JUDGMENT : 1. Heard Mr. K. Tama, learned counsel for the appellant. Also head Mr. U. Bori, learned Additional Public Prosecutor for the State of Arunachal Pradesh. 2. This is an appeal under Section 101(5) of the Juvenile Justice (Care and Protection of Children) Act, 2015 read with Section 374 of the Criminal Procedure Code, 1973 assailing the Judgment dated 31.08.2021 and Sentence dated 09.09.2021 passed by the learned Special Judge POCSO cum Children Court, Aalo in Special POCSO Case No. 01/2020, whereby the appellant was convicted under Section 6/8 of POCSO Act, 2012 read with Section 376(2) (a) (i) of IPC and was (I) sentenced to undergo ten (10) years of rigorous imprisonment and fine of Rs. 1000/-(Rupees one thousand) only for the offence punishable under Section 6 of POCSO Act read with Section 376 (2) (a) (i) of IPC and (II) sentenced to undergo imprisonment for three (3) years rigorous imprisonment and fine of Rs. 1000/-(Rupees one thousand) only for the offence punishable under Section 8 of POCSO Act and failing to pay the fines in both, simple imprisonment for three (3) years each. 3. The prosecution was set into motion on the basis of an FIR dated 21.04.2019 lodged before the Officer-In-Charge, Police Station Kamba, West Siang District, Arunachal Pradesh by one Shri Mito Minung @ Ninu, alleging that the present appellant had committed rape upon his minor nephew Miss “M” (real name withheld) at different occasions at victim’s house and at the house of the appellant. On the basis of such information, a case was registered being Kamba PS Case No. 06/2019, under Section 6 of POCSO Act, 2012 read with Section 354/376 (2) (i) (I) of IPC. 4. After the completion of investigation, the Investigation Officer laid the charge-sheet on 10.06.2019 before the Juvenile Justice Board, Aalo, under Section 354/376 (2) (i) of the IPC read with Section 6 of POCSO Act, 2012 against the appellant as during the investigation it was found that the present appellant was a Juvenile in Conflict with Law. 5. Therefore, the Juvenile Justice Board, Aalo under its order dated 20.07.2019 held that the appellant was able to understand the consequence of his act and therefore the case record was transmitted to the learned District and Session Judge, Aalo treating the appellant as an adult. 6. 5. Therefore, the Juvenile Justice Board, Aalo under its order dated 20.07.2019 held that the appellant was able to understand the consequence of his act and therefore the case record was transmitted to the learned District and Session Judge, Aalo treating the appellant as an adult. 6. The learned District and Session Judge, Aalo being not designated as Special Court (POCSO)/ Children Court, the appellant was forwarded to the Children Court cum Special Court (POCSO) cum Additional District and Session Judge, Basar for the trial of the case. In the meantime, the District and Session Judge, Aalo was designated as Children Court/Special Court (POCSO). Accordingly under order dated 12.12.2019, the learned Special Judge (POCSO) cum Children Court cum Additional District and Session Judge, Basar has retransmitted the case record to the learned District and Session Judge, Aalo cum Special Court (POCSO) cum Children Court, Aalo. 7. Thereafter, the learned trial court below had taken cognizance of the alleged offence and thereafter, charges were framed against the appellant and decide to try the appellant as an adult under its order dated 18.02.2020. 8. During the course of trial, the prosecution has examined eight witnesses and defence side examined three witnesses. After the conclusion of the trail, the statement of the appellant under Section 313 Cr.P.C. was recorded and by the impugned Judgment and Order dated 31.08.2021, the learned Court below held the appellant guilty under Sections 6 and 8 of POCSO Act 2012 read with Section 376(2) (a) (i) of the IPC. 9. The learned counsel for the appellant assails the decision on the following counts:- A. On merit: i. The age of the girl could not be established inasmuch as it is very much essential in the given facts of the present case to ascertain the age of the victim. ii. Though, the Doctor was examined, however, the decision of the Board on the basis of which, the age of the victim was determined was not exhibited nor any other person was called for who did ossification test or report of ossification test was exhibited. ii. Though, the Doctor was examined, however, the decision of the Board on the basis of which, the age of the victim was determined was not exhibited nor any other person was called for who did ossification test or report of ossification test was exhibited. In that view of the matter, a serious doubt has been created in respect of the age of the victim inasmuch as the materials available on record, clearly show that there had been a love affair between the accused and victim, inasmuch as the two families along with the villagers had decided