Meenakshi Madan Rai, J.

1. The Appellant is before this Court assailing the Judgment and Order on Sentence of the learned Special Judge (POCSO), South Sikkim at Namchi, in Sessions Trial Case No. 5 of 2016, both dated 20.09.2017. The impugned Order on Sentence handed out, rigorous imprisonment of ten years under Section 5(l)/6 of the Protection of Children from Sexual Offences Act, 2012 (for short ‘the POCSO Act’), rigorous imprisonment of ten years under Section 376(2)(n)/376(2) of the Indian Penal Code, 1860 (for short ‘the IPC’) and under Section 354(B) of the IPC, rigorous imprisonment of three years and a fine of Rs.5000/- (Rupees five thousand) only, with a default clause of imprisonment. The Sentences were ordered to run concurrently, setting off the period of imprisonment already undergone by the convict.

2. The grounds raised in Appeal are that the age of the Victim was not proved as the parameters laid out for the purposes of arriving at the age of the Victim in terms of the Juvenile Justice (Care and Protection of Children) Rules, 2007, were not complied with. On this count, the attention of this Court was drawn to the ratio of the Hon‘ble Supreme Court in Jarnail Singh vs. State of Haryana, (2013) 7 SCC 263. That, the evidence of PW-2, the Victim‘s father, pertaining to the age of the Victim as likely to have been above eighteen years was disregarded by the learned Trial Court. It was also urged that the birth certificate as per the evidence on record was said to be in the possession of the Victim‘s sister at Delhi but no steps were initiated by the Prosecution to obtain the document as evidence. That, Exhibit-13, the report of the Radiologist is inconclusive since the experience of the Radiologist was not placed before the Court apart from which the expert failed to consider factors such as the environment while estimating the bone age of the Victim. Urging for an acquittal of the Appellant, it was contended that the alleged sexual act was consensual as evident from the fact that on the Appellant calling the Victim to various locations, she of her own free will complied with his requests. Besides, PW-14, the Gynaecologist who examined the Victim, opined that the vaginal swab of the Victim did not contain any motile or non-motile spermatozoa thereby revealing no evidence of recent sexual assault on the Victim and also opined that the hymen of the female could be lax due to other physical reasons besides sexual intercourse. In view of the entirety of the evidence, the impugned Judgment and the Order on Sentence be set aside and the Appellant be acquitted.

3. Opposing the arguments of learned Counsel for the Appellant, learned Additional Public Prosecutor drew the attention of this Court to Paragraph 27 of the impugned Judgment wherein the learned Trial Court relying on the decision of Jaya Mala vs. Home Secretary, Govt. of Jammu & Kashmir & Ors. AIR 1982 SCC 1297, held that one can take judicial notice of the fact that the margin of error in age ascertained by Radiological examination is two years on either side. That, on such consideration, the age of the minor Victim could be about sixteen years but below eighteen years at the time of the offence, duly confirmed by the evidence of the minor Victim asserting her date of birth as 13.01.2000. The evidence of the Victim herself would indicate that the appellant had taken her into “Karfectar” jungle where he committed penetrative sexual assault on her. Thereafter, after a week or so, she was again called to another location in Naya Bazaar where once again he committed the act on her, a week later he also violated her at Jorethang. That, there is no reason to doubt the bone age estimation of the Victim as conducted by PW-10, the Radiologist, who had sufficient experience in her field. Agreeing with the finding of the learned Trial Court that the consent of a minor is no consent in the eyes of law, it was canvassed that the Judgment of the learned Trial Court suff