Nawneet Kumar Pandey, J.—This appeal has been preferred by the appellant under Section 374(2) of the Code of Criminal Procedure for setting aside the judgment of conviction 29.05.2023 and order of sentence dated 31.05.2023 passed by the learned 1st Additional Sessions Judge-cum-Special Judge Children’s Court, Jehanabad, in Children Case No. 03 of 2019, arising out of Jehanabad Mahila P.S.Case No. 55 of 2018, whereby the appellant has been convicted and sentenced as under:—

2. The victim is a minor girl of 7-8 years of the age. The allegation against the appellant, who himself is a juvenile, is that he committed rape/penetrative sexual assault upon the victim.

3. The maternal grand-father of the victim (PW-3) lodged FIR on 21.10.2018 at 8.50.pm, stating therein that on 21.10.2018 at about 2.00 p.m., the appellant who is his covillager was requested to park a motorcycle in courtyard of the informant and thereafter to give the keys to his grand-daughter (the victim). The victim in order to take the keys, went there and the appellant committed rape with her.

4. The FIR was registered under Section 376 of the IPC and Section 4 of the POCSO Act. After the investigation, the charge-sheet was submitted and cognizance was taken. The charges were framed on 23.09.2019 under Section 376(AB) of the IPC and Section 4 of the POCSO Act.

5. Eight prosecution witnesses including, the victim (PW-7), her mother (PW-4), her maternal grand-father (PW-3/informant), her maternal grand-mother (PW-1), the doctors who conducted the medical examinations (PW-5 and 6) have been examined on behalf of the prosecution.

6. The followings are the documentary evidences adduced on behalf of the prosecution.

7. No witness has been examined on behalf of the defense, nor any documentary evidence has been adduced on his behalf.

8. Assailing the judgment of conviction and order of sentence, Mr. Ajay Kumar Thakur, the learned counsel for the appellant has submitted that the appellant is a juvenile. Vide order dated 19.02.2018, the Children’s Court assessed his age as 16 years 8 months. Similarly, the Juvenile Justice Board (hereinafter referred to as ‘the Board’) has also held enquiry and vide order dated 08.12.2021, the Board assessed the age of the appellant as 16 years six months and 14 days. Since the appellant was a juvenile, the preliminary assessment of the appellant was mandated by Section 15 of the Juvenile Justice (Care and Protection of Children Act), 2015 (hereinafter referred to as ‘the Act, 2015’), for assessing the mental and physical capacity to commit such offence and ability to understand the consequences of the offence and the circumstances, in which he committed the offence. The required preliminary assessment was not done by the Board, and without the preliminary assessment, the appellant was tried as an adult by the Children’s Court. It has further been submitted that the failure to conduct preliminary assessment, as required under Section 15 of the Act, 2015, has prejudiced the interest of the appellant adversely, due to which the trial has vitiated.

Section 15 of the Act, 2015 is being extracted hereinbelow:—

15. Preliminary assessment into heinous offences by Board.—(1) In case of a heinous offence alleged to have