JUDGMENT :

ARVIND SINGH CHANDEL, J.

1. This appeal has been preferred against judgment dated 30.8.2014 passed by the Additional Sessions Judge, Gariyaband in Sessions Trial No. 48 of 2013, whereby the Appellant has been convicted and sentenced as under:

2. Facts of the case, in short, are that at the time of alleged offence, the victim (PW-7) was a deaf, dumb and mentally retarded girl of age of about 16 years. According to the entries of kotwari register (Article 1/Ex.P1C), her date of birth is 7.2.1997. According to the case of prosecution, on 1.9.2013, she went to attend a religious program along with her mother Bhagwati (PW-6) at Nayapara. At about 10 p.m. she told her mother by hints that she was going to attend the call of nature. After sometime, Bhagwati (PW-6) tried to search out the victim, but she did not find her nearby. Thereafter, a search for her was made, but she was not found. After sometime, she was seen weeping and coming back from towards the jungle. The Appellant was also coming behind her. On being asked, the victim told by hints that the Appellant had committed rape with her. Thereafter, First Information Report (Ex.P18) was lodged by Bhagwati (PW-6) on 2.9.2013. The victim was medically examined by Dr. B. Bara (PW-3). She gave her report (Ex.P6) in which she found that hymen of the victim was ruptured. Two abrasions were present in between labia minora and labia majora. Blood was oozing out on being touched on the ruptured hymen. The victim was complaining of pain in her private part. According to the doctor, sexual intercourse was committed with the victim within 24 hours of the examination. To determine age of the victim, her radiological examination was conducted. Radiological test report is Ex.P4 in which it was found that the victim’s radiological age was 15 years. Statement of the victim was recorded under Sections 161 and 164 of the Cr.P.C. statements of other witnesses were also recorded under Section 161 of the Cr.P.C. On completion of the investigation, a charge-sheet was filed against the Appellant. The Trial Court framed charges against him.

3. To bring home the offence, the prosecution examined as many as 16 witnesses. Statements of the Appellant was also recorded under Section 313 of the Cr.P.C. in which he denied the guilt, pleaded innocence and false implication. No witness has been examined in his defence.

4. On completion of the trial, the Trial Court convicted and sentenced the Appellant as mentioned in 1st paragraph of this judgment. Hence, this appeal.

5. Learned Counsel appearing for the Appellant submitted that there is no conclusive evidence on record to show that at the time of alleged incident the victim was below 18 years of age. It was further submitted that entries of the kotwari register (Article 1/Ex.P1C) show that name of the child who took birth is Lukeshwari, but that is not the name of the victim. From the statement of the parents of the victim, it also appears that they have 3 children. Therefore, it cannot be ruled out that Lukeshwari would be their other child. Therefore, the kotwari register does not support the case of the prosecution. It was further argued that radiological age of the victim is stated to be 15 years which also carries error of margin of 3 years on both sides and, therefore, age of the victim becomes 18 years. But, her age was below 18 years at the time of incident, no evidence is available in this regard. Therefore, conviction of the Appellant under Sections 4 and 6 of the Pocso Act is not sus