to get them married and in fact, as per the customary procedure, the process of marriage was initiated. Accordingly, learned counsel submits that the deposition of the victim itself clearly shows that both the parties had consensual sex on many occasions including in the house of the appellant, where the victim came. The victim in unequivocal term deposed that she had a love affair with the accused. Therefore, the learned court below has wrongly convicted the appellant. B. On procedural lapse:- I. The learned Additional District and Session Judge, Basar took cognizance of the offences without following the procedure prescribed in Section 19 of the Juvenile Justice Act, 2015 read with Rule 13 (1) (6) of the Juvenile Justice Rules, 2016 and straightway treated the accused as an adult. Accordingly the right of the appellant is vitiated and on this count, the impugned Judgment dated 31.08.2021 and the Sentence dated 09.09.2021 is liable to be set aside. II. The learned trial Court below while passing the final order dated 09.09.2021 has negated all the future rights that are available to the appellant as a juvenile and therefore, the same is in conflict with law and is liable to the set aside. III. The learned trial court has miserably failed to uphold the spirit of Juvenile Court/Children Court which is offender oriented and purpose of the whole act is to give a chance to the juvenile in conflict with law to reform. However, the learned trial Court below has not considered the all aspect. IV. The learned Court below while trying the appellant as a juvenile only relied on the nature of the offence and the child right has not been considered at all. 10. However, the learned trial Court below has not considered the all aspect. IV. The learned Court below while trying the appellant as a juvenile only relied on the nature of the offence and the child right has not been considered at all. 10. Per-contra, learned Additional Public Prosecutor for the State of Arunachal Pradesh contends that the Juvenile Justice Board has duly considered and assessed the mental status of the accused appellant under Section 15 of the Juvenile Justice Act, 2015 and accordingly he was forwarded to the learned Sessions Judge, to try him as an adult. He further submits that the learned trial Court has also not committed any error inasmuch as it has passed a reason order considering the provision of Section 19 of the Juvenile Justice Act, 2015 and proceeded to try the accused appellant. Therefore, the trial was not vitiated and no prejudiced was caused to the appellant. 11. So far relating to the merit, the learned Additional Public Prosecutor for the State of Arunachal Pradesh submits that the unshaken and trustworthy deposition of the victim clearly shows that she has been raped against her will and the defence has failed to dislodge her testimony and no other evidence was even required to convict the accused in view such evidence of the prosecutrix. He further submits that, the foundational fact of age was laid by the prosecution and the defence failed to dislodge such foundation. 12. Further a Special Board was constituted, who duly determined the age of the victim to be 12 to 14 years. One of the Board member was examined by the prosecution who deposed regarding determination of the age of the victim and therefore, non exhibiting the report of the medical board is not fatal in the present case. Accordingly, this appeal is having no merit and liable to be dismissed. 13. I have given anxious consideration to the arguments advanced by the learned counsel for the parties. Also perused the materials available on record including the order-sheets and the deposition of the witnesses, both Prosecution and Defence and the exhibits. 14. In the aforesaid backdrop, now let this Court first consider the merit of the case. 15. To determine the merit, let this Court first examine the prosecution witnesses. a. The PW-1, (victim) during her examination-in-chief stated her age to be 11 years. 14. In the aforesaid backdrop, now let this Court first consider the merit of the case. 15. To determine the merit, let this Court first examine the prosecution witnesses. a. The PW-1, (victim) during her examination-in-chief stated her age to be 11 years. She further stated that she did not recollect the date, month and year of the incident but it was about one year ago when the incident started taking place at her residence. On the first date of incident, the accused undressed her and thereafter, forcibly had sexual intercourse with her against her will and consent. It was bleeding from her private part. Thereafter, the accused started coming to her residence and repeatedly had sexual intercourse at different times. On the second date of the incident, when the accused had having sexual intercourse with her during evening time, her aunt caught them red handed, then the accused fled away from the residence. She further stated