JUDGMENT B.A.Patil, J. - This appeal is preferred by the appellant/accused challenging the judgment of conviction and order of sentence passed by the learned II Addl. District and Sessions and Spl. Judge, Dharwad, in Special S.C.No.34/2016 dated 16.08.2017. 2. We have heard Sri Namadev S.Badiger, learned counsel appearing for the appellant/accused and Sri V.M.Banakar, learned Addl. SPP appearing for the respondent-State. 3. The genesis of the case of the prosecution in brief is that the victim is the daughter of the accused. On the intervening night of 21.05.2016 and 22.05.2016, because of humidity inside the house, she went outside and slept by the side of her father. When the victim girl was sleeping by his side, accused knowingly full well that she being a minor girl below the age of 18 years, has sexually assaulted her for 2 to 3 times and has committed penetrative sexual assault. In the morning, after receiving a phone call from the general public that the minor girl has been sexually assaulted by her father, the District Child Protection Officer and the police went to the house of the accused. But the accused was not there. They found the victim girl. On enquiry, she revealed the fact of penetrative sexual assault committed by her father/the accused, on the intervening night of 21.05.2016 and 22.05.2016. In that regard, the District Child Protection Officer lodged the complaint and on the basis of the said complaint, a case has been registered in Cr.No.144/2016. Thereafter, after investigation, the charge-sheet came to be filed. 4. The trial Court took cognizance and after giving the copies of the charge-sheet to the accused and after hearing him, charges were framed wherein the accused pleaded not guilty and he claims to be tried and as such, the trial was fixed. To substantiate its case, the prosecution got examined, 16 witnesses and got marked 21 documents and 11 material objects. Thereafter, the accused was questioned by putting incriminating material against him and he denied the same. The accused has not adduced any evidence nor produced any documents. After hearing the learned counsel appearing for the parties, the impugned judgment came to be passed convicting the appellant/accused. Being aggrieved by the same, the accused is before this Court. 5. Thereafter, the accused was questioned by putting incriminating material against him and he denied the same. The accused has not adduced any evidence nor produced any documents. After hearing the learned counsel appearing for the parties, the impugned judgment came to be passed convicting the appellant/accused. Being aggrieved by the same, the accused is before this Court. 5. The main grounds urged by the learned counsel for the appellant is that the learned Sessions Judge without considering the materials placed on record, has come to a wrong conclusion and has wrongly convicted the accused. It is his further submission that PWs-3 and 4, i.e., sister of the accused and the mother of the accused have not supported the case of the prosecution, though they were also present at the place of the alleged incident. In that light, it is his submission that the trial Court ought to have acquitted the accused. It is his further submission that the evidence of PW-2/victim is also not trustworthy and reliable and that when the witness is a child witness, unless her evidence repose confidence about its truthfulness said evidence cannot be relied upon. It is his further submission that there is inconsistency in the evidence of PW-2. At one stretch, when the statement of the victim has been recorded under Section 164 of the Cr.P.C. as per Ex.P.7, she has deposed in a different manner and when she has been examined before the Court, then she has improved her version only with an intention to get convicted the accused. It is his further submission that the accused came to be examined by Dr.PW-9 and she has issued the report as per Ex.P.14 wherein she has stated that there are no signs of sexual assault committed by the accused and that itself shows that there is no penetrative sexual assault committed by the accused. It is his further submission that the parameters of Section 5 of the Protection of Children from Sexual Offences Act, 2012, (for short 'the POCSO Act') have not been complied so as to come under the jurisdiction of the Special Court. When the said Court was not having any jurisdiction to try the said case and if the Court tries and convicts the accused, it is nothing but abuse of the process of law. When the said Court was not having any jurisdiction to try the said case and if the Court tries and convicts the accused, it is nothing but abuse of the process of law. It is his further submission that the FSL report clearly goes to show that no semen was found on the cloth of either the victim or the accused. Under such circumstances, the trial Court ought to have acquitted the accused. The trial Court on scanty evidence has come to a wrong conclusion and has wrongly convicted the accused. On these grounds, he prayed to allow the appeal and to set aside the judgment of conviction and order of sentence. 6. Per contra, Sri V.M.Banakar, learned Addl. SPP vehemently argued and submitted that in view of definition of Section 2 (d) of the POCSO Act, a person below the age of 18 years is defined as a child and the provisions of the Act are attracted. It is his further submission that the ingredients of Section 5 of the POCSO Act has been attracted and in that light, the charge-sheet has been filed and the trial has been conducted. It is his further submission that the evidence of PW-2/victim girl is cogent and not shaky and it is corroborated with the evidence of PWs-10 and 13 supported by Exs.P.17 and 19, to show that the accused has committed penetrative sexual assault on her. Even in the statement recorded under Section 164 of the Cr.P.C before the Magistrate as per Ex.P.7, the victim girl has narrated how the accused had sexually assaulted her and committed penetrative sexual assault. On these grounds, the trial Court has come to a right conclusion and convicted the accused. Hence, there are no good grounds to interfere with the judgment of the trial Court. The judgment of the trial Court deserves to be confirmed. On these grounds, he prayed to dismiss the appeal. 