Judgment : (Ramesh Sinha, CJ.) 1. Today, though the present appeal has been listed for hearing on IA No.02 of 2024, which is application under Section 389 of the Code of Criminal Procedure (for short “Cr.P.C.”) for suspension of sentence and grant of bail, however, with the consent of learned counsel for the parties and considering the period of detention of the appellant, the appeal is being heard finally. 2. Accordingly, IA No. 02 of 2024 stands disposed of. 3. The appellant has preferred this appeal under Section 374(2) of Code of Criminal Procedure, 1973 (for short, ‘CrPC’) questioning the impugned judgment dated 23.07.2022 passed by the learned Additional Sessions Judge, (FTSC) (POCSO), Raigarh, District – Raigarh (C.G.) in Special Criminal Case (POCSO) No. 42/2020, whereby the trial Court has convicted and sentenced the appellant with a direction to run both the sentences concurrently in the following manner : CONVICTION SENTENCE U/s 354 of IPC Rigorous imprisonment for 2 years with fine of Rs.500/-, in default of payment of fine additional imprisonment for 2 months. U/s 10 of POCSO Act Rigorous Imprisonment for 5 years with fine of Rs.1,000/-, in default of payment of fine additional imprisonment for 4 months. 4. Case of the prosecution, in brief, is that on 06.11.2020 at about 05:00 pm to 06:00 pm, when the victim was playing with her sister and friends, the appellant came and asked them to come and saw the fish and took them towards the canal. It is alleged that, then the appellant told the sister of victim and friends to go and saw the fish and thereafter, he took the victim towards Jhurmut (compact mass of bush) and started assaulting the victim sexually by physical contacting involving sexual overtures and by exhibiting private part of his body. The accused used criminal force to outrage her modesty. The victim tried to run but the appellant grabbed her leg, she kicked and saved herself. Thereafter, the victim narrated the whole story to her Badi Maa (PW-8). Thereafter, the incident was reported by the mother of victim (PW-2) through written report before the Police Station- Kharsia, District Raigarh, which was registered as crime No. 472/2020 under Sections 354 and 354(b) of IPC and Section 8 and 12 of POCSO Act (Ex.P/4). After investigation the charge-sheet was filed. 5. Thereafter, the incident was reported by the mother of victim (PW-2) through written report before the Police Station- Kharsia, District Raigarh, which was registered as crime No. 472/2020 under Sections 354 and 354(b) of IPC and Section 8 and 12 of POCSO Act (Ex.P/4). After investigation the charge-sheet was filed. 5. During the course of investigation, a Spot Map (Exhibit P/1) of the incident was prepared. The Birth Certificate of the victim was seized and a seizure memo (Exhibit P/6) was prepared, which was produced by the victim's mother. Further, the Birth Certificate Book (Exhibit P/8) dated 17.11.2020, containing the victim's date of birth as 09.12.2010, was also seized. The victim was sent to the Community Health Center (CHC) in Kharsia for medical examination, where the doctor examined the victim and provided a medical report (Exhibit P/11). A letter was sent to the Chairman of the Child Welfare Committee in Raigarh for counseling of the victim and the victim's statement was recorded under Section 164 of the Cr.P.C. by the Judicial Magistrate First Class, Kharsia District- Raigarh. The accused was arrested and an arrest memo (Exhibit P/13) was prepared. After completing the investigation, charge sheet was filed before the competent Court for offence under Sections 354, 354(B) of the Indian Penal Code and Sections 8 and 12 of the Protection of Children from Sexual Offences Act, 2012. 6. While framing the charges by the learned trial Court against the accused, Maniram Yadav, for offence under Sections 354, 354(B) of the Indian Penal Code and Sections 10 and 12 of the Protection of Children from Sexual Offences Act, 2012, the accused/appellant denied for committing the offence and after taking the statement of the accused under Section 313 of the Cr.P.C where he was stated that he is innocent and he has been falsely implicated, but no defence evidence was presented on his behalf. 7. So as to prove the complicity of the accused/appellant in the crime in question, the prosecution examined as many as nine witnesses in support of its case, including the victim (PW-1), the victim's mother (PW-2), the victim's friend (PW-3), Shaukiram Mahant (PW-4), Inspector Santoshi Grace (PW-5), the victim's sister (PW-6), Dr. Shishir Chand Rathour (PW-7), the victim's paternal grandmother (PW-8), and the Additional Superintendent of Police (PW-9). 8. Shishir Chand Rathour (PW-7), the victim's paternal grandmother (PW-8), and the Additional Superintendent of Police (PW-9). 