that she used to cry due to unbearable pain and agony. She further deposed that sometime, the accused used to take her to her elder brother’s room which was attached in the home and committed sexual assault upon her. During cross examination, she stated that accused and she was from the same village. She did not reveal the first incident of sexual assault committed upon her to any person. The first incident took place at her house during morning hours at 09:00 AM. After three days of first incident, the accused came to her house and had sexual intercourse with her. The third incident was occurred after a gap of three days from the second incident and she did not disclose the third incident to any persons. Thereafter, the accused had sexual intercourse at several occasions at her residence as well as in the house of the accused. They developed love affair, accused promised to marry her, now she do not like the accused, and will not marry him, even if he offers for marriage. She further deposed during cross examination that had her aunt not caught them having sexual intercourse, they would have continued with relationship. She saw bloods oozing from her private part when they had sexual intercourse at her brother’s room and that was the last incident. She further deposed that on the date of first intercourse, there was no bleeding from her private part. She saw bloods oozing from her private part when they had sexual intercourse at her brother’s room and that was the last incident. She further deposed that on the date of first intercourse, there was no bleeding from her private part. She again deposed that she suffered pain at the first incident of sexual intercourse. She also deposed that the Gaonburah of Peri Village held a meeting involving parents of the accused and her father wherein the accused offered to marry her however, such proposal was rejected by herself and by her father. b. PW-2 Mr. Mito Minung, in his examination-in-chief deposed that the aunt of the victim caught the accused having sexual intercourse with the victim at her resident however, she could not hold/catch the accused as he immediately fled from the scene after seeing her. He further deposed that the aunt of the victim, she could not report the same because it was night hours. As he was shocked to hear the incident, as such he could not decide how to deal with the incident, he had consulted with the family member and after great deal of consultation with the family members, he had finally lodged the F.I.R. at Kamba PS against the accused person. During cross-examination, he deposed that he was paternal uncle of the victim. He also deposed that the victim revealed that the accused had forcibly committed sexual intercourse with the victim. The family relatives of the accused put efforts to settle the matter through mediation (meeting) however, he had declined to adopt the settlement. He further deposed that during the occurrence, accused was studying in class-XII. c. PW-3 Dr. Gobam Bagra was the Doctor of the Community Health Centre near the village deposed that he examined the victim after the incident who was aged about 12 years with history of sexual assault. The Police requisitioned the Medical Officer for conducting clinical examination on the victim in order to ascertain the crime alleged by the complainant. He also deposed that during examination of the victim, he found vaginal bleeding, however, there was no continuous flow of blood. He also deposed the after thorough examination, he had recorded his findings in the report submitted before the O/C, Kamba P.S. He proved the Exhibit-4, examination report of the victim and he proved his signature as Exhibit-4(a). He also deposed that during examination of the victim, he found vaginal bleeding, however, there was no continuous flow of blood. He also deposed the after thorough examination, he had recorded his findings in the report submitted before the O/C, Kamba P.S. He proved the Exhibit-4, examination report of the victim and he proved his signature as Exhibit-4(a). He also proved the exhibit-3 which is a report of examination of the accused. The said report disclose the following:- - At the time of examination vaginal bleeding present. - No active bleedings present. - No sign of external injury. He did not record the nature of injury caused in the vagina of victim. He had also not reflected whether hymen got ruptured or intact. He did not take any other samples from the accused, except penile swab. He found the victim sexually active at the time of his examination. It was possible that victim might have been 14 to 16 years of age when she was subjected to clinical examination. d. PW-4, Nyabi Ninu is the parental aunt of the victim. During examination-in-chief, she deposed that during evening hours of the date of incident, at about 4:30 PM she entered the victim’s house and she went inside the room and to her utter surprise, she found