7. We have cautiously and carefully gone through the submissions made by learned counsel appearing for the parties and perused the records including the trial Court records. 8. The judgment of the trial Court deserves to be confirmed. On these grounds, he prayed to dismiss the appeal. 7. We have cautiously and carefully gone through the submissions made by learned counsel appearing for the parties and perused the records including the trial Court records. 8. The first and foremost contention which has been taken up by the learned counsel for the accused is that the parameters of Section 5 of the POCSO Act have not been satisfied as the victim girl is above the age of 13 years as on the date of the incident i.e., on 21.05.2016, taking into consideration her date of birth as 22.04.2004. In that light, he submitted that Section 5 (m) of the POCSO Act is not attracted. 9. Section 2 (d) of the Act reads as under: "(d) "child" means any person below the age of eighteen years". 10. Section 2 (d) indicates that child means any person below the age of 18 years and if any offence of sexual assault has been committed on a child, under such circumstances, the provisions of the Act are attracted. 11. Section 5 of the POCSO Act deals with regard to the aggravated penetrative sexual assault under various circumstances. Even though Section 5 (m) of the Act deals with a situation where penetrative sexual assault is committed on a child below twelve years of age, Section 5 (n) of the Act refers to such sexual assault. In the present case, admittedly the victim was aged 13 years as per the birth certificate-Ex.P.20 and the accused is none other than the father of the victim. Under such circumstances, it is not Section 5 (m) of the Act but it is Section 5 (n) of the Act will be attracted, which reads as follows: "(n) whoever being a relative of the child through blood or adoption or marriage or guardianship or in foster care or having a domestic relationship with a parent of the child or who is living in the same or shared household with the child, commits penetrative sexual assault on such child; or" 12. Bare reading of Section 5 (n) of the Act shows that when the father himself commits penetrative sexual assault, specific age of the victim is not suggested but it refers to the victim as child, which means a person below the age of 18 years. 13. Bare reading of Section 5 (n) of the Act shows that when the father himself commits penetrative sexual assault, specific age of the victim is not suggested but it refers to the victim as child, which means a person below the age of 18 years. 13. Under such circumstances, Section 5 of the Act is attracted. Hence, considering all these aspects and the charges levelled against the accused, we are of the considered opinion that the contention raised by the appellant/accused is not having any force and the same is liable to be rejected. 14. It is the next contention of the learned counsel for the appellant/accused that though there is no material evidence against the accused, the trial Court has convicted the accused. It is his further contention that the evidence of PW-2 who is a child witness is not reliable. It is his further submission that there are contradictions in the ocular evidence and the medical evidence. Under such circumstances, the benefit of doubt has to be given to the accused. 15. To establish the case of the prosecution, the prosecution has got examined as may as 16 witnesses. PW-1 is the District Child Protection Officer. She has deposed with regard to she receiving the information over phone and making an enquiry with the victim child about the penetrative sexual assault and thereafter, that the child has been sent to the hospital and a complaint has been registered as per Ex.P.1. During the course of crossexamination, nothing has been elicited so as to discard the evidence of this witness. She has only moved the criminal law into motion. 16. The material witness is PW-2, the victim girl. In her evidence, she has deposed that she was studying in 6th standard in National High School while deposing before the Court and the accused who is before the Court is her father and one day night when she was in the house, her father came and slept beside her and then he removed her inner wear and his inner wear and put his penis into her mouth. Thereafter, when she told that she wants to go near her grand mother, the accused asked her to sleep there itself and he has bitten her cheeks and in the morning she noticed that there was pain in her private part. Thereafter, when she told that she wants to go near her grand mother, the accused asked her to sleep there itself and he has bitten her cheeks and in the morning she noticed that there was pain in her private part. She has further deposed that her father used to threaten her and thereafter, that she has been sent to the hospital. During course of cross-examination, nothing has been elicited so as to discard her evidence. All the suggestions put to this witness have been denied. We are conscious of the fact that the evidence of the child witness is not required to be rejected per se. But, the Court as a rule of prudence has to consider such evidence on close scrutiny and only on being convinced about the quality and reliability, can record the conviction based thereon. This proposition of law has been laid down by the Hon'ble Apex Court in the case of GOLLA YELUGU GOVINDU VS. STATE OF A.P., (2008) AIR SC 1842 . 