JUDGMENT : Ramesh Sinha, CJ. 1. The appellant has preferred this appeal under Section 374(2) of Code of Criminal Procedure, 1973 (for short, ‘CrPC’) questioning the impugned judgment dated 15.07.2022 passed by the learned Additional Sessions Judge, Fast Track Special Court (POCSO Act), Ramanujganj, District : Balrampur-Ramanujganj (C.G.) in Special Sessions Trial (POCSO) No.04/2022, whereby the trial Court has convicted and sentenced the appellant with a direction to run all the sentences concurrently, in the following manner :- CONVICTION SENTENCE U/s 363 of the Indian Penal Code Rigorous imprisonment for 05years & fine of Rupees 5,000/- in default of fine R.I. for 01 month U/s 366 of the Indian Penal Code Rigorous imprisonment for 05years & fine of Rupees 5,000/- in default of fine R.I. for 01 month U/s 06 of the Protection of Children from Sexual Offences Act, 2012 Life imprisonment & fine of Rupees 50,000/- in default of fine R.I. for 02 months 2. Case of the prosecution, in brief, is that on the morning of 28.01.2022, the victim aged 5 years (PW-8) had gone to play at the house of a neighbor in her village. At around 10.30, the victim came home crying. Father of the victim (PW-1) when asked the victim the reason for crying, the victim did not say anything. Thereafter the mother of the victim (PW-2) when asked the victim the reason for crying, the victim told that accused Sanjay Kodaku cheated her and took her to the forest and did wrong things. Thereafter, when the victim's mother lifted the victim's frock and saw, she found that blood was coming out from the victim's genitals and the genitals were swollen. Thereafter, on the evening of the said date, the victim's father lodged a written complaint (Ex.P-1) against the accused in Police Station Chalgali, District Balrampur (C.G.). On the basis of said written complaint, First Information Report under crime number 05/2022 was registered by Police Station Chalgali under Section 376 of the Indian Penal Code (for short ‘IPC’) and Section 4 of the Protection of Children from Sexual Offenses Act (for short ‘POCSO Act’). 3. Assistant Sub Inspector of Police Station Chalgali, Sebresius Tirkey (PW-7) inspected the scene of the incident on the date of the incident itself as per the information given by the victim's father and prepared a visual map vide Ex.P-3 and recorded the statements of the applicant/victim's father and other witnesses. 3. Assistant Sub Inspector of Police Station Chalgali, Sebresius Tirkey (PW-7) inspected the scene of the incident on the date of the incident itself as per the information given by the victim's father and prepared a visual map vide Ex.P-3 and recorded the statements of the applicant/victim's father and other witnesses. During the course investigation of the case, Sub Inspector Sunil Tiwari (PW-11) after receiving consent from victim's parents vide Ex.P-11 sent the victim to Balrampur District Hospital for genital examination. Underwear of accused was seized vide seizure sheet Ex.P-11A and the victim's vaginal discharge and oral swab, frock and others were seized vide seizure sheet Ex.P-12. Record of Anganwadi center regarding the date of birth of the victim was seized vide Ex.P-6. Thereafter, statement of the victim was recorded by lady police officer Inspector Anita Prabha Minj (PW-10). The statement of the victim was got recorded under Section 164 of the Code of Criminal Procedure by the Investigation Officer Sunil Tiwari and the accused was arrested. For D.N.A. testing, the identity cards of the victim and the accused were prepared vide Ex.P-22 and Ex.P-23 respectively and consent was taken from the victim's father vide Ex.P-24 and consent from accused was obtained vide Ex.P-25. A letter was sent to District Hospital, Balrampur for collecting blood sample for DNA testing of the victim and the accused vide Ex.P-17. Blood samples of the victim and accused were seized by Dr. Surendra Gupta vide Ex.P-9 and Ex.P-10 respectively. The said blood samples were sent to FSL, Raipur through Superintendent of Police Balrampur for DNS analysis. 4. After receiving DNA report vide Ex.P-21, other statutory formalities related to research were completed and charge sheet was submitted against the accused under Section 6 of the POCSO Act and Section 378AB of the IPC before the Court of learned Additional Sessions Judge, Fast Track Special Court (POCSO Act), Ramanujganj, District – Balrampur (C.G.), where the case was commenced for trial in Special Sessions Trial (POCSO) Case No. 04/2022 and charges were framed under Sections 363, 366 of the IPC and Section 06 of the POCSO Act. 5. Statement of accused was recorded under Section 313 of the Cr.P.C. in which he denied all the circumstances appearing against him and stated that he is innocent and has been falsely implicated. He has not examined any witness in his defence. 5. Statement of accused was recorded under Section 313 of the Cr.P.C. in which he denied all the circumstances appearing against him and stated that he is innocent and has been falsely implicated. He has not examined any witness in his defence. The prosecution in order to bring home the offence examined as many as 12 witnesses and exhibited 27 documents (Exs P-1 to P-32). 6. The trial Court after completion of trial and after appreciating oral and documentary evidences available on record, by the impugned judgment dated 15.07.2022 convicted and sentenced the appellant in the manner mentioned in the opening paragraph of this judgment, against which this appeal under Section 374(2) of the CrPC has been preferred by him calling in question the impugned judgment. 