The present appeal instituted under the provision of section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C') assails the judgment dated 27.04.2018 and the order on sentence dated 14.05.2018, rendered by the learned Additional Session Judge-01, Dwarka Courts, New Delhi, in Session Case No.440846/2016, title as 'State vs. CRL.A. 1013/2018 Page 1 of 29 Mahabir Mehto', emanating from F.I.R No. 216/2013 (hereinafter referred to as the 'subject FIR') under sections 376/506 of the Indian Penal Code, 1860 (hereinafter referred to as 'IPC') and under sections 6/10 of the Protection of Children from Sexual Offence Act, 2012 (hereinafter referred to as 'POCSO'), registered at Police Station-Baba Haridas Nagar.CRL.A. 1013/2018 Page 1 of 29By the way of the impugned judgment dated 27.04.2018, Mahabir Mehto (hereinafter referred to as 'the appellant') has been convicted for the commission of offences punishable under the provisions of section 506 (Part I) IPC and sections 6/5 POCSO.CRL.A. 1013/2018 Page 2 of 29The facts, as elaborated by the trial court are extracted in extenso, as follows: -In her complaint, the complainant stated that on 02.09.2013, the accused had come to stay with her along with his family consisting of his wife, elder daughter (i.e. the prosecutrix) aged 16 years, younger daughter aged 4 years and son aged 8 years.She alleged that on 03.09.2013, when the prosecutrix was doing household chores, she noticed an unusual bulge in her belly.Upon being inquired, the prosecutrix revealed to her that the accused had been establishing physical relations with her for the last one year by threatening her and that as a result thereof, she had become pregnant.When the complainant confronted the accused about the same, he fled away from the house with his younger daughter.On the basis of the above complaint, FIR under Sections 376/506 IPC was registered against the accused.The prosecutrix was medically examined on the same day.She was found to be having pregnancy of 28 weeks.In her statement, she supported the contents of FIR and disclosed that she had told about the acts of the accused to her mother but she did not do anything as she was of unsound mind.During the course of investigation, Sections 6 and 10 POCSO Act were added.The appellant in his statement under Section 313 of Cr.P.C., whilst denying the case of the prosecution, stated that he had been falsely implicated in the case and further stated that he reprimanded the prosecutrix for having an affair with a boy, living in the neighbourhood, the police at the instigation of the complainant, PW-2, who had grudge against him for refusing to give her a share in his ancestral property, foisted the false case against him.The first issue that warranted adjudication at the trial, was the determination of the age of the prosecutrix, at the time of the commission of the offence.CRL.A. 1013/2018 Page 4 of 29PW14/A) given by the Medical Board, DDU Hospital on the examination of the prosecutrix.As per the said report, the bone age of the prosecutrix was opined about 20-30 years.In his testimony, he deposed as under:In her statement under Section 164 Cr.P.C. dated 07.09.2013, the prosecutrix stated as follows: -"Statement of Km.One day, when I was sleeping, my father came upon me.I pushed him and thereafter, I went to my mother, however, the accused also came there and again he came upon me.Thereafter, my Bua (Aunty) made inquiry from my father, who denied the same and thereafter, my father along with my younger sister went away to Bihar.The police officer called me in the Police Station Baba Haridas Nagar.I along with my Bua went to PS Baba Haridas Nagar and my Bua made a complaint to the police officer.Thereafter, the police officer took me to RTRM Hospital.After medical examination, the police official brought me back to the Police Station and from there, I was taken to Nirmal Chhaya.CRL.A. 1013/2018 Page 21 of 29It is correct that my bua used to visit my house several times.I never told her during those visits the above facts, which I deposed today before this Hon'ble Court.My grandfather used to reside with my uncle, Raju.My grandfather is having properties in village and the same is not yet divided CRL.A. 1013/2018 Page 22 of 29 between his children.I am not aware if my Bua is also having share in the said property.My brother accused Mahabir Mehto was also residing in the same vicinity along with his family.My brother accused Mahabir Mehto used to work as labour.In the month of July, 2013, on day my brother accused Mahabir Mehto come to my house and he requested me to arrange a room in the same house but initially, I did not allow my brother to stay there as a tenant as my brother accused Mahabir Mehto used to take liquor daily and my husband also used to take liquor daily.When my brother insisted me to arrange