JUDGMENT AND ORDER S.K.Medhi, J. The instant appeal has been preferred under Section 374 of the Code of Criminal Procedure, 1973 [Corresponding to Section 415 of the Bharatiya Nagarik Suraksha Sanhita, 2023] against the judgment and conviction order dated 22.09.2022 passed by the learned Special Judge (POCSO), Districts of East Kameng, West Kameng & Tawang at Bomdila in POCSO Case No.11/2022 convicting the appellant and sentencing him for Rigorous Imprisonment for 20 (Twenty) years and to pay a fine of 20,000/- (Rupees Twenty Thousand) only under Section 6 of the POCSO Act, Simple Imprisonment for 7 (Seven) years and fine of Rs. 5,000/- (Rupees Five Thousand) only under Section 363 of IPC and Simple Imprisonment for 5 (Five) years and fine of Rs. 5,000/-(Rupees Five Thousand) only under Section 506 IPC. 2. The criminal law was set into motion by lodging of an FIR on 05.08.2022 by the PW-1, who is the victim. It has been alleged that the appellant had started having physical relationship with her from November 2021 and had continued and the informant, though had consented initially, had later come to know that the appellant was a married person. The age of the informant was taken into consideration and accordingly, a case was registered under Sections 376(3) of the IPC, read with Section 6 of the POCSO Act. The investigation was, accordingly done and statements of the witnesses were recorded and the informant was also examined under Section 164 of the Cr.PC [Corresponding to Section 183 of the Bharatiya Nagarik Suraksha Sanhita, 2023]. The medical examination of the PW-1 as victim was also done on 21.08.2022, whereafter, the charge-sheet was laid, which was exhibited as Exhibit-11. The charges were accordingly framed by the Court under Sections 363/376(3)/506 of the IPC, read with Section 6 of the POCSO Act, and on denial of the same, the trial had begun in which, the prosecution had adduced evidence through 14 (fourteen) numbers of Prosecution Witnesses. The defence had also adduced evidence through 2 (two) numbers of witnesses. Thereafter, the Court had summoned two Court Witnesses to adduce evidence. 3. PW-1 is the informant-victim, who had deposed that her Date of Birth was 10.09.2006 and had narrated in detail about the commission of the offence. She had deposed that there was forceful sexual intercourse also and she had to take contraceptive pills. Thereafter, the Court had summoned two Court Witnesses to adduce evidence. 3. PW-1 is the informant-victim, who had deposed that her Date of Birth was 10.09.2006 and had narrated in detail about the commission of the offence. She had deposed that there was forceful sexual intercourse also and she had to take contraceptive pills. It has also been deposed that the Birth Certificate was seized by the Police which was proved as P Exhibit-2. She had also deposed that her statement was recorded before the learned Magistrate under Section 164 of the Cr.PC [Corresponding to Section 183 of the Bharatiya Nagarik Suraksha Sanhita, 2023]. A suggestion was given to PW-1 that the Birth Certificate was prepared after the case was lodged which was, however denied. PW-1 had clearly stated that even after lodging of the FIR, the appellant had forcefully committed rape upon her on 17.08.2022. It has also been stated that it is only after the repeated acts, that she was sent for medical examination which was conducted on21.08.2022. 4. PW-2 is the sister-in-law of the victim, who has corroborated the version of the victim. The PW-2 has, in clear terms stated about the repetition of the incident on 17.08.2022 which was after about 12 (twelve) days of lodging of the FIR. The said PW-2 was subjected to cross-examination in which, her statement had remained unimpeached. 5. PW-3 is the brother of the victim, who had also proved the Seizure Memo of the Birth Certificate which was proved as P Exhibit-4. He had also corroborated the aspect of repetition of the offence on 17.08.2022. In his cross-examination, however, he had deposed that the complaint was lodged after knowing that the appellant was a married person. 6. PW-4 is a relative of the victim, who was given a suggestion that the age of the victim was 18 (eighteen) years which was, however denied. 7. PW-5, PW-6, PW-7, PW-8, PW-9 & PW-10 though had appeared as witnesses, could not say anything about the incident which is relevant and therefore, their depositions are not required to be discussed in details. 8. PW-11 is the wife of the appellant who had, however deposed that the appellant was falsely implicated in the case. 9. There were two Investigating Officers in this case and the 1st Investigating Officer had adduced the evidence as PW-12, who had narrated the steps he had taken in the investigation. 8. PW-11 is the wife of the appellant who had, however deposed that the appellant was falsely implicated in the case. 9. There were two Investigating Officers in this case and the 1st Investigating Officer had adduced the evidence as PW-12, who had narrated the steps he had taken in the investigation. He had deposed that on receipt of the FIR, he had examined the victim and also the available witnesses by recording their statements under Section 161 Cr.PC [Corresponding to Section 180 of the Bharatiya Nagarik Suraksha Sanhita, 2023]. The victim was forwarded to the learned Court of CJM, Seppa for recording her statement under Section 164 Cr.PC [Corresponding to Section 183 of the Bharatiya Nagarik Suraksha Sanhita, 2023]. He had seized the original Birth Certificate. The repetition of the offence by the appellant on 17.08.2022 has also been deposed by him. He had arrested the appellant whereafter, a regular Officer had joined the police station and accordingly, the case diary was handed over to him for further investigation. In the cross-examination, PW-12 had admitted that though the allegation of physical relationship was of the year 2021, the FIR was lodged in the year 2022. He had also deposed that the Birth Certificate of the victim was obtained on 28.01.2022. He had, however deposed that he was not in a position to say whether the victim, at the time of lodging of the FIR, was mature or underage. 