that accused was having sexual intercourse with the victim and they were necked and the victim was crying and accused was fled away. During cross examination she deposed that she did not know the date of birth of the victim. e. PW-5, Dr. Linia Lollen is one of the Doctors of a Medical Board who examined the victim. He deposed that on 15.05.2019, the victim was produced before a Medical Board consisting 3 Surgeon constituted to ascertain the age and mental condition of the victim. He further deposed the Board had carried out general physical examination on the victim. The Board had also carefully examined the X-ray report conducted upon the victim in order to ascertain the age by counting teeth. He also deposed that after thorough investigation, the Board had given its opinion reflected in the report which had been furnished to the IO, however, he did not find the document in the Court. During his examination-in-chief, he exhibited the Board’s proceeding report regarding age, mental and general physical standard of the victim as Exhibit-5 and Exhibit 5(A) was his signtature. During his examination-in-chief, he exhibited the Board’s proceeding report regarding age, mental and general physical standard of the victim as Exhibit-5 and Exhibit 5(A) was his signtature. During cross examination he deposed that in the Medical Board there were 3 Surgeons, however, no Orthopaedic was included. Ossification was conducted upon the victim. He further deposed that “upper tibia and lower tibia femur” test was not conducted in the present case. He also deposed that based on pelvic bone, albow joint, wrist joint, development of secondary sexual organ of the victim and dental X-ray, the Board had arrived at the conclusion that the victim was aged about 12 to 14 years old on 15.05.2019. He denied the suggestion that the findings of the Board were not based upon the scientific investigation rather than whimsical physical observation only. He denied the suggestion that ossification test was not conducted properly. f. PW-6, Dr. Haj Sai is Dental Surgeon who was a Member of the Medical Board. During his examination-in-chief, he deposed that victim was produced in his Dental Clinic for X-ray and after following the procedure, he had subjected to her X-ray tests and he had conducted upper canine test and lower third Molar test. He further deposed that based on the X-ray report, he had given his opinion that the victim was below 18 years of age and above 12 years on the date of his examination. Exhibit 5(B) was his signature on Board’s proceeding report regarding the age, mental and general physical standard of the victim. During cross examination, he deposed that no orthopedic surgeon was included in the Medical Board meant for determining the age of victim. He also deposed that on the date of Radiological examination/X-ray, victim was accompanied by her guardian and he handed back film/X-ray copy to them after recording his findings. He also deposed that he had returned OPD card to the guardian of the victim after verifying her name and other details. He deposed that he had verbally reported before the Board regarding his finding on age. g. PW-7, Mr. He also deposed that he had returned OPD card to the guardian of the victim after verifying her name and other details. He deposed that he had verbally reported before the Board regarding his finding on age. g. PW-7, Mr. Mikar Kamki who was the father of the victim in his examination-in-chief deposed that on the date of incident he was drunk and boozing in house of his friend at Peri village and when he came back to his home next day morning, his sister-in-law told him about the commission of offence and saw that his daughter was crying. During cross examination, he stated that he do not remember the date of birth of the victim, however, she was aged about 13 years. He had no idea whether the victim had consensual sexual intercourse with accused out of love affairs. h. PW-8, Sri Wangke Ronrang is the Investigating Officer. During his examination-in-chief deposed that he registered the case and conducted the investigation, arrested the accused, forwarded the victim to Community Health Centre for conducting her general physical examination and other required medical procedure to ascertain the crime committed upon her, sent the victim to the learned Chief Judicial Magistrate, Aalo for recording her statement. After visiting the place of occurrence, drawn sketch map etc. As there was an allegation in the FIR that the victim was mentally and physically challenged, therefore on his application, the Medical Superintendent of GH, Aalo had constituted a Medical Board to determine the mental and physical condition of the victim. The Boad opined that there were no any abnormalities or deformities found in victim. Further, the Medical Board had opined that the victim was aged about 12 to 14 years of aged as on date of examination. During cross examination, he