a room in our house, thereafter, I CRL.A. 1013/2018 Page 23 of 29 allowed him to stay there along with his family.Thereafter, in the month of October, 2013, accused Mahabir Mehto shifted in my house with his family.One day, I noticed the condition of my niece, child victim and on that day, I did not ask anything from her.I also used to work as labourer and I used to leave my house in the morning and return back in the evening.On that day after returning my house, in the evening, I enquired my niece, child victim about her condition, however, on that day, my niece started weeping and disclosed that her father committed rape upon her on several occasions.Thereafter, I along with my niece child victim went to PS Baba Haridas Nagar and made complaint against the accused, which is Ex.PW2/A bearing my thumb impression at pt A. From there, police official took my niece child victim to RTRM Hospital and I also accompanied her to the hospital, where she was memdically examined and the doctor declared that my niece child victim is pregnant.SIDDHARTH MRIDUL, J.By way of the impugned order on sentence dated 14.05.2018, the appellant has been sentenced to undergo imprisonment for life, along with fine Rs.15,000/-, for the offence punishable under section 6 read with section 5(n) of POSCO.In default of the payment of fine, the appellant has been sentenced to undergo simple imprisonment for three months.Further, for the offence punishable under the provision of section 506(Part I), IPC, the appellant has been sentenced to undergo rigorous imprisonment of two years, along with fine of Rs.5,000/-.In default of payment of fine, to further undergo simple imprisonment for one month.All the sentences have been directed to run concurrently.The gravamen of the charge, for which the appellant has been convicted, is for having committed penetrative sexual assault on his CRL.A. 1013/2018 Page 2 of 29 daughter, the prosecutrix, a girl aged about 15 years, at the time of commission of the offence.After completion of the investigation, the charge sheet was filed.It is a matter of record that the prosecutrix gave birth to a male child and that the said child had been given in adoption by the orphanage Sewabharti Matrichhaya.CRL.A. 1013/2018 Page 3 of 29On 08.01.2014, the charge for the commission of offence punishable under Section 6 read with Section 5(n) POCSO Act and Section 506 IPC was framed by the Ld.Predecessor against the accused to which he pleaded not guilty and claimed trial."By way of the order dated 08.01.2014, the charge for the commission of the offence punishable under Section 6 read with Section 5(n) POSCO and Section 506 (Part I) IPC was framed against the appellant, who pleaded not guilty and claimed trial.The prosecution examined 14 witnesses in all to establish their case against the appellant.CRL.A. 1013/2018 Page 4 of 29The trial court having considered the evidence on record, found as follows: -"10.1 In the absence of any document issued by any authority regarding the age of the prosecutrix, the prosecution has relied upon the bone age report dated 09.03.2018 (Ex.The detailed report is Ex.PW14/A, which bears my signature at point A...."In his cross-examination, PW14 expressed his inability to state the exact age of the prosecutrix at the time of her examination and stated that he could neither admit nor deny the suggestion that the prosecutrix was 26 years of age at the time of her examination.The highest rated option available determines the age of a minor conclusively.If the matriculation or equivalent certificates of the child is available, no other evidence can be relied upon.Only in the absence of such certificates, as entry of date of birth in the record of the school first attended by the child is to be relied upon.When no such entry is available, then the reliance can be placed on a birth certificate issued by a corporation or municipal authority or panchayat.It is only in the absence of any of the aforesaid, that Rule 12(3) postulates the determination of the age of the child on the basis of medical opinion.10.4 While considering the scope and nature of the inquiry contemplated under Rule 12 of the JJ Rules, 2007, the Hon'ble Supreme Court has observed in Ashwani Kumar Saxena v. State of M.P., (2012) 9 SCC 750, that the expressions 'prima facie', 'on the basis of physical appearance' or 'documents, if available' used in Rule 12 re- emphasize the fact that what is contemplated is only an inquiry following the procedure laid down under the said rule and not an investigation or trial under the Cr.P.C. It was held that while conducting an inquiry, a hyper-technical approach should not be adopted and if the assessment of age could not CRL.A. 1013/2018 Page 7 of 29 be done, the benefit would go to the child considering his/her age on lower side within the margin of one