The reliability of child witnesses' testimony and the rejection of the juvenility claim based on the Ossification Test and the accused's failure to raise the plea during trial.

JUDGMENT :

M.S. SONAK, J.

1. Heard Mr. A.V. Pavithran, learned counsel for the appellant appointed under the Legal Aid Scheme and Mr. Mahesh Amonkar, learned Additional Public Prosecutor for the State.

2. This appeal is directed against the Judgment and Order dated 23.07.2015 made by the learned Children's Court for the State of Goa at Panaji in Special Case No. 69/2010 by which the learned Children's Court convicted the appellant-accused for an offence under Section 2(y)(i) and 2(y)(ii) punishable under Section 8(2) of the Goa Children's Act, 2003 (said Act) and sentenced him to undergo Rigorous Imprisonment for a term of ten years and directed him to pay fine of Rs. 2 lakhs, and in default to undergo Simple Imprisonment for one year for the offence under Section 2(y)(i) punishable under Section 8(2) of the said Act and to a sentence of Rigorous Imprisonment for a term of three years and pay a fine of Rs. 1 lakh and in default to undergo Simple Imprisonment for six months for the offence under Section 2(y)(ii) punishable under Section 8(2) of the said Act. The substantial sentences of imprisonment were directed to run concurrently. The accused was also granted the benefit under Section 428 of the Criminal Procedure Code (Cr.P.C.).

3. The case of the prosecution is that before 09.10.2010, near Bambolim beach, the accused committed grave sexual assault on the minor victim girl by inserting his finger in her private part and also by inserting his private part in her mouth. During the same period and at the same place, the accused committed sexual assault on the minor victim boy by showing his private part and touching his private part to the private part of the victim boy.

4. Initially, the Children's Court, framed the charge on 16.03.2011 alleging the commission of offence under Section 2(y)(ii) of the said Act. However, as the evidence progressed, the learned Children's Court, framed an additional charge on 29.07.2013 alleging commission of offence under Section 2(y)(i) of the said Act as well. The prosecution in support of its case examined eleven witnesses. The statement of the accused was recorded under Section 313 of the Cr.P.C. Despite opportunity, the accused neither examined himself nor led any defence evidence. By the impugned Judgment and Order the accused has been convicted and sentenced as aforesaid. Hence the present appeal.

5. Mr. Pavithran, learned counsel for the appellant-accused at the outset submits that the accused was a minor i.e. less than 18 years of age on the date of the commission of the alleged offences and therefore, the Children's Court had no jurisdiction in the matter. He relies on Rule 12(3)(b) of the Juvenile Justice (Care and Protection of Children) Rules, 2000 (said Rules) in this regard. He also relies on Darga Ram alias Gunga vs. State of Rajasthan, (2015) 2 SCC 775, Mukarrab and Others vs. State of Uttar Pradesh, (2017) 2 SCC 210 and Abuzar Hossain alias Gulam Hossain vs. State of West Bengal, (2012) 10 SCC 489 in support of his contentions.

6. Mr. Pavithran submits that the testimony of the doctor who carried out the Ossification Test was never put to the accused when recording his 313 Cr.P.C. statement. He, therefore, submits that such evidence ought not to have been relied upon by the Children's Court. In the absence of such evidence, the prosecution has not established beyond a reasonable doubt that the accused was more than 18 years of age on the date of the commission of the alleged offences. Mr. Pavithran submits that in such circumstances the accused is entitled to be acquitted in the matter.

7. Mr. Pavithran pointed out the contradictions, omissions, and exaggerations in the testimony of PW-1 (minor victim girl) and PW-4 (minor victim boy) to submit that the testimony of the child victims is not at all reliable. He submits that in any case, the testimony of PW-1 and PW-4 ought not to be relied upon without corroboration from independent sources. He submits that since there is no corroborat