8. The trial Court after completion of trial and after appreciating oral and documentary evidences available on record, by the impugned judgment dated 23.07.2022, convicted the appellant under Section 354 of IPC and Sections 10 of POCSO Act and sentenced him to undergo for the offence under Section 354 of IPC, rigorous imprisonment for two years with fine of Rs. 500/- in default of payment of fine amount to further undergo 2 months additional imprisonment and also Sentenced him to undergo for the offence under Section 10 of POCSO Act, rigorous imprisonment for 05 years with fine of Rs. 1000/- in default of payment of fine amount to further undergo 4 months additional imprisonment. Being aggrieved by the said judgment of convection and sentence awarded by the learned Additional Sessions Judge, the appellant prefers this appeal. 9. Learned counsel for the appellant vehemently argued that the learned trial Court has failed to properly appreciate the evidence led by the prosecution and has wrongly convicted the appellant. He further submits that the learned trial Court has failed to appreciate that there is so many contradictions in Court statement of victim (PW-1) and statement under Section 164 of Cr.P.C. where victim has narrated that the appellant has removed his cloths and shows his private part in front of victim but in statement before the police she has stated that the appellant had tried to naked her by removing her undergarments for which it is major fact which was ignored by the trial Court and convicted the appellant. He further submits that the learned trial Court has failed to see that those part of case of the prosecution which is based on circumstantial evidence the chain is not complete so as to establish the involvement of the appellant with the offence. He also submits that the learned trial Court has wrongly applied the Section 10 of the POCSO Act and 354 of IPC against the accused/appellant. Suggestions given during the cross- examination to witness has been wrongly used against the defence. He also submits that the learned trial Court has wrongly applied the Section 10 of the POCSO Act and 354 of IPC against the accused/appellant. Suggestions given during the cross- examination to witness has been wrongly used against the defence. He further argued that the learned trial Court has failed to observe that the appellant caught hold hands of the victim, under the facts and circumstances of the case, does not fall under the term "with sexual intent" and thus cannot be defined as sexual assault as defined in Section 7 of the Act and thus it does not call for any punishment under Section 10 of the POCSO Act. Similarly this particular alleged act also does not fulfill the requirement of word "to outrage her modesty". Hence, the conviction is liable to be set aside. 10. On the other hand, learned State counsel submitted that the appellant has committed a heinous crime of outraging modesty of a minor girl, aged about 10 years and also tried to commit rape upon her by disrobing the victim. As such, the judgment of conviction and sentence awarded by the learned trial Court is just and proper warranting no interference. 11. I have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. 12. The first question for consideration before this Court would be, whether the trial Court has rightly held that on the date of incident, the victim was minor? 13. 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. 14. 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. Section 2(d) of the POCSO Act defines the “child” which means any person below the age of eighteen years. 14. 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. (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. 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. 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.” 15. 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.” 15. In the present case, the prosecution has presented original and certified copy of Birth Certificate (Ex.P-6)) of the victim, presented through her mother. In the said documents, the date of birth of victim is mentioned as 09.12.2010. The defence has presented only oral to refuse the said date of birth, therefore, there is no reason to disbelieve the date of birth of the victim, as 09.12.2010, hence, I am of the considered opinion that the trial Court has rightly held that the victim was below 12 years of age at the time of the incident, making her a minor. 16. The next question for consideration is whether the appellant has committed rape on minor victim ? 17. In this regard, the statement of the victim (PW-1) is of much importance. The victim’s (PW-1) statement recorded under Section 164 of the Cr.P.C. wherein she stated that she is 10 years old. The incident took place on 06.11.2020 between 5 and 6 pm. On the said date, she was playing with her younger sister and friend Himanshi Yadav on the banks of the pond in the village when Maniram Yadav (neighbourhood) came there and said that let's go, he will show them fish and saying this, he took them behind the pond towards Narwa and leaving her sister and friend there, he took her with him to the nearby thicket/jhurmut. After which he started kissing her on the cheeks and started touching her chest and started showing her his penis by opening his underwear. After which he tried to open her underwear, then she freed herself and ran away from there, he caught her leg but she pushed him and ran away from there with her friend and sister. After reaching home, she told her elder mother (PW-8) about the incident. 