JUDGMENT : 1. Heard Mr. H.R.A. Choudhury, learned Sr. Counsel assisted by Mr. I.U. Choudhury, learned counsel for the appellant. Also heard Ms. B. Bhuyan, learned Sr. Counsel and Addl. P.P., Assam appearing for the respondent No.1 and Mr. U. Choudhury, learned Legal Aid Counsel appearing for the respondent No.2. 2. The appellant has challenged the impugned judgment and order dated 16.12.2019 passed by the learned Sessions Judge, Karimganj in Sessions Case No. 18/2015, by which the appellant has been convicted under Section 376(2)(i) of IPC read with Section 6, for having committed the offence under Section 5(j) (ii) of the POCSO Act, 2012. The appellant was thereafter sentenced to undergo rigorous imprisonment for the remainder of his life with a fine of Rs. 1,00,000/- in default, rigorous imprisonment for 1 (one) year under Section 376(2)(i) of IPC. 3. The appellant has put to challenge the impugned judgment basically on three grounds. Firstly, though blood sample had been taken from the appellant and the victim’s child on 13.12.2013 for conducting a DNA test, no report was made. Thereafter, a second blood sample was collected from the appellant, the victim and the baby on 18.01.2014 for DNA profiling/testing. He submits that though the DNA profiling/test allegedly proved that the appellant was the father of the victim’s child, the taking of the blood samples from the appellant had not been done in a proper manner. Secondly, Section 376(2)(i) of IPC could not have been applied for convicting the appellant, in view of the fact that the said Clause (i) of Section 376(2)(i) had been deleted on 21.04.2018, vide the Act 22 of 2018, i.e, before the impugned judgment had been passed on 16.12.2019. The third ground of challenge made by the appellant is on the finding of the learned Trial Court that the victim was less than 18 years of age at the time of the offence. He submits that there is no document to prove the age of the victim and no ossification test had been conducted. The only test that had been conducted upon the victim was an X-ray test, which in the opinion of the Doctor was that the victim was between 16-17 years at the time of taking the X-ray test on 11.12.2013. 4. Ms. B. Bhuyan, learned Addl. The only test that had been conducted upon the victim was an X-ray test, which in the opinion of the Doctor was that the victim was between 16-17 years at the time of taking the X-ray test on 11.12.2013. 4. Ms. B. Bhuyan, learned Addl. P.P., on the other hand, submits that there was no infirmity in the collection of blood samples from the appellant, victim and the child on 18.01.2014 and as the DNA profiling/test proved the appellant to be the father of the child, the fact that rape had been committed by the appellant had been proved. 5. The learned Addl. P.P admits to the fact that Section 376(2)(i) of IPC could not have been applied by the learned Trial Court, in view of sub-clause (i) having been deleted by the Act 22 of 2018, which came into force on 21.04.2018. 6. The learned Addl. P.P submits that the age of the victim was below 18 years at the time of the offence, as has been proved by the Birth Certificate that had been registered on 01.11.2013 and issued on 10.11.2016. She submits that the Birth Certificate had been issued in terms of Section 13 of the Registration of Births and Deaths Act, 1969 (hereinafter referred to as the “1969 Act”), after taking written permission of the Additional District Magistrate, Karimganj, vide Permission No.5991 dated 25.10.2016. Further, the Transfer Certificate dated 07.07.2015 issued by the Headmaster of Samabay High School, Srigouri, Karimganj shows that the victim’s date of birth to be 11.11.1999 and that she had left the school on 31.12.2013. The date of birth on the Transfer Certificate had been made on the basis of the Admission Register. 7. The learned Additional Public Prosecutor submits that as the said Transfer Certificate had been exhibited as Ext.-26, where the age of the victim girl has been stated to be around 14 years at the time of the incident, the impugned judgment should not be interfered with. 8. Mr. U. Choudhury, learned Legal Aid Counsel for the respondent No.2 reiterates the submission made by the learned Additional Public Prosecutor. 9. We have heard the learned counsels for the parties. 10. 8. Mr. U. Choudhury, learned Legal Aid Counsel for the respondent No.2 reiterates the submission made by the learned Additional Public Prosecutor. 9. We have heard the learned counsels for the parties. 