JUDGMENT V.M. Deshpande, J. - By the present appeal, the appellant who is in jail is challenging judgment and order of conviction dated 21.3.2017 passed by learned Special Judge and 9th Additional Sessions Judge, Nagpur in Special Case Child Protection No.204/2015. 2. By the impugned judgment, the appellant is convicted for offences punishable under Sections 323, 363, 366A, and 376(2)(i) of the Indian Penal Code and under section 4 of the Protection of Children from Sexual Offences Act, 2012 (for short, the POCSO Act). For offence under Section 323 of the Indian Penal Code, the appellant is sentenced to suffer rigorous imprisonment for 6 months and to pay a fine of Rs. 500/and in default of payment of the fine amount to further suffer simple imprisonment for 1 month. For offence under Section 363 of the Indian Penal Code, the appellant is sentenced to suffer rigorous imprisonment for 5 years and to pay a fine of Rs. 2000/and in default of payment of the fine amount to further suffer simple imprisonment for 3 months. For offence under Section 366A of the Indian Penal Code, the appellant is sentenced to suffer rigorous imprisonment for 7 years and to pay a fine of Rs. 3000/and in default of payment of the fine amount to further suffer simple imprisonment for 3 months. For offence under 376(2)(i) of the Indian Penal Code, the appellant is sentenced to suffer rigorous imprisonment for 10 years and to pay a fine of Rs. 5000/and in default of payment of the fine amount to further suffer simple imprisonment for 3 months. For offence under Section 4 of the POCSO Act, the appellant is sentenced to suffer rigorous imprisonment for 10 years and to pay a fine of Rs. 5000/and in default of payment of the fine amount to further suffer simple imprisonment for 4 months. Learned Judge of the Court below directed that all the sentences shall run concurrently. The impugned judgment also observed that the appellant will be entitled for set-off since the appellant is in jail since 25.7.2015. 3. The prosecution case is as under: On 24.7.2015, when Manish Vaikunthrao Wankhede (PW6) was discharging his duties as Police Sub Inspector at MIDC Police Station, Nagpur, victim and her mother Vaishali (PW2) came to the police station and lodged a report. 3. The prosecution case is as under: On 24.7.2015, when Manish Vaikunthrao Wankhede (PW6) was discharging his duties as Police Sub Inspector at MIDC Police Station, Nagpur, victim and her mother Vaishali (PW2) came to the police station and lodged a report. The same was reduced into writing by WPC Harshada Choudhary and the same was referred to Manish Wankhede. On the basis of the said report, he registered a crime vice Crime No.241/2015 for offences punishable under Sections 363, 366A, and 376 of the Indian Penal Code and under Section 4 of the POCSO Act. The oral report on the basis of which the crime was registered is at Exhibit 13 and printed First Information Report is at Exhibit 14. 4. As per the oral report, first informant Vaishali resides with her husband Devidas and her 3 daughters. The victim is her second number daughter and at the relevant time as per the oral report her age was 16 years. The first informant does labour work at Gajanan Plasto Company and her husband is doing labour work at various companies. Her all 3 daughters were taking education and the victim was taking education at Laxmibai Wankhede Vidyalaya, Hingna Naka, Nagpur in 9th Std.. 5. The oral report states that from house upto Trimurti Chowk, the victim used to go on foot and, thereafter, she used to reach to school in auto-rickshaw. She used to leave house at 10:30 in the morning and used to return the house at 5:30 in the evening. 6. As per the oral report, on 23.7.2015, as usual at 10:30 in the morning, the victim left her house, however failed to return till 6:00 O''clock in the evening. Therefore, the first informant and her husband made enquiries here and there. At 7:00 O''clock in the evening, the victim returned and upon enquiry, though initially she did not disclose anything, after some time on getting confidence, she narrated that she was with Raja (appellant) for entire day. Therefore, the first informant and others made search of Raja and on he being found enquiry was made with him. Upon that, he picked up quarrel. Therefore, persons gathered there and gave some beatings to Raja and, thereafter, he was taken to the police station. Therefore, the first informant and others made search of Raja and on he being found enquiry was made with him. Upon that, he picked up quarrel. Therefore, persons gathered there and gave some beatings to Raja and, thereafter, he was taken to the police station. In the police station, though enquiry was made by the police officers since the victim was in a frightened condition, she did not disclose anything but was insisting that she should be taken to house. Accordingly, the first informant and the victim came to house. On the second day in the morning, the victim narrated the happening to her at the hands of the appellant and, therefore, the first informant again came to the police station and lodged the report. 