18. Mother of the victim (PW-2) has stated in her statement in paras No. 1, 2 and 3 that she know the accused Maniram Yadav. The accused is a resident of her village and is her neighbour. The victim is her daughter. She do not remember the date and month of birth of the victim however, year is 2010. The victim is studying in class 6. The accused is a resident of her village and is her neighbour. The victim is her daughter. She do not remember the date and month of birth of the victim however, year is 2010. The victim is studying in class 6. She further stated that the incident was occurred on 06.11.2020. On the said date, the victim and her younger sister and her friend were playing near the pond. At that time, the accused Maniram Yadav came near the pond and told the victim and her younger sister and her friend that he would show them fish on the other side of the drain. After this, the accused took her daughter/victim with him and told the victim's younger sister and her friend to wait there. The accused took the her to the thicket on the other side of the drain and kissed the victim on the cheek and started touching the victim's chest and asked whether her chest is big or not and told her to open her underwear. The accused also opened his underwear and started showing his penis to the victim. Thereafter, the victim then kicked the accused and ran away from there. After that she came and narrating to her younger sister and her friend standing nearby, run away. The victim's elder mother was at home, she hugged her and started crying and told her elder mother everything mentioned above. 19. Elder Mother of the victim (PW-8) has stated in her statement in paras No. 2, 3 and 4 that the incident occurred in November- December 2021 at 5 pm in the evening, when the victim came crying and told her that the her sister and her friend were playing in the street of the locality, at that time, the accused came and took everyone to the other side of the drain saying that he would show them a fish. She was taken across the field to the bushes and her clothes were removed. The accused also took off his clothes and was showing his private part to the victim. The accused also touched the victim's chest. After that the victim came home crying and hugged her and told her everything. After that the victim's mother reported the matter before the police station. Thereafter, the police interrogated her. 20. The accused also took off his clothes and was showing his private part to the victim. The accused also touched the victim's chest. After that the victim came home crying and hugged her and told her everything. After that the victim's mother reported the matter before the police station. Thereafter, the police interrogated her. 20. Sister of the victim (PW-6) has stated in her statement that she alongwith victim and the victim's friend were playing near the pond when Maniram came there and said that he would show them a fish and took the victim to the thicket/jhurmut near the bushes. Thereafter, the accused/Maniram was opened the victim's panties and the victim was refused to open then the accused Maniram opened his underwear and was showed his private part to the victim and then the victim ran away from there, told her and her friend to run away. Then they came to her house and the victim hugged elder Mother and narrated the said incident. 21. Gram Sachiv (PW-4) has stated in his statement in paras No. 2, 3 and 4 that on 17-11-2020, the police station in-charge Kharsia sent a complaint regarding providing the birth certificate register of the victim in the case, which is (Ex.P-7). His signatures are on parts A to A of which. After receiving the said complaint, He gave the victim's birth certificate booklet to the police, which the police seized the verified copy. The seizure memo is (Ex.P-8), his signatures are on parts A to A. After seized the said birth certificate book, the police handed it over to him on a letterhead. He had given an application to the police for handing it over to the station in-charge, which is an (Ex.P-9), on which parts A to A are signed by him and parts B to B are signed by him as an acknowledgment and on that day he has brought with him the birth certificate booklet of Gram Panchayat Gram Paraskol District Raigarh, the number of which is 11011. In serial number 12 of which, there is a mention of giving the birth certificate of the victim. In serial number 12 of which, there is a mention of giving the birth certificate of the victim. The receipt is enclosed, in which the name of the victim and her parents is recorded and the date of birth of the victim is recorded as 09-12-2010 and the date of registration of the application for the victim's date of birth certificate is 30-06- 2019. The receipt number 12 in the original birth certificate book is (Ex.P/10), whose certified copy is (Ex.P/10) which is attached to the record. His signatures are on parts a to a of the said original and verified copy. 22. Dr. Shishir Chand Rathour (PW-7) has stated in her statement that on 07-11-2020 at about 6.45 pm, the victim (aged 10 years) was brought before me for examination by woman constable Sarojini Gond (No. 168) of Police Station Kharsia. On examining the victim, she found that the victim had stated that the accused had touched her breast and tried to remove her underwere. On examination, she found that there were no marks of injury on the external part of the victim's body and there were no struggle marks either. There was no semen marks on the inner part of the victim's thigh. Her report is (Exhibit P/11), parts A to B of which are signed by her. 23. The victim girl and the witnesses have not revealed any circumstances related to the accused being falsely implicated during the evidence, nor has the accused said anything in his statement under Section 313 Cr.P.C. regarding being falsely implicated. In such a situation, there is no reason to disbelieve the said statements of the prosecution witnesses. 