stated that in course of investigation, he found that family members of both the sides of accused and victim attempted to settle the case. When they could reach at any agreeable solution, FIR was lodged. He further deposed that investigation revealed that the incident took place on 19.04.2019 at 04:30 PM and the F.I.R. was received on 21.04.2019 at 10:00 AM. He further stated that in the course of interrogation, the accused admitted the fact that accused and the victim were in love affairs, therefore they had consensual intercourse. He further deposed that investigation revealed that the incident took place on 19.04.2019 at 04:30 PM and the F.I.R. was received on 21.04.2019 at 10:00 AM. He further stated that in the course of interrogation, the accused admitted the fact that accused and the victim were in love affairs, therefore they had consensual intercourse. In the course of investigation, he asked the victim and her guardian as to where the cloths such as undergarments, shirts etc worn during the commission of crime, they told him that the victim had taken bath and cleaned/washed all her clothes worn during sexual intercourse with the accused. He further deposed that his investigation revealed that younger brother of the victim is the first eye witness of the crime that took place on 19.04.2019 at 04:30 PM, on his information, PW-4 came to the place of occurrence but she had not seen the accused committing the rape upon the victim rather the accused and the victim were in complete naked position. He did not take the statement of the victim’s younger brother because he was too young to be made as witness. He did not find any evidence revealing the victim having struggled at the time of commission of the crime. The evidence collected during investigation as well as other available sources confirmed that the victim was aged about 12 years at the time of commission of crime. He did not obtain the birth certificate of victim, since there was no certificate issued by any public authority in respect of her age. He further deposed that he did not collect the X-ray report, Medical Board Proceedings etc conducted by the Medical Board for ascertaining the age of the victim. He also deposed that as per the relevant certificate produced by the accused during investigation, he is found to be below 18 years of age. i. The accused examined himself as DW-1 and during his examination-in-chief denied the commission of offence however, he stated that victim and he used to visit each other’s house very often but he never committed any sexual crime upon her at any point of time. During cross-examination, he stated that there was no enmity between the Investigating Officer of the present case with him and also stated that there was no chance of implication of the false case against him by the victim or the I.O. in the present case. During cross-examination, he stated that there was no enmity between the Investigating Officer of the present case with him and also stated that there was no chance of implication of the false case against him by the victim or the I.O. in the present case. j. DW-2 is the father of the accused. He deposed that on 17.04.2019, one Yabi Bomjen informed him that his son and victim were in love affairs and that victim father’s wanted the accused to marry the victim and asked for two Mithun and Cow as bridal price. He accepted such proposal and agreed to conduct Layap (for marriage ceremony is called Layap in which a girl, the bride is invited to bridegroom house to solemnize the marriage) on 19.04.2019 as per their wish. He had also arranged a lawyer and sacrificed a pig as pre-Layap but victim’s family did not come to the accused house on that day. A police case was registered. He further deposed that the victim and her brothers used to visit his house every now and then before the incident. Victim’s brothers would sleep, eat at his house. During cross examination by the prosecution he deposed that his family members and the family members of the victim had very cordial relations before the incident. Due to such cordial relation, when he was told about love affairs between the accused and the victim, he had voluntarily agreed with the proposal of the Layap. He further deposed that neither the accused nor he had harmed or caused any loss to the victim and her family members before and after the registration of the case. He further deposed that he was aware of the love affair between the accused and the victim and willing to get her married with the accused after the present case is over. k. DW-3 is a Senior Citizen of the village. He knows all the persons including the grand fathers. He deposed that the grandfather of the victim came to his house and told him that accused and his grand-daughter were in love affair. He further deposed that on the evening of 17.04.2019, the father of the victim sent one Yabi Bomjen to the father of the accused to inform that