JUDGMENT : Arvind Kumar Verma, J Heard. 1. This criminal appeal preferred under Section 374(2) of the Cr.P.C is against impugned judgment of conviction and order of sentence dated 15/12/2021 passed in Special Sessions Case No. 109/2018 by the learned Additional Sessions Judge Second Fast Track Special Court (POCSO Act) District Durg (C.G.), whereby the appellant has been convicted under Sections 363, 366A & 376(3) of the IPC & Sections 5(B ) & 6 of the POCSO Act, however, the appellant has been sentenced to undergo rigorous imprisonment for 20 years with fine of Rs. 10,000/- under Section and 376(3) of the IPC, rigorous imprisonment for 3 year with fine of Rs. 2,000/- under Section 363 of the IPC and rigorous imprisonment for 5 years with fine of Rs. 4000/- under Section 366(A) of the IPC, with default stipulations. 2. The case of the prosecution in brief is on 10/09/2018 at about 08:30 pm, the prosecutrix aged about 13 years after taking a bag along with him, left her house without informing to anyone. When she did not return and her whereabouts could not be traced out, a missing report was lodged, which was taken into investigation by the Police. While the investigation was going on, the prosecutrix was produced by her father on 12/09/2018 and Baramdagi Panchnama (Ex.P/1) was prepared. Subsequently, the statement of the prosecutrix as well as the statement of the witnesses were recorded. Subsequently, the prosecutrix was medically examined vide Ex.P/17 & 18. The appellant was also medically examined vide Ex.P/6. Statement of the prosecutrix (Ex.P/4) under Section 164 of the Cr.P.C was recorder. During investigation, spot map (Ex.P/14) was prepared. In relation to date of birth of the prosecutrix, Dakhil Kharij register (Ex.P/9C) was seized. During medical examination, the doctor had prepared 2 vaginal slides of the victim. The clothes of the appellant was seized vide seizure (Ex.P/28). The prepared vaginal slides and clothes of the appellant were sent for FSL examination vide Ex.P/33. The FSL report is Ex.P/35. After completing the investigation, a charge-sheet was filed against the appellant before the Court. 3. In order to bring home the offence, the prosecution examined as many as 8 witnesses and exhibited 35 documents. Statement of the accused/appellant was recorded under Section 313 of the CrPC in which he denied guilt. 4. The FSL report is Ex.P/35. After completing the investigation, a charge-sheet was filed against the appellant before the Court. 3. In order to bring home the offence, the prosecution examined as many as 8 witnesses and exhibited 35 documents. Statement of the accused/appellant was recorded under Section 313 of the CrPC in which he denied guilt. 4. The trial Court after appreciating oral and documentary evidence available on record, by its judgment dated 15/12/2021 convicted and sentenced the appellant as mentioned in paragraph one of this judgment. Hence, this appeal. 5. Mr. Priyank Rathi, learned counsel for the appellant submits that the appellant has been falsely implicated in the present case. He further submits that on the date of alleged offence, the appellant was below 17 years of age as his date of birth is 23/11/2001 as per his date of birth certificate. He submits that the Juvenile Justice Board without any enquiry held the appellant as adult which is contrary to the law. He submits that no efforts were made to seize birth certificate of the appellant from school. He further submits that there is no conclusive proof or even adequate proof with regard to the date of birth of the prosecutrix. He further submits that Medical Officer has not supported the prosecution case and has not confirmed the finding regarding sexual intercourse. He further submits that looking to the above factual scenario, the appellant is entitled for acquittal. 6. Mr. Shailendra Sharma, learned Panel Laywer appearing for the State opposes the submissions made by the counsel for the appellant and submits that the conviction of the appellant is well merited which does not call for any interference. There is clear evidence regarding the age of the prosecutrix, therefore, this appeal deserves to be dismissed. 7. We have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record with utmost circumspection. 8. It is not disputed by the counsel for the appellant that on the date of incident, the prosecutrix was minor. 9. The prosecutrix (PW1) in his statement has statement that her date of birth is 17/08/2005 and she studies in class 9th. She deposed that in the month of September, 2018, she used to go to her tuition and the appellant used to follow her by his bike. 9. The prosecutrix (PW1) in his statement has statement that her date of birth is 17/08/2005 and she studies in class 9th. She deposed that in the month of September, 2018, she used to go to her tuition and the appellant used to follow her by his bike. Once he asked for friendship and her mobile number, on which she denied. On the next day, the appellant again told her for friendship, on which she accepted. Further, on the next day, the appellant, on the false narration that it is his birthday, took her to a room and on the false pretext of marriage and all, committed sexual intercourse with her. Thereafter, the appellant took her to Sector -8 park, where also, he committed sexual intercourse with her without her consent. The appellant restrained her there whole night and left her on the next day in night. 