JUDGMENT :

V.M. Deshpande, J.

1. By the present appeal, appellant is challenging judgment and order of conviction dated 22.11.2017 passed by learned Additional Sessions Judge-2, Akola in Sessions trial No. 114/2016, whereby appellant was found guilty for an offence punishable under section 4 of the Protection of Children From Sexual Offences Act, 2012 (POCSO Act) and under section 376(2)(i) of the Indian Penal Code (IPC). Appellant is directed to suffer rigorous imprisonment for 10 years for committing offence punishable under section 4 of the POCSO Act and also directed to pay fine amount of Rs. 3,000/-, with default clause. Though the appellant was found to be guilty for the offence under section 376(2)(i) of the IPC, no separate sentence is awarded for said offence.

2. I have heard Mr. Sirpurkar, learned Counsel for appellant and Mr. Ghodeswar, learned A.P.P. for State in extenso. I have also perused record and proceeding and notes of evidence.

3. The only point that is raised before this Court by learned Counsel for the appellant is that prosecution has utterly failed to prove age of the victim. It is the submission that for want of admissible evidence, it would be an error in recording a finding that the victim was child within the meaning of Clause 2(d) of the POCSO Act and/or the victim was below age of extending consent as envisaged in section 375 of the IPC. In order to buttress his submissions, he relied on various reported cases of this Court as well as Hon'ble Apex Court. He submitted that conduct of the victim shows that she was a consenting party for sexual relations and if the prosecution fails to prove her age beyond reasonable doubt, benefit of doubt must be extended in favour of appellant.

Per contra, learned A.P.P. would submit that prosecution has proved date of birth of victim as 1.7.2001 and therefore on the day of incident, she was a "Child" within the meaning of POCSO Act. He also submitted that there cannot be any doubt about sexual relations in between appellant and victim girl in view of Exh. 66, DNA report which shows that appellant is biological father of baby delivered by victim girl. He, therefore, prays for dismissal of the appeal.

4. The prosecution has examined in all 8 witnesses. Saptafula (PW1), mother of victim has lodged oral report Exh. 25 on 21.3.2016 on the basis of which crime was registered at Police Station, Balapur initially for an offence punishable under sections 363, 366-A of the IPC.

5. Victim is PW 2. Ravindra Masne (PW3) is Head Master, who has proved extract of admission register and certificate to show that date of birth of the victim is 1.7.2001. Dr. Dinesh Naitam (PW4) is a Dentist, who proved the age certificate, Exh. 34, Dr. Subhash Gujarkar (PW5) examined the victim, Dr. Kanchan Bhuibhar (PW6) has done Sonography and gave Sonography report Exh. 40, Dr. Amol Ravankar (PW7) has examined accused and extracted his blood sample for DNA and Manisha Raut (PW8) is the Investigating Officer.

6. Learned Judge of Court below acquitted the appellant of the offence punishable under section 363 and 363-A of the IPC. In the present case, in view of DNA report Exh. 66, there cannot be any second opinion about establishment of sexual relations by appellant with victim girl since the victim girl, after full grown pregnancy, delivered a baby and appellant was found to be biological father of the said baby.

7. Since the only question and submission that is raised before this Court by the appellant is regarding age of the victim, this Court is restricting this judgment only to that extent to avoid unnecessarily bulkiness of judgment.

8. Appellant is convicted for the offence punishable under section 4 of the POCSO Act. This Court in (Ravi Anandrao Gurpude Vs. State of Maharashtra, thr. PSO P.S. Bhisi), (Coram: B.R. Gavai & V.M. Deshpande, JJ.) reported in 2017 All.M.R.(Cri.) 1509 found that prosecution is under bounden duty to prove that victim is "Child" and unless the prosecution successfully estab