the accused and victim were in love and sent proposal for accused to marry the victim by paying two Mithuns and Cow as bridal price. He further deposed that on the evening of 17.04.2019, the father of the victim sent one Yabi Bomjen to the father of the accused to inform that the accused and victim were in love and sent proposal for accused to marry the victim by paying two Mithuns and Cow as bridal price. He also deposed that he learnt that the father of the accused had accepted the proposal and agreed to conduct Layap 19.04.2019. He has also learnt that as per desire of the victim’s family, the father of the accused had arranged a Lawyer and sacrified a pig as pre-Layap but victim’s family members did not come to his house on that day. He further deposed that on 21.04.2019, he was informed that a case was registered. During cross examination, he stated that since sexual relationship between the accused and victim was consequence of their love affairs, they have agreed to marriage as per their custom. As proposed by the victim’s family, they had arranged all the materials required in the performance Layap (marriage ceremony), such as bridal price, ornaments, pig cows, etc, however, they did not turn and lodged police case at Kamba PS. He further deposed that there was no enmity in between family members of the victims and accused family before institution of the case 16. In the backdrop of argument on behalf of the accused questioning the age of the victim and alleging a consensual sex, this Court is to determine whether the victim was a minor on the date of commission of the alleged offence inasmuch as even if there is a consent, the consent of minor is totally irrelevant. 17. The admitted fact is that there was no birth certificate or no school certificate regarding the age of the victim. The PW-3, Doctor Gobong Bagra had medically examined the victim and exhibited his report as Exhibit-4. As per the Exhibit-4 it is reflected that there was no external injuries on any part of the person of victim’s body. Though he found blood in the private part but it was not bleeding. The vaginal swab were sent for FSL, however, the FSL report was not brought on record. There was no discloser by the said Doctor regarding the physical status of the victim whether beasts were developed, whether axillary hairs were developed and whether hymen was intact or torn etc. The vaginal swab were sent for FSL, however, the FSL report was not brought on record. There was no discloser by the said Doctor regarding the physical status of the victim whether beasts were developed, whether axillary hairs were developed and whether hymen was intact or torn etc. PW-5 and PW-6, were the Board Members of the Medical Board who conducted the test. PW-5 and PW-6 proved the medical report. The Medical report reads as follows:- “Board Proceeding The Board constituted Vide No. WS/GHA/MEB-09/2017-18/124 dated 15th May, 2019 on the request of Investigation Officer of Kamba P.S. Case No. 06/19, U/S 354/376(2)(i) (ii) IPC R/W Section 4/6 POCSO Act, gathered at Office Chamber of Medical Superintendent, General Hospital, Aalo on 21st May, 2019 at 1030 hrs. The Investigation Officer produced the alleged victim Miss Karsum Ninu before the examination Board to examine the Age and to examine whether she is mentally retarded and physically handicapped or not. On examination, the age of Miss Karsum Ninu is found to be 12 to 14 years of age and her secondary sexual characteristics was not fully developed and no physical disability was found. Her mental retardation cannot be ascertained and her mental IQ is of average range”. 18. The Medical Report reflects that the Medical Board gathered at the office chamber of Medical Superintendent, General Hospital, Aalo on 25.05.2019 at 10:30 hrs. The victim was produced by the Investigation Officer for examination before the Board and to determine the age and whether she is mentally retarded and physically handicapped or not. The said exhibit-5 discloses that on examination, the age of the victim was found to be 12 to 14 years of age and her secondary sexual characteristics was not fully developed and no physical disability was found. It is also found that her mental retardation cannot be ascertained and her mental IQ is of average range. 19. A reading of the said report, it is found that the Medical Board do not disclose on what basis such age was determined. It is also found that her mental retardation cannot be ascertained and her mental IQ is of average range. 