V.M. Deshpande, J.

1. Present appeal challenges the judgment and order of conviction dated 29-06-2017 in Special POCSO Case No. 223/2016 by learned Additional Sessions Judge, Nagpur, whereby appellant is convicted for an offence punishable under Section 376 (2) (i) (n) of the Indian Penal Code (IPC) and Sections 5 (i) (ii) (I) punishable under Section 6 of the Protection of Children From Sexual Offences Act (POCSO Act) and sentenced sufferance of rigorous imprisonment of 10 years and payment of fine of Rs. 3,000/-. He is also convicted for an offence punishable under Section 506 of the IPC and he is directed to suffer rigorous imprisonment for two years. Both the sentences were directed to run concurrently. Appellant was in jail since 14-05-2006 hence set off was also granted.

2. I have heard Mr. Patwardhan, learned counsel for the appellant and Mr. Pathan, learned A.P.P. for the State. I have also perused the notes of evidence and various proved documents.

3. It is the submission of learned counsel for appellant that he is falsely implicated in crime. He submitted that the victim girl, being mentally retarded girl, her evidence will have to be excluded in its entirety. He submitted that victim (PW6), who according to the prosecution was also subjected to sexual assault by appellant, has turned hostile, is a pointer towards innocence of the appellant. He submitted that Deoxyribonucleic Acid (DNA) report will have to be excluded since there was no reason for preservation of aborted fetus for DNA testing. Therefore, he submitted that DNA report, Exh.-36 has to be excluded in its entirety from consideration. He relies on the decision in Gopal Natthuji Shreenath vs. State of Maharashtra, (2018) AllMR (Cri) 3399. As per his contention, since the victim is mentally retarded, her evidence has to be excluded. He, therefore, submitted that appeal be allowed and appellant be set at free. According to appellant, there is a delay in lodging the report, which is not explained by the prosecution.

Per contra, Mr. Pathan, learned A.P.P. submitted that DNA report Exh.-36 is a conclusive proof to show that appellant is concluded to be biological father of aborted fetus of victim and said fact is properly considered by the Court below. He submitted that learned Judge of Court below has supplemented good reasons for recording conviction, which may not be upset in the appeal. He prays for dismissal of the appeal.

4. In the present case, charge was framed against the appellant for an offence punishable under the POCSO Act. Therefore, it is obligatory on the part of the prosecution to prove that victim was "Child" within the meaning of Section 2 (d) of the POCSO Act.

Though the age of the girl is not questioned before this Court, the Court cannot absolve itself from determining the said important issue.

5. Mangala (PW1) is mother of victim. She disclosed date of birth of the victim as 29-03-2003. Her submission on oath during her cross-examination is not questioned.

6. During the course of trial, prosecution has examined Krushna Chambhare (PW3), Head Master of Temsana Medium School in which the victim used to take education. Victim's mother also disclosed that her daughter used to take education in the said school and her son is also admitted in the said school.

Head Master Chambhare (PW3) states that he received communication Exh.-17, from the investigating officer demanding bona fide certificate to show date of birth of the victim. During the course of evidence, he brought the original admission register and an attested photocopy of the said is placed on record at Exh.-19. At entry no. 2182, name of the victim appears and her date of birth is shown as 29-03-2003. The victim was admitted in this school in 5th standard and prior to that, she was taking education in Zilla Parishad Primary School, Khedi. In admission register, date of birth of the victim was recorded on the basis of transfer certificate issued by Zilla Parishad Primary School, Khedi.