7. Mr. Arjun Lal Singroul, learned counsel for the appellant submits that the impugned judgment of conviction and order of sentence passed by the learned trial Court is contrary to the facts and evidences available on records, the appellant has been falsely implicated in this because prosecution has failed to prove the case against the appellant and complaint made by the prosecution is false and baseless. He further submitted that the learned trial Court relief upon the statement given by mother of the victim (PW-2) and uncle of the victim (PW-3), who are not reliable and trustworthy and therefore, the impugned judgment and conviction is liable to be set-aside. 8. On the other hand, Mr. Shailendra Sharma, learned Panel Lawyer appearing for the State/respondent submits that the appellant has committed a heinous crime of rape against a minor girl aged about 5 years. He further submits that the judgment of conviction and sentence awarded by the learned trial Court is just and proper warranting no interference. 9. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. 10. The first question for consideration before this Court would be, whether the trial Court is rightly held that on the date of incident, the victim was minor below the age of 12 years ? 11. 9. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. 10. The first question for consideration before this Court would be, whether the trial Court is rightly held that on the date of incident, the victim was minor below the age of 12 years ? 11. When a person is charged for the offence punishable under the POCSO Act, or for rape punishable in the Indian Penal Code, the age of the victim is significant and essential ingredient to prove such charge and the gravity of the offence gets changed when the child is below 18 years, 12 years and more than 18 years. Section 2(d) of the POCSO Act defines the “child” which means any person below the age of eighteen years. 12. In Jarnail Singh Vs. State of Haryana, reported in (2013) 7 SCC 263 , the Hon’ble Supreme Court laid down the guiding principles for determining the age of a child, which read as follows : “22. On the issue of determination of age of a minor, one only needs to make a reference to Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as the 2007 Rules). The aforestated 2007 Rules have been framed under Section 68(1) of the Juvenile Justice (Care and Protection of Children) Act, 2000. Rule 12 referred to hereinabove reads as under : “12. Procedure to be followed in determination of Age.? (1) In every case concerning a child or a juvenile in conflict with law, the court or the Board or as the case may be the Committee referred to in rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose. (2) The court or the Board or as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail. (2) The court or the Board or as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail. (3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining – (a) (i) the matriculation or equivalent certificates, if available; and in the absence whereof; (ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof; (iii) the birth certificate given by a corporation or a municipal authority or a panchayat; (b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year. and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law. (4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in sub-rule (3), the court or the Board or as the case may be the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these rules and a copy of the order shall be given to such juvenile or the person concerned. (5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of section 7A, section 64 of the Act and these rules, no further inquiry shall be conducted by the court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub-rule (3) of this rule. (6) The provisions contained in this rule shall also apply to those disposed off cases, where the status of juvenility has not been determined in accordance with the provisions contained in sub- rule(3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law.” 23. Even though Rule 12 is strictly applicable only to determine the age of a child in conflict with law, we are of the view that the aforesaid statutory provision should be the basis for determining age, even for a child who is a victim of crime. For, in our view, 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 a victim of crime. Therefore, in our considered opinion, it would be just and appropriate to apply Rule 12 of the 2007 Rules, to determine the age of the prosecutrix VW-PW6. The manner of determining age conclusively, has been expressed in sub-rule (3) of Rule 12 extracted above. Under the aforesaid provision, the age of a child is ascertained, by adopting the first available basis, out of a number of options postulated in Rule 12(3). If, in the scheme of options under Rule 12(3), an option is expressed in a preceding clause, it has overriding effect over an option expressed in a subsequent clause. Under the aforesaid provision, the age of a child is ascertained, by adopting the first available basis, out of a number of options postulated in Rule 12(3). If, in the scheme of options under Rule 12(3), an option is expressed in a preceding clause, it has overriding effect over an option expressed in a subsequent clause. The highest rated option available, would conclusively determine the age of a minor. In the scheme of Rule 12(3), matriculation (or equivalent) certificate of the concerned child, is the highest rated option. In case, the said certificate is available, no other evidence can be relied upon. Only in the absence of the said certificate, Rule 12(3), envisages consideration of the date of birth entered, in the school first attended by the child. In case such an entry of date of birth is available, the date of birth depicted therein is liable to be treated as final and conclusive, and no other material is to be relied upon. Only in the absence of such entry, Rule 12(3) postulates reliance on a birth certificate issued by a corporation or a municipal authority or a panchayat. Yet again, if such a certificate is available, then no other material whatsoever is to be taken into consideration, for determining the age of the child concerned, as the said certificate would conclusively determine the age of the child. It is only in the absence of any of the aforesaid, that Rule 12(3) postulates the determination of age of the concerned child, on the basis of medical opinion.” 