10. A perusal of the evidence of PW-7, who is the Senior Scientific Assistant, Serology Division and DNA Typing Unit, Directorate of Forensic Science, Assam, Kahilipara, is to the effect that the blood samples of the appellant, victim and the child had been received by him. As per the DNA test conducted, the baby was fathered by the appellant. The result of the examination, as testified by PW-7, is reproduced hereinbelow, as follows: “Results of the examination:- One of the maternal allele of the amplified loci of Ext. No. DNA 906/14(baby) matches with one of the respective allele in the DNA profile of Ext. No DNA 905/14 (mother). The non maternal allele of Ext No DNA 906/14 (baby) is matching with the DNA profile of Ext No DNA907/14 (father). The above shows that the baby of Musstt. Hafiza Begum was fathered by Abdul Noor. Accordingly, I had given my report vide report No DFS 1676/14/96/DNA 240 dated 12/03/2014. Ext, 16 is the said report whereon Ext. 16(1) is my signature. The said report was forwarded by the Director cum Chemical Examiner, DFS, Assam vide Ext.17 whereon Ext.17(1) is the signature of Dr. Rajan Khound, the Director cum Chemical Examiner, DFS, Assam which I know.” 11. In the case of Santosh Kumar Singh Vs. State , reported in (2010) 9 SCC 747 , which was in respect of a young girl who was raped and murdered, the DNA report relied upon by the High Court was approved by the Supreme Court and held that the DNA report can be accepted as being scientifically accurate and an exact science. 12. In the case of Sandeep Vs. State of U.P , reported in (2012) 6 SCC 107 , which was a case of murder of a pregnant girlfriend and the unborn child of the accused, the Supreme Court held that the DNA report confirmed the accused as the father of the unborn child. 13. In the case of Rajkumar Vs. 12. In the case of Sandeep Vs. State of U.P , reported in (2012) 6 SCC 107 , which was a case of murder of a pregnant girlfriend and the unborn child of the accused, the Supreme Court held that the DNA report confirmed the accused as the father of the unborn child. 13. In the case of Rajkumar Vs. State of M.P , reported in (2014) 5 SCC 353 , which was a case involving the rape and murder of a 14 year old girl, the Supreme Court held that the DNA report established the presence of the semen of the accused in the vaginal swab of the prosecutrix. 14. In the case of Anil Vs. State of Maharashtra , reported in (2014) 4 SCC 69 , the Supreme Court has held that DNA profile is valid and reliable, but variance in a particular result depends on the quality control and quality procedure in the laboratory. In the above case, the Supreme Court held that the DNA test report could be safely accepted, which showed that the deceased boy had been subjected to unnatural sex. 15. In the case of Dharam Deo Yadav Vs. State of U.P. , reported in (2014) 5 SCC 509 , the Supreme Court has held that debate lingers over the safeguards that should be required in testing samples and in presenting the evidence in Court. DNA profile is, however, consistently held to be valid and reliable, for results in the criminal justice system. The Supreme Court, however, laid a caveat, stating that the validity and reliability of the report would however depend upon the quality control and quality assurance procedures in the laboratory. 16. In the case of Manoj Vs. State of M.P. , reported in (2023) 2 SCC 353 , the three Judges Bench of the Supreme Court has reiterated the decision made in Dharam Deo Yadav (supra), while holding that the probative value of DNA test results have not yet reached a juncture, where it may be said to be infallible. It also held in para 157 as follows:- “Like all other opinion evidence, the probative value accorded to DNA evidence also varies from case to case, depending on facts and circumstances and the weight accorded to other evidence on record, whether contrary or corroborative. It also held in para 157 as follows:- “Like all other opinion evidence, the probative value accorded to DNA evidence also varies from case to case, depending on facts and circumstances and the weight accorded to other evidence on record, whether contrary or corroborative. This is all the more important to remember, given that even though the accuracy of DNA evidence may be increasing with the advancement of science and technology with every passing day, thereby making it more and more reliable, we have not yet reached a juncture where it may be said to be infallible. Thus, it cannot be said that the absence of DNA evidence would lead to an adverse inference against a party, especially in the presence of other cogent and reliable evidence on record in favour of such party.” 17. In the case of Prakash Nishad Vs. State of Maharashtra , reported in (2023) 16 SCC 357 , the three Judges Bench of the Supreme Court highlighted the need to ensure quality in the testing and eliminate the possibility of contamination of evidence. It also held that being an opinion, the probative value of such evidence has to vary from case to case. The DNA report is not infallible, especially when the uncompromised nature of the DNA report cannot be established. It further held that though the accuracy of DNA evidence may be increasing with the advancement of science and technology every day, thereby making it more and more reliable, the Supreme Court has not yet reached a juncture where it may be said to be infallible. It held in Para Nos. 64 to 66 as follows:- “ 64 . Even though the accuracy of DNA evidence may be increasing with the advancement of science and technology with every passing day, thereby making it more and more reliable, we have not yet reached a juncture where it may be said to be infallible. Thus, it cannot be said that the absence of DNA evidence would lead to an adverse inference against a party, especially in the presence of other cogent and reliable evidence on record in favour of such party. 