17. Pw-10, is the Medical Officer in District Hospital, Dharwad, who has examined the victim has clearly stated that the Protection Officer- Dr.Usha produced the victim girl. On examination of the victim by the Gynecologist, Dr.Surekha Hanchinal and she gave the report as per Ex.P.19. On the basis of Ex.P.19 and also the FSL report, he gave his opinion as per Ex.P.17. As per Ex.P.17 also, the victim was examined by the Radiologist- Dr.Divya Ravi Kulkarni who gave opinion that the victim was aged between 8 to 10 years and as per physical examination of the victim by the Gynecologist-Dr.Surekha Hanchinal, evidence of signs of recent sexual intercourse was present and old scar of ruptured hymen was noticed. During the course of cross-examination of this witness nothing has been elicited so as to discard his evidence. 18. Pw-13 is Dr.Surekha Hanchinal, Gynecologist referred to by PW-10 and in Ex.P.17, she stated before the Court that she had examined the victim and has given the report as per Ex.P.19 and she has further deposed that the hymen was ruptured and there was swelling in her private part and the vagina which had turned into red colour and she has opined that there is recent sexual assault on the victim girl. During the course of her cross-examination also, nothing has been elicited so as to discard the evidence. 19. During the course of her cross-examination also, nothing has been elicited so as to discard the evidence. 19. Though the prosecution has got examined PW- 3, sister of the accused and PW-4, mother of the accused, they have not supported the case of the prosecution and they have been treated as hostile. Taking into consideration the evidence of the victim/PW-2, PWs-10 and 13, we are of the considered opinion that the evidence of the victim corroborates with the evidence of the doctors who have examined the victim immediately after the alleged incident. In that light, the evidence of PW-2 appears to be convincing, qualitative and reliable. Even, during the course of her cross-examination, nothing has been suggested to get support to the defence that the accused has been falsely implicated. Under such circumstances, the evidence which has been produced appears to be the best evidence before the Court and it is very convincing. 20. Be that as it may. Immediately after the alleged incident, the victim has been taken to PW-5, the private doctor. He has also deposed that the victim was brought to him at about 7.30 p.m. and the victim informed him that her father raped her and as such, she has been referred her to the District Hospital. In that light also, it appears that there is no manipulation of any documents. 21. Insofar as the other witnesses are concerned, PW-8 is a spot mahazar pancha to Ex.P.13. PW-9 is the doctor who has examined the accused and has given the report as per Ex.P.14 and in her evidence also, she has clearly stated that there is nothing to suggest that the accused is incompetent to have sex. 22. Be that as it may. From the evidence the Court can presume certain offences under Section 29 and culpable mental state, under Section 30 of the POCSO Act. For the purpose of brevity, we extract Sections 29 and 30 of the Act which read as under: "29. Presumption as to certain offences: Where a person is prosecuted for committing or abetting or attempting to commit any offence under sections 3, 5, 7 and 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be, unless the contrary is proved. 30. Presumption as to certain offences: Where a person is prosecuted for committing or abetting or attempting to commit any offence under sections 3, 5, 7 and 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be, unless the contrary is proved. 30. Presumption of culpable mental state- (1) In any prosecution for any offence under this Act which requires a culpable mental state on the part of the accused, the Special Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution. (2) For the purposes of this section, a fact is said to be proved only when the Special Court believes it to exist beyond reasonable doubt and not mrerely when its existence is established by a preponderance of probability." 23. On close reading of these Sections, it is seen that when a person is prosecuted for violating provisions of Sections 3, 5, 7 and 9 of the POCSO Act and if the victim is a child below the age of 18 years, then the Special Court shall presume that such person has committed the offence unless the contrary is proved. 24. On the basis of the oral and documentary evidence discussed above, we are of the considered opinion that the evidence of PW-2/victim girl, PWs-5, 10 and 13 supported by Exs.P.17 and 19 in particular, are cogent and acceptable and there is corroboration. Under such circumstances, presumption under Sections 29 and 30 of the Act operates and we can infer that the accused was having the mental state of committing such an offence and it is for the accused to take defence and to probabilise the same to get out of such legal presumptions regarding commission of the offence in question and his culpable mental state. But, nothing has been produced by the accused in this behalf so as to rebut the said presumption. 25. Though during the course of arguments, learned counsel for the appellant/accused submitted that there is contradiction in the ocular and medical evidence, but we could not find any such contradictions or omissions which go to the root of the matter. But, nothing has been produced by the accused in this behalf so as to rebut the said presumption. 