 13-12-2011. According to the finding recorded by the First Additional Sessions Judge, Durg, the date of birth of the appellant was 1806-1971 and he was aged about 15 years, 10 months and 19 days on the date of incident, i.e., 06-05-1987. Thus, he was a juvenile on the date of incident. Even according to the provisions of the Juvenile Justice (Care & Protection of Children) Act, 2000, objections were called upon the above enquiry report and the State has opposed the enquiry report. 14. Learned First Additional Sessions Judge, Durg conducted the enquiry and examined S.S. Sharma, Lecturer, Bhilai School Sector 2 and C.P. Chowdhari, Principal, Higher Secondary School, Camp 2, Bhilai. On the basis of above documents, he recorded the finding that the date of birth of the appellant was 18-06-1971 and his age was 15 years 10 months and 19 days on the date of incident. 15. In Ashwani Kumar Saxena Vs. State of Madhya Pradesh, (2012) 9 SCC 750 , the Hon'ble Supreme Court held thus: "14. In Hari Ram v. State of Rajasthan [ (2009) 13 SCC 211 : (2010) 1 SCC (Cri) 987]. In Hari Ram this Court took the view that the Constitution Bench judgment in Pratap Singh case [ (2005) 3 SCC 551 : 2005 SCC (Cri) 742] was no longer relevant since it was rendered under the un-amended Act. In Hari Ram v. State of Rajasthan [ (2009) 13 SCC 211 : (2010) 1 SCC (Cri) 987]. In Hari Ram this Court took the view that the Constitution Bench judgment in Pratap Singh case [ (2005) 3 SCC 551 : 2005 SCC (Cri) 742] was no longer relevant since it was rendered under the un-amended Act. In Hari Ram [ (2009) 13 SCC 211 : (2010) 1 SCC (Cri) 987] while examining the scope of Section 7-A of the Act, this Court held that the claim of juvenility can be raised before any court at any stage and such claim was required to be determined in terms of the provisions contained in the 2000 Act and the Rules framed thereunder, even if the juvenile had ceased to be so on before the date of commencement of the Act. It was held that a juvenile, who had not completed 18 years of age on the date of commission of the offence, was also entitled to the benefits of the Juvenile Justice Act, 2000 as the provisions of Section 2(k) had always been in existence even during the operation of the 1986 Act. 15. Further, it was also held that on a conjoint reading of Section 2(k), 2(l), 7-A, 20 and 49 read with Rules 12 and 98 places beyond all doubt that all persons who were below the age of 18 years on the date of commission of the offence even prior to 1-4-2001 would be treated as juvenile even if the claim of juvenility was raised after they had attained the age of 18 years on or before the date of commencement of the Act and were undergoing sentence upon being convicted. With regard to the determination of age, this Court held that the determination of age has to be in the manner prescribed in Rule 12 of the 2007 Rules and opined that the. determination of age is an important responsibility cast upon the Juvenile Justice Boards. 16. The scope of Section 7-A of the Act and Rule 12 of the 2007 Rules again came up for consideration before this Court in Dharambir v. State (NCT of Delhi) [ (2010) 5 SCC 344 : (2010) 2 SCC (Cri) 1274]. determination of age is an important responsibility cast upon the Juvenile Justice Boards. 16. The scope of Section 7-A of the Act and Rule 12 of the 2007 Rules again came up for consideration before this Court in Dharambir v. State (NCT of Delhi) [ (2010) 5 SCC 344 : (2010) 2 SCC (Cri) 1274]. That was a case where the appellant was convicted for offences under Sections 302/34 and 307/34 IPC for committing the murder of one of his close relatives and for attempting to murder his brother. The appellant was not a juvenile within the meaning of the 1986 Act, when the offences were committed but had not completed 18 years of age on that date. 17. This Court held from the language of the Explanation to Section 20 that in all pending cases, which would include not only trial but even subsequent proceedings by way of revision or appeal. etc. the determination of juvenility of a juvenile has to be in terms of clause (1) of Section 2, even if the juvenile ceases to be a juvenile on or before 1-4-2001, when the 2000 Act came into force, and the provisions of the Act would have applied as if the said provision had been in full force for all purposes and for all material times when the alleged offence was committed. This Court held clause (1) of Section 2 of the 2000 Act provides that: "2. (1) 'juvenile in conflict with law' means a 'juvenile' who is alleged to have committed an offence and has not completed eighteen year of age as on the date of the commission of such offence," Section 20 also enables the court to consider and determine the juvenility of a person even after conviction by the regular court and also empowers the court, while maintaining the conviction to set aside the sentence imposed and forward the case to the Juvenile Justice Board concerned for passing sentence in accordance with the provisions of the 2000 Act. 18. This Court in Mohan Mali v. State of M.P. [ (2010) 6 SCC 669 : (2010) 3 SCC (Cri) 208] has again considered the scope of Section 7-A of the Act. That was a case where the plea of juvenility was raised before this Court by the convict undergoing sentence. 