7. The investigation of Crime No.241/2015 was entrusted to Assistant Police Inspector Pravin Madhukar Rao Kale (PW5) on 24.7.2015. On the said day, he visited spot of incident and prepared spot panchnama in the presence of panchas. The spot panchnama is at Exhibit 26. The victim was sent for her medical examination at the Government Medical College and Hospital at Nagpur. The Investigating Officer also seized nail clipping, vaginal swab, blood sample, and pubic hair of the victim obtained by the medical officer. Seizure memo of the aforesaid is at Exhibit 27. Under Exhibit 28, the Investigating Officer seized wearing apparels of the victim which were on her person on the day of the incident. After arrest, the clothes of the appellant were seized under seizure panchnama Exhibit 29. After completion of other usual investigation, charge-sheet was filed. 8. Learned Judge below framed charge against the appellant for offences punishable under Sections 363, 366A, 376(2)(i)(j), and 323 of the Indian Penal Code and under Section 4 of the POCSO Act. The appellant denied the charge and claimed for his Trial. 9. In order to bring home the guilt of the appellant, the prosecution examined in all 6 witnesses and also relied on various documents duly proved during the course of the Trial. Learned Judge below also examined the appellant under section 313 of the Code of Criminal Procedure, 1973. Defence of the appellant was of total denial. After appreciating the prosecution case, learned Judge below passed the judgment impugned in the appeal. Hence, the present appeal. 10. Learned Judge below also examined the appellant under section 313 of the Code of Criminal Procedure, 1973. Defence of the appellant was of total denial. After appreciating the prosecution case, learned Judge below passed the judgment impugned in the appeal. Hence, the present appeal. 10. I have heard learned counsel Ms F.N. Haidari appointed by this Court to represent the appellant who is in jail since counsel, through whom the present appeal was presented, was found to be continuously absent. Also, I have heard learned Additional Public Prosecutor Mrs. S.V. Kolhe for the respondent/State. 11. Submission of learned counsel Ms F.N. Haidari for the appellant is that there was a love affair between the victim girl and the appellant. She, therefore, submitted that the victim was consenting party and, therefore, the appellant cannot be convicted for which he was charged. It is also her submission that the prosecution has not appropriately proved age of the girl to show that the girl was below the age of extending consent. She, therefore, submitted that the appeal be allowed. 12. Per contra, learned Additional Public Prosecutor Mrs. S.V. Kolhe for the respondent/State submitted that learned Judge below considered evidence brought on record by the prosecution in its correct perspective. She submitted that date of birth of the victim narrated by the victim is never challenged by the defence. Not only that, she submitted that extract of admission register, which shows date of birth of the victim as 12.12.1999, is also not challenged by the defence though an opportunity was available to cross-examine headmistress Kumari Manisha Katane and/or file an appropriate application for recalling of the headmistress. She, therefore, submitted that the appeal be dismissed. 13. As per the charge and the oral report (Exhibit 13), on the day of the incident i.e. on 23.7.2015, the victim was aged about 16 years. Learned Judge below framed the charge under relevant provisions of the POCSO Act also. After amendment, consenting age under Section 375 of the POCSO Act is raised from 16 years to 18 years. Similarly, as per the provisions of Section 2 of the POCSO Act, person below age of 18 years is child. 14. To prove the age, the burden firmly rests on the shoulder of the prosecution. In the present case, the victim was examined as PW1. On oath, she stated her date of birth as 12.12.1999. Similarly, as per the provisions of Section 2 of the POCSO Act, person below age of 18 years is child. 