10. Dr. M. Divya (PW6) has conducted the medical examination of the prosecutrix. She prepared two vaginal slides of the prosecutrix and sent for chemical examination. Her report is Ex.P/17. She opined that no definite opinion regarding sexual intercourse can be given. 11. Fateh Bahadur Singh (PW4), father of the prosecutrix has deposed in his statement that on 10/09/2018, her daughter has gone for tuition. Subsequently, her wife told him over mobile phone that the prosecutrix went for tuition and did not return. On being contacted to the friends of the prosecutrix over mobile phone, one of her friend Dolly told him that she is bringing the prosecutrix along with her. He further deposed that when he again made a call on that number, the phone was picked up by Aman Yadav, on which this witness told him to bring her daughter or else he is going to lodge a complaint. He deposed that on the next day, i.e. on 11/09/2018, he lodged a missing complaint and by that time, her daughter had reached to his house. 12. It is noteworthy here that during medical examination two vaginal slides that of prosecutrix and underwear that of appellant were sent for FSL examination. The FSL report is Ex.P/35, which confirms the presence of human sperms on the vaginal slides as well as underwear of the prosecutrix. It is also apparent that after recovery of the prosecutrix, immediately on the next day vaginal slides were prepared. The FSL report is Ex.P/35, which confirms the presence of human sperms on the vaginal slides as well as underwear of the prosecutrix. It is also apparent that after recovery of the prosecutrix, immediately on the next day vaginal slides were prepared. Thus, the above evidence clearly indicates that the appellant committed sexual intercourse with her without her consent. 13. The questions remains before this Court for consideration is whether the appellant was juvenile on the date of incident? 14. On 23/11/2023, the instant criminal appeal was come-up for final hearing and at that time, counsel for the appellant had submitted that the appellant was juvenile on the date of incident as his date of birth is 23/11/2001. He also submitted that the same fact was placed before the trial Court, but the same could not be considered as the trial had already concluded by that time. He had placed the birth certificate of the appellant issued by the Municipal Corporation, Durg, which was not available with him when the trial was going on as the same was issued on 05/01/2022. This Court after considering the said submission, directed the District Judge, Durg to get an inquiry done in accordance with law within a period of eight weeks and submit a report. Pursuant to the order dated 23/11/2023, the concerned District Judge, Durg, after due inquiry, has submitted its report dated 15/01/2024. 15. Relevant extracts of the above report dated 15/01/2024 is as under:- 1. “The District Judge, Durg examined the mother of the appellant i.e. Beena Yadav as (Inquiry Proceeding Witness No.1), who stated on affidavit that the appellant got birth in the Govt. Hospital, Durg on 23/11/2001. This witness submitted a photocopy of registration with regard to delivery of appellant, registered in the Register of Govt. Hospital, Durg. This witness further deposed that while admitting the appellant in school, because he used to look less than of his actual age, the appellant was admitted while enhancing his age. The actual date of birth of the appellant is 23/11/2001. 2. Smt. Ranu Rajput, (Inquiry Proceeding Witness No.2) Pharmacist, Govt. Hospital, Durg stated on affidavit that at serial No. 198 of Baby register maintained in Maternity Ward during the period 03/11/2001 to 18/04/2003, there is a entry dated 23/11/2001 in relation to Beena Yadav W/o Santosh, R/o Sector-9 Bhilai who had delivered a baby on the said day. 3. 2. Smt. Ranu Rajput, (Inquiry Proceeding Witness No.2) Pharmacist, Govt. Hospital, Durg stated on affidavit that at serial No. 198 of Baby register maintained in Maternity Ward during the period 03/11/2001 to 18/04/2003, there is a entry dated 23/11/2001 in relation to Beena Yadav W/o Santosh, R/o Sector-9 Bhilai who had delivered a baby on the said day. 3. The District Judge, Durg after due inquiry held the age of the appellant as 16/09/2018 on the date of incident and he was juvenile on the date of incident. 16. Perusal of the above report would show that the above inquiry was made in accordance with law. Apart from this, there is a birth certificate issued by the Municipal Corporation, Durg, wherein the date of birth of the appellant has been mentioned as 23/11/2001 and the date of registration is 14/12/2001. Thus, there is no reason to disbelieve the same, therefore, we held that the appellant was juvenile on the date of incident. 