13. In the present case, regarding the age or date of birth of the victim on the date of incident, as per evidence in chief examination presented by the father of the victim (PW-1), the mother of the victim (PW-2) and the uncle of the victim (PW-3), wherein they state that the age of victim was 05 years. As per the evidence of Anganbadi worker (PW-4), the police has seized certified copy pre-school education register (Ex.P-7C) from the Anganbadi Centre vide Ex.P-6. In the said register, the name of the victim and her father are mentioned at Sl. No. 05 and the date of birth of the victim is mentioned as 19.05.2016. It is noteworthy that the accused could not refute the evidence presented by the said witnesses regarding the date of birth of the victim. In the said register, the name of the victim and her father are mentioned at Sl. No. 05 and the date of birth of the victim is mentioned as 19.05.2016. It is noteworthy that the accused could not refute the evidence presented by the said witnesses regarding the date of birth of the victim. Hence, we are of the considered opinion that the trial Court has rightly held that the age of the victim was approximately 05 years 08 months on the date of incident i.e. 28.01.2022, and since the age of the victim is less than 18 years, the victim is a child as defined under the POCSO Act. 14. The next question for consideration before us is whether the appellant with the intention of forcing or seducing the child, minor victim of aged about 05 years and 08 months, has taken away from the legal guardianship of her parents without their permission and kidnapped and did the accused commit penetrative sexual assault by having sexual intercourse with the minor victim ? 15. Victim (PW-8) in her main examination in the form of question and answer has given evidence that she had gone to play at her grandfather’s house living in her neighborhood and the accused Sanjay alias Guru, son of said grandfather, whom she calls uncle, had taken towards forest by alluring her to give sweets and in the forest she was made to lie down on the ground and did dirty work by inserting his penis into her vagina, due to which she was in pain and was bleeding, which got stuck in her frock and she was crying and she came home crying and told her mother about the said incident. 16. Father of the victim (PW-1) and mother of the victim 9PW-2) have stated in their examination-in-chief that the victim had gone to her grandfather’s house to play and came back crying at 9-10 in the morning and the victim was covered in blood and had become unconscious and when they picked up the victim’s frock, they saw that blood was coming out from the victim’s vagina. Thereafter the victim’s father called his brother (PW-3). Brother of the victim's father (PW-3) has stated in his examination-in-chief that on being called by the father of the victim, he went to his house and saw that the victim was unconscious and there was blood on her clothes. Thereafter the victim’s father called his brother (PW-3). Brother of the victim's father (PW-3) has stated in his examination-in-chief that on being called by the father of the victim, he went to his house and saw that the victim was unconscious and there was blood on her clothes. When the prosecution asked leading questions to this witness, he admitted that it was told by his brother that when the victim’s mother lifted the victim’s frock and looked at it, bleeding was seen from the genitals of the victim. 17. In cross-examination in the form of questions and answers made by the defense, the victim (PW-8) has given negative answers to all the questions of the defense and has not given any answer which contradicts the evidence presented by her in the main trial regarding the incident. In the cross-examination of the victim’s father (PW-1), the victim’s mother (PW-2) and the victim’s uncle (PW-3), no such grounds or facts have been proved by the defense side which would be capable of contradicting the main examination evidence presented by the said witnesses. Thus, the evidence of all the above witnesses are reliable in favour of the prosecution. 18. Dr. Alakh Anuragi (PW-12) has stated in her evidence that the victim was presented before her for genital examination by Police Station, Chalgali to be done. On external examination of the genitals of the victim, it was found that dried blood was present on the genitals of the victim and the victim was not cooperating in the examination due to pain and she felt that the victim should be anesthetized and for further test, she advised to refer the victim to Ambikapur. In the cross-examination done by the defense, the suggestion has been accepted that itching the vagina with nails can cause bleeding from the vagina. In this regard, the said witness himself stated that there was excessive bleeding from the victim’s vagina, which is not possible due to itching. Thus, the evidence presented by the said witness has not been contradicted in cross-examination. 19. It is mentioned in the evidence presented by Dr. Rashmi Tiwari (PW-9) that during her posting as Medical Officer in District Hospital Balrampur, the victim was presented before her for genital examination by Police Station Chalgali on 29.01.2022 to be done. Thus, the evidence presented by the said witness has not been contradicted in cross-examination. 