14. To prove the age, the burden firmly rests on the shoulder of the prosecution. In the present case, the victim was examined as PW1. On oath, she stated her date of birth as 12.12.1999. Her statement is not at all challenged during her cross-examination. 15. In addition to that, the prosecution examined Kumari Manisha Motiramji Katane (PW4). The said prosecution witness is headmistress of Netaji Subhashchandra Bhose Upper Primary School, Vijay Nagar, Kalamna, Nagpur since 2011. Her evidence shows that as per summons of the Court she brought original school admission register for Years 2003-2010 (Register No.9). According to her evidence, as per entry of her school register the victim was admitted in the school in 1st Std. on 28.5.2005 vide admission No.5123. Kumari Manisha produced extract of the said register i.e. page No.45, where the relevant entry is taken. As per the record, date of birth of the victim is shown as 12.12.1999. It is also stated on oath by Kumari Manisha that the register is maintained by the school for admissions of the students and entries are taken as per certificates produced by parents of students at the time of admissions. Learned Judge below after verifying the extract of the register with original admission register, returned the original admission register. The extract of the relevant entry is at Exhibit 23. The said shows date of birth of the victim as 12.12.1999. When Kumari Manisha was available in the witness box, counsel for the appellant remained absent and the appellant declined to cross examine. Examination of Kumari Manisha was over on 31.1.2017. 16. After examination of Kumari Manisha, the prosecution examined two witnesses i.e. Investigating Officer Pravin Madhukarrao Kale (PW5) on 10.2.2017 and Police Sub Inspector Manish Wankhede (PW6) on 10.2.2017 and also were cross-examined by counsel for the appellant. The examination of the appellant under section 313 of the Code of Criminal Procedure, 1973 was conducted by the Court below on 17.2.2017. After examination of Kumari Manisha, the prosecution examined two witnesses i.e. Investigating Officer Pravin Madhukarrao Kale (PW5) on 10.2.2017 and Police Sub Inspector Manish Wankhede (PW6) on 10.2.2017 and also were cross-examined by counsel for the appellant. The examination of the appellant under section 313 of the Code of Criminal Procedure, 1973 was conducted by the Court below on 17.2.2017. Chronology of these shows that from 31.1.2017 to 17.2.2017 opportunity was available for the appellant and his counsel to file an appropriate application for recalling of Kumari Manisha Katane (PW4), the headmistress for her cross-examination for disputing her evidence in order to disprove the date of birth of the victim and in respect of the entry in the school record. However, nothing sort of that was done on the part of the defence. 17. Unchallenged version from the witness of the victim (PW1) regarding her date of birth and the documentary evidence in the nature of Exhibit 23, the extract of school register mentioning the date of birth of the victim when she was admitted in the primary school in 1st Std., the entry which was taken by the certificate produced by the parent as per the version of Kumari Manish (PW4), clearly establishes that the date of birth of the victim is 12.12.1999. As per the charge and as per the prosecution case, the incident of taking away the victim girl from lawful custody of her parent took place on 23.7.2015. Thus, on the said day, age of the victim was 15 years and 7 months. Thus, it is clear that the victim is child within the meaning of definition of "Child" in the POCSO Act. 18. It is submission of learned counsel for the appellant that the victim was in love affair with the appellant and she on her own left the company of her parents and joined the appellant and had consensual sex with him. 18. It is submission of learned counsel for the appellant that the victim was in love affair with the appellant and she on her own left the company of her parents and joined the appellant and had consensual sex with him. In my view, the aforesaid submission of learned counsel for the appellant is required to be rejected being untenable in law since the age of the victim on the date of the incident was well below 18 years and in addition to that the version of the victim shows that by applying force she was taken when she was waiting for auto-rickshaw to a place i.e. Nildoh Nursery where she was subjected to sexual assault, establish that the appellant committed offence under Section 363 of the Indian Penal Code. 19. Since the victim was child and her age was below 18 years, her consent has no meaning in the eyes of law. Therefore, the submission of learned counsel for the appellant that the victim was consenting party for the sexual relations with the appellant is required to be floored down. 20. The testimony of the victim coupled with evidence of Dr. Ashwin Arjunrao Sontakke (PW3) who examined the victim also shows that the victim was subjected to sexual assault by force and she was not consenting party. 