10. PW-13 is the Doctor, who had examined the victim on 21.08.2022. The findings arrived by her was clearly stated and the Medical Report was proved as P Exhibit-8. For ready reference, the relevant part of the opinion is extracted hereinbelow. “ ...OPINION: 1. Evidence of recent sexual intercourse ( Yes /NO) 2. Accustomed to sexual intercourse ( Yes /No) 3. Sign of struggle / use of force ( Yes /No) 4. Presence of sexually transmitted disease ( Yes /No) 5. Any other No. other findings report awaited... It is, however required to be noted that she had deposed that the victim had told her that she was forcefully raped by the appellant. It is also important to note that on the same date, PW-13 had also examined the appellant who was produced by the Police. The accused had admitted that the sexual intercourse was done with consent. 11. It is also important to note that on the same date, PW-13 had also examined the appellant who was produced by the Police. The accused had admitted that the sexual intercourse was done with consent. 11. PW-14 is the Investigating Officer, who had subsequently come to the scene and had narrated the steps taken by her in the investigation. She had deposed that the victim was forced to consume contraceptive pills after every physical contact and she had also got pregnant during that period and the appellant had forced pregnancy to be terminated. The aspect of taking over investigation from the earlier IO has been deposed in which, the statement of the victim was recorded under Section 164 Cr.PC [Corresponding to Section 183 of the Bharatiya Nagarik Suraksha Sanhita, 2023]. She deposed regarding the Date of Birth of the victim as 10.09.2006, which is revealed from the original Birth Certificate and as per the same, the victim was about 16 years old and a Child. The receipt of information of the incident of 17.08.2022 has also been stated. The examination of the victim by the Doctor and procurement of the report have also been deposed by her in which, it was clearly stated that there was use of force and sign of struggle with the evidence of recent sexual intercourse. The relevant materials, including the FIR, Birth Certificate, Section 164 Cr.PC statement, seizure memos, MLC report, sketch map and the charge-sheet were duly exhibited. In the cross-examination, PW-14 had, however admitted of not receiving any FSL report and the fact of not seizing any contraceptive pills. He had also admitted that the Birth Certificate was obtained after the alleged offence. She had, however stated that from the appearance, the victim was a minor and that Section 6 of the POCSO Act was added after relying on the Birth Certificate. After completion of the evidence from the prosecution side, the incriminating materials were put to the appellant, the veracity and truthfulness of which were denied by him. Further, the appellant had chosen to give defence evidence through 2 (two) nos. of witnesses. 12. DW-1 is a relative of the accused, who deposed that he wanted the appellant to be freed and that he was trapped. Further, the appellant had chosen to give defence evidence through 2 (two) nos. of witnesses. 12. DW-1 is a relative of the accused, who deposed that he wanted the appellant to be freed and that he was trapped. He had also deposed that the appellant was in love with the victim who used to disturb him and that the appellant did not commit any offence. In his cross-examination by the prosecution, he had denied that the victim is not a minor. However, he had admitted that the appellant was having a relationship with the victim. 13. DW-2 is the Headmaster of the Government Secondary School, P- Sector, Itanagar, who had, however deposed that on 02.03.2023, he had received an application from one Japo Lamnio for a Birth Certificate and other documents of the victim. Accordingly, he had issued the Student Record Register and computerised School Admission Register along with one certificate showing the date of birth of the victim as 10.09.2002. The aforesaid documents were proved as Exts.-A to D. In the cross- examination by the prosecution, he had admitted that the victim got admitted in the school in Class-IV and that he did not have any authority to issue Birth Certificate. 14. With regard to the aspect of age, it appears from the impugned judgment that 2 (two) Court Witnesses were examined on the prayer made by the learned counsel. 15. CW-1 is the Principal-in-Charge of the Government Higher Secondary School, Pampoli, who had stated that as per the records, the victim had got admitted in his school in Class-VIII and as per her Admission Form, the Date of Birth of the victim was 10.09.2002. He has also deposed that one School Leaving Certificate was issued by the Head Master, Government Secondary School, P-Sector, as per which, the Date of Birth was 10.09.2002. The victim had passed her Class-X and in the pass certificate, the Date of Birth was recorded as 10.09.2006 and even in her Admission Form for Class-IX, the Date of Birth was written as 10.09.2006. The victim had also submitted a Birth Certificate along with her Admission Form which was issued on 28.01.2022 as per which, her Date of Birth was 10.09.2006. He had proved the aforesaid documents. In the cross-examination, CW-1 had stated that the age of the victim was reduced. 16. CW-2 is the Addl. The victim had also submitted a Birth Certificate along with her Admission Form which was issued on 28.01.2022 as per which, her Date of Birth was 10.09.2006. He had proved the aforesaid documents. In the cross-examination, CW-1 had stated that the age of the victim was reduced. 16. CW-2 is the Addl. Registrar of Birth and Death, East Kameng District, who in his examination had stated that as per records, the Date of Birth of the victim was 10.09.2006. He had proved the Birth Certificate as P Ext.