18. This Court in Mohan Mali v. State of M.P. [ (2010) 6 SCC 669 : (2010) 3 SCC (Cri) 208] has again considered the scope of Section 7-A of the Act. That was a case where the plea of juvenility was raised before this Court by the convict undergoing sentence. The appellant therein was convicted under Sections 302/34, 326/34 and 324/34 IPC and was sentenced to life imprisonment and had already undergone 9 years of imprisonment. In that case a copy of the birth certificate issued by the Chief Registrar (Birth and Death) Municipal Corporation, Dhar under Section 12 of the Birth and Death Registration Act, 1969 maintained by the Corporation was produced. This Court noticed that as per that certificate the date of birth of the accused was 12-11-1976. After due verification, it was confirmed by the State of Madhya Pradesh that he was a juvenile on the date of commission of the offence and had already undergone more than the maximum sentence provided under Section 15 of the 2000 Act by applying Rule 98 of the 2007 Rules read with Sections 15 and 64 of the 2000 Act. The accused was ordered to be released forthwith. 19. In Jabar Singh v. Dinesh [ (2010) 3 SCC 757 : (2010) 2 SCC (Cri) 484] a two-Judge Bench of this Court while examining the scope of Section 7-A of the Act and Rule 12 of the 2007 Rules and Section 35 of the Evidence Act took the view that the trial court had the authority to make an enquiry and take necessary evidence to determine the age. Holding that the High Court was not justified in exercise of its revisional jurisdiction to upset the finding of the trial court, remitted the matter to the trial court for trial of the accused in accordance with law treating him to be not a juvenile at the time of commission of tile alleged offence. Holding that the High Court was not justified in exercise of its revisional jurisdiction to upset the finding of the trial court, remitted the matter to the trial court for trial of the accused in accordance with law treating him to be not a juvenile at the time of commission of tile alleged offence. The Court noticed that the trial court was not required to follow the procedure laid down in Section 7-A of the Act or Rule 12 of the Rules and therefore in the absence of any statutory provision laying down the procedure to be followed in determining a claim of juvenility raised before it, the Court had to decide the claim or juvenility un the materials or evidence brought on record by the parties and Section 35 of the Evidence Act. 20. The Court in Jabar Singh case [ (2010) 3 SCC 757 : (2010) 2 SCC (Cri) 484] further stated that the entry of dale of birth of Respondent 1 in the admission form, the school records and transfer certificates did not satisfy the condition laid down in Section 35 of the Evidence Act inasmuch as the entry was not in any public or official register and was not made either by a public servant in the discharge of his official duty or by any person in performance of a duty specially enjoined by the law of the country and therefore, the entry was not relevant under Section 35 of the Evidence Act for the purpose of determining the age of Respondent 1 at the time of commission of the alleged offence. We have our own reservations on the view expressed by the Bench in Jabar Singh case [ (2010) 3 SCC 757 : (2010) 2 SCC (Cri) 484] (supra). 