19. A reading of the said report, it is found that the Medical Board do not disclose on what basis such age was determined. Though during cross examination, the PW-5 deposed that on the basis of the pelvic bone, elbow joint, wrist joint, development of secondary sexual organ of the victim and dental X-ray, the Board had arrived at the conclusion that the victim was aged about 12 to 14 years old on 15.05.2016, however, during even his examination-in-chief he deposed that such opinions were not available on record. The PW-6, another Doctor though deposed that the victim was produced before his dental clinic for x-ray and the victim was produced by her parent and he gave opinion that the victim was below 18 year of age and above 12 years on the date of his examination. During his cross-examination, he deposed that he had handed over the report of radiological x-ray to the parents of the victim. He also deposed that he had described his findings based upon the radiology/X-ray on her OPD card and in the Board meeting, he had given his opinion based on the findings orally. The OPD card was not available on record. 20. Thus the aforesaid evidences and depositions, on determination of age can be summarized as follows:- a. The Exhibit-5 says age was determined and found to be 12 to 14 years on examination by the Board when the victim was presented before it on 21.05.2019. b. In Cross examination the PW-5 deposed that the age of the victim was determined as 12 to 14 years on the basis of pelvic bone, elbow joint, wrist joint, and development of secondary sexual organ. But no X-ray report exhibited. c. Ossification test was conducted upon the victim. But was not exhibited. d. No orthopedics was included and it was denied that Ossification test was not done properly. e. No ossification test report was available on record or exhibited nor the person conducted such ossification test was examined. f. The Dental Surgeon who conducted Dental X-ray of the victim deposed the age of the victim to be 12 to below 18 years. The Dental Surgeon orally informed the Board. His Report was not exhibited. 21. e. No ossification test report was available on record or exhibited nor the person conducted such ossification test was examined. f. The Dental Surgeon who conducted Dental X-ray of the victim deposed the age of the victim to be 12 to below 18 years. The Dental Surgeon orally informed the Board. His Report was not exhibited. 21. The Hon’ble Apex Court in the case of Jarnail Singh –Vs-State of Haryana reported 2013 7 SCC 263 held that the age of alleged mirror victim of rape should be determined in the manner provided under Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 for the reason that there is hardly any difference in so far as the issue of minority is concerned, between a child in conflict with law, and a child who is victim of crime. 22. Subsequently, an identical provision to that of Rule, 12, in the shape of Section 94 was incorporated in the Juvenile Justice (Care and Protection of Children) Act, 2015. 23. Section 94 of the JJ Act, 2015 provides the following:- “1. Where, it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation starting the age of the child as nearly as may be and proceed with the inquiry under Section 14 or Section 36 as the case may be, without waiting for further confirmation of the age. 2. 2. In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining- (i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence threof; (ii) the birth certificate given by a corporation or a municipal authority or a panchayat; (iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board: Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order. 3. The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person”. 24. Clause (iii) of Sub-Section 2 of Section 94 and Sub Section 3 of Section 94 of the JJ Act, 2015 are applicable in the present case in absence of birth certificate. However, it is admitted position that the ossification test though stated to have been conducted, report of such ossification test was neither exhibited nor the person/Doctor who conducted the ossification test was brought to the witness box. As the report of ossification test/radiology test/Dental X-ray were not exhibited to give an opportunity to the defence to cross examine the experts regarding the method used by them while performing such examination, the foundational fact regarding age of the victim/minority of the victim was not laid by the prosecution to take presumption under Section 94 (3) of the JJ Act, 2015 and also to convict the accused under the said POCSO Act. 25. While determining the case in hand, this Court cannot be oblivious of the fact that the accused in the present case is a minor/juvenile. 25. While determining the case in hand, this Court cannot be oblivious of the fact that the accused in the present case is a minor/juvenile. Thus, if we go by the age determined by the Dental Surgeon, then the benefit is to be given to the accused taking the higher age as 17 years (error of plus and minus 2 years) and if the age is taken to be 12-14 years as orally deposed by PW-5 on the basis of alleged ossification test, the benefit should go in favor of the victim. In the present case as the accused is a juvenile. Therefore, considering the settled proposition of law that the benefit of doubt, other things being equal, at all stages should go in favour of the accused, it is held that prosecution has failed to lay the foundational fact that the victim was below 18 years of age to prosecute the juvenile appellant under POCSO Act. 26. In view of the above determination, the next question to be determined is whether there was any consent from the side of the victim. 