65 . The Supreme Court, therefore, has relied on DNA reports, in the past, where the guilt of an accused was sought to be established. Notably, the reliance was to corroborate. 65 . The Supreme Court, therefore, has relied on DNA reports, in the past, where the guilt of an accused was sought to be established. Notably, the reliance was to corroborate. This Court highlighted the need to ensure quality in the testing and eliminate the possibility of contamination of evidence; it also held that being an opinion, the probative value of such evidence has to vary from case to case. 66 . In the present case, even though, the DNA evidence by way of a report was present, its reliability is not infallible, especially not so in light of the fact that the uncompromised nature of such evidence cannot be established; and other that cogent evidence as can be seen from the discussion above, is absent almost in its entirety.” 18. A reading of the discussions of the Hon’ble Supreme Court, in our views, shows that there should be absolute care taken while collecting the sample from the concerned person for DNA testing/profiling, like blood, saliva, hair, bone etc. The requirement of having safeguards while collecting and testing samples is necessary, as contamination or taking a wrong sample would cause irreparable damage to a wrong person. Having said that, the decisions of the Hon’ble Supreme Court show that DNA reports can be held to be reliable and valid for coming to a finding by a Court, provided that no contamination of the sample at the time of extraction and testing in the laboratory is proved. 19. In view of the evidence of PW-7, the DNA Test Report and the judgments of the Hon’ble Supreme Court, we do not find any ground to doubt the veracity of the DNA Profiling/Test report. As such, there is no ground to come to a different finding, than that made by the learned Trial Court, with regard to the fact that it had been conclusively proved by DNA testing that the appellant had fathered the child of the victim, thereby proving that the appellant had committed rape upon the victim. The evidence of the prosecution witnesses and especially that of the victim have thus been corroborated by the DNA test report, to the effect that the appellant had raped the victim. Further, there is no evidence to show that there was any bungling at the time of taking the blood samples or at the time of testing, to prove that the sample was compromised. 20. Further, there is no evidence to show that there was any bungling at the time of taking the blood samples or at the time of testing, to prove that the sample was compromised. 20. The next question to be decided is whether Section 376(2)(i) of IPC could be applicable in the present case. In view of the deletion of Clause (i) from Section 376(2)(i) IPC, vide the Act 22 of 2018 on 21/04/2018, prior to the impugned judgement being passed, we are of the view that Section 376(2)(i) of IPC could not have been applied by the learned Trial Court, as the said provision of law was no longer in existence. 21. The next question to be decided is whether the Prosecution had been able to prove the age of the victim to be below 18 years of age, on the date the incident of rape had apparently occurred. As per the evidence recorded by the learned Trial Court, the child having been born on 04.12.2013, it can be assumed that the incident of rape had occurred sometime in the month of March, 2013. The learned Trial Court had relied upon the statement of the victim that she was slightly above 13 years of age when the incident of rape had occurred. The said statement would however have to be proved on the basis of reliable evidence, keeping in mind the modes of determination of age, as provided in Section 94 of the Juvenile Justice (Care and Protection) of Children, 2015 (hereinafter referred to as “the 2015 Act”. In terms of Section 94 of the 2015 Act, determination of age of a child in conflict with law requires the same to be proved by a Birth Certificate issued by the school or the matriculation or equivalent certificate from the concerned Examination Board. In the absence of the same, the date of birth could be determined on the basis of the Birth Certificate given by a corporation or a Municipal Authority or a Panchayat. In the absence of all of the above, age is to be determined by way of an Ossification Test or any other latest medical age determination test conducted on the orders of the Committee or the Juvenile Justice Board. 