year.Only in the absence of any matriculation or equivalent certificates, the court need obtain the date of birth certificate from the school first attended other than a play school.Only in the absence of matriculation or equivalent certificate or the date of birth certificate from the school first attended, the court need obtain the birth certificate given by a corporation or a municipal authority or a panchayat (not an affidavit but certificates or documents).The question of obtaining medical opinion from a duly constituted Medical Board arises only if the above-mentioned documents are unavailable.In case exact assessment of the age cannot be done, then the court, for reasons to be recorded, may, if considered necessary, give the benefit to the child or juvenile by considering his or her age on lower side within the margin of one year."Since the offence is alleged to have been committed for one year prior to the lodging of complaint dated 04.09.2013, the age of the prosecutrix at the relevant time comes to about 15 years.The complainant in her complaint dated 04.09.2013 had specified the age of the prosecutrix as 16 years.In the MLC CRL.A. 1013/2018 Page 8 of 29 of the prosecutrix, which was prepared on the same day, her age was also mentioned as 16 years.The statement of the prosecutrix under Section 164 Cr.P.C. was recorded on 07.09.2013, wherein she stated her age as 15 years.The prosecutrix and the complainant have been examined by the prosecution as PW1 and PW2 respectively.In the cross- examination of none of them, the accused had disputed the age of minority of the prosecutrix.PW14/A) of the Medical Board pertaining to the bone age of the prosecutrix was filed.It was only during the cross-examination of PW14 Dr. L.R. Richhele, who was examined by the prosecution to prove the report Ex.PW14/A, that the accused for the first time disputed that the prosecutrix was a child at the relevant time by putting a suggestion to the effect that she was 26 years old at the time of her examination by the Medical Board.Being the father of the prosecutrix, her age was within the special knowledge of the accused.The very fact that the accused neither disputed the age of the prosecutrix during the course of entire trial nor produced any material to dislodge the case of the prosecution that the prosecutrix was a minor at the relevant time goes to show that the challenge to the age of the prosecutrix at the belated stage was nothing but an afterthought with a view to avoid the rigour of the POCSO Act and take advantage of the wide range of the bone age (i.e. 20-30 years) of the prosecutrix opined by the Medical Board.CRL.A. 1013/2018 Page 8 of 2910.7 Considering the above, the contention of the defence counsel that the provisions of the POCSO Act would not apply to the present case is found to be devoid of any substance."The above findings arrived at by the trial court, have not been assailed before us on behalf of the appellant.Therefore, we have no hesitation in CRL.A. 1013/2018 Page 9 of 29 finding ourselves in agreement with the trial court, when it returned finding to the effect that the prosecutrix was a minor at the time of the commission of the offence.CRL.A. 1013/2018 Page 9 of 29The trial court, thereafter, proceeded to appreciate and evaluate the testimony of the prosecutrix, which constituted the foundation of the prosecution's case.The trial court, upon careful consideration of the evidence on record and in particular the testimony of the prosecutrix, returned a finding that the prosecution has succeeded in proving the guilt of the accused beyond reasonable doubt for the commission of the offence punishable under Section 6 read with Section 5 of the POCSO, predicated on the reasoning elaborated as under:-Admittedly, the accused is the father of the prosecutrix.It is also not in dispute that at the relevant time, the prosecutrix along with her mother and younger siblings was residing with the accused.As per the MLC dated 04.09.2013 of the prosecutrix, which has been proved by PW-5 Dr. Sidhi Sainik as Ex.PW5/A, she was having the pregnancy of 28 weeks at the time of her medical examination.Now the question which requires to be adjudicated is whether the accused was responsible for the penetrative sexual assault on the prosecutrix.12.1 The prosecutrix is the sole witness of the commission of the act of penetrative sexual assault on her.In her testimony recorded on 19.02.2014, the prosecutrix (PW1) deposed that she along with her parents and two siblings used to reside in a rented accommodation; that CRL.A. 1013/2018 Page 10 of 29 the accused used to work as a mason and that her mother is not mentally sound and is deaf and dumb; that about one year ago, when she was sleeping, the accused tried to force himself upon her; and that she pushed him and went to her mother