JUDGMENT : S Rachaiah, J. 1. This appeal has been filed by the appellant being aggrieved by the judgment of conviction dated 19.12.2018 and order on sentence dated 20.12.2018 in Special Case (POCSO) No.22 of 2015 on the file of the II Additional District and Sessions Judge at Vijayapura, wherein the accused has been found guilty for the offences under Section 376(2)(i) of Indian Penal Code (for short ‘IPC’) and Sections 3(a), 5(j)(ii) of The Protection of Children from Sexual Offences Act, 2012 (for short ‘POCSO Act’). Factual matrix of the case are as under: 2. The brother of the victim lodged a complaint before Sindagi police on 21.06.2015 at 20.15 hours stating that he is the resident of Holada Vasti, Sindagi and is residing along with his wife, mother and sister in the farmhouse of their land situated at Sindagi-Malegaon road near Ealiger Oil Mill. The victim is his sister and she is deaf and dumb from her birth. She used to graze the sheep nearby their land. The accused and his father were known to the complainant much earlier to the incident. Thereafter, they shifted to Sindagi by seeking coolie work. 3. The accused was doing ploughing the land of Ramu Kulkarni for the past three days and on the date of alleged incident, the victim was grazing the sheep near her land. The complainant had been to Sindagi along with his friend to bring the tractor for tilling the land. After coming home, he heard the screaming noise of his sister from his land. 4. On hearing the screaming sound, he went to the spot and noticed that the accused committing rape on his sister. The accused on seeing the complainant, ran away from the spot. Even though the complainant tried to catch him, he could not catch the accused. 5. After the incident, the complainant brought his sister to the house and waited for arrival of his mother from sandy. After her arrival, he narrated the incident and in the meantime, the victim also narrated the incident through sign language. Thereafter, he lodged a complaint against the accused before the respondent - Police. The respondent – police after conducting the investigation, submitted the charge sheet. 6. After her arrival, he narrated the incident and in the meantime, the victim also narrated the incident through sign language. Thereafter, he lodged a complaint against the accused before the respondent - Police. The respondent – police after conducting the investigation, submitted the charge sheet. 6. To prove the case of the prosecution, the prosecution, in all, examined 25 witnesses as PWs.1 to 25 and got marked 31 documents as per Exs.P1 to P31 and also identified 4 material objects as M.Os.1 to 4. The Trial Court after considering the evidence on record, convicted the accused for the above mentioned offences. 7. Heard Sri Shivanand V. Pattanashetti, the learned counsel for the appellant and Sri Jamadar Shahabuddin, learned High Court Government Pleader for the respondent No.1/State. 8. It is the submission of the learned counsel for the appellant that the judgment of conviction and order on sentence passed by the Trial Court is contrary to the facts of the case, evidence on record and also against the settled principles of law. 9. It is further submitted that the prosecution has not proved the minority of the victim. Therefore, the conviction under the POCSO Act cannot be sustained. There is a discrepancy in the report issued by the Doctor – P.W.7 regarding the age of pregnancy and also the date of commission of offence. 10. It is further submitted that even assuming that the DNA report is considered as true, the fact remains that, when the prosecution has not proved the case beyond reasonable doubt regarding the age of the prosecutrix and also not obtaining the consent, it cannot be presumed that the accused has committed rape on the victim. 11. It is further submitted that, even after the incident, the family members have continued the pregnancy of the victim till ten weeks which would indicate that the family members were not intended to terminate the pregnancy. Therefore, the findings of the Trial Court in recording the conviction required to be set aside. Making such submissions, learned counsel for the appellant prays to allow the appeal. 12. Therefore, the findings of the Trial Court in recording the conviction required to be set aside. Making such submissions, learned counsel for the appellant prays to allow the appeal. 