21. In Daya Nand v. State of Haryana [ (2011) 2 SCC 224 : (2011) 1 SCC (Cri) 666] this Court considered the scope of Section 2(k), 2(l), 7-A, 20 and 64 (as amended by Act 33 of 2006 w.e.f. 22-8-2006). This Court dealt with a case where the appellant was aged 16 years 5 months and 19 days on the date of occurrence, the Court held that he was a juvenile and thus could not be compelled to undergo the rigorous imprisonment as imposed by the trial court and affirmed by the High Court. This Court dealt with a case where the appellant was aged 16 years 5 months and 19 days on the date of occurrence, the Court held that he was a juvenile and thus could not be compelled to undergo the rigorous imprisonment as imposed by the trial court and affirmed by the High Court. This Court set aside the sentence and ordered that the appellant be produced before the Juvenile Justice Board for passing appropriate sentence in accordance with the 2000 Act. 32. "Age determination inquiry" contemplated under Section 7-A of the Act read with Rule 12 of the 2007 Rules enables the court to seek evidence and in that process, the court can obtain the matriculation or equivalent certificates, if available. Only in the absence of any matriculation or equivalent certificates, the court needs to obtain the date of birth certificate from the school first attended other than a play school. Only in the absence of matriculation or equivalent certificate or the date of birth certificate from the school first attended, the court needs to obtain the birth certificate given by a corporation or a municipal authority or a panchayat (not an affidavit but certificates or documents). The question of obtaining medical opinion from a duly constituted Medical Board arises only if the abovementioned documents are unavailable. In case exact assessment of the age cannot be done, then the court, for reasons to be recorded, may, if considered necessary, give the benefit to the child or juvenile by considering his or her age on lower side within the margin of one year. 33. Once the court, following the abovementioned procedures, passes an order, that order shall be the conclusive proof of the age as regards such child or juvenile in conflict with law. It has been made clear in sub-rule (5) of Rule 12 that no further inquiry shall be conducted by the court or the Board after examining and obtaining certificate or any other documentary proof after referring to sub-rule (3) of Rule 12. Further, Section 49 of the JJ Act also draws a presumption of the age of the juvenility on its determination. 16. Further, Section 49 of the JJ Act also draws a presumption of the age of the juvenility on its determination. 16. In pursuance of order dated 29-04-2011, First Additional Sessions Judge, Durg conducted enquiry regarding determination of age of the appellant and examined the appellant himself, Kamlesh Kumar Sahu, C.P. Chowdhari, Principal, Higher Secondary School, Camp 2, Bhilai, Maya Devi Tiwari and also perused the documents, namely, certificate of Divisional Middle School Examination, 1985 (Ex.-D/2), Primary School Certificate 1981-82 (Ex.-D/3), certificate-cum-mark sheet of High School Certificate Examination, 1987, Board of Secondary Education, Madhya Pradesh, Bhopal (Ex.-D/4), certificate-cum-mark sheet of Higher Secondary School Examination, Madhya Pradesh, Bhopal 1989 (Ex.-D/5) and birth certificate issued by the Sub-Registrar (Birth-Death), Bhilai Steel Plant, Bhilainagar (Ex.-D/6) and the Dakhil Kharij Panji. On the basis of above documents, learned First Additional Sessions Judge, Durg recorded the finding that date of birth of the appellant is 18-06-1971 and on the date of incident his age was 15 years 10 months and 19 days. There is no illegality committed by the First Additional Sessions Judge in placing reliance on the above documents. I am of the view that the genuineness of above documents has not been questioned. I am of the view that the appellant has successfully established his juvenility on the date of occurrence, i.e., 06-05-1987, on which, he was aged only 15 years 10 months and 19 days. 17. The conviction awarded to the appellant under Section 376 IPC is affirmed. Since, I have found that the appellant was a juvenile on the date of incident, I am inclined to and hereby set aside the sentence awarded to him by the learned First Additional Sessions Judge for the offence under Section 376 IPC and direct the Additional Registrar (Judicial) to send the record before the Juvenile Justice Board, Durg for awarding appropriate sentence to the appellant in accordance with the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000 and if the appellant has already undergone the sentence of 3 years R.I. awarded by the First Additional Sessions Judge, needless to say that the appellant has to be let free provided he is not required in any other criminal case. It is stated that the appellant is on bail. He shall appear before the Juvenile Justice Board, Durg on 29th July, 2013. 18. The appeal is disposed of in the terms indicated above. It is stated that the appellant is on bail. He shall appear before the Juvenile Justice Board, Durg on 29th July, 2013. 18. The appeal is disposed of in the terms indicated above. Appeal Partly Allowed.