but the accused came there and after extending threat to kill her, he committed rape on her.She further deposed that after the said incident, the accused used to commit rape on her on every day and that when the landlord came to know about the same, he got the house vacated.The prosecutrix also deposed that they shifted to the house of her paternal aunt (bua) i.e. the complainant and that when her aunt saw her condition, she suspected that some wrong act had been committed with her and took her to RTRM Hospital, where the doctor told that she was having pregnancy of seven months.She further deposed that when her aunt confronted the accused with the same, he denied that he was responsible for it and went away to Bihar alongwith his younger daughter and that thereafter, her aunt made complaint to the police.CRL.A. 1013/2018 Page 10 of 2912.2 The prosecutrix was cross-examined by the accused.In her cross-examination, she admitted that she did not know the dates or months when the accused committed rape on her and that the complainant had visited her house on several occasions but she did not disclose about the acts of the accused to her during the said visits.However, she denied the suggestions that she was having friendly relations with a boy, who got her pregnant and that when the accused came to know about the same, he had scolded her and for the said reason, she had named him as the accused.In such a scenario, especially when she did not get any support from her mother, the possibility that she could not muster courage to disclose about the acts of the accused to the complainant, who is the sister of the accused, can not be ruled out.In fact, it can be seen from the deposition of the prosecutrix (PW1) that on 03.09.2013 also, she had revealed about the acts of the accused to the complainant only when the complainant had become suspicious and asked her about her physical condition.Since the prosecutrix was having a pregnancy of about seven months at that time and her pregnancy must have started showing, she had no option but to confide in the complainant.Considering the facts and circumstances, the conduct of the prosecutrix appears to be quite natural.12.5 The counsel for the accused further contended that the uncorroborated testimony of the prosecutrix can not form the basis for holding the accused guilty.He argued that during the relevant time, the mother of the prosecutrix was also residing in the same house and therefore, she would have been the best witness to throw light on the allegations against the accused.Pooja D/o Mahavir Mehto R/o House No.28, Surekpur Road, Gopal Nagar, Najafgarh, Delhi, aged 16 years:Muzaffarnagar, Bihar 6-7 _ ` CRL.A. 1013/2018 Page 20 of 29 , , ^ f @ \ ` f - @ rape @ 6-7 2/9/13 @ 4 "CRL.A. 1013/2018 Page 20 of 29In her testimony recorded on 19.02.2014, the prosecutrix deposed as under: -" 19.02.2014 (In Camera Proceedings) PW-1, Child Victim, aged 16 years (cited at serial no.1 in the list of the witnesses) On SA ....... XXX...About one year back one day an altercation had taken place between my father and my grandfather.Thereafter, we vacate the said house and shifted to another house in Najafgarh, which had three rooms.However, we ever staying in a simple room.When I objected to it, the accused extended threat saying that he would kill me and he committed rape upon me forcibly.After that, my father used to commit rape upon me every day.When our landlord came to know this fact, he instructed us to vacate the house and thereafter, we vacated the said house.Thereafter, we shifted to the house of our Bua (Aunty), who was also residing near Om Dairy at Najafgarh.On seeing my condition, my Bua (Aunty) suspected that some wrong act was committed with me and thereafter, my Bua(Aunty) took me to RTRM Hospital, Jaffarpur for my medical examination.After my medical examination, the doctor told us that CRL.A. 1013/2018 Page 21 of 29 I was having pregnancy of seven months.On 07.09.2013, the police officials took me to Dwarka Courts from Nirmal Chhaya and my statement was recorded there by the Ld.MM At this stage, one envelop with the seal of MG is taken out from judicial file.Child victim correctly identified her thumb mark on her statement at point A, B, C & D and proceeding U/s 164 Cr.PW1/A.At this stage the child victim has been asked to identify the accused, who did wrong act with her (The accused is standing behind a curtain and is unable to see the child victim and he has been further asked to close his eyes.However, child victim has been asked to identify the accused from the parting between the curtain) After seeing the accused through the parting between the curtain, child victim was correctly identified the accused present behind the curtain as her father, who had committed rape upon her and had been made her pregnant.I am also not