A.S. Pachhapure, J.

1. The appellants have challenged their conviction and sentence for the offence punishable under Section 376 r/w. 34 IPC on a trial held by the learned Sessions Judge, Chikkamagaluru.

2. The facts reveal that P.W. 11-victim is said to be less than 17 years of age and on 04.07.2012 she submitted a complaint to the Police alleging forcible sexual intercourse by accused 1 and 2 at the first instance and by the 3rd accused at the later occasion. After the incident, the menstrual cycle stopped and when she was taken to the hospital for check-up, she was said to be pregnant. In the circumstances, as revealed by her she disclosed the name of the appellants, who are the persons responsible for the pregnancy and therefore, the aforesaid complaint was filed.

During the course of the investigation, the Investigating Officer got the victim examined by the doctor-P.W. 12. The report was secured. The witnesses were examined. The property extract was secured. The sketch of scene of occurrence was drawn. Her photograph was taken. The birth certificate of the victim was collected. The seized articles were sent to the opinion of the experts. After completion of the investigation, charge-sheet was laid against the accused for the offence punishable under Section 376 r/w. 34 IPC.

During the trial, the victim deliver a child. DNA test of the child was done. The report-Ex. P28 was secured. The prosecution examined P.Ws. 1 to 14 and got marked the documents Exs. P1 to 31 and M.Os. 1 to 9. After recording the statement of the accused, no defence evidence was lead and the trial Court heard counsel for the parties and on appreciation of the material, convicted the appellants for the aforesaid charge and ordered them to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 10,000-00 each with default sentence. Aggrieved by the conviction and sentence, the present appeal is filed.

3. I have heard learned counsel for the appellants and learned High Court Government Pleader for the State.

4. The point that arises for my consideration is;

"Whether the appellants have made out any grounds to interfere in their conviction and sentence for the offence punishable under Section 376 r/w. 34 IPC?"

5. Learned counsel for the appellant submits that there is no evidence for the charge under Section 376 r/w. 34 IPC and the conviction is improper and illegal. It is also his submission that there is long delay in lodging the complaint. The DNA test reveals that none of the appellants are the biological father of the child born during the pendency of the trial and therefore, he submits that the conviction cannot be sustained in law.

On the other hand, learned High Court Government Pleader supports the Judgment and Order of the trial Court and submits that there is ample material to sustain the conviction and sentence.

6. Ex. P10 is the complaint that has been lodged by the victim-P.W. 11. As could be seen from the averments in the complaint, it is stated by her that she was dragged by appellants 1 and 2 to a garden land and the 1st accused committed forcible sexual assault and thereafter the 2nd accused committed the said act. She also states that a week earlier to the complaint, the 3rd accused committed forcible sexual assault and it was seen by P.W. 2-Manjula, her aunt. As could be seen from the allegations in the complaint, the facts relating to the act of forcible sexual assault are not stated.

That apart, the victim is P.W. 11 in her evidence reveals the only statement that she was "sexually assaulted" by the accused. What is "sexual assault" has not been stated by the victim in her evidence. In fact, the words "sexual assault" are not defined anywhere in the Indian Penal Code, but they are referred to under the Protection of Children from Sexual Offences Act, 2012 [hereinafter referred to as "the Act" for short] and Section 7 defines a "sexual assault" as under:

"Sexual Assault.-Whoever, with sexual intent touches the vagina, penis,