JUDGMENT :

Challenge in this appeal is to the judgment and order of conviction dated 9th October, 2019 passed in Special Case No.4 of 2018 whereby the Appellant was held guilty for the offence under Sections 376(2)(i)(j)(n) and 506 of Indian Penal Code (IPC) and under Sections 4 and 6 of the Protection of Children From Sexual Offences Act, 2012 (POCSO Act). The Trial Court has imposed sentence to suffer Rigorous Imprisonment for 10 years and to pay fine of Rs.20,000/- with default clause, for the offence punishable under Section 6 of the POCSO Act. No separate punishment was awarded for the offence of rape by virtue of Section 42 of the POCSO Act. For the offence punishable under Section 506 of the IPC, accused was sentenced to suffer Rigorous Imprisonment for 1 year along with fine of Rs.5,000. The Trial Court directed that both the sentences shall run concurrently.

2. The accused was in jail during the trial as well as during pendency of this appeal.

3. The prosecution case can be stated in brief that the victim-girl aged 13 years 8 months, was a school going intellectually disabled child of informant lady. The victim-girl missed her menstrual cycle somewhere in the month of June, 2017. After few months i.e. on 10th November, 2017, informant-mother took her to the hospital for said purpose. During examination, it was diagnosed that victim was pregnant. On enquiry, victim-girl disclosed about the incident of forcible sexual intercourse committed by accused on several occasions. Immediately victim’s mother lodged report to the police on the very day i.e. on 10th November, 2017. On the basis of said report, police registered crime and carried investigation. During course of investigation, panchanama regarding place of occurrence was drawn. Clothes of the victim were seized. Accused was arrested. Birth certificate of victim was collected. Samples were extracted for DNA profile. During mean time, the victim delivered a male child on 10th March, 2018. Again samples of new born baby were extracted for DNA testing. After completing the usual formalities of investigation, final report was came to be filed.

4. In order to establish the guilt, prosecution has examined as many as 15 witnesses. Prosecution also banks upon several documents. On the basis of oral as well as documentary evidence, the Court below held that victim was a ‘child’ within the meaning of Section 2 (d) of the POCSO Act, and the prosecution has proved the offence of aggravated form of penetrative sexual assault. The Trial Court has passed the aforesaid sentences for the proved offences.

5. Heard learned Counsel Shri Mane, for the Appellant as well as Mr. Shukle, learned APP for the State and Ms. Lad, learned Counsel for Respondent No.2-victim. Perused entire record as well as reported judgments cited on behalf of Appellant/Accused.

6. Since the accused is charged under the provisions of POCSO Act, it is incumbent on the prosecution to establish that the victim was a child as defined under Section 2(d) of the POCSO Act. The defence has not challenged the age of victim meaning thereby the aspect of minority of victim. It has come in the evidence of prosecution witnesses that victim was 13 years and 8 months of age at the time of occurrence. The prosecution has examined PW-12 - Smt. Minakshi M. Mohite on the point of birth certificate. The prosecution has tendered on record birth certificate issued by competent authority, showing that victim’s date of birth was 27th July, 2004. There is no challenge to the said piece of evidence, therefore, I have no hesitation to hold that victim was below 18 years of age at the relevant time.

7. It takes me to consider the evidence on core issue. Police report has been lodged by victim’s mother (PW-1) on 10th November, 2017. It is her case that victim was her daughter amongst three other. Victim was mentally retired and was studying in 8th standard at the relevant time. She stated that victim has missed her menstruation cycle, therefore she