22. Section 94 of the 2015 Act pertains to determination of age of a child. In the absence of all of the above, age is to be determined by way of an Ossification Test or any other latest medical age determination test conducted on the orders of the Committee or the Juvenile Justice Board. 22. Section 94 of the 2015 Act pertains to determination of age of a child. The said provision of law can also be applied for determining the age of a victim of a crime. In this respect, we would like to refer the judgment of the Supreme Court in the case of Jarnail Singh Vs. State of Haryana , reported in (2013) 7 SCC 263 , wherein the procedure to be followed for determination of the age of a child or juvenile in conflict with law, was provided in Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as the 2007 Rules). On considering the above Rule, the Supreme Court held that though Rule 12 was applicable only to determine the age of a child in conflict with law, it was also of the view that the said provision should also the basis for determining age of a child, who is a victim of crime. However, in this case, there is no bar for the application of section 94 of the 2015 Act. 23. In the present case, there are two certificates giving the date of birth of the victim as 11.11.1999, one is the Transfer Certificate dated 07.07.2015, issued by the Headmaster of Samabay High School, Srigouri, Karimganj, which states that the victim had left the school on 31.12.2013. Though the same has been exhibited as Ext.26, the author of the said document has not proved the said document and neither was the Admission Register of the school produced before the learned Trial Court, to authenticate/prove the contents of the transfer certificate. On considering the above, we are of the view that as the Headmaster had not been examined, to prove the authenticity of the said document and the contents of the same, besides there being no comparison with the admission register of the school, we are of the view that the contents of Ext.26 cannot be admissible in evidence and/or be the basis for determining the date of birth/age of the victim. 24. In the case of Alamelu & Another Vs. 24. In the case of Alamelu & Another Vs. State represented by the Inspector of Police , reported in (2011) 2 SCC 385 , the Supreme Court held that the transfer certificate issued by a Government school and duly signed by the Headmaster would be admissible in evidence under Section 35 of the Evidence Act, 1872. However, the admissibility of such a document would not be of much evidentiary value to prove the age of the girl, in the absence of the material on the basis of which the age was recorded and unless the person, who made the entry in the transfer certificate, had been examined. 25. In the above case of Alamely (Supra), the Supreme Court in para 40 has held as follows:- “40. Undoubtedly, the transfer certificate, Ext. P-16 indicates that the girl's date of birth was 15-6-1977. Therefore, even according to the aforesaid certificate, she would be above 16 years of age (16 years 1 month and 16 days) on the date of the alleged incident i.e. 31-7-1993. The transfer certificate has been issued by a government school and has been duly signed by the Headmaster. Therefore, it would be admissible in evidence under Section 35 of the Evidence Act. 1872. However, the admissibility of such a document would be of not much evidentiary value to prove the age of the girl in the absence of the material on the basis of which the age was recorded. The date of birth mentioned in the transfer certificate would have no evidentiary value unless the person, who made the entry or who gave the date of birth is examined.” 26. In the case of Birad Mal Singhvi Vs. Anand Purohit ( 1988 Supp SCC 604) , the Supreme Court has observed that mere proof of the documents would not tantamount to proof of all the contents in the documents. Para 14 of the said judgment states as follows:- “14. ......The date of birth mentioned in the scholar's register has no evidentiary value unless the person who made the entry or who gave the date of birth is examined. .............. Merely because the documents Exts. 8, 9, 10, 11 and 12 were proved, it does not mean that the contents of documents were also proved. Mere proof of the documents Exts. .............. Merely because the documents Exts. 8, 9, 10, 11 and 12 were proved, it does not mean that the contents of documents were also proved. Mere proof of the documents Exts. 8, 9, 10, 11 and 12 would not tantamount to proof of all the contents or the correctness of date of birth stated in the documents. Since the truth of the fact, namely, the date of birth of HukmiChand and Suraj Prakash Joshi was in issue, mere proof of the documents as produced by the aforesaid two witnesses does not furnish evidence of the truth of the facts or contents of the documents. The truth or otherwise of the facts in issue, namely, the date of birth of the two candidates as mentioned in the documents could be proved by admissible evidence i.e. by the evidence of those persons who could vouch safe for the truth of the facts in issue. No evidence of any such kind was produced by the respondent to prove the truth of the facts. namely, the date of birth of Hukmi Chand and of Suraj Prakash Joshi. In the circumstances the dates of birth as mentioned in the aforesaid documents have no probative value and the dates of birth as mentioned therein could not be accepted.” 