21. As per evidence of the victim, on the day of the incident from house she reached to the spot where she used to get an auto-rickshaw to reach to her school. When she was waiting for auto-rickshaw, she was alone and at that time the appellant came there and he snatched away her bag. The evidence of the victim that she followed the appellant for her bag, in my view, is most natural. Her evidence further shows that the appellant assured her that she will be reached to her school. Thereafter, by holding the victim she was taken to Nildoh Nursery, a secluded place where except these two nobody was present there. According to the victim, the appellant gave a stone blow on her forehead and also slapped her, resulting into the victim falling on the ground. Thereafter, he committed forcible sexual intercourse. 22. Dr. Ashwin Sontakke (PW3) was discharging his duties at the Government Medical College and Hospital, Nagpur on 24.7.2015. The victim was referred by the MIDC police authorities and she was accompanied with a woman head constable. Thereafter, he committed forcible sexual intercourse. 22. Dr. Ashwin Sontakke (PW3) was discharging his duties at the Government Medical College and Hospital, Nagpur on 24.7.2015. The victim was referred by the MIDC police authorities and she was accompanied with a woman head constable. After examining the victim, the doctor found following injuries: "i) Contusion on forehead right side 3 cm above right eyebrow of size 4cmx3cm with blush coloured, swelling was there, the nature of injury was simple. ii) Scratch abrasion on forehead right side 3 cm above right eyebrow horizontally placed 4 cm long bright red scale colour. The nature of injury was simple. iii) Abrasion on right leg lower V part, size 1cm x 0.5 cm bright red in colour, the nature of injury was simple. iv) Contusion 7 cm x 2 cm on infra scapular region 2cm below left scapula bluish coloured, simple in nature. v) Old burn scar mark on left leg and left thigh lower V region anterior aspect." The doctor found that there were multiple hymen injuries on 9 O''clock, 6 O''clock, and 10 O''clock position. Her hymen was found ruptured and edges were found edematous. Those show that she was subjected to sexual assault. He proved medical certificate which is at Exhibit 18. From the cross-examination of the doctor, nothing could be elicited to disbelieve the doctor''s version. 23. The injuries on the person of the victim corroborate her version that she was subjected to assault prior to sexual assault on her. If really the victim was consenting party, as suggested by learned counsel for the appellant, though her consent was not legal, there would not have any injury on her person noticing injuries externally as noted above which clearly shows that the appellant harshly dragged that minor girl before subjecting her to fulfill sexual lust by force. Chemical Analyzer''s Report Exhibit 25 shows that clothes of the appellant were having human blood of Group "A". Learned counsel for the appellant submitted that Blood Group of the appellant was also "A". However, the appellant has not offered any explanation as to how Blood Group "A" which belongs to the victim was noticed on his clothes. 24. Chemical Analyzer''s Report Exhibit 25 shows that clothes of the appellant were having human blood of Group "A". Learned counsel for the appellant submitted that Blood Group of the appellant was also "A". However, the appellant has not offered any explanation as to how Blood Group "A" which belongs to the victim was noticed on his clothes. 24. On re-appreciation of the entire prosecution case, there is no hesitation in my mind to record independent finding in the present appeal that on the day of the incident the victim was child and she was assaulted physically and, thereafter, she was subjected to sexual assault. Therefore, in my view, the prosecution is successful in bringing home the guilt of the appellant. 25. In view of the above, I pass following order: ORDER (i) The criminal appeal is dismissed. (ii) The appellant who is in jail shall undergo his further punishment. (iii) Fees payable to learned counsel Ms F.N. Haidari, who is appointed by the High Court Legal Services Sub Committee at Nagpur to represent the appellant, are quantified at Rs. 5000/-