17. The next question is as to what relief the appellant can be granted in view of the fact that he has been held to be a child under the provisions of the Juvenile justice (Care and Protection) Act, 2015. 18. The Supreme Court, while dealing similar issue in the matter of Karan @ Fatiya v. The State of Madhya Pradesh, reported in 2023 (5) SCC 504 has held in paragraphs 27, 33 & 35 as under;- “27. In the aforesaid case, the appellant had not taken the plea of juvenility before the Trial Court, however, such plea was raised before the high Court but the same was rejected. However, this Court got an inquiry conducted by the Registrar (Judicial) of this Court who found him to be aged less than 18 years. The judgment in this case mainly dealt with the issue as to whether the report of Registrar (Judicial) of this Court could be accepted over and above the finding of the High Court which was different. The judgment proceeds to deal with this issue and ultimately comes to the conclusion that this could be done provided this Court itself tests the correctness of the report of the Registrar (Judicial). It is only in the penultimate paragraph no. 27 while allowing the appeal it granted the relief of setting aside the conviction, sentence and further terminated the entire proceedings. It is only in the penultimate paragraph no. 27 while allowing the appeal it granted the relief of setting aside the conviction, sentence and further terminated the entire proceedings. There is no prior discussion on the issue whether the conviction was required to be set-aside or not on this technical ground. Merits of the conviction was not gone into. No ratio is laid down in the said case on this issue. Only while granting relief, conviction has also been set aside. 28. XXXX 29. XX 30. X 33. Having considered the statutory provisions laid down in Section 9 of the 2015 Act and also Section 7A of the 2000 Act which is identical to Section 9 of the 2015 Act, we are of the view that merits of the conviction could be tested and the conviction which was recorded cannot be held to be vitiated in law merely because the inquiry was not conducted by JJB. It is only the question of sentence for which the provisions of the 2015 Act would be attracted and any sentence in excess of what is permissible under the 2015 Act will have to be accordingly amended as per the provisions of the 2015 Act. Otherwise, the accused who has committed a heinous offence and who did not claim juvenility before the trial Court would be allowed to go scot-free. This is also not the object and intention provided in the 2015 Act. The object under the 2015 Act dealing with the rights and liberties of the juvenile is only to ensure that if he or she could be brought into the main stream by awarding lesser sentence and also directing for other facilities for welfare of the Juvenile in conflict with law during his stay in any of the institutions defined under the 2015 Act. 34. XXXX 35. For all the reasons recorded above, it is ordered as follows:- The conviction of the appellant is upheld; however, the sentence is set-aside. Further as the appellant at present would be more than 20 years old, there would be no requirement of sending him to the JJB or any other child care facility or institution. Appellant is in judicial custody. He shall be released forthwith. The impugned judgment shall stand modified to the aforesaid extent. 19. Further as the appellant at present would be more than 20 years old, there would be no requirement of sending him to the JJB or any other child care facility or institution. Appellant is in judicial custody. He shall be released forthwith. The impugned judgment shall stand modified to the aforesaid extent. 19. The High Court of Allahabad in the matter of Ram Kumar & Others v. State of U.P., reported in (2022) 118 ACC 484 has adopted similar type of view. 20. Keeping in mind the aforesaid legal propositions of law and also considering the facts and circumstances of the case, period of imprisonment, the age of the appellant as on date, the efflux of time since the date of occurrence, we are of the considered view that no fruitful purpose would be served by remanding the matter to juvenile Justice board as accused/appellant has already served out more than 5 years sentence. Moreover, he was aged about 16 years 09 months and 18 days on the date of incident and by no must have crossed 22 years. Therefore, he could not be kept along with other Juveniles in Juvenile Special home in this age group. 21. In view of the aforesaid, we confirm the judgment and order dated 11/10/2018 passed by the trial Court so far as the conviction of the appellant. However, so far as sentence imposed vide judgment and order dated 15/12/2021 to appellant is concerned, the same is modified to the period already undergone by appellant. He shall be set at liberty if not wanted in any other case. 22. The appeal is accordingly, partly allowed. 23. Let a copy of this judgment be sent to the trial Court concerned forthwith for compliance and further necessary action.