JUDGMENT Hon'ble Lok Pal Singh, J. This appeal has been preferred by the convict through the Incharge Jailor, District Jail, Chamoli assailing the judgment and order dated 23/24.12.2014 passed by Special Sessions Judge, Rudraprayag in Special Sessions Trial No.06/2014, whereby the appellant has been convicted for the offence punishable under Section 376 of the Indian Penal Code (for short, IPC) read with Section 3/4 of Prevention of Children from Sexual Offences Act (for short, POCSO) and Section 363 of IPC and has been sentenced to rigorous imprisonment for a period of seven years along with a fine of Rs. 5,000/- u/s 376 IPC r/w 3/4 of POCSO Act and three years R.I. along with a fine of Rs.1,000/- u/s 363 IPC. Both the sentences have been directed to run concurrently. However, the accused/appellant has been acquitted of the charge of offence punishable under Section 3(2)(V) of The Scheduled Castes/Scheduled Tribes (Prevention of Atrocities) Act, 1989. 2. Prosecution story, in brief, is that on 31.5.2014 an F.I.R. was lodged by the complainant/father of the prosecutrix at P.S. Rudraprayag, District Rudraprayag stating that on 30.05.2014 at about 03:00 PM his daughter, aged 15 years, was alone in the house. Accused/appellant, who used to come frequently in his house, enticed away his daughter. They made search of his daughter but all in vain. On the basis of report, case crime no. 15 of 2014 was registered under Section 363 of IPC against the accused/appellant. Investigation of the case was taken up by the Sub Inspector Sushma Rawat who during investigation, recorded statements of the witnesses, inspected the place of occurrence and prepared the site plan, arrested the accused/appellant and prepared the arrest memo. On the same day i.e. on 31.05.2014 07:50 PM, medical examination of the prosecutrix was conducted by PW-4 Dr. Ashtha Bhandari at Government Hospital, Rudraprayag. The doctor in medical examination found no mark of internal or external injury and no pain during examination. The victim was referred for radiologist opinion to Base Hospital Srinagar for age determination. Three vaginal smear slides were prepared and sent for examination. Supplementary report was also prepared in which the doctor recorded that no spermatozoa seen in vaginal smear slides. The doctor in medical examination found no mark of internal or external injury and no pain during examination. The victim was referred for radiologist opinion to Base Hospital Srinagar for age determination. Three vaginal smear slides were prepared and sent for examination. Supplementary report was also prepared in which the doctor recorded that no spermatozoa seen in vaginal smear slides. During the course of investigation, the Investigating Officer also got recorded the statement of the victim u/s 164 of The Code of Criminal Procedure (for short, Cr.P.C.) and also collected documents relating to age of the victim. On completion of investigation, the I.O. filed the charge-sheet against the accused/appellant u/s 363, 376 IPC read with Section 3/4 of POCSO Act and Section 3(2)(V) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. Thereafter, charge was framed against the accused/appellant under the aforesaid Sections to which the accused/appellant pleaded not guilty and claimed to be tried. On denial of guilt, trial begun. The prosecution, in order to prove its case, got examined as many as thirteen prosecution witnesses viz. PW1 father of victim, PW2 mother of victim, PW3 Victim, PW4 Dr. Ashtha Bhandari, PW5 Upendra Singh, PW6 Shakti Prasad Uniyal, PW7 maternal uncle of victim, PW8 Sub Inspector Rajendra Prasad Gaur, PW9 Constable Dheeraj Devradi, PW10 Sub Inspector Sushma Rawat, PW11 Dr. Neeraj Kumar, PW12 Woman Constable Beena Bamola and PW13 Swantra Kumar Singh. Thereafter, statement of the accused/appellant was recorded under Section 313 of Cr.P.C. In reply, he denied the allegations made against him. In defence, he got examined DW1 Dr. Atul Kumar. Learned Special Sessions Judge, Rudraprayag, after considering the statement recorded under Section 164 Cr.P.C., statement of prosecution witnesses, the statements of the accused/ appellant under Section 313 Cr.P.C., the medical report of the victim as well as the statement of the doctor, convicted the accused/appellant and awarded punishment as mentioned above. 3. PW1 is father of victim. In his deposition, he has reiterated the contents of the FIR. Besides that, he has also stated that after lodging the FIR, police has arrested the accused/appellant and recovered the girl and then he came to know that the accused/appellant has committed rape on her. 4. PW2 is mother of victim. She has stated that the victim is 15 years old and is studying in class X. This witness has corroborated the statements of PW1. 4. PW2 is mother of victim. She has stated that the victim is 15 years old and is studying in class X. This witness has corroborated the statements of PW1. Besides, she has stated that when the victim was recovered she told her that the accused/appellant had taken her and had committed rape on her. 5. PW3 victim has deposed in her statement that she is studying in class X in G.I.C. Jawadi. Accused/appellant resides near her house. There is a public tap near her house where she used to go to fill water, accused/appellant used to come there and used to say that he wanted to marry her. On 30.5.2014, when the victim was in her house, accused/appellant called her outside. Both of them went to market and thereafter the accused took her to his house where physical relations were established between them. This witness further states that the relations were established between them with her consent. In the morning at about 4 AM, the accused took her to Ratura; they stayed in Gadura and in the evening police apprehended them. 6. PW4 Dr. Ashtha Bhandari has stated that on 31.5.2014 she medically examined the victim and while internal examination she found that the hymen was not intact and she opined that there was possibility that the victim had been subjected to sexual intercourse. 7. I have heard learned counsel for the parties and perused the record. 