12. Per contra, learned High Court Government Pleader for respondent No.1 controverted the submissions of the learned counsel for the appellant and he further submitted that the evidence of the mother of the victim and also the medical examination conducted by P.W.2 would indicate that the age of the victim – girl appeared to be more than 12 years and less than 16 years. That would indicate that she was a minor as on the date of alleged incident. Moreover, P.W.1 after hearing the screaming sound of his sister, went to the spot and rescued her. 13. It is further submitted that the act of the accused committing sexual intercourse without the consent of the victim amounts to rape. The Trial Court after appreciating the evidence of all the witnesses, rightly recorded the conviction. 14. It is further submitted that the aborted residue was prepared in the form of slide and it was subjected to DNA test. The DNA test would indicate that the accused is the biological father of the aborted foetus. Therefore, the findings of the Court below are proper and appropriate and interference may not be required. Making such submissions, learned High Court Government Pleader for respondent No.1 prays to dismiss the appeal. 15. Having heard learned counsel for the respective parties and also perused the findings of the courts below in recording the conviction, it is relevant to take note of the brief history of the witnesses. 16. P.W.1 is the complainant and he is the brother of the victim. P.W.2 is the Doctor who examined the victim. P.W.3 is the employer of the accused. P.W.4 is the owner of the land situated nearby the house of the victim. P.W.5 is the Psychiatrist who examined the victim about her mental ability. P.W.6 is the Doctor who gave the scan report of the victim. P.W.7 is the Doctor who examined the victim and terminated the pregnancy. P.W.8 is the panch witness for Exhibit P15 - panchanama. P.W.9 is the mother of the victim. P.W.10 and P.W.11 are the owners of the adjacent lands. P.W.12 is the elder sister of the victim. P.W.13 is the scribe of the complaint. P.W.14 is the Doctor who examined the accused. P.W.8 is the panch witness for Exhibit P15 - panchanama. P.W.9 is the mother of the victim. P.W.10 and P.W.11 are the owners of the adjacent lands. P.W.12 is the elder sister of the victim. P.W.13 is the scribe of the complaint. P.W.14 is the Doctor who examined the accused. P.W.15 is the Expert Teacher in the Dumb and Deaf School, situated at Golageri, Sindagi Taluk. P.W.16 is the victim. P.W.17 is the Engineer who drew the sketch at Ex.P19. P.W.18 was the Head Constable, Sindagi Police Station, who carried the FIR and submitted to the court. P.W.19 was the PSI who recorded the statement of the victim with the help of her brother - complainant. Rest of the witnesses are police officials and official witnesses. 17. It is the case of the prosecution that the accused committed rape on the victim, who is dumb and deaf. Consequently, she became pregnant and considering her health status, the said pregnancy was terminated. The aborted foetus was preserved in the form of slide for the purpose of conducting DNA test. The DNA test was conducted. The said report would indicate that both the victim and the accused are the biological parents of the said foetus. 18. Be that as it may, now it is necessary to consider as to whether the age of the prosecutrix has been proved in accordance with law. In this context, it is relevant to take note of the judgment of the Hon'ble Supreme Court, for the purpose of clarifying as to whether the age of the victim has been determined properly or not. The Hon'ble Supreme Court in the case of P. Yuvaprakash v. State Rep. by Inspector of Police , [2023 SCC OnLine SC 846] , in paragraph Nos.12, 13 and 14, held as under: 12. In view of Section 34(1) of the POCSO Act, Section 94 of the JJ Act, 2015 becomes relevant, and applicable. That provision is extracted below: “94. Presumption and determination of age. by Inspector of Police , [2023 SCC OnLine SC 846] , in paragraph Nos.12, 13 and 14, held as under: 12. In view of Section 34(1) of the POCSO Act, Section 94 of the JJ Act, 2015 becomes relevant, and applicable. That provision is extracted below: “94. Presumption and determination of age. - (1) Where, it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under section 14 or section 36, as the case may be, without waiting for further confirmation of the age. (2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining- (i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof; (ii) the birth certificate given by a corporation or a municipal authority or a panchayat; (iii) and only in the absence of (i)and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board: Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order. (3) The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person. 