-2. He had, however, clarified in his cross-examination that since the Birth Certificate of the victim was of a later date, such Birth Certificate can be obtained by an affidavit and otherwise, a Birth Certificate has to be applied within a month of the birth. 17. After consideration of the depositions and the materials on record, the learned trial Judge had passed the impugned judgement, which is the subject matter of challenge in the present appeal. 18. We have heard Shri S. Mow, learned counsel for the appellant. Also heard Shri T. Ete, learned Addl. Public Prosecutor, AP for the respondent No. 1 and Shri R. L. Thungon, learned counsel for the respondent No. 2. 19. Shri Mow, the learned counsel for the appellant has strenuously urged that the foundational facts which are required to be established in a case under the POCSO Act have not been done in the present case and therefore, the application of the Act is itself, erroneous. He has submitted that there are materials on record to show that as on the date of commission of the alleged offence, the victim was more than 18 (eighteen) years and would not come within the definition of Child under Section 2(d) of the POCSO Act. He has submitted that from a reading of the FIR itself, it would be clear that the grievance was more on detecting his client to be a married man and not on the physical relationship which was maintained by the victim with the appellant. He has also submitted that there are numerous materials on record to show that the physical relationship was a consensual one and was not a forced one and therefore, the aspect of the application of the definition of rape under Section 376 of the IPC would not come [Corresponding to Section 65 of the Bharatiya Nyaya Sanhita, 2023]. 20. He has also submitted that there are numerous materials on record to show that the physical relationship was a consensual one and was not a forced one and therefore, the aspect of the application of the definition of rape under Section 376 of the IPC would not come [Corresponding to Section 65 of the Bharatiya Nyaya Sanhita, 2023]. 20. The learned counsel for the appellant has submitted that admittedly, there were 2 (two) Birth Certificates in the instant case. While the prosecution had relied upon a Birth Certificate showing the Date of Birth as 10.09.2006, there is another Birth Certificate which would show that the Date of Birth of the victim is 10.09.2002. He has submitted that when the age of the victim was in doubt, the benefit should have been given to the accused. As regards the charge under Section 376 of the IPC, the learned counsel has submitted that since the alleged victim was a major, who had consented to have physical relationship, there was no occasion to apply the aforesaid provision of law against his client. 21. By referring to the evidence of the Medical Officer, who had deposed as PW-13, the learned counsel for the appellant, has submitted that such examination was done only on 21.08.2022 whereas, the FIR was lodged on 05.08.2022. He has also submitted that the opinion reached would not lead to an inevitable conclusion of involvement of his client. He has submitted that no forensic test was done of the materials gathered in the medical evidence and therefore, the complicity of his client could not be proved beyond reasonable doubt. 22. Coming to the evidence of the Defence Witnesses, the learned counsel for the appellant has submitted that so far as DW-2 is concerned, who is the Headmaster of the Government Higher Secondary School P- Sector, Itanagar, he had deposed that as per the records, the Date of Birth of the alleged victim was 10.09.2006. 23. The learned counsel has severely criticized the observation made by the learned Trial Court that the documents relied upon by the defence could not be held to be legal proof as only photocopies of such documents were placed on record. 23. The learned counsel has severely criticized the observation made by the learned Trial Court that the documents relied upon by the defence could not be held to be legal proof as only photocopies of such documents were placed on record. He has asserted that the concerned witnesses had placed on record the original documents and therefore, there was no occasion for the learned Trial Court to come to such a conclusion that the original documents were not proved. He accordingly submits that the assertion made by the defence regarding the age was without any basis. 24. The learned counsel has also submitted that in a case which is connected to the POCSO Act, the aspect of laying down the foundational facts is of paramount importance for which, the age of the alleged victim has to be established beyond all reasonable doubt. He has submitted that if, at any stage, there is any doubt on the aspect of age, a determination process can be undertaken which can be done also by the Appellate Court. He has submitted that since there is serious doubt on the aspect of the age, this Court may direct a re-verification of the age so that interest of justice is served. The learned counsel has submitted that the Matriculation Certificate relied upon by the prosecution was not even a part of the investigation and the first certificate regarding the Date of Birth was issued by the Bhalukpong Registrar of Birth and Death, which was itself not legally admissible. He has also highlighted the aspect that the age proof certificate was obtained by the victim only in the year 2022 i.e. after the first date of the incident. 25. By drawing the attention of Rule 54(18)(iv) of The Juvenile Justice (Care and Protection of Children) Model Rules, 2016, the learned counsel has submitted that as per the said provision, Section 94 of the Act has been made applicable for age determination of a victim. He has submitted that Section 94, envisages three modes for determination of the age and in the instant case, the first two modes were inconclusive and therefore, an ossification test was required to be made. That not being done, the entire process culminating in the impugned judgment is vitiated. 