8. Learned Amicus Curiae would submit that from the evidence brought on record, it emerges out that the prosecutrix had gone with the appellant on her own volition and stayed with the appellant and she was a consenting party. As such, the trial Court has wrongly held the appellant guilty and has wrongly convicted him. 9. Learned Amicus Curiae would further submit that the appellant was a Juvenile on the date of occurrence and on this ground the trial carried out by the Sessions Court against a juvenile stands vitiated because of the inherent lack of jurisdiction to conduct trial against a juvenile. 10. Per Contra, learned Deputy Advocate General would submit that the prosecutrix was minor on the date of occurrence as such question of consent does not arise. 11. Before any discussion, this Court thinks it appropriate to decide the issue whether on the date of occurrence the accused/appellant was a Juvenile or not. 10. Per Contra, learned Deputy Advocate General would submit that the prosecutrix was minor on the date of occurrence as such question of consent does not arise. 11. Before any discussion, this Court thinks it appropriate to decide the issue whether on the date of occurrence the accused/appellant was a Juvenile or not. While recording the statement of the appellant under Section 313 of Cr.P.C., age of the appellant was mentioned as 17 years by the trial court. This plea of juvenility was also raised by the accused before the trial court. However, as there was no document from which date of birth of the appellants could be ascertained, medical examination of the accused was conducted, so as to ascertain the age of the appellant. Medical evidence showed that the age of the appellant was between 18 to 19 years at the time of examination. 12. Rule 12(3)(b) of the Juvenile Justice (Care and Protection of Children) Rules, 2007 reads as follows :- 12. Procedure to be followed in determination of age (1) *** (2) *** *** (3) (b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year, and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a) (i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law. 13. While interpreting the aforesaid rule, the Apex Court in the case of Darga Ram vs. State of Rajasthan (2015) 2 SCC 775 , 2015 (1) NCC 116 . has observed as under:- “17. 13. While interpreting the aforesaid rule, the Apex Court in the case of Darga Ram vs. State of Rajasthan (2015) 2 SCC 775 , 2015 (1) NCC 116 . has observed as under:- “17. The general rule about age determination is that the age as determined can vary plus minus two years but the Board has in the case at hand spread over a period of six years and taken a mean to fix the age of the appellant at 33 years. We are not sure whether that is the correct way of estimating the age of the appellant. What reassures us about the estimate of age is the fact that the same is determined by a Medical Board comprising Professors of Anatomy, Radiodiagnosis and Forensic Medicine whose opinion must get the respect it deserves. That apart, even if the age of the appellant was determined by the upper extremity limit i.e. 36 years the same would have been subject to variation of plus minus 2 years meaning thereby that he could as well be 34 years on the date of the examination. Taking his age as 34 years on the date of the examination he would have been 18 years, 2 months and 7 days on the date of the occurrence but such an estimate would be only an estimate and the appellant may be entitled to additional benefit of one year in terms of lowering his age by one year in terms of Rule 12(3)(b) (supra) which would then bring him to be 17 years and 2 months old, therefore, a juvenile." 14. Applying the same principle to the facts of the case if two years is deducted from the upper extremity of 19 years the age of the appellant would be approximated at 17 years and thereupon the appellant would be entitled to reduction by another year in terms of the aforesaid Rule. Such reduction would render the age of the appellants as 16 years. In the light of such assessment of age, the appellant would be below 18 years on the date of occurrence and would be entitled to the benefit under The Juvenile Justice (Care and Protection of Children) Act, 2010 as being juvenile in conflict with law. This being the position, the trial court has committed illegality in not making inquiry with regard to the age of appellant. This being the position, the trial court has committed illegality in not making inquiry with regard to the age of appellant. The appellant, in the present case, has been tried by the court of Sessions like an adult accused. The Trial Judge ought to have referred the matter to the Juvenile Justice Board to make an inquiry with regard to the age of the appellant. 15. For the reasons recorded above, this Court is of the view that the entire trial before the Sessions Court is vitiated on account of appellant being juvenile on the date of occurrence. Having regard to the above conclusion, in the normal course, this Court would have remitted the matter to the Juvenile Justice Court for disposal in accordance with law. However, since more than five years have passed from the date of incident and the appellant has attained the age of majority and has also under gone five years of incarceration till date, there is no logic in remitting the matter back to the Juvenile Justice Court. Instead, impugned judgment and order dated23/24.12.2014 passed by Special Sessions Judge, Rudraprayag in Special Sessions Trial No.06/2014, stands quashed and set-aside. 16. Appellant is in jail. Let him be released forthwith if his detention is not required in any other case. 17. Let a copy of this judgment be forthwith sent to the trial court as well as to the Jailor concerned for due compliance. Lower court record be also sent back. 18. Let a copy of this judgment be circulated to all the Trial Judges within the State of Uttarakhand for ensuring compliance of Section 7A of Juvenile Justice (Care and Protection of Children) Act, 2000, whenever a claim of juvenility is raised by the accused before the court.