aware whether Bua was also asking for her share in the said property.I am also not aware whether my father was against the demand of my Bua of getting share from ancestral property.It is wrong to suggest that due to above reason, my bua instigated me to implicate my father in false case of that I have deposed falsely.It is wrong to suggest that accused never pregnant me and the child does not belong to the accused."CRL.A. 1013/2018 Page 22 of 29Although the sole testimony of the prosecutrix, as aforestated, is sufficient by itself to sustain the conviction of the appellant, subject to it being reliable and having ring of truth in it, in view of the asseverations on behalf of the appellant that, contradictions arise from a conjoint reading and the appellant's statement that he was falsely implicated for denying PW-2, a share in their ancestral property; it is considered appropriate and necessary to peruse and appreciate the testimony of PW-2, the Bua of the prosecutrix, The testimony of PW-2 is as follows: -"19.02.2014 (In Camera Proceeding) PW2, Bua (Aunty) of the child victim (mentioned at serial no.2 in the list of witnesses).On SA I along with my family is staying at Gopal Nagar, Najafgarh for the last 8 years as tenant.From the hospital, we along with police official returned back to Baba Haridas Nagar Police Station and my niece child victim was shifted to Nirmal Chhaya.On the same day, when police official visited our house, in search of accused Mahabir Mehto, he had already left our house.CRL.A. 1013/2018 Page 23 of 29I am aware of the fact that my niece child victim delivered male baby in DDU Hospital.Today, accused Mahabir Mehto is present in the court(the witness has correctly identified the accused) XXXXX By Sh.L.S. Gautam, Ld. Counsel for accused.My father is having some property in his native place.Till date the said property is not divided among his children.I am not interested in my share in the property of my father.It is wrong to suggest that I demanded my share from my father and the accused strongly opposed the same.I had grudge against him.I never visited the house of the accused and since then, year back, quarrel/fight took place between me and accused and since then, I was not having visiting terms with the accused.It is wrong to suggest that child victim did not disclose anything against the accused or that the accused was not responsible for her condition or that she was having relation with one boy and accused opposed the same and scolded the child victim and this fact came in my knowledge or that I instigated the child victim to name the accused as culprit or that I implicated the accused in false case or that I am deposing falsely.I went to the locality of the accused, where he was residing to enquire about the truth and to know the real person, who was responsible for the condition of child victim.It is wrong to suggest that I have deposed falsely.CRL.A. 1013/2018 Page 24 of 29We have heard learned counsel appearing on behalf of the parties and given our anxious consideration to the entire evidence on record.Our finding, in this regard, in addition to the evidence on record, including the ossification test conducted on the prosecutrix, is strengthened by the circumstance that, the appellant did not, at any stage of trial or before us in the present appeal, dispute that the prosecutrix was not a child at the relevant time.b) The prosecutrix was 28 weeks pregnant at the time of her MLC Ex.CRL.A. 1013/2018 Page 25 of 29c) The version of the prosecutrix that, the appellant had committed penetrative sexual assault on her, has remained constant throughout.d) The defence of the accused to the effect that the prosecutrix;was having an affair with a boy living in the neighbourhood, who impregnated her, and is being falsely implicated in the present case, upon reprimanding the prosecutrix for the same; is completely untenable and vacuous, inasmuch as, neither the CRL.A. 1013/2018 Page 26 of 29 identity of the boy has been disclosed at any stage nor has any material been produced on the record to substantiate the defence.CRL.A. 1013/2018 Page 26 of 29e) The submission of the appellant that, he was falsely implicated by his sister PW-2 , since he refused to give her a share in the ancestral property, fails to impeach the latter's testimony, for the reason that, neither did the appellant examine his father, to substantiate his defence, nor did he produce any other cogent material in this behalf.A. 496/2015, decided on 23.04.2019]However, there shall be no order as to costs.The Trial Court Record be sent back forthwith.A copy of this judgment be communicated to the appellant through the Superintendent, Tihar Jail and also be sent for updation of the records. .

Sections cited: Section 506 in The Indian Penal Code, Section 376 in The Indian Penal Code