26. In support of his submission, the learned counsel for the appellant has relied upon the following cases: (i). That not being done, the entire process culminating in the impugned judgment is vitiated. 26. In support of his submission, the learned counsel for the appellant has relied upon the following cases: (i). Rishipal Singh Solanki vs. State of Uttar Pradesh and Ors. , (2022) 8 SCC 602 (ii). P. Yuvaprakash vs. State Rep. by Inspector of Police , 2023 SCC OnLine SC 846 (iii). Om Prakash alias Israel alias Raju alias Raju Das vs. Union of India and Anr., 2025 SCC OnLine SC 47 (iv). Rajendran vs. State rep. by the Inspector of Police, All Women Police Station, Jayankondam, Ariyalur District, 2016 SCC OnLine Mad 33382 27. In the case of Rishipal (supra), which is on age determination, the Hon’ble Supreme Court has made the following observations: “...33.2. An application claiming juvenility could be made either before the court or the JJ Board. … … 33.5. That the procedure of an inquiry by a court is not the same thing as declaring the age of the person as a juvenile sought before the JJ Board when the case is pending for trial before the criminal court concerned. In case of an inquiry, the court records a prima facie conclusion but when there is a determination of age as per sub-section (2) of Section 94 of the 2015 Act, a declaration is made on the basis of evidence. Also the age recorded by the JJ Board shall be deemed to be the true age of the person brought before it. Thus, the standard of proof in an inquiry is different from that required in a proceeding where the determination and declaration of the age of a person has to be made on the basis of evidence scrutinised and accepted only if worthy of such acceptance. 33.10. Any document which is in consonance with public documents, such as matriculation certificate, could be accepted by the court or the JJ Board provided such public document is credible and authentic as per the provisions of the Evidence Act viz. Section 35 and other provisions.” 28. The case of P. Yuvaprakash (supra) has been cited to bring home the contention that age of a victim under the POCSO Act is to be determined by following Section 94 of the JJ Act, 2015. The relevant observations of the Hon’ble Supreme Court, as relied upon by the appellant, are extracted hereinbelow: “...12. Section 35 and other provisions.” 28. The case of P. Yuvaprakash (supra) has been cited to bring home the contention that age of a victim under the POCSO Act is to be determined by following Section 94 of the JJ Act, 2015. The relevant observations of the Hon’ble Supreme Court, as relied upon by the appellant, are extracted hereinbelow: “...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. (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. 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. 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. 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.” 29. The case of Om Prakash (supra) has been cited to bring home the contention that the aspect of age determination can be raised by the defence at any point of time and even after a Presidential Order and in this connection, the learned counsel relies upon the following observations made by the Hon’ble Supreme Court: “45. The facts as narrated above, speak for themselves. At every stage, injustice has been inflicted by the Courts, either by ignoring the documents or by casting a furtive glance. The Appellant despite being illiterate, raised this plea one way or another, right from the trial Court up to the conclusion of the Curative Petition before this Court. 50. In the subsequent Writ Petition filed before the High Court, two different prayers had been made, namely, the determination of the Appellant’s plea of juvenility and consequent release, or alternatively, judicial review of the decision of the President or the Governor and consequent release. As the Executive cannot be construed to have undertaken an adjudication on the determination of the age of the accused, and with the first prayer being a distinct one invoking Section 9(2) of the 2015 Act, we feel that the High Court has committed an error in its reasoning. We would only state that this is a case where the Appellant has been suffering due to the error committed by the Courts. We have been informed that his conduct in the prison is normal, with no adverse report. He lost an opportunity to reintegrate into the society. The time which he has lost, for no fault of his, can never be restored. 51. We have been informed that his conduct in the prison is normal, with no adverse report. He lost an opportunity to reintegrate into the society. The time which he has lost, for no fault of his, can never be restored. 51. As we find that the Appeal deserves to be allowed in view of the conclusion arrived at, we are inclined to set aside the sentence imposed in excess of the upper limit prescribed under the relevant Act, while maintaining the conviction rendered. It cannot be construed that the Presidential Order is interfered with, as the issue that we are concerned with, is the failure of the Court in not applying the mandatory provisions of the 2015 Act with specific reference to the plea of juvenility. Therefore, it is not a review of the Presidential Order, but a case of giving the benefit of the provisions of the 2015 Act to a deserving person.” 