27. In the case of Narbada Devi Gupta vs. Birendra Kumar Jaiswal , reported in (2003) 8 SCC 745 , the Supreme Court held that mere production and marking of a document as exhibit by the Court cannot be held to be due proof of its contents. The contents have to be proved by evidence of those persons, who can vouchsafe for the truth of the facts in the document. 28. The other document that has been pressed into service by the prosecution, for determining the age of the victim, is the Birth Certificate issued by the Registrar of Births and Deaths, Srigouri CHC, District Karimganj, which was registered vide Registration No.2373 dated 01.11.2013 and issued on 10.11.2016, after the Additional District Magistrate, Karimganj had given permission No.5991 dated 25.10.2016 for the same. 29. 29. Section 13(3) of the 1969 Act provides that any birth or death which has not been registered within one year of it’s occurrence, shall be registered only on an order made by a Magistrate of the first class or a Presidency Magistrate, after verifying the correctness of the birth or death and on payment of the prescribed fee. In the present case, the Birth Certificate of the victim, which is exhibited as Ext.27, had been registered on 01.11.2013, while permission had been given by the competent authority on 25.10.2016. This is a classic case of putting the cart before the horse and is not in consonance with Section 13(3) of the 1969 Act. The permission granted by the authority should have been prior to the registration of the Birth Certificate of the victim. Thus, the veracity of the Ext. 27 itself is in doubt, let alone it’s registration. In view of the above reasons, Ext. 27 is not admissible in evidence and cannot be used as the basis for determining the age of the victim. 30. As the prosecution has failed to prove the age of the victim at the time of occurrence of the rape, the victim would have to be treated as an adult. As such, the appellant can only be convicted under Section 376(1) of IPC, inasmuch as, the appellant cannot be said to have committed the offence under Section 5(J)(ii) of the POCSO Act. Thus, we alter the charge from Section 376(2)(i) of IPC to Section 376(1) of IPC, inasmuch as, the fact that the appellant had raped the victim has been proved by the DNA test report. Accordingly, the appellant is convicted under Section 376(1) of IPC and sentenced to undergo rigorous imprisonment for 12 years, with a fine of Rs.1,00,000/-, in default, to undergo further rigorous imprisonment for 1 year. Consequently, the impugned Judgment and Order dated 16.12.2019 passed by the learned Sessions Judge, Karimganj in Sessions Case No. 18/2015 is hereby modified to the extent indicated above. 31. In the connected Interlocutory Application filed by the appellant under Section 430 BNSS, the appellant, who is approximately 76 years old, had prayed for bail and suspension of sentence, on the ground that he needed to undergo a cataract surgery. However, today, the leaned Sr. 31. In the connected Interlocutory Application filed by the appellant under Section 430 BNSS, the appellant, who is approximately 76 years old, had prayed for bail and suspension of sentence, on the ground that he needed to undergo a cataract surgery. However, today, the leaned Sr. Counsel for the appellant submits that the appellant is suffering from cancer and is going to have an appointment with an Oncologist at GMCH. In this regard, the appellant has submitted an affidavit in the connected interlocutory application. We have perused the affidavit and seen the certificate submitted by the learned counsel for the appellant. There is a question mark on the diagnosis and as such, in our view, the same does not prove that the appellant has got cancer. It appears that the question of whether the appellant has got cancer, will only be proved, after biopsy and diagnosis of his ailment is completed. The above being said, the issue with regard to the appellant’s health and medical treatment is the responsibility of the State, while he is in judicial custody. 32. The appeal is accordingly dismissed and the interlocutory application is also disposed of in line with the judgment passed in the present appeal. 33. Send back the TCR. 34. In appreciation of the assistance provided by Mr. U. Choudhury, learned Legal Aid Counsel, his fee shall be paid by the Assam State Legal Services Authority as per norms.