27. From the overall deposition of the victim it is disclosed that though initially in her examination-in-chief she stated that the accused undressed her and himself and had forcibly had sexual intercourse against her will and consent and was bleeding on her private part, at the subsequent stage of the examination-in-chief deposed that when they were having sexual intercourse, her aunt caught them red handed. During cross-examination she deposed that the first incident occurred in the year 2019, she did not reveal the first incident of sexual intercourse committed upon her to any person and the incident took place at her house. She had not disclosed the second incident to any of her family members nor to any other persons and she also did not disclose the third incident. Thereafter, according to her, they had sexual intercourse at several occasions at her residence as well as at the residence of the accused. They developed love affair, however, she did not like the accused now and even if he offers to marry her, she will not marry him. She further deposed that had her aunt not caught them having sexual intercourse, they would have continued with the relationship. They developed love affair, however, she did not like the accused now and even if he offers to marry her, she will not marry him. She further deposed that had her aunt not caught them having sexual intercourse, they would have continued with the relationship. The Investigating Officer, PW-8, during his cross-examination, deposed that during investigation found that the PW-4 who is projected as a eye witness by the prosecution did not see the actual incident rather the brother of the victim saw both the accused and victim having sexual intercourse and he informed the PW-4 who came to the place of occurrence and she did not see the accused committing rape upon the victim rather she saw the victim and the accused were in complete necked position. However, as the younger brother was too young, his statement was not recorded. 28. The DW-3 though is a relative of the accused deposed that there were cordial relation between the two families and they had agreed to get them married as per their custom. Such deposition was also corroborated by the evidence of I.O. inasmuch as he deposed that during investigation he found that family members of both accused and victim attempted to settle the matter. 29. In the aforesaid backdrop, this Court is of the unhesitant view that the victim and the accused were having consensual relationship and they were caught on the alleged that of incident. As the prosecution has failed to proof and lay the foundational fact that the victim is minor and incapable of giving consent and therefore, the accused is entitled for acquittal, giving him benefit of doubt inasmuch as the prosecution has failed to prove the charges under Section 376 (2) of the IPC. 30. In view of the above discussion, reasons, observations, the other issues relating to procedural lapse has become academic and such question are left open to be determined in an appropriate case. 31. Accordingly, the impugned Judgment dated 31.08.2021 and Sentence dated 09.09.2021 passed by the learned Special Judge POCSO cum Children Court, Aalo in Special POCSO Case No. 01/2020, whereby the appellant was convicted under Section 6/8 of POCSO Act, 2012 read with Section 376(2) (a) (i) of IPC and was (I) sentenced to undergo ten (10) years of rigorous imprisonment and fine of Rs. 1000/-(Rupees one thousand) only for the offence punishable under Section 6 of POCSO Act read with Section 376 (2) (a) (i) of IPC and (II) sentenced to undergo imprisonment for three (3) years rigorous imprisonment and fine of Rs. 1000/-(Rupees one thousand) only for the offence punishable under Section 8 of POCSO Act and failing to pay the fines in both, simple imprisonment for three (3) years each is set aside and quashed. 32. The accused/appellant namely Shri Dosen Kamki be released forthwith from the custody, if he is not in custody in connection with any other case. 33. Bail bond stands released. 34. Registry to communicate this order forthwith to the learned Session Judge –Cum-Special Judge (POCSO)-Cum-Children Court, Aalo, so that necessary release order can be issued. 35. However, the State shall pay the victim compensation as determined by the learned Special Judge POCSO cum Children Court, Aalo in Special POCSO Case No. 01/2020 to the victim in accordance with Section 357-A, Cr.P.C. Arunachal Victim Compensation Rules, 2011, as the acquittal of appellant is granted on benefit of doubt.