30. In the case of Rajendran (supra), which is in connection with the age of a victim under the POCSO Act, which is to be determined as per Section 94 of the Juvenile Justice Act, the following observations have been made by the Hon’ble Madras High Court: “22. … As per Section 34 of POCSO Act, the age of the victim shall be determined by the court. As indicated in sub section (1) of Section 34 of POCSO Act. the age of the victim could be determined by following the procedure contemplated in Section 94 of the Juvenile Justice [Care and Protection of Children] Act. 2015. As per sub section (2) of Section 94, the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available: shall be the evidence to determine the age of the child. In the absence thereof: the birth certificate given by a corporation or a municipal authority or a panchayat shall be the evidence for determination of the age of the child. In the absence of either certificate from the school or certificate from the corporation or municipal authority or panchayat authority, the age shall be determined by an ossification test or any other latest medical age determination test. …” 31. In the absence of either certificate from the school or certificate from the corporation or municipal authority or panchayat authority, the age shall be determined by an ossification test or any other latest medical age determination test. …” 31. The learned counsel for the appellant, accordingly, submits that the impugned judgement is not in accordance with law whereby, there has been a grave miscarriage of justice and accordingly, the same is liable to be set aside. 32. Per contra, Shri Ete, the learned Addl. Public Prosecutor has supported the impugned judgement. He submits that the appellant is precluded from raising any issue regarding the age of the alleged victim, inasmuch as the said issue has attained finality vide a judgement passed by the High Court itself. He had instantly referred to the judgement dated 20.09.2023 passed by this Court in Crl. Rev.P/24/2023 by which, the said issue has been put to rest finally. He has submitted that the appellant had initially applied for age determination in the Trial Court, which was rejected and the same was challenged in Crl. Rev. P./12/2023. The said case was disposed of on 16.06.2023 by this Court with a direction to the Special Court to determine the age. However, as the said order was not complied with, another Crl. Rev.P./15/2023 was filed. In the said case, this Court, vide judgement dated 17.07.2023 had given a direction for compliance of the earlier direction for determination of the age first. For ready reference, the observations made is extracted hereinbelow: “...7. I have perused the orders. Both the orders are fixed for age determination of the victim as well as for final argument. The trial court is directed to comply with the order dated 16.06.2023 passed by this court in connection with criminal revision petition No.12/23 and determine the age of the victim as per law before final hearing of the argument. The proceeding of the POCSO Case No.11/2022 shall continue and trial court is to dispose of the matter of age determination within 1(one) month.” 33. Pursuant to the said direction, the learned Special Court vide order dated 05.09.2023 had determined the age and had fixed 18.09.2023 for final hearing. The aforesaid order of 05.09.2023 was the subject matter of challenge in the Crl. Pursuant to the said direction, the learned Special Court vide order dated 05.09.2023 had determined the age and had fixed 18.09.2023 for final hearing. The aforesaid order of 05.09.2023 was the subject matter of challenge in the Crl. Rev.P/24/2023 which was disposed of by this Court on 20.09.2023 dismissing the said petition and affirming the findings of the learned Special Court dated 05.09.2023. For ready reference, the observation of this Court in the Judgement dated 20.09.2023, is extracted hereinbelow: “...9. On a bare look at the provision, it reveals that during trial, the Special Court has the exclusive power to determine the age of the victim after satisfying him or her about the age of such person. As per order, dated 05.09.2023, it is crystal clear that after considering the relevant documents available in the record, the learned Special Judge (POCSO) has considered the age of the victim that she was minor when the incident had occurred.” 34. The learned Addl. Public Prosector has submitted that the primary contention of the appellant is on the aspect of age, which issue has already attained finality and cannot be challenged collaterally. He has submitted that so far as the aspect of having physical relation is concerned, the same is not only established by the prosecutrix who is duly supported by PW-2, PW-3 as well as by PW-13, who is the Doctor, the said aspect is also corroborated by the response of the appellant in his examination under Section 313 of the Cr.PC [Corresponding to Section 351 of the Bharatiya Nagarik Suraksha Sanhita, 2023]. 35. The learned Addl. Public Prosector has laid special emphasis on the aspect of the repetition of the offence on 17.08.2022. He has submitted that though the FIR was lodged on 06.08.2022, no medical examination of the victim was done immediately, though her statement under Section 164 of the Cr.PC [Corresponding to Section 183 of the Bharatiya Nagarik Suraksha Sanhita, 2023] was recorded on 09.08.2022. It was only after the incident of 17.08.2022 when the medical examination was done on 21.08.2022 in which, the Doctor as PW-13 had given the opinion which has been extracted above. He has also submitted that the Doctor as PW- 13, had also examined the appellant who had confessed before her regarding his involvement and therefore, the aspect of extra-judicial confession would also come into operation. The learned Addl. He has also submitted that the Doctor as PW- 13, had also examined the appellant who had confessed before her regarding his involvement and therefore, the aspect of extra-judicial confession would also come into operation. The learned Addl. Public Prosector has also drawn the attention of this Court to the evidence of PW-14, who is the second Investigating Officer, who has submitted that on 20.08.2022, she had received an information that there was a repetition of the offence on 17.08.2022. He has also submitted that PW-1, in her statement, had narrated the repetition of the incident on 17.08.2022 and the said version has not been able to be shaken by the defence. In her cross-examination, she had clarified that even after the registration of the case, the appellant had forcefully committed rape upon her on 17.08.2022. 