1. The appellant (hereinafter referred to as “the accused) is convicted for offence punishable under section 452 of the Indian Penal Code (“IPC” for short) and sentenced to suffer rigorous imprisonment for a period of three years and to payment of fine of Rs. 500/-, and is convicted for offence punishable under section 376(2)(i) of IPC and is sentenced to suffer rigorous imprisonment for a period of ten years and to payment of fine of Rs. 1,000/. The appellant is further convicted for offence punishable under section 5 read with section 6 of the Protection of Children from Sexual Offence Act (“POCSO” for short), for which offence no separate sentence is imposed. This judgment and order of conviction dated 15.3.2016 delivered by the learned the Additional Sessions Judge, Washim in Special Session Trial 60 of 2014, is assailed in appeal.

2. Heard Shri S.S. Jaiswal, the learned counsel for the accused and Shri A.V. Palshikar, the learned Additional Public Prosecutor for the respondent.

3. Indubitably, the victim is mentally challenged. Her mother Ashabai (PW 2) lodged oral report (Exh. 26) on 11.8.2014. The gist of the oral report is that the PW 2 is resident of village Khadi and has three daughters, one daughter is married, the elder daughter is suffering from some mental ailment and the third daughter–victim is mentally challenged. PW 2 and her elder daughter used to go for labour work leaving the victim at home. The victim used to spend time at the house of the nephew of the informant Balu after having her lunch. The husband of PW 2 is employed at Pune.

4. PW 2 left her house at 9.00 to 9.30 a.m. on 10.8.2014 instructing the victim to have lunch and go to the house of Balu. PW 2 and her elder daughter returned between 7 to 7.15 p.m. The elder daughter was send to the house of Balu. A neighbor Kamlabai (PW 3) and her daughter Chhakuli informed PW 2 that when the victim was alone in the house in the morning, the accused entered the house and was molesting the victim, who raised alarm. Chhakuli went to investigate and saw the accused forcing himself on the victim. Chhakuli narrated the incident to her mother Kamlabai. Kamlabai went to the house of victim and on seeing her, the accused fled. PW 2 then went to the house of nephew Balu to fetch the victim. At that time, the mother in law (PW 4 Anjanabai) also narrated the said incident to PW 2. The victim conveyed to PW 2 by signs that the accused subjected her to sexual intercourse. Since there was no male member in the house and due to fear and poverty, PW 2 lodged report on the next day.

5. On the basis of the said report offence under section 376(2) (i)(l), 452 of IPC and under section 5 (k) read with section 6 of POCSO Act was registered against the accused. Investigation ensued upon completion of which charge sheet was submitted before the Special Court. The learned judge framed charge against accused for offence punishable under section 452, 376, 2(i)(1) of IPC, 5(k) read with section 6 of POCSO Act and under section 3(i) (xi), 3(i)(xii) of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act. The accused abjured guilt. His defence is of false implication due to a dispute with PW 2 on the issue of payment of labour charges.

6. The learned counsel for the accused Shri. S.S. Jaiswal, at the very outset, strenuously urged that since the prosecution failed to establish that the victim was aged less than 18 years on the date of the incident, the provisions of POCSO Act are not attracted. The submission is, that the mother of the victim (PW 2) has deposed that the age of the victim was 14 years approximately. Ossification test would reveal that the age of the victim was more than 18 years. I deem it appropriate to deal with the said submission before discussing the other issues which fall for determination.

7. Concededly, there is no documentary evidence placed on record to prove the age of the victim. The oral evidence of PW 2, which is an approximation, is seri