25. Though during the course of arguments, learned counsel for the appellant/accused submitted that there is contradiction in the ocular and medical evidence, but we could not find any such contradictions or omissions which go to the root of the matter. Even otherwise, we are conscious of the fact that in the event of contradictions between the ocular evidence and the medical evidence, the testimony of the victim will have a greater evidentiary value vis-a-vis., the medical evidence. But, the materials produced must show that the contradictions between the two is so extreme that the medical evidence completely rules out all possibilities of the ocular evidence being true at all and that the ocular evidence is liable to be disbelieved. This proposition of law has been held by the Hon'ble Apex Court in the case of DARBARA SINGH VS. STATE OF PUNJAB, (2012) 10 SCC 476 , wherein this Court has held as under: "10. So far as the question of inconsistency between the medical evidence and the ocular evidence is concerned, the law is well settled that, unless the oral evidence available is totally irreconcilable with the medical evidence, the oral evidence would have primacy. In the event of contradictions between medical and ocular evidence, the ocular testimony of a witness will have greater evidentiary value vis- -vis medical evidence and when medical evidence makes the oral testimony improbable, the same becomes a relevant factor in the process of evaluation of such evidence. It is only when the contradiction between the two is so extreme that the medical evidence completely rules out all possibilities of the ocular evidence being true at all, that the ocular evidence is liable to be disbelieved." 26. This proposition of law laid down in the above decision was again reiterated by the Hon'ble Apex court in its later decision in the case of SADHU SARAN SINGH VS. STATE OF U.P., (2016) 4 SCC 357 . 27. In the light of the ratio laid down and the concrete evidence that is available before the Court, we are of the considered opinion that there is no contradiction between the ocular evidence and the medical evidence. On the contrary, there is corroboration of the medical evidence by the evidence of the victim. 28. 27. In the light of the ratio laid down and the concrete evidence that is available before the Court, we are of the considered opinion that there is no contradiction between the ocular evidence and the medical evidence. On the contrary, there is corroboration of the medical evidence by the evidence of the victim. 28. We are also conscious of the fact that PW-2 is a minor child aged in between 12 to 13 years and that being the case, while giving the statement, naturally there will be minor variations and contradictions. The evidence of the victim reposes confidence and those minor contradictions will not take away the case of the prosecution in any manner and in that light, we are of the considered opinion that the said contention of the learned counsel for the appellant-accused is not having any force. Though the victim has not stated regarding the penetrative sexual assault in specific words, before the police, in the earlier statement recorded under Section 164 of the Cr.P.C.-Ex.P.7 and the evidence produced before the Court but on conjoint reading of evidence produced, it clearly indicates that there was penetrative sexual assault on the victim. While analyzing and scrutinizing the evidence of the child witness, the Court has to keep in mind all the material and truthfulness or otherwise of the said witness and come to a right conclusion. It is the duty of the Court to ascertain the truth and do justice in the case. 29. We appreciate the contentions taken up by the learned counsel for the accused/appellant. The appellant/accused is trying to stitch a shirt with no cloth. We quote this because even though there is no material brought during the course of cross-examination, he is trying to build up a case for the accused-appellant. 30. During the course of argument, we noticed that the trial Court convicted the accused-appellant for the offence punishable under Section 376 of the IPC as well as Section 6 of the POCSO Act. But, he has been sentenced to undergo imprisonment for a period of 12 years and to pay a fine of Rs.5,000/- for the offence punishable under Section 6 of the POCSO Act. But, he has been sentenced to undergo imprisonment for a period of 12 years and to pay a fine of Rs.5,000/- for the offence punishable under Section 6 of the POCSO Act. The accused has not been convicted under Section 376 of IPC by holding that the offence punishable under Section 6 of the POCSO Act is greater in degree than that of the offence punishable under Section 376 of IPC and no separate punishment is required under Section 376 of IPC. 31. Considering the seriousness of the offence committed by the accused on his own minor daughter, no mercy can be shown in awarding sentence. In view of the seriousness of the offence committed by the accused who is the father of the minor girl while she was sleeping with him in the house, the trial Court could have considered imposing maximum sentence on the accused. Unfortunately, the State has not preferred any appeal against the said judgment either for enhancement or for modification. Under such circumstances, inevitably the same has to be confirmed. 32. For the discussion made by us as above, the appellant has not made out any grounds to interfere with the judgment of trial Court. Hence, the judgment of conviction and order of sentence passed by the trial Court deserves to be confirmed. Accordingly, the appeal is dismissed as devoid of merits.