36. As regards the submission made on behalf of the appellant that the documents relating to the Date of Birth as produced by DWs and CW-1 were not taken into consideration, the learned Addl. Public Prosecutor has submitted that such approach of the learned Special Judge was in accordance with law as, all such documents were admittedly photocopies. 37. On the aspect of extra-judicial confession, the learned APP has relied upon the case of the State of Rajasthan vs. Raja Ram , reported in (2003) 8 SCC 180 and the relevant observations of the Hon’ble Supreme Court as relied upon are extracted hereinbelow: “...19. An extra-judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the court. The confession will have to be proved like any other fact. The value of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made. The value of the evidence as to the confession depends on the reliability of the witness who gives the evidence. It is not open to any court to start with a presumption that extra-judicial confession is a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession was made and the credibility of the witnesses who speak to such a confession. It is not open to any court to start with a presumption that extra-judicial confession is a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession was made and the credibility of the witnesses who speak to such a confession. Such a confession can be relied upon and conviction can be founded thereon if the evidence about the confession comes from the mouth of witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive of attributing an untruthful statement to the accused, the words spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it. After subjecting the evidence of the witness to a rigorous test on the touchstone of credibility, the extra-judicial confession can be accepted and can be the basis of a conviction if it passes the test of credibility. 20. If the evidence relating to extra-judicial confession is found credible after being tested on the touchstone of credibility and acceptability, it can solely form the basis of conviction. The requirement of corroboration as rightly submitted by the learned counsel for the respondent-accused, is a matter of prudence and not an invariable rule of law. It is improbable, as rightly held by the High Court that the accused would repose confidence in a person who is inimically disposed towards him, and confess his guilt. Similarly, PW 3 is a close relative of PW 4 and as records reveal, a person of doubtful antecedents being a history-sheeter. Though that alone cannot be a ground to discard his evidence, the totality of circumstances cast an indelible shadow of doubt on his evidence. It is to be noted that the accused examined himself as DW 1. Though it was the prosecution version that there was also extra-judicial confession before informant Sahi Ram (PW 6), that was disbelieved by both the trial court and the High Court in view of the fact that he stated differently from what was allegedly stated by him during investigation. He disowned that the accused made any confessional statement before him. Though it was the prosecution version that there was also extra-judicial confession before informant Sahi Ram (PW 6), that was disbelieved by both the trial court and the High Court in view of the fact that he stated differently from what was allegedly stated by him during investigation. He disowned that the accused made any confessional statement before him. Though the prosecution during cross-examination of the accused (DW 1) suggested that he had made an extra-judicial confession before PW 6, significantly, not even such a suggestion was given in respect of PWs 3 and 4.” 38. He has also relied upon the case of Bhupen Kalita vs. State of Assam reported in 2020(3) GauLT 403 in which, this Court has elaborately explained the aspect of presumption under the POCSO Act and in this connection, the relevant observations are extracted herein below: “...71. In the light of the discussions above, the following legal positions emerge in any proceeding under the POCSO Act. (A) The prosecution has to prove the foundational facts of the offence charged against the accused, not based on proof beyond reasonable doubt, but on the basis of preponderance of probability. (B) Accordingly, if the prosecution is notable to prove the foundational facts of the offence based on preponderance of probability, the presumption under Section 29 of the Act cannot be invoked against the accused. (C) If the prosecution is successful in establishing the foundational facts and the presumption is raised against the accused, the accused can rebut the same either by discrediting the prosecution witnesses through cross- examination or by adducing his own evidence to demonstrate that the prosecution case is improbable based on the principle of preponderance of probability. However, if it relates to absence of culpable mental state, the accused has to prove the absence of such culpable mental state beyond reasonable doubt as provided under Section 30(2) of the Act. (D) However, because of legal presumption against the accused, it may not suffice by merely trying to discredit the evidence of the prosecution through cross-examination, and the defence may be required to adduce evidence to dismantle the legal presumption against him and prove that he is not guilty. The accused would be expected to come forward with more positive evidence to establish his innocence to negate the presumption of guilt.” 39. The accused would be expected to come forward with more positive evidence to establish his innocence to negate the presumption of guilt.” 39. By referring to the case of P. Yuvaprakash (supra), the learned APP has submitted that it has been clarified that it is only those documents which are mentioned in Section 94 of the JJ Act, which can be taken into consideration and once such document is produced as per section 94, the presumption will come into operation. He has submitted that in the said case of Yuvaprakash (supra), the earlier case of Rishipal (supra) has been taken into consideration. He has submitted that the foundational facts have been clearly laid down in the instant case from the materials on record. 