13. It is evident from conjoint reading of the above provisions that wherever the dispute with respect to the age of a person arises in the context of her or him being a victim under the POCSO Act, the courts have to take recourse to the steps indicated in Section 94 of the JJ Act. 13. It is evident from conjoint reading of the above provisions that wherever the dispute with respect to the age of a person arises in the context of her or him being a victim under the POCSO Act, the courts have to take recourse to the steps indicated in Section 94 of the JJ Act. The three documents in order of which the Juvenile Justice Act requires consideration is that the concerned court has to determine the age by considering the following documents: “(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof; (ii) the birth certificate given by a corporation or a municipal authority or a panchayat; (iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board.” 14. Section 94(2)(iii) of the JJ Act clearly indicates that the date of birth certificate from the school or matriculation or equivalent certificate by the concerned examination board has to be firstly preferred in the absence of which the birth certificate issued by the Corporation or Municipal Authority or Panchayat and it is only thereafter in the absence of these such documents the age is to be determined through “an ossification test” or “any other latest medical age determination test” conducted on the orders of the concerned authority, i.e. Committee or Board or Court. In the present case, concededly, only a transfer certificate and not the date of birth certificate or matriculation or equivalent certificate was considered. Ex. C1, i.e., the school transfer certificate showed the date of birth of the victim as 11.07.1997. Significantly, the transfer certificate was produced not by the prosecution but instead by the court summoned witness, i.e., CW-1. The burden is always upon the prosecution to establish what it alleges; therefore, the prosecution could not have been fallen back upon a document which it had never relied upon. Furthermore, DW-3, the concerned Revenue Official (Deputy Tahsildar) had stated on oath that the records for the year 1997 in respect to the births and deaths were missing. The burden is always upon the prosecution to establish what it alleges; therefore, the prosecution could not have been fallen back upon a document which it had never relied upon. Furthermore, DW-3, the concerned Revenue Official (Deputy Tahsildar) had stated on oath that the records for the year 1997 in respect to the births and deaths were missing. Since it did not answer to the description of any class of documents mentioned in Section 94(2)(i) as it was a mere transfer certificate, Ex C-1 could not have been relied upon to hold that M was below 18 years at the time of commission of the offence.” 19. On careful reading of the dictum of the Hon'ble Supreme Court, it makes it clear that the above methods to prove the juvenility have to be followed. In the present case, P.W.2 – Doctor on examining the radiological test on the victim, opined that the age of the victim is above 12 years and below 16 years. Such being the case, it is held that, the age of the victim has been proved properly by the prosecution. Nothing has been elicited to discredit the method adopted for determining the age of the victim. 20. Once the age of the victim is determined in accordance with law, it is held that she is a minor. Notwithstanding her consent in respect of sexual assault, that cannot be construed as valid consent in accordance with law. Therefore, the prosecution has established that the accused has committed rape on the victim. 21. There are some discrepancies in the medical evidence with regard to the age of pregnancy that may not be fatal to the case of the prosecution, for the reason that, the complainant and his family members are rustic villagers and were not aware about the actual process of subjecting the victim for medical examination. 22. In addition to the above stated appreciation, the DNA test which was conducted on the foetus of the victim assumes greater significance even though, it is the opinion of the expert, for the reason that, the DNA test is considered as one of the effective tests for determining the paternity. In this case, the said DNA test would indicate that the accused is the biological father of the foetus. In this case, the said DNA test would indicate that the accused is the biological father of the foetus. Therefore, it is established that the accused had committed rape on the victim, who is deaf and dumb by birth and made her to become pregnant. 23. Hence, I am of the considered opinion that the findings of the Trial Court in recording the conviction appears to be proper and appropriate. There is no occasion for this Court to interfere with the said findings. 24. Accordingly, I proceed to pass the following: ORDER The Criminal Appeal filed by the appellant/accused is dismissed.