24. According to the above stated evidence presented by the prosecution, the statement of the victim girl, who was below the age of 12 years at the time of the incident, was not challenged by the defence that the accused had abducted the victim girl on the date of the incident by luring her, and he had attempted to have committed forcefully sexual intercourse with her. Therefore, there is sufÏcient basis to draw a presumption against the accused in relation to the said crime and the accused has completely failed to refute the said presumption. 25. Therefore, there is sufÏcient basis to draw a presumption against the accused in relation to the said crime and the accused has completely failed to refute the said presumption. 25. In the case of Ganesan v. State , reported in (2020) 10 SCC 573 the Supreme Court observed and held that that there can be a conviction on the sole testimony of the victim/prosecutrix when the deposition of the prosecutrix is found to be trustworthy, unblemished, credible and her evidence is of sterling quality. 26. In the case of State (NCT of Delhi) v. Pankaj Chaudhary reported in (2019) 11 SCC 575 , it was observed and held that as a general rule, if credible, conviction of accused can be based on sole testimony, without corroboration. It was further observed and held that sole testimony of prosecutrix should not be doubted by court merely on basis of assumptions and surmises. 27. In the case of Sham Singh v. State of Haryana , reported in (2018) 18 SCC 34 , the Supreme Court observed that testimony of the victim is vital and unless there are compelling reasons which necessitate looking for corroboration of her/his statement, the courts should find no difÏculty to act on the testimony of the victim of sexual assault alone to convict an accused where her/his testimony inspires confidence and is found to be reliable. It was further observed that seeking corroboration of her/his statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. 28. Applying the law laid down by the Supreme Court in the cases (supra) to the facts of the case on hand and as observed hereinabove, I see no reason to doubt the credibility and/or trustworthiness of the victim and also considering the statement given by the victim (PW-1), supported by the statement of other prosecution witnesses, wherein it has stated that on 06.11.2020, the accused attacked the prosecutrix/victim (PW-1) below the age of twelve years with the intent to outrage her modesty and committed aggravated sexual assault on a girl below the age of twelve years by involving physical contact without penetration with the intent to disrobe the victim by using criminal force and the victim used a part of her body with sexual intent. Therefore, without any further corroboration, the conviction of the accused relying upon the sole testimony of the victim can be sustained. 29. Thus, it is found proved that on 06.11.2020, the accused attacked the prosecutrix/victim (PW-1) below the age of twelve years with the intent to outrage her modesty and committed aggravated sexual assault on a girl below the age of twelve years by involving physical contact without penetration with the intent to disrobe the victim by using criminal force and the victim used a part of her body with sexual intent. 30. The view taken by the learned trial Court that the appellant is the author of the crime is a pure finding of fact based on evidence available on record and as such, I am of the opinion that in the present case, the only view possible was the one taken by the learned trial Court. 31. From the above analysis, I am 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. 32. Accordingly, the appeal being devoid of merit is liable to be and is hereby dismissed. 33. 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 and order dated 23.07.2022. 34. Registry is directed to send a certified copy of this judgment along with the original record of the case to the trial court concerned forthwith for necessary information and compliance and also send a copy of this judgment to the concerned Superintendent of Jail where the appellant is undergoing his jail sentence to serve the same on the appellant informing him that he is at liberty to assail the present judgment passed by this Court by preferring an appeal before the Hon’ble Supreme Court with the assistance of High Court Legal Services Committee or the Supreme Court Legal Services Committee.