40. On the aspect that in a criminal case there is no intra-Court appeal, the learned Addl. Public Prosecutor has relied upon the following cases. (i). Surendra Singh and Others vs. State of Bihar and Others reported in 1991 CrLJ 3040 (ii). Deba Prasad Dutta vs. State of Assam & Anr. , reported in 2023(5) GauLT 909 41. In the case of Surendra Singh (supra), a five Judges Bench of the Hon’ble Patna High Court has made the following observations: “...45. However, if a criminal revision has been dismissed by this Court in that event inherent powers of this Court cannot be exercised and the only remedy left would be to invoke the jurisdiction of the Supreme Court under Article 136 for quashing of the orders passed by the criminal courts.” 42. In the case of Deba Prasad (supra), a Division Bench of this High Court has made the following observations: “...6. Having regard to the discussion made herein above, we are of the firm view that an intra-Court writ appeal does not lie against an order/ judgment passed by the learned Single Bench in exercise of the criminal writ jurisdiction under Article 226 of the Constitution of India. As the Gauhati High Court Rules are silent on this issue, the anomaly shall forthwith be clarified with appropriate insertion in the Rules clarifying the position that no intra Court appeal lies against an order/judgment passed by the learned Single Bench in exercise of the criminal writ jurisdiction.” 43. The learned APP, accordingly, submits that the instant appeal is liable to be dismissed as the same is devoid of any merits. 44. The learned APP, accordingly, submits that the instant appeal is liable to be dismissed as the same is devoid of any merits. 44. Supporting the prosecution case, Sri R. L. Thungon, learned counsel for respondent No. 2 has submitted that the challenge made in this appeal is mainly on two grounds. Firstly, that the age has not been properly determined and secondly, there was consensual relation between the appellant and the victim. He has submitted that so far as the age of the victim is concerned, the Birth Certificate, which was produced by the prosecution, was proved as P Exhibit-2, and the same was seized vide a Seizure Memo, which was also duly proved as Exhibit-4. The said Seizure Memo was also proved by the PW-2 and all these materials remained unimpeached. He has submitted that there is another witness, namely, CW-2 who is the Assistant Director of Birth and Death, who had proved the Date of Birth of the victim as 10.09.2006. As regards the evidence of the CW-1, the learned counsel for the respondent No. 2 has submitted that the assertion that the Date of Birth was 10.09.2002 was only as per the Admission Form and the Transfer Certificate, which are not the specified documents laid down in Section 94 of the JJ Act. He has submitted that apart from those documents not being specified in Section 94, the learned Special Court has come to a clear finding that only photocopies of those documents were produced which cannot be held to be admissible in evidence. 45. As regards the second ground of having consensual physical relation, the said aspect would not come at all, once it is established that the victim is under the age of 18 years at the time of commission of the offence, which falls within the definition of Child under Section 2(d) of the POCSO Act. 46. The rival submissions have been duly considered and the materials placed on records have also been carefully examined. 47. As would appear from the submissions as well as materials on record that the principal challenge to the impugned judgement is on the aspect of age and secondly, that the relationship between the parties were consensual. 48. As regards the age of the victim, the requirement of the POCSO Act, which defines Child under Section 2(d) is that the age should be less than 18 years. 48. As regards the age of the victim, the requirement of the POCSO Act, which defines Child under Section 2(d) is that the age should be less than 18 years. In this connection, the prosecution had seized the Date of Birth Certificate as per which, the same is 10.09.2006. The said aspect was not only proved by the IO but also by PW-1 and PW-2, who are witnesses to the Seizure Memo. 49. As per Section 94 of the Juvenile Justice Act, which has an application as laid down in Section 34(1) of the POCSO Act, there are three modes for determining the age of a victim which have already been extracted above while discussing the case of Yuvaprakash (supra). It is found that the certificate of Date of Birth was duly proved as per which the same was 10.09.2006. The defence had made an attempt to bring in the fact that the victim was not a Child as per the definition of Section 2(d) of the POCSO Act but was more than 18 years of age and in this regard, firstly, they had put certain questions in the cross-examination which were, however, negated. Thereafter, the defence had adduced evidence through two defence witnesses to bring in the aspect that the Date of Birth of the victim was 10.09.2002. However, the said attempt was found to be futile as the original of the said documents were not proved, which is a clear finding by the learned Special Judge. For ready reference, the relevant observations are extracted hereinbelow: “...57. During hearing of the case vide petition No.214/23 dated 08-05-23 the defense has prayed for admission of some RTI applications filed before Assistant Director economic and Statistics office Seppa, Government Middle School Tippi, Registrar of birth and death Bhalukpong and Seppa. Perused the application and seen that all of the annexed documents are photocopy . None of the document is submitted in original or in certified copy. As provided under