19. It is mentioned in the evidence presented by Dr. Rashmi Tiwari (PW-9) that during her posting as Medical Officer in District Hospital Balrampur, the victim was presented before her for genital examination by Police Station Chalgali on 29.01.2022 to be done. After examining the genitals of the victim, it was found that there was an injury on the genitals of the victim and the hymen of the victim was damaged and there was blood present in it and in the urinary tract of the vagina and there was blood on the inside of both the thighs of the victim which was dried up. The victim was feeling pain during the genital examination. It has been opined by the said witness that forced sexual intercourse was done with the victim. It has been further expressed by the said witness that when the yellow colored frock of the victim was examined by her, it was found that a blood stain was visible on the back side of the frock and the blood had dried. It is notable that the test report has been prepared by the said witness in her own handwriting but she has omitted to sign the said report. Therefore, for the above reason the test report given by the said witness has not been marked as exhibit. In the cross-examination of the said witness, no such basis or any facts have been provided by the defense side, which would be capable of contradicting the main examination evidence presented by the said witness. Thus, the evidence presented by the said witness is reliable in favor of the prosecution. 20. In the main examination evidence presented by the witness Dr. Ranjan Kumar Das (PW-5), who examined the private parts of the accused, it is mentioned that during his posting as Medical Officer in the District Hospital Balrampur on 29.01.2022 Sanjay Chargat, aged 19 years, was brought before him by Police Station Chalgali for examination of his genitals regarding his ability to have sexual intercourse. After the said witness examined the private parts of the accused, the test report was prepared vide Ex.-08, whereby it was opined that Sanjay Chargat was capable of sexual intercourse. After the said witness examined the private parts of the accused, the test report was prepared vide Ex.-08, whereby it was opined that Sanjay Chargat was capable of sexual intercourse. In the cross-examination done by the defense side, no such statements have been made by the said witness which would contradict the main trial evidence presented by the said witness. 21. The investigation officer of the case, Sub Inspector Sunil Tiwari, (PW-11) has stated that after taking consent from the victim's father vide Ex.P-24 and consent from accused vide Ex.P-25 regarding collection of blood samples for testing DNA of the victim and accused, he had sent the same to District Medical Officer Balrampur vide Ex.P-26. It is mentioned in the main trial evidence presented by Dr. Surendra Kumar Gupta (PW 6) that during his posting as Medical Officer in District Hospital Balrampur, on 30.01.2022, two pieces of sealed ADTA tube containing the blood sample of accused Sanjay Chargat and the victim were sent by him to the Research Officer, were were seized as per the seizure sheet Ex.P-9 and Ex.P-10. 22. In the cross-examination conducted on behalf of the accused, Research Officer Sunil Tiwari has rejected the suggestion that the prescribed procedure for DNA testing has not been followed. It has been stated by Dr. Surendra Kumar Gupta (PW-6) in the cross-examination that on his instructions and in his presence, the blood samples of the victim and the accused were collected by the lab technician and the tube of the said samples were sealed by the lab technician in his presence. In this way, there was no contradiction in cross-examination of the evidence presented by the said witnesses regarding collection of blood samples for DNA testing of the accused and the victim. 23. Assistant Sub Inspector Selnesius Tirkey (PW-7) has presented evidence regarding lodging of First Information Report (Ex.P-2) and going to the incident site and making a visual map of the incident site vide Ex.P-3 as per the information given by the complainant. Inspector Anita Prabha Minj (PW-10) has presented evidence that the victim's statement was recorded in the form of questions and answers. The evidence presented by the above two witnesses is irrefutable in cross-examination. 24. The appellant has also not stated anything concrete in his defense except that he does not know and that he has been falsely implicated. Inspector Anita Prabha Minj (PW-10) has presented evidence that the victim's statement was recorded in the form of questions and answers. The evidence presented by the above two witnesses is irrefutable in cross-examination. 24. The appellant has also not stated anything concrete in his defense except that he does not know and that he has been falsely implicated. Thus, we are of the considered opinion that the appellant with the intention of forcing or seducing the child, minor victim of aged about 05 years and 08 months, has taken away from the legal guardianship of her parents without their permission and kidnapped and had committed penetrative sexual assault by having sexual intercourse with the minor victim. 25. From the above analysis, we are of the considered opinion that the prosecution has been successful in proving its case beyond reasonable doubt and the learned trial Court has not committed any legal or factual error in arriving at the finding with regard to the guilt of the appellant/convict. 26. Accordingly, the appeal being devoid of merit is liable to be and is hereby dismissed. 27. The appellant/convict is stated to be in jail. He shall serve out the sentence awarded by the trial Court by means of the impugned judgment of conviction and order of sentence dated 15.07.2022. 28. Let a certified copy of this order alongwith the original record be transmitted to trial Court concerned forthwith for necessary information and action, if any.