1. This is an appeal, preferred from jail, by the accused-appellant, against the judgment and order, dated 10.8.2017, passed by the learned Special Judge, Jorhat, in Special Case No. 7/2015, convicting and sentencing the accused-appellant, under Section 376 of the IPC, to rigorous imprisonment for 10 years and to pay a fine of Rs. 10,000/- and, in default of payment of fine, to suffer rigorous imprisonment for 6 months.

2. The case arose out of an FIR, dated 7.4.2017, marked Ext. 1, lodged by the PW2, Ajit Nayak, alleging therein that the accused-appellant committed rape on her daughter causing pregnancy to her. There was a "village meeting" where the accused-appellant was present and was asked to take the victim with him which he did not do. On being advised by the villagers, the FIR was lodged by the informant, aforesaid. The accused-appellant was apprehended by the villagers and handed over to the police.

3. On receipt of the FIR, Teok Police Station registered a case, being No. 80/2013, under Section 376 of the IPC read with Section 8 of the Protection of Children from Sexual Offences Act (hereinafter referred to as POCSO Act).

4. The investigating police officer carried out the investigation, collected evidence, got the statement of the victim recorded under Section 164 of the Cr.PC, and also got her examined by a doctor, and after completion of the investigation, laid the charge-sheet under Section 376 of the IPC read with Section 8 of the POCSO Act.

5. On receipt of the case by the learned Sessions Judge, on being committed, in due course, and on appearance of the accused-appellant, a formal charge against the accused-appellant was framed under Section 376/511 of the IPC as well as under Section 8 of the POCSO Act.

6. In this case, the prosecution examined as many as 6 (six) witnesses including the Investigating Police Officer and the Medical Officer.

7. After completion of trial, the judgment appealed against, was pronounced, convicting and sentencing the accused-appellant, as indicated above.

8. I have heard Mr. B. Prasad, learned Amicus-curiae for the accused-appellant as well as Mr. B.J. Dutta, learned Additional Public Prosecutor for the state respondent.

9. I have also perused the record of the learned trial court including the evidence available therein.

10. Before this court proceeds to take up the case on merit, on the basis of the evidence on record, let us look into the provisions of Penal law, which would be applicable in the instant case.

11. The charge, in this case was framed under Section 8 of the POCSO Act also. The learned trial court of Special Judge, Jorhat, in paragraph-16 of the judgment, held the victim to be a minor on the basis of the evidence of the Medical Officer. I have perused the evidence of the Medical Officer. It is evident from the record that to establish the age of the victim, there is no evidence led by the prosecution except that of the Medical Officer, examined as PW5. The learned trial court also indicated in the aforesaid paragraph that neither any birth-certificate nor any school certificate has been available to ascertain the age of the victim and that the prosecution also relied upon the Ext.2, which is the medical examination report of the victim. In the medical report, Ext.2, the victim is stated to be above 16 years and below 18 years of age. It is a settled proposition of law that the age determined by ossification test or radiological test, can be 2 years plus minus. In the instant case, Ext.2 makes it clearly appear, that the victim was, at the relevant point of time, aged between 16 to 18 years, and if, 2 years added with 18 years, then it can be unhesitatingly held that the victim was a major at the relevant time of occurrence, and therefore, provisions of POCSO Act is not applicable in the instant case.

12. Therefore, the court is to look into the evidence to find out whether any offence under Section 376 of the IPC has been committed or not, and to arrive at