Section 64 of Evidence Act documents must be proved by primary evidence. There is also provision for secondary evidence under Section 65 of the Evidence Act but such conditions are also not fulfilled. As such the prayer for admission of the annexed documents in petition No.214/23 is not admissible as evidence. As provided under Section 64 of Evidence Act documents must be proved by primary evidence. There is also provision for secondary evidence under Section 65 of the Evidence Act but such conditions are also not fulfilled. As such the prayer for admission of the annexed documents in petition No.214/23 is not admissible as evidence. On the other hand as we have already discussed that Hon'ble Supreme Court in P. Yuvaprakash case (supra) has held that "a transfer certificate and extracts of the admission register, are not what Section 94 (2) (i) mandates, nor they are in accordance with Section 94 (2) (ii)". Even the concept of admission of registrar of the first attended school (not being play school) or any such certificate does not exist under section 94 of Amended JJ Act. It is seen that the defense has alleged that the victim has another birth certificate issued by the Registrar of birth Bhalukpong, a photo copy of the same is annexed with the petition. Seen that the name of the mother and the father does not tally with the name of parent of the victim girl in present case, as such the same cannot be considered to be the birth certificate of the victim girl. However the Assistant Director, Economics and Statistic cum Additional Registrar of Birth and Death, East Kameng at Seppa is examined as CW-2 as prayed by the defense.” 50. That apart, we have noticed that the CW-1, who had tried to assert that the Date of Birth of the victim was 10.09.2002 had produced the Admission Form and the Transfer Certificate. We find sufficient force in the submission made by the learned counsel for the respondent No. 2 that those documents are not specified documents as per Section 94 of the JJ Act and therefore, would not come into any aid to the defence. 51. As already noted above, the documents produced by the defence was found to be photocopy and not admissible in evidence and this finding is in accordance with law. However, to dispel any doubts, we have carefully examined the original records and have found that indeed the said documents produced by the defence were photocopies. 52. 51. As already noted above, the documents produced by the defence was found to be photocopy and not admissible in evidence and this finding is in accordance with law. However, to dispel any doubts, we have carefully examined the original records and have found that indeed the said documents produced by the defence were photocopies. 52. As regards the argument regarding the age, we find sufficient force in the contention advanced by the learned APP that the issue regarding age has already attained finality in the judgment dated 20.09.2023, passed by this Court in Crl. Rev. P./24/2023. As elaborately discussed above, the aspect was raised before the learned Trial Court which was not considered, leading to passing of two orders by this Court in two separate proceedings, directing to comply with the direction for determining the age first. The age was, accordingly, determined by the learned Trial Court on 05.09.2023 which was the subject matter of challenge in Crl. Rev. P./24/2023. The said criminal revision petition was, however, dismissed by this Court vide judgment dated 20.09.2023 which is not the subject matter of any further challenge in the appropriate forum. We find force in the contention advanced by the learned APP that in absence of any further challenge, the said issue cannot be raised collaterally in this appeal and has attained finality. 53. Since, the aspect of age as arrived at by the learned Special Court is held to be a correct finding, the application of the POCSO Act in this case appears to have been correctly done. The aforesaid Act has a provision for drawing a presumption under Section 29. It is, however, no longer res integra that the said presumption would come into play only when the prosecution is able to lay down the foundational facts. In the instant case, it has been proved that the victim falls within the definition of Child under Section 2(d) of the POCSO Act. The allegation of having forceful physical relationship has been proved by PW-1, PW-2, PW-3 and PW-13, which has remained unimpeached. 54. The aspect that the physical relationship was a consensual one will not make any difference to the case, inasmuch as, there is no aspect of consent being given by a child. The allegation of having forceful physical relationship has been proved by PW-1, PW-2, PW-3 and PW-13, which has remained unimpeached. 54. The aspect that the physical relationship was a consensual one will not make any difference to the case, inasmuch as, there is no aspect of consent being given by a child. We have also noted that in the examination of the appellant under Section 313 of the Cr.PC [Corresponding to Section 351 of the Bharatiya Nagarik Suraksha Sanhita, 2023], he had admitted the allegation with the only explanation that it was by consent. Though an admission under Section 313 of the Cr.PC [Corresponding to Section 351 of the Bharatiya Nagarik Suraksha Sanhita, 2023], may not be treated as evidence or the sole factor to come to a finding of conviction, in the present case, the other materials which are on record, would clearly show that an offence under the POCSO Act was made out and the conviction and sentence awarded by the learned Special Court was in accordance with law. 55. In the conspectus of the aforesaid discussion and the materials on record, we are of the view that the judgment and conviction order dated 22.09.2022, passed by the learned Special Judge (POCSO), for the Districts of East Kameng, West Kameng & Tawang at Bomdila in POCSO Case No.11/2022 do not warrant any interference. 56. The appeal is accordingly dismissed. 57. Send back the TCRs.